Concepts and Development of Human Rights Notes | LL.M. Semester 1 | Mumbai University | munotes

The disagreements are the subject. In a statutory paper a disagreement is usually a gap to be resolved. Here the disagreements between the natural lawyer and the positivist, between the first generation and the second, and between Vienna and Bangkok, are the material. A student who learns only one side of each has learned half the paper.

And the examiner asks for authority. The paper MU set on 27 February 2026 carries the instruction "Cite relevant illustration or case laws wherever necessary" in its own rubric. So a concepts paper is still a law paper, and an answer that argues without naming a text is an answer with a hole in it.

What MU actually printed

The whole syllabus for this 4-credit paper is six labels:

Read the numbers in that table again. MU numbers her topics 1, 2, 2, 4, 5, 6. Topic 2 is printed twice, once for Module II and again for Module III, and there is no topic 3. That is not a misprint in this book: it is what the University's own syllabus holds, and this book carries it exactly as she prints it rather than tidying it into a sequence she never published. A student who writes "topic 3" in an answer is citing something that does not exist.

How to use this book

The order is the syllabus order, not alphabetical and not chronological. Module II is where the history lives, so a reader who wants the story of the idea should start at [The Generations Framework: Karel Vasak] and read forward.

The instruments are walked, not summarised. The Universal Declaration is taken across three chapters, article by article; the French Declaration across two; the Right to Development across two; and the two Covenants across eight. That is deliberate. A paper that asks a student to elaborate the rights provided under the Declaration, as MU's did on 27 February 2026, is asking for the articles, and a summary of a summary is what a candidate writes when they have never read it.

And the criticism is given with the doctrine. Every framework in this paper has a serious objection to it, and the objection is set out where the framework is, not saved for a chapter at the end.

What it does NOT mean

This is not a paper on the enforcement of human rights. Complaints, commissions, courts and remedies are Paper III, Protection and Enforcements of Human Rights. What appears here is only what a printed topic reaches.

It is not a paper on any one instrument. The Universal Declaration is central and is not the subject; the subject is the concept and its development.

And it is not a paper about India. India appears where an Indian text is the clearest instance of a general point, and the paper's frame is international.

Quick revision

• Four modules, four questions: what a human right is (I); where the idea came from and how it is classified (II); what rights do in a society (III); and whether they are universal, what the Third World says, and whether a consumer is a rights-holder (IV).
• No Act. The instruments are declarations, covenants and charters; the two Indian statutes appear only because a printed topic reaches them.
• The disagreements are the subject: natural law against positivism, first generation against second, Vienna against Bangkok.
• The examiner asks for authority: the rubric on the paper of 27 February 2026 reads "Cite relevant illustration or case laws wherever necessary."
• MU numbers her topics 1, 2, 2, 4, 5, 6. Topic 2 twice, no topic 3. Carried verbatim throughout this book.
• Instruments are walked article by article, not summarised: the Universal Declaration over three chapters, the French Declaration over two, the Right to Development over two, the Covenants over eight.

Test yourself

1. What are the four questions this paper asks, one per module? Module I asks what a human right is: not which rights exist but what kind of thing a right is, who holds it, who owes the duty that answers it, and what separates it from a moral claim on one side and an ordinary legal entitlement on the other. Module II asks where the idea came from and how it is classified, and its two halves are really one, because the three generations are a classification and the classification is a history running from Magna Carta through the American and French Declarations to the Charter, the Universal Declaration, the two Covenants and the Right to Development. Module III asks what rights do once they are inside a working political society, where the answer depends on sovereignty, globalization, accountability, transparency and who is willing to press a claim. Module IV asks the hard question three times over: whether human rights are universal, what the Third World says about instruments it did not draft, and whether a consumer is a rights-holder.

2. Why does it matter that this paper has no Act? Because it changes what completeness means and what an answer looks like. In a statutory paper the section list is the contract: a student knows what they owe because the University prints a range, and an answer is judged against the words of a provision. Here there is no such list, so the boundary of the paper has to be drawn from the six printed labels and from the instruments those labels are about, which is what this book's syllabus contract does. It also changes the character of the reasoning. A statutory answer applies a provision to facts; a conceptual answer has to state a position and defend it against the strongest objection, because the disagreements between the natural lawyer and the positivist, or between Vienna and Bangkok, are the material rather than gaps in it. What does not change is the demand for authority: the examiner's own rubric asks for illustration or case law wherever necessary.

3. State MU's topic numbering exactly, and say why this book does not tidy it. She prints six topics numbered 1, 2, 2, 4, 5, 6. Topic 1 is Human Rights: Concept, for Module I. Topic 2 is Classification of Human Rights, First, Second and Third Generations: Historical Development, for Module II. Topic 2 appears a second time, for Module III, against Human Rights: Politics and Society. Topics 4, 5 and 6 are Universality of Human Rights, Third World Perspective to Human Rights, and Human Rights and Consumerism, all three under Module IV. There is no topic 3 anywhere. This book carries that verbatim because the syllabus is the contract and a student's answer is marked against what the University published: renumbering the topics into a clean run of six would put a number in an answer that does not appear on her syllabus, and would also hide a real defect from anyone who came to check.

4. Why are the instruments walked article by article rather than summarised? Because that is what the paper asks for and because a summary of a summary is worthless. MU's paper of 27 February 2026 asked candidates to elaborate the various human rights provided under the Universal Declaration of Human Rights, 1948, with special reference to civil and political rights, which is a question about the articles and cannot be answered from a paragraph describing the Declaration in general terms. So this book takes the Declaration across three chapters covering articles 1 to 11, 12 to 21, 22 to 27 and 28 to 30; the French Declaration across two chapters covering its seventeen articles; the Right to Development across two covering its ten; and the two Covenants across eight covering the rights parts of each. The declared scope in this book's instruments file is what makes that a promise rather than an intention, because a coverage check reads the finished chapters and reports any article the book never names.

"Not conditional"

A human right is not a bargain. It is not conditional on the holder paying tax, obeying the law, or belonging to the majority. This is what makes rights counter-majoritarian, and it is why they are put in constitutions and treaties rather than left to ordinary legislation.

"Though its exercise may be limited"

The final element is the one that stops the definition being absurd. Almost every right may be restricted in defined circumstances: by law, for a legitimate aim, and no more than necessary. [Limitation: When a Right May Be Restricted] sets out the test, and [Derogation and the Non-Derogable Core] identifies the handful of rights that cannot be touched even in a public emergency.

The definition in the instruments' own words

The instruments do not define a human right. What they do instead is assert its source, and the assertion is the same in every one of them.

Article 1 of the Universal Declaration of Human Rights 1948: All human beings are born free and equal in dignity and rights. Born, not granted. Equal, not graded.

Article 1 of the French Declaration of the Rights of Man and of the Citizen 1789: Men are born and remain free and equal in rights. Social distinctions may be based only on considerations of the common good. Note remain: the 1789 drafters had already seen the objection that a right could be born and then lost.

The preamble to both Covenants of 1966 recognises that the rights in them derive from the inherent dignity of the human person.

Read the three together and the structure is visible. The instruments do not argue for rights; they assert a source, dignity, and derive rights from it. Whether that is a good enough foundation is the subject of [Human Dignity as the Ground of Rights] and [The Positivist Objection].

The three questions to ask of any claimed right

An examiner setting a problem will describe an interest and ask whether it is a human right. Three questions dispose of most such problems.

Whose is it? If the claim can only be made by a citizen, an employee, a member or an office-holder, it is not a human right, whatever else it is.

Who owes the duty, and what exactly must they do? If no duty-bearer can be named, or the duty cannot be stated as an act or a forbearance, the claim is an aspiration. This is the test that the third generation struggles with and that [Third Generation: The Solidarity Rights] takes seriously.

And can it be taken away by agreement or by vote? If it can, it is a legal right and not a human right.

Worked example

A State provides free legal aid to indigent accused persons, a subsidised electricity connection to farmers, and a pension to former members of its legislature. It withdraws all three from anyone convicted of an offence. Which of the three withdrawals raises a human rights question?

The legal aid. This is a human right. It is an aspect of the right to a fair trial, which belongs to a person because they are a person facing the State's power, and article 11(1) of the Universal Declaration and article 14 of the Covenant on Civil and Political Rights both provide for the guarantees necessary for a defence. Withdrawing it from the convicted is doubly objectionable: it is conditional on conduct, and the person who needs it most is the person facing conviction. Note the structure of the answer: it names the holder, the duty-bearer and the instrument.

The electricity subsidy. Not a human right as such, though the underlying interest may touch one. It is available to farmers, so it is conditional on an occupation; that makes it a benefit. A rights argument is still available at one remove: if the withdrawal is arbitrary or discriminatory it engages equality, and if electricity is a component of an adequate standard of living under article 11 of the Covenant on Economic, Social and Cultural Rights the State's obligation is engaged as to everyone, not as to farmers. The lesson is that a benefit is not a right, and that a benefit may nonetheless be governed by rights.

The legislators' pension. Not a human right at any level. It attaches to an office, which is the definition of a privilege.

What it does NOT mean

A human right is not the same as a legal right. All human rights ought to be legal rights and many are not; many legal rights are not human rights at all. [Legal, Moral, Constitutional and Human Rights] separates the four.

It is not a right that cannot be limited. Almost all of them can be, in defined circumstances and by law.

It is not a right the State grants. The instruments say human beings are born free and equal in rights, and the State's role is to recognise and secure them.

And it is not confined to what the instruments list. The instruments record rights; they do not exhaust them, which is why the Universal Declaration calls itself a common standard of achievement rather than a code.

Quick revision

• The definition: an entitlement belonging to every human being by virtue of their humanity alone, imposing a corresponding duty, not conditional on merit or conduct, incapable of being surrendered by consent or vote, though its exercise may be limited by law for a legitimate aim.
• Five elements, each examinable: the source (humanity, not status), the entitlement (a demand, not an interest), the duty (on the State first, and on others with power), the unconditionality, and the limitability.
• The harsh corollary: a right held by virtue of humanity is held by the convicted, the enemy and the foreigner. A framework that withdrew it from them would be a framework of privileges.
• The instruments assert a source rather than define: All human beings are born free and equal in dignity and rights (UDHR article 1); Men are born and remain free and equal in rights (French Declaration article 1); the rights derive from the inherent dignity of the human person (both Covenants' preambles).
• The three questions for a problem: whose is it; who owes the duty and what exactly must they do; and can it be taken away by agreement or by vote.

Test yourself

1. State the definition and take it apart. A human right is an entitlement which belongs to every human being by virtue of their humanity alone, and not by virtue of citizenship, status, conduct, merit or the grant of any authority; which imposes a corresponding duty on the State and, increasingly, on others with power over the holder; which is not conditional on the holder deserving it; which the holder cannot be deprived of by consent, contract or majority decision; and whose exercise may nonetheless be limited in defined circumstances. The five elements each carry weight. The source is humanity, which excludes anything depending on being a citizen, holding an office, having earned something or being granted a licence. The entitlement is a demand rather than an interest, which requires a duty-bearer who is obliged. The duty falls first on the State because it holds the monopoly of force, makes the law and controls the administration, so it is both the greatest threat and the only body that can secure the right. The unconditionality is what makes rights counter-majoritarian and why they are entrenched in constitutions and treaties. And limitability is what stops the definition being absurd, since almost every right may be restricted by law, for a legitimate aim, and no more than necessary.

2. What is the harsh corollary of "by virtue of their humanity alone", and why can it not be avoided? That the right belongs to the person one most dislikes: the convicted criminal, the enemy combatant, the foreigner without status, the person who denies the rights of others. It cannot be avoided because it follows directly from the source. If the entitlement arises from being human, then any withdrawal based on what a person has done, believes or belongs to is a withdrawal based on something other than humanity, and a framework that made rights depend on such things would be a framework of privileges wearing the vocabulary of rights. The instruments recognise this and say so in their structure rather than only in their preambles: the Universal Declaration provides in article 1 that all human beings are born free and equal in dignity and rights, and its guarantees of fair trial and against torture are drafted precisely for people accused and detained. What the framework does allow is limitation of exercise, by law and for a legitimate aim, which is a different thing from withdrawal of the right.

3. How do the instruments define a human right, and what do they do instead? They do not define it. What they do is assert a source and derive rights from it, and the assertion is remarkably consistent across two centuries. Article 1 of the French Declaration of 1789 provides that men are born and remain free and equal in rights, and that social distinctions may be based only on considerations of the common good; the word remain shows the drafters had already met the objection that a right might be born and then lost. Article 1 of the Universal Declaration of 1948 provides that all human beings are born free and equal in dignity and rights, adding dignity to the 1789 formula. And the preambles to both Covenants of 1966 recognise that the rights in them derive from the inherent dignity of the human person. So the structure of the instruments is: assert dignity, derive rights, then enumerate. Whether dignity is a good enough foundation is a separate question and is the subject of the next chapters.

4. Apply the three questions to a claimed right to a subsidised electricity connection for farmers. Whose is it? It is available to farmers, so it is conditional on an occupation, and an entitlement that depends on what a person does for a living does not belong to them by virtue of their humanity. That answer alone settles that the subsidy is a benefit rather than a human right. Who owes the duty and what must they do? The State owes it, and the content is the supply of a connection at a stated price, which is a determinate duty but one created by policy rather than by the person's humanity. Can it be taken away by agreement or by vote? It can, and a legislature that repealed the scheme would breach no right by doing so. But two rights arguments survive at one remove, and a good answer gives them: a withdrawal that is arbitrary or that targets a group engages equality, and if electricity forms part of an adequate standard of living under article 11 of the Covenant on Economic, Social and Cultural Rights then the State owes obligations about it to everyone rather than to farmers. A benefit is not a right, and a benefit may still be governed by rights.

Where it is stated. The word appears in the preamble to the Universal Declaration, which speaks of the inalienable rights of all members of the human family, and in article 1 of the Declaration on the Right to Development 1986: The right to development is an inalienable human right. [Are Human Rights Inalienable] presses the harder version of the question.

The third mark: indivisible

The claim. There is no hierarchy among human rights. Civil and political rights do not rank above economic, social and cultural rights, or the reverse.

Why the claim had to be made. Because the drafting history denies it. The two Covenants of 1966 split one Declaration into two treaties with two different standards, immediate obligation for one and progressive realisation for the other, and each bloc in the Cold War treated its own half as the real one. [Why There Are Two Covenants] is that story, and indivisibility is the position the international community reached afterwards.

Where it is stated. Vienna paragraph 5 again, and article 6(2) of the Declaration on the Right to Development 1986: All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights.

The fourth mark: interdependent and interrelated

The claim. The rights depend on one another, so that the realisation of one is a condition of the realisation of the others.

The examples do the work here, and a candidate should have two ready.

A vote without literacy. Article 21 of the Universal Declaration gives everyone the right to take part in the government of their country. A person who cannot read the ballot, has never been to school and does not know what the candidates propose holds that right in form. Article 26, the right to education, is what makes it real, so a first generation right depends on a second generation right.

A fair trial without food. Article 11 gives the presumption of innocence and the guarantees of a defence. A person who cannot afford to stop working to attend a hearing, or who pleads guilty to end a remand they cannot survive, has the right and cannot use it.

The reverse direction matters too, and it is the half that is usually left out. Article 25's right to an adequate standard of living is not delivered to people who cannot speak, organise, or vote out a government that fails them, so second generation rights depend on first generation rights just as heavily.

Where it is stated. Vienna paragraph 5, and it is the argument [The Criticism of the Generations Framework] uses against reading the generations as a sequence.

Reading Vienna paragraph 5 properly

The sentence everyone quotes is the first half. The rest of the paragraph is what makes it usable, and a strong answer gives both.

The Declaration provides that all human rights are universal, indivisible and interdependent and interrelated; that the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis; that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

Notice what the middle clause does. Vienna does not deny particularity: it concedes it in almost the same words the Bangkok Declaration used three months earlier, and then makes the duty unconditional anyway. That is the compromise the whole universality debate settled on, and a candidate who quotes only the first clause has quoted the half that was never in dispute. [Vienna 1993 and the End of the Hierarchy] and [The Bangkok Declaration] work both sides.

Worked example

A State argues that in its society the family, not the individual, is the unit of society; that it will therefore guarantee economic and social rights fully but defer political rights until development is complete; and that a citizen may in any event waive her right to approach a court by accepting employment in the public service.

Take the marks in order, because each argument fails against a different one.

Deferring political rights fails indivisibility. There is no hierarchy and no order of realisation. Vienna requires human rights to be treated globally in a fair and equal manner, on the same footing, and with the same emphasis, and article 6(2) of the Right to Development Declaration requires equal attention and urgent consideration to both sets.

It also fails interdependence, and this is the stronger answer. The economic and social rights the State promises to deliver are not deliverable without the political rights it proposes to defer: a population that cannot speak, associate or vote has no way to correct a failure of delivery, which is why the two sets rise and fall together rather than in sequence.

The waiver fails inalienability. A term by which an employee gives up access to a court is not an exercise of autonomy but an attempt to contract out of having the right, and it is void for that reason. Note the distinction the answer must draw: she may decline to sue in a particular case, and she may not agree in advance never to be able to.

And the family argument engages universality in its third sense only. The State is not denying that the rights apply to everyone; it is disputing their content. That is the cultural relativism argument, it is a real argument rather than an evasion, and Vienna's own middle clause concedes that particularity must be borne in mind before making the duty unconditional. [Cultural Relativism] takes it seriously.

What it does NOT mean

Universal does not mean uniform. Vienna itself requires particularities to be borne in mind; what it refuses is that they should defeat the duty.

Inalienable does not mean unlimited. Rights are restricted every day, lawfully.

Indivisible does not mean identical. The two sets of rights genuinely differ in how they are realised; what indivisibility denies is that one ranks above the other.

And interdependent does not mean that no right can be enjoyed until all are. It means that the realisation of each is conditioned by the others, not that the rights arrive as a single parcel.

Quick revision

• Four marks: universal, inalienable, indivisible, interdependent and interrelated.
• Vienna paragraph 5, the whole of it: all human rights are universal, indivisible and interdependent and interrelated; the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis; and while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights.
• Universal has three senses: in application (everyone holds it), in origin (the idea is nobody's property), in content (the same list, understood the same way). Module IV disputes the third.
• Inalienable: cannot be surrendered, taken or forfeited. Not the same as unlimited, and not the same as unwaivable on a single occasion.
• Indivisible: no hierarchy. The claim had to be made because the two Covenants denied it in practice.
• Interdependent: a vote without literacy, a fair trial without food. And the reverse: an adequate standard of living is not delivered to people who cannot speak or organise.
• Also stated in article 6(2) of the Right to Development Declaration 1986: rights are indivisible and interdependent, with equal attention and urgent consideration to both sets.

Test yourself

1. Set out the four marks and where they are stated together. Human rights are said to be universal, in that they belong to every human being everywhere; inalienable, in that they cannot be surrendered by the holder, taken away by a State or forfeited by conduct; indivisible, in that no category of them ranks above another; and interdependent and interrelated, in that the realisation of each is conditioned by the realisation of the others. They are stated together in paragraph 5 of the Vienna Declaration and Programme of Action 1993, which provides that all human rights are universal, indivisible and interdependent and interrelated, that the international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis, and that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. Article 6(2) of the Declaration on the Right to Development 1986 states indivisibility and interdependence in nearly the same terms and adds that equal attention and urgent consideration should be given to both sets.

2. Distinguish the three senses of universality and say which one Module IV is about. Universality in application means the right belongs to everyone rather than to a class, which follows from the definition of a human right and is barely contested. Universality in origin means the idea itself is not the property of one civilisation, which is contested and is why a chapter on ancient traditions belongs in a modern paper. Universality in content means the same list of rights, understood in the same way, applies everywhere, and this is the sense the whole of Module IV argues about. The Bangkok Declaration's paragraph 8 disputes it by asking that human rights be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds. Keeping the senses apart matters because most bad answers slide between them, treating an argument about content as though it were a denial of application, which nobody makes.

3. Why did indivisibility have to be asserted at all? Because the practice denied it. One Universal Declaration was split in 1966 into two Covenants, with two different standards of obligation: immediate obligation for civil and political rights and progressive realisation to the maximum of available resources for economic, social and cultural rights. Each bloc in the Cold War then treated its own half as the rights that really mattered and the other half as aspiration or propaganda, and a State could ratify one and not the other. Indivisibility is the position the international community reached after that, and it is asserted in Vienna paragraph 5 and in article 6(2) of the Right to Development Declaration precisely because the instruments themselves had produced a hierarchy. A candidate who states indivisibility without the drafting history has stated a slogan; one who gives the history has explained why the slogan exists.

4. Give the interdependence argument in both directions. In one direction, a first generation right depends on a second. Article 21 of the Universal Declaration gives everyone the right to take part in the government of their country, but a person who cannot read a ballot, has never been to school and cannot find out what candidates propose holds that right in form only; article 26, the right to education, is what converts it into something exercisable. Article 11's presumption of innocence and guarantees of a defence are similarly hollow for a person who cannot afford to attend hearings or who pleads guilty to escape a remand they cannot survive. In the other direction, and this is the half usually omitted, a second generation right depends on the first. The adequate standard of living promised by article 25 is not delivered to a population that cannot speak, organise, publish or remove a government that fails to deliver it, because there is no mechanism by which failure is corrected. That is why the two sets rise and fall together and why a State cannot coherently promise one while deferring the other.

5. Why is quoting only the first clause of Vienna paragraph 5 a weak answer? Because the first clause was never in dispute and the rest of the paragraph is where the compromise lies. Nobody argued that rights were divisible in principle or that they were unrelated; what was argued, at Bangkok three months earlier, was that universality had to accommodate national and regional particularities and various historical, cultural and religious backgrounds. Vienna's answer is not to deny that. It concedes the point in almost the same words, saying that the significance of such particularities must be borne in mind, and then makes the obligation unconditional anyway by declaring it the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights. A candidate who quotes only the opening words presents as a victory what was actually a negotiated settlement, and has nothing to say when an examiner asks how Vienna answered Bangkok.

Article 1. All human beings are born free and equal in dignity and rights. Born, so dignity is not earned; equal, so it is not comparative.

Both Covenants, in identical words. Recognizing that these rights derive from the inherent dignity of the human person. The verb is the important one: derive. The rights are consequences of dignity, not items on a list beside it.

Article 10(1) of the Covenant on Civil and Political Rights then shows dignity operating as a standard rather than a preamble: all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The same phrase, doing legal work.

The four things dignity is used to do

Separating these is what distinguishes a good answer from a vague one.

As a source. Rights derive from it. This is the Covenants' use, and it is the strongest claim: it explains why the list is not arbitrary.

As a standard. Conduct is measured against it, as in article 10(1). Torture, degrading punishment and inhuman conditions are wrong because they deny dignity, which is why those provisions rarely define the conduct and instead name the value it offends.

As a limit on the holder's own choices. This is the controversial use. If dignity is inherent and equal, it may not be surrendered, so consent does not always cure. [Are Human Rights Inalienable] takes it, and it is the hardest use to defend because it can be turned against the person it protects.

And as a tie-breaker. Where two rights conflict, dignity is invoked to decide. This is the weakest use, because a word that can be invoked on both sides settles nothing.

Dignity in Indian law

The Indian courts did not treat dignity as a preambular flourish. It became the operative content of article 21, which on its face guarantees only that no person shall be deprived of life or personal liberty except according to procedure established by law.

The move that matters is the reading of life as more than animal existence: a life with dignity, from which the courts derived a right to livelihood, to shelter, to health and to die with dignity. [Fundamental Rights: the Indian Form] takes article 21 properly.

The significance for this paper is that it shows dignity working exactly as the Covenants describe. An article containing no list of entitlements generated a long one, because dignity was treated as the source and the entitlements as what the source requires. A student writing on the concept of human rights can point to article 21 as the clearest available demonstration that deriving rights from dignity is not merely a drafting convention.

The objections, which a strong answer states

It is undefined. No instrument in this paper defines dignity, and a foundation nobody can state is a foundation nobody can test. The reply is that the drafters wanted an overlapping consensus rather than a shared theory, and that a defined dignity would have been a dignity somebody refused to sign.

It is empty, or it is too full. A word that everybody accepts is usually a word that means different things to each of them, so it settles nothing at the point of disagreement. The reply is that it is not meant to settle those disagreements; it is meant to establish that the argument is about what dignity requires rather than about whether the person matters.

It can be used against the person. Dignity has been invoked to forbid people from doing things they wished to do, on the ground that the conduct was beneath human dignity. That is the sharp end of the third use above, and the honest answer is that dignity as a limit on autonomy is in tension with dignity as the ground of autonomy, and that the tension is real rather than apparent.

And it may be culturally particular. If dignity is understood as individual autonomy, it may be an idea of one tradition presented as universal, which is the argument [Cultural Relativism] and [The Bangkok Declaration] develop. The reply is that the instruments do not define dignity as autonomy, and that the traditions cited against it mostly assert human worth in their own vocabulary rather than deny it.

Worked example

A State proposes to permit a prison to save costs by holding prisoners four to a cell built for one, arguing that no provision of its law forbids it, that the prisoners consented in writing in exchange for earlier release, and that the practice is a matter of resources rather than rights.

The absence of a specific prohibition is not an answer. This is exactly what dignity as a standard is for. Article 10(1) of the Covenant on Civil and Political Rights requires that all persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person, and it is drafted in that form because a code listing forbidden conditions would always be one step behind the ingenuity of an administration. The State's argument proves too much: on its reasoning nothing is forbidden until it is enumerated.

The consent is not an answer either. This is dignity as a limit on the holder's own choices, and it is the use to handle carefully. The reason the consent fails is not that the prisoners cannot be trusted to judge their own interests; it is that consent obtained by offering liberty to a person who does not have it is not free, and that a right whose exercise can be bought back by the duty-bearer is not a right against that duty-bearer at all.

The resources argument engages the source. If rights derive from inherent dignity, they do not derive from budgets, so cost may explain a failure and cannot justify it. The Covenant on Economic, Social and Cultural Rights makes room for resources in article 2(1) through progressive realisation, but article 10(1) of the other Covenant is an immediate obligation and no such qualification applies.

And what the answer should concede. Dignity does not tell you how many prisoners per cell is acceptable. It tells you that the question is about the treatment of persons rather than about the allocation of space, and it puts the burden on the State to justify. A candidate who claims dignity yields a number is overclaiming.

What it does NOT mean

Dignity is not a right in these instruments. It is the ground from which rights derive, though some later constitutions do make it a right.

It is not defined anywhere in this paper's instruments, and the absence is deliberate.

It does not resolve conflicts between rights. A value both sides can invoke decides nothing.

And deriving rights from dignity is not the same as deriving them from God or from nature. That is the point of the choice: dignity was available to States that would accept neither.

Quick revision

• Dignity is the SOURCE, not one right among others. Both Covenants: Recognizing that these rights derive from the inherent dignity of the human person.
• UDHR preamble: recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Inherent (not conferred), all members of the human family (not graded), foundation (prior to freedom, justice and peace).
• UDHR second recital: disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. The Declaration is written against something recent.
• UDHR article 1: All human beings are born free and equal in dignity and rights.
• ICCPR article 10(1): persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Dignity as an operative standard, not a preamble.
• Four uses: as a source (rights derive from it), as a standard (conduct measured against it), as a limit on the holder's own choices (the controversial one), as a tie-breaker (the weakest).
• Why dignity and not God or law: an instrument acceptable to every religion and none, and to every legal system, needed a ground in the human being. It was chosen because it could be asserted without agreeing why it is true.
• Four objections: undefined; empty or too full; usable against the person; possibly culturally particular. Each has an answer, and a strong response states both.

Test yourself

1. Why did the drafters need a ground, and why was dignity the one available? Because a bare list of rights invites the question why those rights and why anyone should accept them, and only one of the three available answers could be used in 1948. Grounding rights in religion was unusable in an instrument that had to be acceptable to States of every faith and of none. Grounding them in existing law was circular and self-defeating, because it would have made the rights the property of whichever legal system recognised them, which is the opposite of what the drafters were claiming. What remained was to ground them in something about human beings themselves, and dignity was the term that could be asserted without agreement on why it is true. That is its great practical virtue: a Catholic, a Confucian and a Marxist could all sign a text beginning with the inherent dignity of the human person while disagreeing completely about its foundation, so the instrument secured an overlapping consensus rather than a shared theory.

2. Set out what the instruments actually say about dignity, in order. The Universal Declaration's first preambular paragraph recognises the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, which asserts three things at once: dignity is inherent and so not conferred, it belongs to all members of the human family and so is not graded, and it is the foundation of freedom, justice and peace rather than something derived from them. Its second preambular paragraph gives the reason for saying so, that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. Article 1 provides that all human beings are born free and equal in dignity and rights. Both Covenants of 1966 use identical words in their preambles, recognising that these rights derive from the inherent dignity of the human person, and the verb derive is what makes dignity a source rather than an item on the list. Article 10(1) of the Civil and Political Covenant then puts the same phrase to operative work, requiring that persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person.

3. Distinguish the four uses of dignity and say which is weakest. As a source, dignity explains where rights come from and why the list is not arbitrary; this is the Covenants' use and the strongest claim. As a standard, conduct is measured against it, which is what article 10(1) does and why provisions on torture and inhuman treatment name the value offended rather than enumerating forbidden acts; this is what allows a prohibition to reach conduct nobody anticipated. As a limit on the holder's own choices, dignity is said to survive the holder's consent, so that a person may not contract out of it; this is the controversial use because it can be turned against the very person it protects. As a tie-breaker between competing rights it is weakest of all, because a value that both sides can invoke with equal plausibility does not decide anything, and an answer that resolves a conflict by asserting dignity has substituted a word for an argument.

4. How does Indian law demonstrate dignity working as a source? Article 21 of the Constitution guarantees, on its face, only that no person shall be deprived of life or personal liberty except according to procedure established by law. It contains no list of entitlements. Yet by reading life as meaning more than animal existence, as a life with dignity, the courts derived from it a substantial body of rights, including livelihood, shelter, health and dignity in dying. That is precisely the structure the Covenants describe: an inherent worth is treated as the source, and specific entitlements are worked out as what the source requires in particular circumstances. For a paper on the concept of human rights this is the clearest available demonstration that deriving rights from dignity is not merely a drafting convention adopted to secure signatures, because a court that had treated the preambular language as decoration could not have reached those results from the words of article 21 alone.

5. State the objections to grounding rights in dignity, with the answer to each. That it is undefined: no instrument in this paper defines it, and a foundation nobody can state is one nobody can test. The answer is that the vagueness is the price of the overlapping consensus, and that a defined dignity is a dignity somebody would have refused to sign. That it is empty, or too full: a word everyone accepts usually means different things to each of them, so it settles nothing where disagreement actually arises. The answer is that it is not meant to settle those disagreements but to establish that the argument is about what dignity requires rather than about whether the person counts. That it can be used against the person: dignity has been invoked to forbid people from doing what they wished on the ground that it was beneath human dignity, and the honest answer is that dignity as a limit on autonomy is in genuine tension with dignity as the ground of autonomy. And that it may be culturally particular, if understood as individual autonomy; the answer is that the instruments do not define it as autonomy, and that the traditions invoked against it generally assert human worth in their own vocabulary rather than deny it.

Grotius made it usable between States and, crucially, detached it from theology, arguing that the natural law would hold its content even on the impious hypothesis that there is no God. That move is what allows a modern instrument to assert a ground without asserting a religion, and it is the ancestor of the choice described in [Human Dignity as the Ground of Rights].

Hobbes turned the vocabulary around. In the state of nature every person has a right to everything, which is worthless, so rights are surrendered to a sovereign in exchange for security. He uses the language of natural right to reach an absolutist conclusion, which is why he is essential rather than a detour: it shows that the vocabulary alone does not guarantee the politics.

Locke supplied the modern form. Life, liberty and property are held in the state of nature; government exists to secure them and holds its power in trust; and a government that destroys them may be resisted. Rights here are prior, limited in number, and the reason for the State rather than a gift from it.

Rousseau supplied the difficulty that the next two centuries argued about, in the general will: if the sovereign is the people, what protects the individual from the people? [Rights Against the Majority] is the modern form of that question.

Where it appears in the texts of this paper

The tradition is not background. It is quoted in the instruments a student must cite.

The American Declaration of Independence 1776: certain truths are held to be self-evident, that all men are endowed by their Creator with certain unalienable Rights, among them Life, Liberty and the pursuit of Happiness, and that governments are instituted to secure these rights. That is Locke in a founding document, and [The American Declaration of Independence and the Bill of Rights] works it.

The French Declaration 1789, article 2: The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression. The words natural and imprescriptible are the tradition's own, and the fourth right named, resistance to oppression, is the Lockean conclusion made positive law. [The French Declaration 1789: Articles 1 to 9] takes it.

And the Universal Declaration 1948 keeps the structure and drops the word. Human beings are born free and equal in dignity and rights; the rights are inalienable; and the instrument recognises rather than confers them. [From Natural Right to Human Right] is about that change of vocabulary and what it cost.

Why the tradition went out of fashion, and came back

The nineteenth century turned against it, and for reasons worth stating rather than dismissing. Natural rights were attacked as unprovable, as a disguise for the preferences of the person asserting them, and as politically dangerous. Bentham's attack is the famous one and [The Positivist Objection] gives it properly. The historical school added that law grows out of a people's own development and cannot be deduced from reason, which is an ancestor of the argument in [Cultural Relativism].

And the twentieth century brought it back, for one reason: the alternative failed a test. A strictly positivist account has no vocabulary in which to say that a regime which enacted its atrocities, followed its own procedures and repealed nothing was acting unlawfully. The Universal Declaration's second preambular recital, that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, is the natural law intuition written into an instrument by people who had just watched the experiment run.

Worked example

A State enacts, by a valid law passed with a large majority and in due form, that a named minority may not own land, may not attend university, and may be resettled. A judge of that State is asked to apply the law. A lawyer argues it is void.

The positivist position is not silly and must be stated first. The law was enacted by the competent legislature in the prescribed manner, so it is law; the judge's duty is to apply it; and the remedy for an unjust law is political rather than judicial. A candidate who cannot state this has not understood what natural law is arguing against.

The natural law position, in Aquinas's strong form. An enactment that departs from the natural law is a corruption of law rather than law, so it does not bind in conscience and there is nothing for the judge to apply. This is coherent and it carries a real cost: it makes the validity of every law turn on a standard about which people reasonably disagree, and it hands the judge a power to disapply that is very hard to confine.

The Lockean position is narrower and more usable. The purpose of government is to secure life, liberty and property; a government that systematically destroys them for a class of its own subjects has acted outside the trust on which its power is held. Note that this speaks to legitimacy and resistance rather than to what a judge does on Tuesday.

And the modern instruments make the argument without the metaphysics. Article 2 of the Universal Declaration entitles everyone to the rights in it without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and article 7 provides that all are equal before the law and entitled without any discrimination to equal protection. That is the same conclusion reached by a route that does not require the judge to decide what nature requires: it requires the State to keep a commitment it made.

The point the example is for. Natural law supplied the intuition that a valid law can be unjust, and the modern framework supplies a way of acting on the intuition without asking each judge to reason from first principles.

What it does NOT mean

Natural law is not one theory. Aquinas, Grotius, Hobbes and Locke are doing different things with the same vocabulary, and Hobbes reaches absolutism with it.

A natural right is not the same as a human right. [From Natural Right to Human Right] sets out four differences.

Natural law does not mean what is natural is right. The argument is from reason about human ends, not from what occurs in nature.

And the modern instruments do not adopt natural law. They keep its structure, use dignity as the ground, and avoid the word.

Quick revision

• The four propositions, which are the examinable core: there is a standard not made by the sovereign; it is knowable; it generates entitlements in persons, not merely duties in rulers; and those entitlements bind the sovereign. That is the structure of a modern human right.
• Stoics: reason common to all, so the standard is universal. Roman law: ius gentium against ius civile. Aquinas: human law derives from natural law, and a departure is a corruption of law. Grotius: the content would hold even on the impious hypothesis that there is no God, which detaches the ground from religion. Hobbes: the same vocabulary, an absolutist conclusion. Locke: life, liberty and property held prior to government, government as trust, resistance on breach. Rousseau: the general will, and the problem of the individual against the people.
• In the texts: American Declaration 1776, endowed by their Creator with certain unalienable Rights, government instituted to secure these rights; French Declaration article 2, the natural and imprescriptible rights of Man, being Liberty, Property, Safety and Resistance to Oppression; UDHR 1948, the structure without the word.
• Why it fell: unprovable, a disguise for preference, politically dangerous, and law grows from a people rather than from reason. Why it returned: a positivist account has no vocabulary for a regime that enacted its atrocities lawfully, which is what the UDHR's barbarous acts recital is answering.

Test yourself

1. State the structure of the natural rights claim and show that the modern instruments kept it. Four propositions. First, there is a standard of right conduct not made by the sovereign, without which there is no vocabulary in which to call an enactment unjust, since whatever the sovereign enacts would be right by definition. Second, that standard is knowable, by reason or conscience or revelation according to the writer, and therefore can be argued about rather than merely asserted. Third, it generates entitlements in persons and not merely duties in rulers, which is the step from natural law to natural rights and is a comparatively late one, because a system can require a ruler to act justly without giving a subject anything to claim. Fourth, those entitlements bind the sovereign, since a right the sovereign may cancel is not prior to the sovereign at all. The modern instruments keep every one of these while changing the vocabulary: the Universal Declaration says human beings are born free and equal in dignity and rights, calls the rights inalienable, and recognises rather than confers them, which is a claim prior to the State, not conferred by it, and binding on it.

2. Why is Grotius the pivotal figure for this paper? Because he detached the content of natural law from theology. His argument that the natural law would hold its content even on the impious hypothesis that there is no God made it possible to assert a standard above the sovereign without asserting a religion, and that is exactly the move the drafters of 1948 needed. An instrument that had to be acceptable to States of every faith and of none could not ground rights in God, and it could not ground them in existing law without circularity; what it could do was assert something about the human being. Dignity in the modern preambles occupies the place Grotius cleared. He also made the tradition usable between States rather than only within one, which matters for a subject whose instruments are international. Aquinas gives the strongest version of the claim and Locke the most usable political form, but Grotius is the one who made the twentieth-century drafting possible.

3. Why is Hobbes worth studying in a human rights paper when his conclusion is absolutist? Because he demonstrates that the vocabulary of natural rights does not by itself guarantee liberal conclusions, which is a caution a student needs. Hobbes begins where Locke begins, with individuals holding rights in a state of nature, and reaches the opposite destination: because a right to everything is worthless amid universal insecurity, rights are surrendered to a sovereign in exchange for protection, and the sovereign so created is not limited by them. That shows the work being done in Locke is not the word right but the specific claims that life, liberty and property are retained rather than surrendered, that government holds its power in trust, and that a breach of the trust justifies resistance. A candidate who understands this will not treat the appearance of rights language in a text as proof of what the text concludes, which is a habit worth having when reading modern instruments and constitutions too.

4. Explain why natural law fell out of favour and why it returned. It fell for four reasons, each serious. Its propositions were said to be unprovable, since nobody could demonstrate the content of the natural law as one demonstrates a fact. It was said to be a disguise, allowing a writer to present their own preferences as the requirements of reason. It was said to be politically dangerous, because a doctrine that a law may be disregarded when it conflicts with an unwritten standard is a licence for disorder. And the historical school added that law grows out of the development of a particular people and cannot be deduced from reason at all, which anticipates the cultural relativist argument. It returned in the twentieth century because the alternative failed a test that was not hypothetical: a strictly positivist account has no vocabulary in which to say that a regime which enacted its atrocities, observed its own procedures and repealed nothing was acting unlawfully. The Universal Declaration's recital that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind is that intuition written into an instrument by people who had watched the experiment run.

5. A valid law strips a minority of land, education and residence. How does each tradition answer, and what does the modern framework add? The positivist answers that the law was enacted by the competent legislature in the prescribed form, so it is law and the judge must apply it, the remedy being political rather than judicial; an answer that cannot state this position has not understood what natural law argues against. Aquinas answers in the strong form that an enactment departing from the natural law is a corruption of law rather than law, so there is nothing to apply, which is coherent but makes validity turn on a standard about which people reasonably disagree and gives judges a power that is hard to confine. Locke answers more narrowly that government exists to secure life, liberty and property and holds power in trust, so a government systematically destroying them for a class of its subjects has acted outside the trust, which speaks to legitimacy and resistance rather than to daily adjudication. The modern framework reaches the same conclusion without the metaphysics: article 2 of the Universal Declaration entitles everyone to its rights without distinction of any kind including race, and article 7 guarantees equality before the law and equal protection without discrimination, so the State is held to a commitment it made rather than to a standard the judge must derive from nature.

Human right: long list, and expressly positive as well as negative. The Universal Declaration reaches social security, work, rest and leisure, an adequate standard of living, education and cultural life in articles 22 to 27.

Why the change happened. The older list was drawn by people whose enemy was an interfering State; the newer list was drawn by people who had also seen what an absent State does. [Historical Development of the Second Generation] traces it.

Holder

Natural right: man, and the word was meant. The French Declaration is of the rights of Man and of the Citizen, and it coexisted with slavery in the colonies of the States that proclaimed it, with the exclusion of women, and with property qualifications for the vote.

Human right: everyone, and the instruments say so in terms. Article 2 of the Universal Declaration entitles everyone to its rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

This is the largest of the four differences and the one most often missed. The eighteenth-century declarations asserted universality and did not practise it. The 1948 instrument closed the gap textually by listing the grounds on which distinction may not be made, which is why article 2 is worth quoting whenever a question asks what 1948 added.

What did not change

The structure. Prior to the State, not conferred by it, binding on it. [Natural Law and the Idea of a Natural Right] sets out the four propositions and every one survives.

The word inalienable. The American Declaration has unalienable Rights, the French Declaration has imprescriptible rights, and the Universal Declaration's preamble has the equal and inalienable rights of all members of the human family. The term carried straight across, and [Are Human Rights Inalienable] examines whether it can bear the weight.

And the claim of self-evidence, in a weaker form. 1776 held the truths to be self-evident. 1948 asserts dignity as inherent and offers no argument for it. The drafters replaced a metaphysical assertion with a different assertion, which is a real change of register and not a move from assertion to proof.

The vocabulary question, which is examinable on its own

Why does it matter what the thing is called?

Because the name carries the objection with it. A right called natural invites the question "whose nature, and who says?", and the nineteenth century pressed that question until the tradition retreated. A right called human invites a different question, "which humans agreed?", and that is the question [The Bangkok Declaration] and [Colonialism and the Making of the Instruments] press in Module IV.

Because the name settles who can argue. Under the natural rights vocabulary the argument is philosophical, and the participants are those who can reason about human ends. Under the human rights vocabulary the argument is legal and diplomatic, and the participants are States, treaty bodies, courts and the organisations that appear before them.

And because the name determines what counts as an answer. To a natural rights claim, the answer is a better argument. To a human rights claim, the answer is a text, a ratification, a reservation or a decision.

Worked example

A State argues in a treaty body that a claimed right to a clean environment is not a human right at all, because it appears in no instrument it has ratified, and that the claimant is really asserting a natural right dressed in modern clothes.

The State's argument has force, and an answer that ignores it is weak. The move from natural to human rights made enumeration the ordinary route to recognition, so a claim that is in no ratified instrument starts at a disadvantage that a natural rights claim would not have faced.

The claimant's first answer is that enumeration is not the only route. The Universal Declaration calls itself a common standard of achievement for all peoples and all nations, not a code, and article 30's saving clause shows the drafters were guarding against the instrument being read to cut rights down. The list records rights; it does not exhaust them.

The second answer is to find the claim inside an enumerated right. An environment that destroys health engages article 12 of the Covenant on Economic, Social and Cultural Rights, the right to the highest attainable standard of physical and mental health, and article 11's adequate standard of living. This is the stronger route, and it is what a tribunal will actually accept.

The third answer is the solidarity route. Article 1 of the Declaration on the Right to Development 1986 makes development an inalienable human right in which all human rights and fundamental freedoms can be fully realized, and the third generation places the environment beside it. [Third Generation: The Solidarity Rights] states the difficulties honestly, and the honest statement is part of a good answer.

And the lesson to draw. The change of vocabulary moved the burden. A natural right had to be argued for; a human right has to be found in a text, or shown to be entailed by one. That is a gain in usability and a loss in reach, and both halves belong in the answer.

What it does NOT mean

The two terms are not synonyms, and treating them as such is the commonest error on this topic.

1948 did not refute natural law. It declined to rely on it, which is a different thing, and [Natural Law and the Idea of a Natural Right] shows the structure surviving intact.

The change did not make rights positive law everywhere. The Universal Declaration is a declaration; it was the Covenants of 1966 that created binding obligations, and only for parties.

And the older declarations were not hypocritical in a way the newer one escaped. They asserted universality without practising it; the 1948 text closed the textual gap and the practical gap is what Module IV is about.

Quick revision

• Four differences: foundation (nature or reason, against inherent dignity); form (asserted in philosophy, against enumerated in an instrument); content (short and negative, against long and expressly positive as well as negative); holder (Man, against everyone).
• What the change bought: signatures, and a legal subject with texts that can be cited, breached and reported on. What it cost: determinacy, and a list that becomes the practical boundary.
• The holder difference is the biggest. UDHR article 2: everyone is entitled without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The eighteenth-century declarations asserted universality and coexisted with slavery, the exclusion of women and property qualifications.
• What did not change: the structure (prior, not conferred, binding), and the word inalienable, which runs from the American unalienable, through the French imprescriptible, to the UDHR's equal and inalienable rights of all members of the human family.
• Why the name matters: it carries the objection (whose nature, against which humans agreed); it settles who may argue (philosophers, against States and tribunals); and it determines what counts as an answer (a better argument, against a text).
• The burden moved. A natural right had to be argued for; a human right has to be found in a text or shown to be entailed by one.

Test yourself

1. Give the four differences between a natural right and a human right. Foundation: a natural right is grounded in nature, reason or God, and exists whether or not anyone says so, whereas a human right is grounded in the inherent dignity of the human person, a term chosen because it could be asserted without agreement on why it is true. Form: a natural right is asserted in philosophy and in revolutionary declarations, whereas a human right is enumerated in an instrument adopted by States and, in the case of the Covenants, ratified so as to bind them. Content: the natural rights lists are short and almost entirely negative, Locke's being life, liberty and property and the French Declaration's article 2 naming Liberty, Property, Safety and Resistance to Oppression, whereas the human rights list is long and expressly positive as well as negative, the Universal Declaration reaching social security, work, rest, an adequate standard of living, education and cultural life in articles 22 to 27. Holder: the older declarations are of the rights of Man, and the word was meant, whereas the Universal Declaration entitles everyone to its rights without distinction of any kind.

2. What did the change of vocabulary buy, and what did it cost? It bought signatures and a legal subject. A foundation in reason or in the Creator would have excluded some State in 1948, and an instrument excluding the Soviet Union, or the Islamic States, or the secular republics would not have been universal in the only sense then available; dignity could be asserted by all of them while each explained it differently. Enumeration then converted a moral tradition into something that can be cited, applied, breached, litigated and reported on, and however thin the machinery is, thin machinery is infinitely more than none. It cost determinacy and reach. A natural right could in principle be derived from premises, whereas dignity cannot, so the foundation is less arguable than the one it replaced. And enumeration made the list the practical boundary: a natural right nobody had written down was still a right, whereas a human right that appears in no instrument has to fight its way in, which is the difficulty every third generation claim now faces.

3. Why is the difference in the holder the largest of the four? Because the earlier declarations asserted universality without practising it, and the 1948 instrument closed the textual gap. The French Declaration is of the rights of Man and of the Citizen and was proclaimed by a State that maintained slavery in its colonies; the American Declaration held it self-evident that all men are created equal in a polity that did the same; both coexisted with the exclusion of women and with property qualifications for the vote. Article 2 of the Universal Declaration answers this directly by entitling everyone to the rights and freedoms in it without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and article 7 adds equality before the law and equal protection without discrimination. That is why article 2 is the provision to quote when an examiner asks what 1948 added: the other three differences are changes of technique, and this one is a change in who the subject is about.

4. What survived the change unaltered? The structure, the word inalienable, and the character of the foundational claim as an assertion. The structure is the four propositions of the natural law tradition: there is a standard not made by the sovereign, it is knowable, it generates entitlements in persons rather than merely duties in rulers, and those entitlements bind the sovereign. Every one is present in 1948, where human beings are born free and equal in dignity and rights, the rights are recognised rather than conferred, and States undertake obligations about them. The word inalienable runs straight across, from the American Declaration's unalienable Rights through the French Declaration's imprescriptible rights to the Universal Declaration's equal and inalienable rights of all members of the human family. And the foundational claim remained an assertion: 1776 held its truths to be self-evident, and 1948 asserts dignity as inherent without offering an argument for it, so the drafters replaced one assertion with another rather than replacing assertion with proof.

5. A State says a claimed right to a clean environment is not a human right because it is in no instrument it has ratified. Answer it. Concede the force of the point first, because the move from natural to human rights did make enumeration the ordinary route to recognition, so a claim in no ratified instrument starts at a disadvantage a natural rights claim would not have faced. Then answer in three ways. Enumeration is not the only route: the Universal Declaration describes itself as a common standard of achievement for all peoples and all nations rather than as a code, and its article 30 saving clause shows the drafters guarding against the instrument being read to cut rights down, so the list records rights without exhausting them. Better, locate the claim inside an enumerated right: an environment that destroys health engages article 12 of the Covenant on Economic, Social and Cultural Rights, the right to the highest attainable standard of physical and mental health, and article 11's right to an adequate standard of living, and this is the route a tribunal will actually accept. Finally the solidarity route, since article 1 of the Declaration on the Right to Development 1986 makes development an inalienable human right in which all human rights and fundamental freedoms can be fully realized and the third generation places the environment beside it, though the difficulties with third generation claims should be stated honestly rather than glossed.

The Declaration's language is unusable. Article 4 of the French Declaration provides that liberty consists in being able to do anything that does not harm others, and Bentham's objection is that every law restricts liberty in that sense, so the article condemns all law or nothing.

And it is dangerous. A right described as imprescriptible and asserted against government is an invitation to resist, and Bentham was writing while the Terror was making the point for him.

What a good answer does with this. Concede the second and third points substantially, and answer the first. Article 4 of the French Declaration really is drafted so loosely that the closing words, These bounds may be determined only by Law, have to do all the work; that is why modern limitation clauses are so much more careful, as [Limitation: When a Right May Be Restricted] shows. And rights asserted against law really were used to justify a revolution. What Bentham missed is that a moral claim can be a reason for making a law, and that this is what natural rights language was mostly doing.

The twentieth-century form of the argument

The debate stopped being about revolutionary France and became about something worse.

The positivist position, refined. Hart's version separates two questions: whether a rule is law, and whether it ought to be obeyed. He argues that keeping them apart is the more honest position, because it lets you say that a rule is law and is too iniquitous to obey, whereas the natural lawyer must say it was never law at all and thereby loses the vocabulary of a wicked law.

The natural law reply. If an official can say "it was law and I applied it", the vocabulary itself has removed the ground on which the official might have refused. A system whose validity test excludes justice will produce officials who apply what they are given.

Notice that both sides are arguing about the same case and neither is being frivolous. That is why this chapter belongs in a paper on the concept of human rights, and it is also why the Universal Declaration's second recital reads as it does: disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.

How the modern framework answers the objection

Not by winning the philosophical argument. By supplying, one at a time, the things the positivist said were missing.

And in India the answer is complete rather than partial, which is worth saying because it is the strongest available reply. A right in the Universal Declaration is not enforceable as such; the same right read into article 21 is enforceable by a writ under article 32 against a named respondent with a remedy at the end of it. [Fundamental Rights: the Indian Form] sets out the route, and [Interdependence of Rights and Duties in a Democratic Society] shows how the international text reaches an Indian court through article 51(c).

What survives of the objection

A candidate should not pretend the objection was disposed of. Three parts of it survive, and naming them is what an examiner rewards.

Rights without remedies remain. Most of the international system still supervises by reporting. A right whose only consequence is a concluding observation is not, on the positivist's definition, doing the work of a legal right.

Content remains indeterminate at the edges. Progressive realisation under article 2(1) of the Covenant on Economic, Social and Cultural Rights makes the obligation depend on the maximum of its available resources, which is precisely the kind of formula the positivist objected to, and a good deal of interpretive effort has gone into making it justiciable.

And the duty-bearer problem is unsolved for the third generation. A right to development or to a healthy environment held by a people against the international community has no defendant, which is the objection [Third Generation: The Solidarity Rights] has to meet.

Worked example

A litigant claims a right to be forgotten, arguing that it follows from dignity, and cites no instrument.

The positivist objection, applied. What is the source? Dignity is a value, not a law. What is the content? To be forgotten by whom, of what, for how long? Who is the duty-bearer? A search engine, a publisher, a State registry, or everyone who remembers? And what is the remedy? Without answers, the claim is not yet a right.

What converts it. Locate it inside an enumerated right: article 17 of the Covenant on Civil and Political Rights protects against arbitrary or unlawful interference with privacy. State the content as an act: the delisting of a specified result on a specified query. Name the duty-bearer: the operator of the index. And identify the remedy: an order and a sanction for non-compliance.

The lesson the example teaches. The positivist objection is not answered by insisting harder. It is answered by doing the four things it demands, and a claim that cannot be brought to that form is, for the time being, a moral argument for a change in the law rather than a right. That is not a dismissal: a moral argument for a change in the law is how most of the rights in this book began.

What it does NOT mean

Positivism is not the view that unjust laws should be obeyed. It separates validity from merit; Hart's whole point is that the separation makes disobedience easier to justify, not harder.

Bentham was not defending tyranny. He was a reformer who thought rights language was an obstacle to reform because it substituted assertion for calculation of consequences.

And the framework did not refute the objection. It met it by construction, and where it has not, the objection still stands.

Quick revision

• The objection has four limbs: no source, no determinate content, no identifiable duty-bearer, no remedy. Read together it is a specification, not a rejection.
• Bentham, in Anarchical Fallacies, on the French Declaration: natural rights are simple nonsense; natural and imprescriptible rights are rhetorical nonsense, nonsense upon stilts. His three points: rights are the child of law; the Declaration's language is unusable, as with article 4's liberty consists in being able to do anything that does not harm others; and it is dangerous.
• The twentieth-century form: Hart separates whether a rule is law from whether it ought to be obeyed, arguing the separation lets you call a rule law and too iniquitous to obey. The natural lawyer replies that a validity test excluding justice produces officials who apply what they are given.
• How the framework answered: source by enumeration and ratification; content by articles and general comments; duty-bearer by naming the State party in article 2(1) of each Covenant; remedy by reporting and, where accepted, complaints. The fourth answer is the weakest.
• What survives: rights without remedies; indeterminacy at the edges, especially to the maximum of its available resources; and no defendant for third generation claims.
• In India the answer is complete: a right read into article 21 is enforceable by writ under article 32 against a named respondent.

Test yourself

1. State the positivist objection in its serious form. That law is a social fact made through recognised procedures, and that whether a rule is law is a separate question from whether it is just, so a moral claim is not a legal right until some authority has made it one. The objection then specifies what a claimed right must have. It must have a source, because legal rights come from enactments, judgments or recognised custom, and asserting a right loudly does not supply one. It must have determinate content, because a right must be capable of telling a duty-bearer what to do, and a formula like a right to a decent life identifies no act and no forbearance, so nobody can comply with it or breach it. It must have an identifiable duty-bearer, because if the answer to who owes it is everyone or the international community then it is owed by nobody in particular. And it must have a remedy, since a right whose breach produces nothing is a hope. Read together these are a specification of what a claim must acquire to become a right, which is why the objection is useful rather than merely hostile.

2. Give Bentham's argument properly, and say what a good answer concedes. Bentham attacked the French Declaration in Anarchical Fallacies with three points, of which the famous line is the conclusion. Rights are the child of law: from real law come real rights, from imaginary law imaginary rights, so a right asserted against all law is a contradiction, and natural rights are simple nonsense while natural and imprescriptible rights are rhetorical nonsense, nonsense upon stilts. The Declaration's language is unusable: article 4 provides that liberty consists in being able to do anything that does not harm others, and since every law restricts liberty in that sense the article condemns all law or none. And it is dangerous, because a right called imprescriptible and asserted against government is an invitation to resist. A good answer concedes the second and third points substantially, noting that article 4's closing words, that these bounds may be determined only by Law, are made to carry the whole provision, which is exactly why modern limitation clauses are drafted so much more carefully. What it answers is the first point: a moral claim can be a reason for making a law, and that is mostly what natural rights language was doing.

3. How does the modern framework answer each limb of the objection, and which answer is weakest? Source is answered by enumeration and ratification: the two Covenants of 1966 are treaties and a State party is bound by them as by any other treaty, so the right has exactly the pedigree the positivist demands. Content is answered by articles rather than slogans, and by the general comments that state what an article requires, so the entitlement is not a decent life but the specific provisions of articles 6 to 15 of the Covenant on Economic, Social and Cultural Rights. The duty-bearer is answered by naming the State party in terms, article 2(1) of each Covenant specifying which State owes what. Remedy is the weakest answer by a wide margin: most of the system supervises by reporting, so the ordinary consequence of a breach is a concluding observation, and complaints procedures exist only where a State has separately accepted them. In India the answer is much stronger, because a right read into article 21 is enforceable by writ under article 32 against a named respondent with a remedy at the end, which is why the domestic route matters so much in this subject.

4. What survives of the objection today? Three things. Rights without remedies survive, because reporting is still the ordinary supervisory mechanism internationally, and on the positivist's own definition a right whose breach produces only an observation is not doing the work of a legal right. Indeterminacy survives at the edges, most obviously in article 2(1) of the Covenant on Economic, Social and Cultural Rights, which requires steps to the maximum of a State's available resources with a view to achieving progressively the full realisation of the rights; that is precisely the kind of formula the objection targets, and a great deal of interpretive work has gone into making it justiciable. And the duty-bearer problem is unsolved for the third generation, where a right to development or to a healthy environment held by a people against the international community has no defendant. Naming these is what distinguishes a candidate who has understood the objection from one who has learned the reply.

5. A litigant claims a right to be forgotten from dignity alone. Apply the objection and show what converts the claim. Applied, the objection asks four questions the claim cannot yet answer. The source is a value rather than a law. The content is undefined: to be forgotten by whom, of what, and for how long. The duty-bearer is unidentified, since it might be a search engine, a publisher, a State registry or everyone who remembers. And there is no remedy specified. What converts the claim is doing the four things the objection demands. Locate it inside an enumerated right, article 17 of the Covenant on Civil and Political Rights protecting against arbitrary or unlawful interference with privacy. State the content as an act, the delisting of a specified result on a specified query. Name the duty-bearer, the operator of the index. And identify the remedy, an order with a sanction for non-compliance. The lesson is that the objection is not answered by insisting harder but by bringing the claim into that form, and that a claim which cannot yet be brought into it is a moral argument for changing the law, which is how most of the rights in this book began.

Enumeration. Not "a right to fair treatment" but the specific guarantees of article 14 of the Covenant on Civil and Political Rights.

The tripartite obligation. Respect, protect, fulfil, which decomposes one right into three determinate duties. [Respect, Protect, Fulfil] works it.

And authoritative interpretation. A treaty body's general comment states what an article requires, which is how progressive realisation was made justiciable. [The Positivist Objection] records that this is the framework's answer to the indeterminacy charge.

The remedy

The question: what follows on breach?

The maxim is that where there is a right there is a remedy, and it is not decoration: a claim whose breach produces nothing is indistinguishable from a claim that does not exist.

The instruments provide for this in terms. Article 8 of the Universal Declaration: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 2(3) of the Covenant on Civil and Political Rights requires each State Party to ensure an effective remedy, that the claim is determined by competent authority, and that remedies are enforced.

But notice where those provisions put the remedy: in the national system. The international remedy is thin, as [The Positivist Objection] concedes, and article 8 of the Declaration expressly speaks of competent national tribunals. The framework's own text acknowledges that enforcement is domestic.

The Indian illustration, which completes the set

Article 32 of the Constitution is the clearest demonstration in this paper of all four elements present at once.

Holder: any person, and for some rights any citizen. Duty-bearer: the State, defined widely. Content: the specific fundamental rights in Part III. Remedy: the right to move the Supreme Court by appropriate proceedings for enforcement, and the Court's power to issue directions or orders or writs.

And article 32 is itself a fundamental right, which is the structural point worth making: the framers treated the remedy not as machinery attached to rights but as a right in its own right, because they had seen what a guarantee without a remedy is worth. [Fundamental Rights: the Indian Form] takes it properly.

Using the four elements on a problem

The method is mechanical and it is the fastest way through an examination problem that asks whether something is a right.

Name the holder. If the claim depends on status, occupation or office, say so at once: it may be a legal right and it is not a human right.

Name the duty-bearer and the duty. If neither can be named, the claim is an aspiration, and saying so is the answer rather than a failure to find one.

State the content as an act or a forbearance. "The State must respect X" is a forbearance; "the State must provide Y" is an act; "the State must care about Z" is neither.

Identify the remedy, and say where it lies. In India, usually a writ. Internationally, usually a report.

And then say which element is missing, if one is. An answer that identifies the missing element is worth far more than one that concludes flatly that something is or is not a right.

Worked example

Three claims are put to you. A prisoner says she has a right not to be tortured. A village says it has a right to development. A consumer says he has a right to be informed about the goods he buys.

The prisoner's claim has all four. Holder: any person, and article 7 of the Covenant on Civil and Political Rights is drafted as No one shall be subjected to torture. Duty-bearer: the State party under article 2(1). Content: a forbearance, absolutely stated, and article 4(2) makes it non-derogable even in a public emergency. Remedy: article 2(3) requires an effective remedy, and domestically a writ. This is a right in the fullest sense the framework can produce.

The village's claim has two and a half. Holder: article 1 of the Declaration on the Right to Development gives the right to every human person and all peoples, so the holder exists but the question who speaks for the village is unresolved. Content: article 8 requires States to ensure equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income, which is determinate enough to argue about. Duty-bearer: article 3(1) puts the primary responsibility on States, but article 4 addresses the international community, and no defendant is named. Remedy: none. So the claim is real and incomplete, and the honest answer says which elements are present.

The consumer's claim has all four, and from an unexpected place. Holder: a consumer, which is a status, so this is not a human right in the strict sense. Duty-bearer: the seller or service provider. Content: section 2(9) of the Consumer Protection Act 2019 states the right to be informed about the quality, quantity, potency, purity, standard and price of goods so as to protect against unfair trade practices. Remedy: a complaint to the District Commission. Note what this shows: the consumer's claim is the weakest as a human right and the strongest as a legal one, which is exactly the tension [Why a Consumer Is a Rights-Holder] has to resolve.

What it does NOT mean

A claim missing an element is not worthless. It is a moral argument for supplying the missing element, which is how most rights in this book began.

A remedy need not be judicial. An effective remedy may be administrative, and article 2(3) of the Covenant contemplates determination by competent judicial, administrative or legislative authorities.

Indeterminate content is not fatal at the outset. It is fatal only if it cannot be made determinate, and general comments exist to do exactly that.

And identifying the four elements does not decide whether the claim is a good one. It decides whether it is a right.

Quick revision

• Four elements: holder, duty-bearer, content (an act or a forbearance), remedy.
• The duty-bearer fails most often, and the failure is disguised by addressing the claim to society or the international community. The instruments avoid it: article 2(1) of the ICCPR binds each State Party to respect and ensure the rights to all individuals within its territory and subject to its jurisdiction.
• Three techniques make content determinate: enumeration; the tripartite obligation to respect, protect and fulfil; and authoritative interpretation by a treaty body.
• Remedy in the instruments: UDHR article 8, everyone has the right to an effective remedy by the competent national tribunals; ICCPR article 2(3), an effective remedy, determined by competent authority, and enforced. Both locate the remedy nationally.
• Article 32 of the Constitution has all four at once and is itself a fundamental right, which is the framers treating the remedy as a right rather than as machinery.
• The method on a problem: name the holder; name the duty-bearer and the duty; state the content as an act or a forbearance; identify the remedy and where it lies; and say which element is missing.

Test yourself

1. Set out the four elements and say which fails most often. A right needs a holder, who can complain; a duty-bearer, who must answer; a content, statable as an act or a forbearance so that the duty-bearer knows what to do; and a remedy, so that breach has a consequence. The duty-bearer fails most often, and the failure is usually disguised rather than obvious, because a claim addressed to society, to the international community or to everyone sounds like it has a defendant and has none. The instruments guard against this deliberately: article 2(1) of the Covenant on Civil and Political Rights binds each State Party to respect and to ensure the rights recognised in it to all individuals within its territory and subject to its jurisdiction, and article 2(1) of the Covenant on Economic, Social and Cultural Rights does the same for its own rights. The two extensions to watch are the growing class of cases in which duties run to non-State actors, and the extraterritorial reach that the words within its territory and subject to its jurisdiction have been read to permit.

2. How is indeterminate content made determinate? By three techniques, and knowing all three explains how rights that look vague become usable. Enumeration replaces a slogan with specific guarantees, so the entitlement is not a right to fair treatment but the particular protections of article 14 of the Covenant on Civil and Political Rights. The tripartite obligation decomposes a single right into three determinate duties, to respect, to protect and to fulfil, each of which can be stated as an act or a forbearance and each of which can be separately breached. And authoritative interpretation by a treaty body states what an article requires in circumstances the drafters did not address, which is how progressive realisation under article 2(1) of the Economic, Social and Cultural Rights Covenant was made justiciable rather than left as a formula about available resources. Together these are the framework's answer to the positivist charge that human rights language identifies no act with which anyone can comply.

3. Where do the instruments put the remedy, and why does that matter? In the national system, and they say so expressly. Article 8 of the Universal Declaration provides that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law, and article 2(3) of the Covenant on Civil and Political Rights requires each State Party to ensure an effective remedy, to have the claim determined by competent judicial, administrative or legislative authorities, and to enforce such remedies when granted. It matters because it is the framework conceding, in its own text, that international enforcement is not the primary mechanism. The international layer supplies the standard and, through reporting and occasionally complaints, a measure of supervision, while the thing that actually answers a violation is a domestic court. That is why article 32 of the Indian Constitution is the strongest illustration in this paper, and why a candidate arguing that human rights are unenforceable has confused the international layer with the whole system.

4. Why is article 32 the clearest illustration of the four elements? Because it exhibits all four at once and makes the fourth structurally explicit. The holder is any person, and for some of the rights any citizen. The duty-bearer is the State, defined widely enough to reach bodies that are not obviously governmental. The content is the specific fundamental rights of Part III rather than a general guarantee of fairness. And the remedy is the right to move the Supreme Court by appropriate proceedings for enforcement, with the Court empowered to issue directions, orders or writs. The structural point worth making is that article 32 is itself a fundamental right rather than a procedural provision attached to the others. The framers treated the remedy as a right in its own right, which is the clearest possible statement that they understood what a guarantee without a remedy is worth, and it is why a claim that succeeds in India is answered by an order rather than by an observation.

5. Apply the four elements to a village claiming a right to development. The holder exists but is contested. Article 1 of the Declaration on the Right to Development 1986 provides that the right belongs to every human person and all peoples, so a village as a people is within the language, but who may speak for it is unresolved, and a group holder without a rule of representation creates a practical difficulty at the first step. The content is more determinate than critics usually allow: article 8 requires States to undertake all necessary measures for the realisation of the right and to ensure equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income, which can be argued about in the way a legal standard is argued about. The duty-bearer is the weak point. Article 3(1) places the primary responsibility on States for creating national and international conditions favourable to realisation, but article 4 addresses the international community collectively, and no particular defendant is named. And there is no remedy, the Declaration having no complaints procedure of any kind. So the claim has a holder, a content, a partial duty-bearer and no remedy, and the answer that says exactly that is worth more than one that concludes flatly for or against.

29(2): rights are subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

29(3): rights may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 1 of the Universal Declaration adds a duty of a different kind: human beings should act towards one another in a spirit of brotherhood. It is hortatory and it is there.

The preambles to both Covenants state it as an obligation of the individual: the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.

Article 2(2) of the Declaration on the Right to Development 1986 goes furthest: all human beings have a responsibility for development, individually and collectively, taking account of their duties to the community, which alone can ensure the free and complete fulfilment of the human being.

And article 51A of the Constitution of India makes fundamental duties express in a constitution, which is comparatively rare and is the Indian contribution to this debate.

Why the duty side is contested

Three objections, and a strong answer states them before endorsing the duty language.

Duties can be used to hollow out rights. A State that says rights are conditional on the performance of duties has made rights conditional, which contradicts the definition in [What a Human Right Is]. This is why article 29(2) is drafted as a limitation clause with stated grounds rather than as a general condition of entitlement.

Duties may be enforced against the powerless. Duty language historically fell heaviest on those with least power, and a framework built to protect them can be turned into a list of their obligations.

And the duty-holder is often the wrong party. Telling an individual they have duties to the community is not much use where the violation is by the State.

The answer the instruments give is structural. Duties appear in a preamble or a general article, never as a precondition; the rights articles are unconditional; and the only route by which a right is narrowed is the limitation clause, which requires law, a stated ground and necessity. [Limitation: When a Right May Be Restricted] shows the machinery.

Worked example

A State enacts that the right to free movement will be available only to persons who have performed their community service obligation, relying on article 29(1) of the Universal Declaration and on the fundamental duties in its own constitution.

The correlativity thesis does not help the State, and explaining why is the answer. The thesis says a right implies a duty in the duty-bearer, and the duty-bearer here is the State: its duty is to respect freedom of movement. It does not say that the right-holder's own duties are a condition of the right, because that would make the relation conditional on the conduct of the person the relation protects.

Article 29 does not say what the State says it says. Paragraph (1) states that everyone has duties to the community and gives a reason, that the community is the condition of the free and full development of personality. It does not provide that rights are contingent on discharging them. Paragraph (2) is where limitation lives, and it permits limitations determined by law and solely for securing respect for the rights of others and meeting the just requirements of morality, public order and the general welfare in a democratic society. Failure to perform community service is not one of those grounds.

The constitutional duties fare no better. Fundamental duties in a constitution are ordinarily not enforceable as conditions on fundamental rights, and treating them so would convert a directive into a disqualification.

What the State could lawfully do. Impose the service obligation directly and enforce it by ordinary sanction, which is a duty enforced as a duty. What it may not do is enforce a duty by withdrawing an unrelated right, because that is punishment by forfeiture of a right the person holds by virtue of being a person.

And the concession an answer should make. The State's instinct is not absurd. A framework that speaks only of entitlements can produce a public culture in which nobody owes anything, and article 29(1), the Covenant preambles and article 2(2) of the Right to Development Declaration all exist because the drafters felt that. The objection is to the mechanism, not to the sentiment.

What it does NOT mean

Correlativity does not mean rights are earned. The duty implied by a right falls on the duty-bearer, not on the holder.

It does not mean every duty creates a right. Duties of imperfect obligation, duties to the public and duties to future generations have no determinate claimant.

Article 29(1) is not a limitation clause. Paragraph (2) is.

And the presence of duties in the instruments is not evidence that rights are conditional. They appear in preambles and general articles, never as a precondition to a substantive right.

Quick revision

• The thesis: A has a right against B and B owes a duty to A are one relation described twice. Strong from right to duty; weak from duty to right.
• Three duties with no correlative right: duties of imperfect obligation; duties owed to the public; duties owed to those who cannot claim, such as future generations.
• UDHR article 29(1): Everyone has duties to the community in which alone the free and full development of his personality is possible. 29(2): limitations determined by law and solely for securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 29(3): never contrary to the purposes and principles of the United Nations.
• UDHR article 1: act towards one another in a spirit of brotherhood. Both Covenant preambles: the individual, having duties to other individuals and to the community, is under a responsibility to strive for the promotion and observance of the rights. Right to Development article 2(2): a responsibility for development, individually and collectively.
• Article 51A of the Constitution makes fundamental duties express, which is comparatively rare.
• Three objections to duty language: it can hollow out rights; it falls heaviest on the powerless; and the duty-holder is often the wrong party where the violator is the State. The structural answer: duties never appear as a precondition, and the only route to narrowing a right is the limitation clause.

Test yourself

1. State the correlativity thesis and explain why it is asymmetric. The thesis is that rights and duties are two descriptions of a single relation, so that saying A has a right against B states the same fact as saying B owes a duty to A. It is strong in the direction from right to duty: if A has a right and nobody is under any duty, then the right requires nothing of anyone and is a wish rather than a right, which is why the duty-bearer is one of the four elements a claim needs. It is weak in the other direction, because many duties exist with no determinate person able to demand performance. Duties of imperfect obligation, such as a duty to be charitable, are owed to nobody in particular. Duties owed to the public, such as the duty not to pollute a river, are owed to everyone and to no one, which is why environmental law had to develop public interest standing instead of relying on a right-holder. And duties to future generations are owed to persons who cannot claim at all. So rights entail duties and duties do not entail rights, and stating the asymmetry is what distinguishes a good answer.

2. What do the instruments say about duties, and where do they say it? Article 29(1) of the Universal Declaration provides that everyone has duties to the community in which alone the free and full development of his personality is possible, giving as its reason that the community is the condition of individual development rather than a rival to it. Article 29(2) is the limitation clause, permitting only such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society, and article 29(3) forbids exercise contrary to the purposes and principles of the United Nations. Article 1 adds that human beings should act towards one another in a spirit of brotherhood. The preambles to both Covenants state that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognised. Article 2(2) of the Declaration on the Right to Development goes furthest, giving all human beings a responsibility for development, individually and collectively. And article 51A of the Constitution of India makes fundamental duties express, which few constitutions do.

3. Why is duty language contested, and what structural answer do the instruments give? Three objections. Duties can be used to hollow out rights, because a State that makes entitlement conditional on performance of duties has made rights conditional and thereby contradicted the definition of a human right. Duties have historically fallen heaviest on those with least power, so a framework built to protect them can be turned into a catalogue of their obligations. And the duty-holder is often the wrong party, since telling an individual they owe duties to the community does nothing where the violator is the State. The structural answer is in where the duties are placed. They appear in preambles and in general articles and never as a precondition to a substantive right; every rights article is drafted unconditionally; and the only route by which a right may be narrowed is the limitation clause, which requires a law, one of the stated grounds, and necessity in a democratic society. So the instruments acknowledge duties without letting them operate as conditions.

4. A State makes free movement available only to those who have performed community service. Advise. The correlativity thesis does not assist the State, because the duty it implies falls on the duty-bearer and not on the right-holder: the duty answering freedom of movement is the State's duty to respect it, and nothing in the thesis makes the holder's own duties a condition of the right. Article 29 does not say what the State claims. Paragraph (1) states that everyone has duties to the community and explains why, but it does not provide that rights are contingent on discharging them; paragraph (2) is where limitation lives and it permits only limitations determined by law and solely for securing respect for the rights of others and meeting the just requirements of morality, public order and the general welfare in a democratic society, none of which covers failure to perform service. Constitutional fundamental duties do not help either, since treating a directive as a disqualification converts it into something it was not enacted to be. What the State may lawfully do is impose the service obligation directly and enforce it by ordinary sanction, which is a duty enforced as a duty; what it may not do is enforce one duty by withdrawing an unrelated right. The concession worth making is that the State's instinct is not absurd, since article 29(1), the Covenant preambles and article 2(2) of the Right to Development Declaration all exist because the drafters were alive to the same worry; the objection is to the mechanism rather than to the sentiment.

Immunity and disability

A has an immunity against B means B lacks the power to alter A's position; correlatively B is under a disability.

This is what makes a human right different from an ordinary legal right, and it is the most useful thing in the chapter. An ordinary legal right can be repealed by the body that made it; a constitutional or treaty right is protected against that body, which is a disability in the legislature and an immunity in the holder. The non-derogable rights in article 4(2) of the Covenant are immunities in the strongest form the framework can produce: even in a public emergency threatening the life of the nation, the State has no power to touch them.

The table to memorise

How to read it. The correlative is the same relation seen from the other side, so it is always true at the same moment. The opposite is what the person does not have, so the two cannot both be true of the same person in the same respect.

Using it on the instruments

Three worked applications, and they are the ones an examiner is most likely to reach for.

"Everyone has the right to work", UDHR article 23(1). Is this a claim-right against the State to be given a job? Almost certainly not, and Hohfeld shows why the question is badly put. The article contains several relations at once: a privilege to work, which nobody may make unlawful; a claim-right to free choice of employment, correlative to a duty in the State not to direct labour; a claim-right to just and favourable conditions of work, correlative to duties of regulation; and a claim-right to protection against unemployment, whose content is set by article 6 of the Covenant on Economic, Social and Cultural Rights read with progressive realisation. Separating them dissolves an argument that is otherwise interminable.

Freedom of expression. As a privilege it means only that the speaker owes no duty of silence. As a claim-right it means the State owes a duty not to interfere and, under ensure, a duty to protect the speaker from private interference. The whole difference between a formal and an effective freedom is the difference between these two relations.

Non-derogable rights. Article 4(2) of the Covenant on Civil and Political Rights provides that no derogation may be made from articles 6, 7, 8(1) and (2), 11, 15, 16 and 18. In Hohfeld's terms the individual has an immunity and the State a disability: not a duty it might breach, but an absence of power to alter the position at all. [Derogation and the Non-Derogable Core] takes the list.

Worked example

A statute provides that a journalist may publish freely; that no person may compel a journalist to disclose a source; that the Government may by notification require any publisher to register; and that the guarantee in the first clause may not be amended except by a two-thirds majority.

Take the four clauses in order, and each is a different relation.

The first clause creates a privilege. The journalist owes nobody a duty not to publish. Note what it does not do: it imposes no duty on anyone else, so a private party who prevents publication breaches nothing under this clause.

The second creates a claim-right. The journalist may demand that others not compel disclosure, and the correlative duty falls on everyone. This is the clause that would be cited against a private employer as much as against the State.

The third creates a power in the Government and a liability in publishers. The publishers are not under a duty until the notification issues; they are liable to be placed under one. That distinction matters for the timing of any challenge: before notification there is nothing to disobey.

The fourth creates an immunity and a disability. The ordinary legislature cannot alter the first clause, so the journalist's position is protected against the body that would otherwise have power over it. This is the clause that makes the guarantee more than a statute.

The lesson the example teaches. A single provision usually creates several relations, and most confusion in rights argument comes from asserting one and being answered on another. A candidate who can say "that is a privilege, and what you need is a claim-right" has said something precise where most answers say something loud.

What it does NOT mean

Hohfeld is not a theory of which rights we ought to have. It is an analysis of the relations, and it is neutral between a liberal and an authoritarian legal order.

A privilege is not a weak right. It is a different relation, and many important freedoms are privileges plus protective claim-rights.

A liability is not a duty. It is exposure to having one's position changed.

And the analysis does not replace the instruments. It is a tool for reading them, and an answer that gives the table without applying it to an article has done half the work.

Quick revision

• Four relations, four correlatives: claim-right / duty; privilege / no-right; power / liability; immunity / disability.
• Four opposites: claim-right and no-right; privilege and duty; power and disability; immunity and liability.
• Two levels: claim-right and privilege govern primary conduct; power and immunity govern legal change.
• The privilege point: a privilege is the absence of a duty, not the presence of a claim, so it is consistent with a State that does nothing to protect you. Article 2(1) of the ICCPR converts liberties into claims with the word ensure.
• The immunity point: an ordinary legal right can be repealed by its maker; a constitutional or treaty right places a disability on that maker. Article 4(2) of the ICCPR is the strongest form: no derogation from articles 6, 7, 8(1) and (2), 11, 15, 16 and 18 even in a public emergency.
• The method: on any provision, ask which of the four relations it creates, and expect a single provision to create several.

Test yourself

1. Set out the four relations with their correlatives and opposites. A claim-right in A is correlative to a duty in B and its opposite is a no-right; it is what people usually mean by a right in the strict sense, and the right in article 7 of the Covenant on Civil and Political Rights that no one shall be subjected to torture is an example, the correlative duty being a forbearance by the State. A privilege or liberty in A means A owes B no duty not to act, its correlative is a no-right in B and its opposite is a duty. A power in A means A can alter B's legal position by an act, its correlative is a liability in B, meaning exposure to change rather than obligation, and its opposite is a disability; examples in this paper are the power to make a reservation to a treaty, the power to derogate under article 4 of the Covenant, and the power of a legislature to enact a limitation under article 29(2) of the Universal Declaration. An immunity in A means B lacks power to alter A's position, its correlative is a disability in B and its opposite is a liability. Claim-right and privilege operate on primary conduct; power and immunity operate on legal change.

2. Why is the privilege distinction the one that does most work in this paper? Because it separates a formal freedom from an effective one. A privilege is the absence of a duty: to say that I have a privilege to speak is to say only that I owe nobody a duty to stay silent, and that is entirely consistent with a State that stands by while others silence me, since no duty falls on anyone else at all. A claim-right is different in kind, because it puts somebody under a duty, and the duty may be a forbearance by the State or a positive duty to protect me from private interference. The instruments are drafted to create claim-rights rather than mere privileges, and the operative word is in article 2(1) of the Covenant on Civil and Political Rights, by which each State Party undertakes to respect and to ensure the rights. Respect answers the forbearance; ensure is what converts the liberty into a claim and generates the protective duty. A candidate who can say that a claimant needs a claim-right where they have been offered a privilege has identified the real dispute.

3. What does the analysis show about the difference between a human right and an ordinary legal right? That the difference lies in the immunity. An ordinary legal right exists at the pleasure of the body that created it: the legislature that enacted it has power to repeal it, so the holder is under a liability, exposed to having the position changed at any time. A constitutional or treaty right places a disability on that body and gives the holder an immunity, so the right is protected against the very authority that would otherwise dispose of it. That is what entrenchment does in Hohfeldian terms, and it explains why rights are put in constitutions and treaties rather than left to ordinary legislation. The strongest form the framework produces is article 4(2) of the Covenant on Civil and Political Rights, which permits no derogation from articles 6, 7, 8(1) and (2), 11, 15, 16 and 18 even in a public emergency threatening the life of the nation: as against those rights the State has not a duty it might breach but no power at all.

4. Take apart the sentence "everyone has the right to work". Badly put as a single question, and Hohfeld shows why. Article 23(1) of the Universal Declaration contains several distinct relations. There is a privilege to work, meaning the person owes nobody a duty to refrain, which is what makes a prohibition on a class working objectionable. There is a claim-right to free choice of employment, correlative to a duty in the State not to direct labour, which is the provision that speaks to forced labour and to caste-based occupational restriction. There is a claim-right to just and favourable conditions of work, correlative to duties of regulation owed by the State and enforced against employers. And there is a claim-right to protection against unemployment, whose content is set by article 6 of the Covenant on Economic, Social and Cultural Rights read with the progressive realisation formula in article 2(1). What there is not is a claim-right against the State to be given a particular job. Separating the relations dissolves an argument that is otherwise interminable, because the person asserting the right and the person denying it are usually talking about different relations.

5. A statute lets journalists publish freely, forbids compelled disclosure of sources, empowers the Government to require registration, and entrenches the first clause. Analyse each clause. The first creates a privilege: the journalist owes nobody a duty not to publish, but no duty is imposed on anyone else, so a private party who prevents publication breaches nothing under that clause. The second creates a claim-right: the journalist may demand that others refrain from compelling disclosure, and the correlative duty falls on everyone, which is why this clause could be invoked against a private employer as readily as against the State. The third creates a power in the Government and a liability in publishers, and the distinction matters practically, because until the notification issues the publishers are not under a duty at all but merely exposed to being placed under one, so there is nothing yet to disobey and any challenge must be framed accordingly. The fourth creates an immunity in the journalist and a disability in the ordinary legislature, which is what makes the first clause more than a statute. The general lesson is that a single provision usually creates several relations at once, and most confusion in rights argument comes from asserting one relation and being answered on another.

Practical: your right is bounded by mine

Two people exercising the same right can collide, and the resolution is a duty in each.

Article 29(2) of the Universal Declaration states it: rights are subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Notice the last five words. The Declaration does not say "in any society". The general welfare that justifies a limitation is the general welfare in a democratic society, which imports a standard: a limitation is measured against what a society that respects rights would need, not against what a government finds convenient.

Article 4 of the French Declaration made the same point earlier and more sharply: Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. The boundary of my liberty is your liberty, and it is the only boundary the article recognises.

Political: the duty-bearer can be replaced

This is the interdependence that belongs to democracy alone.

In every system the State owes the duties. In a democracy, and only there, the right-holders can remove the officers who fail to perform them. That converts participation from a privilege into something closer to a duty, because a right-holder who does not participate leaves the duty-bearer unaccountable and thereby weakens every other right they hold.

Article 21 of the Universal Declaration gives everyone the right to take part in the government of their country, and provides that the will of the people shall be the basis of the authority of government. Read that as a statement about duties as well: if the will of the people is the basis of authority, then a people that does not form or express a will has left authority without a basis.

Where the duties are written

Internationally. Article 29(1) of the Universal Declaration, the preambles to both Covenants, and article 2(2) of the Declaration on the Right to Development 1986, all set out in [Rights and Duties: the Correlativity Thesis].

In India. Part IVA of the Constitution makes fundamental duties express. And article 51, among the Directive Principles, adds the duty that matters most for a paper on international human rights: the State shall endeavour to promote international peace and security, to maintain just and honourable relations between nations, to foster respect for international law and treaty obligations in the dealings of organised peoples with one another, and to encourage settlement of international disputes by arbitration.

Article 51(c) is the hinge between this paper's two halves. The instruments in Module II are not Indian law by their own force; they reach Indian law because the Constitution directs the State to foster respect for international law and treaty obligations, and because the courts read them into the fundamental rights where no inconsistent domestic law occupies the field. So a duty in Part IV is what gives the international rights their Indian purchase.

What an answer to MU's question should contain

The question was "Discuss the interdependence of rights and duties in a democratic society. Also explain as to how modern societal values have reshaped the understanding of rights and duties." Two halves, and most answers give one.

For the first half, the four interdependences above, each with an instrument: logical with the correlativity thesis; institutional with article 13 of the French Declaration; practical with article 29(2) of the Universal Declaration and article 4 of the French Declaration; political with article 21.

Then the qualification that earns the marks. Interdependence does not make rights conditional. Article 29(1) states duties and article 29(2) states limitations, and the two are in different paragraphs for a reason: a duty may be enforced as a duty, and it may not be enforced by withdrawing a right. [Rights and Duties: the Correlativity Thesis] works the example.

And the second half is the next chapter.

Worked example

A municipality proposes that the right to use public parks be restricted to residents who have paid their property tax, arguing that rights and duties are interdependent, that the parks are funded by taxes, and that a democracy may fairly ask its members to contribute before they claim.

The institutional point is sound and does not carry the conclusion. It is true that rights are funded by the community, and article 13 of the French Declaration says so. But the conclusion drawn is that an individual's enjoyment may be conditioned on that individual's contribution, and the article does not say that: it requires the tax to be equally distributed among all citizens, in proportion to their ability to pay, which is a duty owed to the public and enforced as a tax, not a price of admission to rights.

The practical point cuts the other way. Article 29(2) permits limitations solely for securing respect for the rights of others and meeting the just requirements of morality, public order and the general welfare in a democratic society. Non-payment of tax by one resident does not interfere with any other resident's use of a park, so the limitation is not securing anybody's rights; it is enforcing an unrelated obligation.

The political point is the strongest objection. In a democracy the people are the source of the authority that owes the duties, and a rule that conditions access to a public good on prior payment falls hardest on those least able to pay, who are also those least able to change the rule. A measure that weakens the position of the group least able to correct it is the paradigm of what constitutional protection is for.

What the municipality may lawfully do. Collect the tax, with interest and penalties, by the machinery provided for collecting taxes. That is a duty enforced as a duty.

And the concession to make. The municipality's instinct that a democracy may ask something of its members is not wrong, and article 29(1), the Covenant preambles and the fundamental duties in Part IVA all reflect it. What is wrong is the mechanism.

What it does NOT mean

Interdependence does not mean rights are earned. The duty implied by a right falls on the duty-bearer.

It does not mean duties may be enforced by withdrawing rights. Article 29(1) and 29(2) are separate paragraphs.

It does not mean the majority may set the boundary where it likes. Article 29(2)'s general welfare is qualified by in a democratic society.

And article 51 is not enforceable. It is a Directive Principle, and its work is interpretive.

Quick revision

• Four interdependences: logical (in a democracy the right-holder is frequently the duty-bearer, both as elector and as a member of the public on whom private duties fall); institutional (rights cost money and the community that holds them pays); practical (my right is bounded by yours); political (only in a democracy can the right-holders replace the duty-bearer).
• French Declaration article 13: For the maintenance of the public force, and for administrative expenses, a general tax is indispensable; it must be equally distributed among all citizens, in proportion to their ability to pay. A tax clause in a rights instrument, because rights are institutions.
• French Declaration article 4: liberty has no bounds other than those that ensure to the other members of society the enjoyment of these same rights.
• UDHR article 29(2): limitations determined by law and solely for securing due recognition and respect for the rights and freedoms of others and meeting the just requirements of morality, public order and the general welfare in a democratic society. The last five words import a standard.
• UDHR article 21: everyone has the right to take part in government, and the will of the people shall be the basis of the authority of government.
• Constitution article 51: the State shall endeavour to promote international peace and security, maintain just and honourable relations between nations, foster respect for international law and treaty obligations, and encourage settlement of international disputes by arbitration. 51(c) is how Module II's instruments reach Indian law.
• The qualification that earns marks: interdependence does not make rights conditional. A duty is enforced as a duty, never by withdrawing a right.

Test yourself

1. Give the four ways rights and duties are interdependent in a democratic society. Logically, because a right in one person is a duty in another and in a democracy those are frequently the same people: the citizen who claims freedom of expression belongs to the electorate that chooses the government owing the correlative duty, and the citizen who claims a right against private interference belongs to the public on whom the correlative duty falls, so my right to reputation is your duty not to defame me. Institutionally, because every right costs money to secure, from courts and legal aid to electoral registers and a police force disciplined enough to forbear, and the community holding the rights is the community that funds them, which is why article 13 of the French Declaration put a taxation duty inside a rights instrument. Practically, because two people exercising the same right can collide and the resolution is a duty in each, which article 29(2) of the Universal Declaration and article 4 of the French Declaration both provide for. And politically, because a democracy is the only arrangement in which the right-holders can remove the officers who fail to perform the duties, which makes participation both a right and something close to a duty.

2. Why does article 29(2) say "in a democratic society", and what does it add? Because it imports a standard rather than leaving the general welfare to be judged by whoever is in power. The paragraph permits limitations determined by law and solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Without the final phrase the general welfare would be whatever a government said it was, and any restriction could be presented as serving it. With it, the limitation is measured against what a society that respects rights would actually require, so a restriction that a functioning democracy would not need is not saved by being called welfare. It also connects the limitation clause to the political interdependence, since the society against which the standard is measured is one in which the right-holders can replace the duty-bearer.

3. What is the significance of article 51 of the Constitution for this paper? It is the hinge between the two halves of the subject. Article 51 is a Directive Principle by which the State shall endeavour to promote international peace and security, to maintain just and honourable relations between nations, to foster respect for international law and treaty obligations in the dealings of organised peoples with one another, and to encourage settlement of international disputes by arbitration. Clause (c) is the operative one here. The instruments studied in Module II, the Universal Declaration, the two Covenants, the Right to Development Declaration, are not Indian law by their own force, because India is dualist and a treaty requires implementing legislation. What gives them purchase is the constitutional direction to foster respect for international law and treaty obligations, together with the courts' practice of reading international conventions and norms into the fundamental rights where no inconsistent domestic law occupies the field. So a duty in Part IV is what allows international rights to operate in Indian courts, which is itself an illustration of the interdependence the question asks about.

4. A municipality restricts park access to residents who have paid property tax, invoking the interdependence of rights and duties. Advise. The institutional premise is sound and the conclusion does not follow. It is true that rights are funded by the community and article 13 of the French Declaration says as much, but that article requires the tax to be equally distributed among all citizens in proportion to their ability to pay, which makes contribution a duty owed to the public and enforced as a tax, not a price of admission to a right. The practical interdependence cuts against the municipality, because article 29(2) permits limitations solely for securing respect for the rights and freedoms of others and meeting the just requirements of morality, public order and the general welfare in a democratic society, and one resident's non-payment interferes with no other resident's use of the park, so the restriction secures nobody's rights and merely enforces an unrelated obligation. The political interdependence is the strongest objection: a rule conditioning access to a public good on prior payment falls hardest on those least able to pay, who are also those least able to change the rule, and protecting the group least able to correct a measure is precisely what constitutional guarantees are for. What the municipality may lawfully do is collect the tax with interest and penalties through the machinery for collecting taxes, which is a duty enforced as a duty.

5. What is the qualification that must accompany any answer on interdependence? That interdependence does not make rights conditional, and that a duty may never be enforced by withdrawing a right. The instruments are drafted to make this structural rather than merely advisable. Article 29(1) of the Universal Declaration states that everyone has duties to the community in which alone the free and full development of his personality is possible, and article 29(2) states the limitations to which rights are subject; they are separate paragraphs because they do different work, and nothing in the first makes the enjoyment of a right contingent on discharging the duties described in it. The same pattern holds elsewhere: duties appear in preambles and general articles, never as preconditions, and the only route by which a right may be narrowed is a limitation clause requiring a law, a stated ground and necessity. So the correct account is that rights and duties are interdependent in the four ways described, and that the interdependence operates at the level of what makes a system of rights work rather than at the level of who is entitled to claim.

The corresponding duty changed too, which is the point the question is really about. A duty of forbearance costs nothing and can be performed by inaction; a duty of provision requires taxation, administration and priorities, and it is judged by article 2(1)'s standard of steps to the maximum of its available resources.

Equality: from formal to substantive

Then. Equality meant the same rule for everyone. Article 6 of the French Declaration: the law must be the same for all, whether it protects or punishes.

Now. Equality is understood to require treating differently situated people differently, and the instruments say so. Article 4(1) of the Women's Convention provides that temporary special measures aimed at accelerating de facto equality shall not be considered discrimination, and article 1(4) of the Racial Discrimination Convention makes the same provision for special measures securing the adequate advancement of groups requiring protection.

This is the single clearest instance of a value reshaping a right, because the same word, equality, now requires something the eighteenth century would have called its opposite.

The group: from the individual alone to the collective as well

Then. The rights-holder was an individual, and a claim by a group was a claim by its members severally.

Now. Common article 1 of both Covenants gives all peoples the right of self-determination; article 27 of the Covenant on Civil and Political Rights protects persons belonging to minorities in community with other members of their group; and article 1 of the Declaration on the Right to Development gives the right to every human person and all peoples.

And the difficulty came with it: a group holder raises the question who speaks for the group, which [Third Generation: The Solidarity Rights] takes.

Time: from the living to the unborn

Then. Duties ran between contemporaries.

Now. Sustainable development, the environment and the common heritage of mankind all assert duties owed to people who do not yet exist. This is the hardest of the six for the framework, because a person who does not exist has no standing, no representative and no remedy, so the duty exists without a correlative right-holder in the ordinary sense, which is the asymmetry [Rights and Duties: the Correlativity Thesis] identifies.

What has NOT changed, which a strong answer says

The source. Dignity, asserted in 1948 and repeated in 1966 and 1986, is where the rights still come from.

The structure. Prior to the State, not conferred by it, binding on it. [Natural Law and the Idea of a Natural Right] shows how old that is.

And the unconditionality. For all the modern emphasis on duties, no instrument makes the enjoyment of a right conditional on the holder's performance of a duty. That constancy is what stops the six shifts from being a story of rights dissolving into obligations.

Worked example

A State argues in a treaty body that its constitution, drafted in 1950, guarantees equality before the law and freedom of contract, that it has never discriminated in terms, and that it is therefore in full compliance; and that claims about caste, gender and environmental damage are matters of policy rather than of rights.

The formal equality answer fails on the substantive shift. Equality before the law in the sense of article 6 of the French Declaration is satisfied by a rule that applies to everyone, and that is no longer what the instruments require. Article 1(4) of the Racial Discrimination Convention and article 4(1) of the Women's Convention both provide that special measures for the advancement of disadvantaged groups are not discrimination, which presupposes that identical treatment can itself perpetuate inequality.

The freedom of contract answer fails on the duty-bearer shift. A State that leaves private discrimination to the market has not discharged the obligation to protect, and the whole point of the tripartite scheme is that respecting a right is only one of three duties.

The policy answer fails on the content shift. Articles 22 to 27 of the Universal Declaration and the Covenant on Economic, Social and Cultural Rights make provision a matter of obligation, subject to progressive realisation, not a matter of political discretion.

The environmental claim engages the time shift and is the weakest for the claimant. A duty owed to future generations has no claimant with standing, so the honest answer identifies the right through a living person's health under article 12 of the Covenant on Economic, Social and Cultural Rights rather than resting on the interests of the unborn.

And what the State can properly say. That the pace of provision is governed by available resources, that article 2(1) requires steps rather than results, and that a 1950 constitution is not evidence of bad faith. A good answer concedes this and points out that progressive realisation is a standard, not an exemption.

What it does NOT mean

The shifts are not a drift of opinion. Each is recorded in a text, and an answer that asserts changing values without naming instruments has given a sociology answer to a law question.

Substantive equality does not abolish formal equality. It supplements it, and both conventions call the measures special and temporary.

The widening of the duty-bearer does not make private parties bound by treaties. It works through the State's duty to protect and through instruments addressed to private actors.

And none of the six shifts has made rights conditional on duties.

Quick revision

• Six shifts, each with its instrument. Holder: from Man and of the Citizen to UDHR article 2's without distinction of any kind, with CERD 1965 and CEDAW 1979 written because the general guarantee had not delivered. Duty-bearer: from the State alone to private power, through the duty to protect and instruments addressed to business. Content: from forbearance to provision, UDHR articles 22 to 27 and the ICESCR, with duties judged by to the maximum of its available resources. Equality: from the law must be the same for all to temporary special measures aimed at accelerating de facto equality not being discrimination, CEDAW article 4(1) and CERD article 1(4). Group: common article 1 of both Covenants, ICCPR article 27, and the Right to Development's every human person and all peoples. Time: duties to the unborn, with no correlative right-holder.
• The equality shift is the clearest: the same word now requires what the eighteenth century would have called its opposite.
• What has not changed: the source (dignity), the structure (prior, not conferred, binding), and the unconditionality of rights.
• Name a text for every shift. Asserting that values have changed, without instruments, is a sociology answer to a law question.

Test yourself

1. Give the six shifts with the instrument that records each. Holder, duty-bearer and content. The holder widened, from the French Declaration's rights of Man and of the Citizen, proclaimed alongside colonial slavery and the exclusion of women, to article 2 of the Universal Declaration entitling everyone without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; and the widening continued after 1948 with the Racial Discrimination Convention of 1965 and the Women's Convention of 1979, written because a general guarantee had not delivered. The duty-bearer widened from the State alone to private power, through the obligation to protect within the tripartite scheme and through instruments addressed to business. The content widened from forbearance to provision, in articles 22 to 27 of the Universal Declaration and the Covenant on Economic, Social and Cultural Rights, with performance judged by the standard of steps to the maximum of available resources.

Equality, the group and time. Equality moved from formal to substantive, from the French Declaration's requirement that the law be the same for all to article 4(1) of the Women's Convention and article 1(4) of the Racial Discrimination Convention providing that special measures for advancement are not discrimination. The group was admitted beside the individual, in common article 1 of both Covenants, article 27 of the Civil and Political Covenant, and the Right to Development's grant to every human person and all peoples. And the time horizon extended to the unborn, which is the shift the framework handles least well.

2. Why is the equality shift the clearest example of a value reshaping a right? Because the same word now requires what the tradition that coined it would have regarded as its violation. Article 6 of the French Declaration provides that the law must be the same for all, whether it protects or punishes, and on that understanding any measure distinguishing between groups is a departure from equality. The modern instruments reverse the presumption for disadvantaged groups: article 4(1) of the Women's Convention provides that temporary special measures aimed at accelerating de facto equality shall not be considered discrimination, and article 1(4) of the Racial Discrimination Convention makes corresponding provision for special measures securing the adequate advancement of groups requiring protection. The premise of both is that identical treatment of differently situated people perpetuates the inequality it appears to ignore. Nothing in the text of the word changed; what changed is a judgment about what equality is for, and the instruments record the change rather than leaving it to argument.

3. Which of the six shifts is hardest for the framework, and why? The extension of the time horizon to those not yet born. Every other shift can be accommodated within the four elements a claim needs: the widening of the holder, the duty-bearer and the content all leave a determinate claimant, a determinate defendant and a statable duty. A duty owed to future generations has no correlative right-holder in the ordinary sense, because a person who does not exist has no standing, no representative and no remedy, so the relation is a duty without a claimant, which is exactly the asymmetry that makes duties and rights non-equivalent. That is why an advocate is generally better advised to locate the claim in a living person's interests, through the right to health under article 12 of the Covenant on Economic, Social and Cultural Rights or the right to an adequate standard of living under article 11, rather than resting the case on the interests of the unborn, and why the third generation of rights has more difficulty than the first two.

4. What has not changed, and why does saying so strengthen an answer? Three things. The source has not changed: rights still derive from the inherent dignity of the human person, asserted in the Universal Declaration in 1948, repeated in both Covenants in 1966 and again in the Right to Development Declaration in 1986. The structure has not changed: a human right is still prior to the State, not conferred by it, and binding on it, which is the architecture the natural law tradition built and the modern instruments kept when they dropped its vocabulary. And the unconditionality has not changed: for all the modern emphasis on duties in article 29(1), in the Covenant preambles and in article 2(2) of the Right to Development Declaration, no instrument makes the enjoyment of a right conditional on the holder having performed a duty. Saying this strengthens an answer because it prevents the six shifts from reading as a story of rights dissolving into obligations, and it shows the candidate can distinguish what has moved from what has held.

5. A State claims compliance because its 1950 constitution guarantees equality before the law and freedom of contract. Answer it across the shifts. Formal equality is not enough after the equality shift: a rule applying to everyone satisfies article 6 of the French Declaration, and the instruments now presuppose that identical treatment can entrench disadvantage, which is why article 1(4) of the Racial Discrimination Convention and article 4(1) of the Women's Convention exclude special measures from the definition of discrimination. Freedom of contract does not answer the duty-bearer shift, because leaving private discrimination to the market fails the obligation to protect, and respecting a right is only one of the three duties a right generates. Calling provision a matter of policy does not answer the content shift, because articles 22 to 27 of the Universal Declaration and the Covenant on Economic, Social and Cultural Rights make provision obligatory subject to progressive realisation rather than discretionary. The environmental claim is the weakest for the claimant and engages the time shift, so it should be pleaded through a living person's health under article 12 rather than through the interests of the unborn. What the State may properly say is that article 2(1) requires steps to the maximum of available resources rather than immediate results, and a good answer concedes this while pointing out that progressive realisation is a standard against which conduct is measured and not an exemption from measurement.

Toleration is the strongest of these for a modern comparison, because it is closest to a modern right: it is an obligation of forbearance, addressed generally, and directed at protecting a group from the majority. It is still a proclamation by a ruler rather than a claim by a subject, and it can be withdrawn by the ruler who made it.

Non-violence and the reforming traditions

Ahimsa in the Buddhist and Jain traditions supplies a general obligation of non-injury that extends beyond the human. The Buddhist sangha admitted members without regard to birth, which was a repudiation in practice of the hierarchy around it. And the later bhakti movements made devotional standing independent of caste and of gender, which is a claim of equal worth even where it is not a claim of legal right.

What the tradition does not contain, and why the omission is the point

No entitlement in the subject. The literature gives the king duties and gives the subject no correlative claim. On the analysis in [Rights and Duties: the Correlativity Thesis], these are duties of imperfect obligation: real duties with no determinate person able to demand performance.

No remedy against the ruler. There is no forum in which a subject sues the king for a breach of rajadharma. [Rights as Legal Claims: What a Claim Needs] identifies the remedy as one of the four elements, and its absence here is not a technicality.

And no equality of holder. This is the decisive point and it cannot be softened. The dharmasastra tradition prescribes different duties, different capacities and different punishments by varna, so the same act attracted different consequences according to the birth of the actor; untouchability excluded whole communities from ordinary social and religious life; and women's legal capacity was systematically restricted. A framework in which entitlement varies by birth is the opposite of a framework in which rights attach by virtue of humanity alone, which is the definition in [What a Human Right Is].

So the honest conclusion is a mixed one, and an examiner rewards it: the tradition supplies the idea of a standard above the ruler and a rich vocabulary of governmental obligation, and it does not supply the individual entitlement, the equality of holder, or the remedy that make a human right a human right.

How to use this in an answer without overclaiming

Three moves, in this order.

State what is there, specifically. Dharma as a standard above the king, rajadharma as the duties of rule, Ashoka's edicts as a ruler's own record, ahimsa and the reforming traditions. Specifics are what distinguish an answer from a sentiment.

State what is not there, in the framework's own vocabulary. No claim-right, no equality of holder, no remedy. Using the analytical vocabulary from [The Hohfeldian Analysis] and [Rights as Legal Claims: What a Claim Needs] converts a vague comparison into a legal one.

And say what the comparison is for. It matters for Module IV. If human rights are a purely European invention, the universality claim is weaker and the Third World objection in [Colonialism and the Making of the Instruments] is stronger. If every major tradition contains the underlying intuition of human worth and of a standard above power, then what 1948 did was to give a shared intuition a determinate legal form, and universality is a claim about the form rather than about the ownership of the idea.

That is the strongest available position, and it is available only to a candidate who has been honest about what the tradition lacks. A student who claims the Vedas contain the Universal Declaration has made the universality argument weaker, not stronger, because the overstatement is easy to expose.

Worked example

An examiner asks: "The concept of human rights was known to ancient India." Discuss.

Begin by dividing the proposition, because it conflates two claims: that ancient India knew the idea of a standard above the ruler, and that it knew the concept of a human right. The first is true and the second is not.

Establish the first with evidence. Dharma binds the king, who upholds it rather than creates it; danda is itself governed by it; rajadharma states protection of subjects as the first duty and treats taxation as its counterpart; and Ashoka's edicts record a ruler publicly binding himself to welfare, medical provision, restraint in punishment and toleration among sects.

Deny the second with the framework's own tests. A human right requires a holder who may claim, a duty-bearer, determinate content and a remedy. The tradition supplies content and a duty-bearer and supplies neither a claimant nor a remedy, and it fails the definition at the first element because entitlement varied by varna and by gender, so the claim did not attach by virtue of humanity alone.

Refuse the two easy errors. Do not say the tradition had nothing, which ignores the edicts and the reforming movements. Do not say it had human rights, which requires ignoring caste and the absence of any claim against the ruler.

And close on what the comparison establishes. That the intuition of human worth and of a standard above power is not the property of one civilisation, which is the proposition Module IV needs, while the legal form in which that intuition became enforceable is a twentieth-century achievement, which is what the instruments added.

What it does NOT mean

It does not mean the tradition was uniquely unequal. Athens had slaves and the French Declaration coexisted with colonial slavery; the comparison is not to a European tradition that had solved the problem.

It does not mean the material is irrelevant. It supplies the first proposition of the natural law structure, which is the indispensable one.

It does not mean Ashoka's edicts are a bill of rights. They are a ruler's proclamation of his own obligations, revocable by the ruler.

And it does not settle the universality debate. It supports the claim that the underlying intuition is widely shared, which is a different and more defensible claim.

Quick revision

• What is there: dharma as a standard the king upholds rather than makes, with danda itself governed by it; rajadharma, protection of subjects as the first duty with taxation as its counterpart, protection of the weak, the aged, the ill, widows and orphans, and rule for the welfare of subjects; Ashoka's edicts, recording welfare of all subjects, medical treatment for people and animals, trees and wells along roads, humane treatment of prisoners, restraint in punishment, and toleration with the injunction not to honour one's own sect by disparaging another; and ahimsa, the sangha's admission without regard to birth, and the later bhakti movements' equal devotional standing.
• What is not there: no claim-right in the subject, the duties being of imperfect obligation; no remedy against the ruler; and no equality of holder, since duties, capacities and punishments varied by varna, untouchability excluded whole communities, and women's legal capacity was restricted.
• The structural statement: the tradition supplies the first proposition of the natural law structure, that there is a standard above the sovereign, and not the third, that the standard generates entitlements in persons.
• Why it matters: for Module IV. If the intuition of human worth and of a standard above power is shared across traditions, universality is a claim about the legal form given in 1948 rather than about ownership of the idea.
• Overclaiming weakens the universality argument, because the overstatement is easy to expose.

Test yourself

1. What does the classical Indian tradition supply, and what does it not? It supplies a fully developed conception of a standard above the ruler. Dharma is the order of right conduct which the king upholds rather than creates, punishment itself is governed by it, and rajadharma states the duties of rule specifically: protection of subjects as the first duty, with taxation treated as its counterpart so that the relation is exchange rather than tribute; protection of the weak, the aged, the ill, widows and orphans; the securing of property; the hearing of grievances; and rule for the welfare of subjects rather than the ruler's enjoyment. Ashoka's edicts record a ruler publicly binding himself to much of this. What it does not supply is any of the three things that make a duty into a right. There is no claim-right in the subject, so these are duties of imperfect obligation which no determinate person may demand be performed. There is no remedy, since no forum exists in which a subject sues the king for a breach of rajadharma. And there is no equality of holder, because duties, capacities and punishments varied by varna, untouchability excluded whole communities, and women's legal capacity was restricted.

2. Why is Ashoka's material the strongest evidence, and what are its limits? Because it is a ruler's own published record rather than a treatise's advice, so it evidences practice and self-obligation rather than aspiration. The edicts proclaim concern for the welfare of all subjects, the provision of medical treatment for people and animals, the planting of trees and digging of wells along roads, humane treatment of prisoners including provision for those sentenced to death, restraint in punishment, and toleration among sects with the injunction that one should not honour one's own sect by disparaging another. The toleration material is closest to a modern right, because it is an obligation of forbearance stated generally and aimed at protecting groups from the majority, which is structurally what a modern minority guarantee does. Its limits are two. It is a proclamation by a ruler, so it is revocable by a ruler, and nothing in it gives a subject standing to complain. And it binds by the king's own act, which means the standard operates on the ruler's conscience rather than as a claim held against him.

3. Why does overclaiming for the tradition weaken the universality argument? Because the universality claim in Module IV does not need the strong version and is damaged by it. The proposition that helps is that the underlying intuition, that human beings have worth and that power is subject to a standard it did not make, is found across traditions rather than being the property of one civilisation; on that footing what the instruments of 1948 achieved was to give a widely shared intuition a determinate legal form, and universality becomes a claim about the form rather than about who owns the idea. The proposition that hurts is that ancient texts already contained human rights in the modern sense, because it can be refuted in one sentence by pointing to varna, to untouchability and to the restricted legal capacity of women, and a claim that collapses under the first objection discredits the argument it was offered to support. An examiner who sees a candidate concede the difficulty and still reach the useful conclusion will mark that higher than one who asserts more and can defend less.

4. Answer the proposition that the concept of human rights was known to ancient India. Divide it first, because it conflates two claims. The first is that ancient India knew the idea of a standard above the ruler, and that is true: dharma binds the king, who upholds rather than creates it, danda is governed by it, rajadharma sets out protection of subjects as the first duty with taxation as its counterpart, and Ashoka's edicts record a ruler binding himself publicly to welfare, medical provision, restraint in punishment and toleration among sects. The second is that it knew the concept of a human right, and that is not true. Applying the framework's own tests, a right requires a holder who may claim, a duty-bearer, determinate content and a remedy; the tradition supplies content and a duty-bearer, supplies no claimant and no remedy, and fails at the first element because entitlement varied by varna and by gender rather than attaching by virtue of humanity alone. Two easy errors must be refused: that the tradition had nothing, which ignores the edicts and the reforming movements, and that it had human rights, which requires ignoring caste. The comparison establishes that the intuition is not one civilisation's property while the enforceable legal form is a twentieth-century achievement.

The extension of citizenship. The gradual widening of Roman citizenship, culminating in its general grant to free inhabitants of the empire, is sometimes cited as an early universality. Treat it carefully: it universalised a status and its privileges, which is the opposite of a right held by virtue of humanity, and the word to reach for is the one from [What a Human Right Is], where a right dependent on status is a privilege.

And Rome too was a slave society, in which the slave was in law a thing. Any account that presents Roman law as an ancestor of human rights has to hold that fact in view.

The religious traditions

Each of the major traditions asserts human worth from a source above human authority, and the assertions are the material an examiner expects to see named.

The Judaeo-Christian tradition grounds worth in the creation of the human being in the image of God, which is an assertion of equal worth independent of status, and supplies a strong obligation of care for the stranger, the widow and the orphan.

Islam asserts the honouring of the children of Adam, the unity of humankind from a single origin, and detailed obligations of charity and of just dealing; the farewell sermon's statements about the equality of Arab and non-Arab are commonly cited in this context.

Buddhism and Jainism supply non-injury as a general obligation extending beyond the human, and the Buddhist sangha's admission of members without regard to birth, as [Human Rights in Ancient Tradition: India] records.

Confucian thought supplies the obligation of the ruler to govern for the people's welfare and the loss of the mandate to rule where he does not, which is a standard above the ruler expressed as a political principle.

What all four have in common is worth stating in one sentence, because it is the examinable point: they ground human worth in something above human authority, and they express the consequence as an obligation on those with power rather than as a claim in those without it.

The common shape, and the common limit

Set the traditions side by side and the same pattern appears in each.

And the fact that has to be stated rather than avoided: Greece, Rome, and the societies of every one of these religious traditions held slaves, and several of the traditions were used to justify it. A comparative claim that skips this is not a comparison; it is advocacy.

What the comparison establishes for Module IV

Against the charge that human rights are a Western imposition, the traditions establish that the underlying intuitions, that human beings have worth and that power answers to a standard it did not make, are not the property of one civilisation. That is a real answer to the objection in [Colonialism and the Making of the Instruments], and it is the answer the Vienna Declaration's universality claim ultimately rests on.

Against an overstated defence of universality, the traditions establish equally that none of them produced individual entitlements, equality of holder or remedies, so the modern framework is a genuine innovation and not a rediscovery. [From Natural Right to Human Right] shows what the innovation consisted of.

The position that survives both objections: the intuition is shared, the legal form is modern, and universality is a claim about the form. A candidate who states it that way has an argument that neither side of Module IV can knock over easily.

Worked example

A State argues before a treaty body that human rights are a European construct exported by former colonial powers, and that its own tradition, which is not European, has always protected human welfare in its own way and should be permitted to continue doing so without external supervision.

Concede the historical premise in part. The instruments of 1948 and 1966 were drafted in a period when much of the world was still under colonial rule, and [Who Was in the Room in 1948] sets out the membership honestly. That concession costs nothing and buys credibility for what follows.

Deny the conceptual premise with the traditions. The intuition that human beings have worth and that rulers answer to a standard they did not make appears in Greek, Roman, Indian, Islamic, Judaeo-Christian, Buddhist and Confucian thought alike, so the objection cannot be that the underlying idea is foreign.

Then locate the actual innovation, and note who it protects. What 1948 added was the individual entitlement, the equality of holder and the machinery. Every one of the traditions the State invokes graded persons by birth or sex and none gave a subject a claim against a ruler, so the State is invoking traditions that would not have protected most of its own population in order to resist an instrument that does.

And answer the supervision point on its own terms. Vienna paragraph 5 requires that national and regional particularities be borne in mind and then makes the duty unconditional regardless of political, economic and cultural systems; and the Bangkok Declaration itself, at paragraph 7, stresses the universality, objectivity and non-selectivity of all human rights. The State's own regional declaration does not support the position it is advancing.

What it does NOT mean

It does not mean these traditions contained human rights. They contained the intuition and not the entitlement.

It does not mean the traditions are interchangeable. They ground worth differently, and the differences matter for [Cultural Relativism].

It does not mean the modern framework is culturally neutral. Its form, an individual entitlement enforced against a State, is a particular legal form, and the honest claim is that the form is the innovation.

And it does not settle Module IV. It removes one objection, that the idea is foreign, and leaves the objections about drafting, selectivity and enforcement standing.

Quick revision

• Greece: the unwritten law above the ruler's decree; the physis and nomos question posed by the Sophists; the Stoic claim that reason is common to all, so the standard binds beyond the city. Athens excluded women, resident foreigners and slaves, and Aristotle defended natural slavery.
• Rome: the ius gentium, law observed among all peoples, distinguished from the ius civile, later merged with the ius naturale, which is how the vocabulary reached the modern writers. The extension of citizenship universalised a status, not a right by virtue of humanity. Rome was a slave society.
• The religions: creation in the image of God and care for the stranger, the widow and the orphan; the honouring of the children of Adam and the unity of humankind; ahimsa and admission to the sangha without regard to birth; and the Confucian mandate lost by a ruler who does not govern for the people's welfare. All four express the consequence as an obligation on power, not a claim in the powerless.
• The common shape: all supply a standard above the ruler, the knowability of that standard, obligations of rule, and universality of the standard. None supplies a claim-right, equality of holder, a remedy, or universality of application.
• Every one of these societies held slaves. An answer that omits this is advocacy rather than comparison.
• The position that survives both objections: the intuition is shared, the legal form is modern, and universality is a claim about the form.

Test yourself

1. What did Greece and Rome each contribute? Greece contributed two things. The idea of an unwritten law binding on the city, which Antigone states when she refuses to leave her brother unburied on the ground that the unwritten and unfailing laws of the gods are not of today or yesterday and that no mortal's decree may override them; and the Stoic claim that reason is common to all human beings, so the standard is one for everybody and the wise person is a citizen of the world rather than of a city, which is the first appearance of the idea that a rule can bind beyond the polity that made it. The Sophists' distinction between physis and nomos is worth adding, because it posed the question the whole tradition then answered. Rome contributed the practical vocabulary, distinguishing the ius civile of Roman citizens from the ius gentium observed among all peoples, which later merged in juristic thought with the ius naturale and is the route by which the classical material reached the medieval and modern writers. Both contributions are about the standard rather than about any person's claim, and both societies held slaves.

2. Why must the extension of Roman citizenship be treated carefully? Because it universalised a status rather than recognising a right. The gradual widening of citizenship, culminating in its general grant to free inhabitants of the empire, is often cited as an early universality, and in one sense it was: the same body of privileges came to be enjoyed by a far wider population. But a human right, on the definition this paper works with, belongs to a person by virtue of their humanity and not by virtue of any status, and an entitlement that depends on holding citizenship is precisely what that definition excludes. Two further points complete the answer. The grant was to free inhabitants, so it left the slave population exactly where it was, and in Roman law the slave was a thing rather than a person. And a status conferred by an emperor can be withdrawn by an emperor, which fails the requirement that the entitlement be prior to and binding on the authority.

3. What do the religious traditions have in common for this purpose? That each grounds human worth in a source above human authority, and each expresses the consequence as an obligation on those with power rather than as a claim in those without it. The Judaeo-Christian tradition grounds worth in the creation of the human being in the image of God and imposes strong obligations of care for the stranger, the widow and the orphan. Islam asserts the honouring of the children of Adam and the unity of humankind from a single origin, with detailed obligations of charity and just dealing. Buddhism and Jainism supply non-injury as a general obligation extending beyond the human, and the Buddhist order admitted members without regard to birth. Confucian thought makes the ruler's authority conditional on governing for the people's welfare, the mandate being lost where he does not. The shared structure is the important part: worth is asserted, an obligation follows, and no forum is created in which the person of worth may enforce anything.

4. What does the comparison establish for Module IV, and what does it not? It establishes that the underlying intuitions are not the property of one civilisation, which is a real answer to the charge that human rights are a Western construct imposed on others: the idea that human beings have worth, and that power answers to a standard it did not make, is present in Greek, Roman, Indian, Islamic, Judaeo-Christian, Buddhist and Confucian thought alike. It does not establish that any of those traditions contained human rights, because none produced an individual entitlement, none achieved equality of holder, and none supplied a remedy against the ruler; all of them graded persons by birth, sex or status, and every one of the societies concerned held slaves. So the modern framework is an innovation rather than a rediscovery. The position that survives both objections, and the one worth arguing, is that the intuition is shared, the legal form is modern, and universality is a claim about the form rather than about ownership of the idea.

5. A State says human rights are a European export and its own tradition should be left to protect welfare its own way. Answer it. Concede part of the historical premise first, because it is true and conceding it buys credibility: the instruments of 1948 and 1966 were drafted while much of the world was still under colonial rule. Then deny the conceptual premise, because the intuition the instruments rest on appears across Greek, Roman, Indian, Islamic, Judaeo-Christian, Buddhist and Confucian thought, so the objection cannot be that the underlying idea is foreign. Then locate the actual innovation and notice whom it protects: what 1948 added was the individual entitlement, the equality of holder and the machinery, and since every tradition the State invokes graded persons by birth or sex and gave no subject a claim against a ruler, the State is invoking traditions that would not have protected most of its own population in order to resist an instrument that does. Finally answer the supervision point from the State's own regional text: Vienna paragraph 5 requires national and regional particularities to be borne in mind and then makes the duty unconditional regardless of political, economic and cultural systems, and the Bangkok Declaration itself stresses at paragraph 7 the universality, objectivity and non-selectivity of all human rights.

Constitutional or fundamental rights

What they are. Legal rights entrenched, so that the ordinary legislature cannot remove them.

The Indian illustration. Part III of the Constitution, enforceable under article 32, which is itself a fundamental right. [Fundamental Rights: the Indian Form] takes it.

Two cautions. Not every constitutional right is a human right: a right to a particular form of appeal, or to trade freely across State boundaries, may be entrenched without being held by virtue of humanity. And not every human right is constitutionally guaranteed in a given State, which is the gap the international instruments exist to fill.

Human rights

What they are. The definition in [What a Human Right Is]: held by virtue of humanity, not conditional, binding on the State.

Their peculiarity. They are the only one of the four whose existence does not depend on recognition. That is their whole point and their whole difficulty: it is what lets a person say a State's law is wrong, and it is what the positivist says makes them not rights at all until enacted.

How the four overlap

The categories are not exclusive, and the clearest way to see it is to take one entitlement through all four.

Freedom from torture.

As a moral right, it is defensible by argument from human dignity without any text at all.

As a human right, it appears in article 5 of the Universal Declaration: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

As a treaty right, it is article 7 of the Covenant on Civil and Political Rights, binding on States parties, and made non-derogable by article 4(2) even in a public emergency threatening the life of the nation.

As a constitutional right in India, it is part of the content of article 21, enforceable by writ under article 32.

As an ordinary legal right, it is supported by the criminal law of assault and by the law of tort.

The lesson: asking which category an entitlement belongs to is usually the wrong question. The right question is which categories it is in on these facts and in this forum, because that determines what can be done about a breach.

Where the categories come apart, which is where problems are set

A legal right that is not a human right. A right of pre-emption over neighbouring land. Created by statute, enforceable, repealable, and not held by virtue of humanity.

A human right that is not a legal right in a given State. Any right in the Universal Declaration that a State has not enacted and whose treaty it has not ratified. The claim exists; the forum does not.

A constitutional right that is not a human right. An entrenched guarantee of free interstate trade, or of a particular allocation of legislative power. Entrenched, and not about human beings as such.

A moral right that is neither. A right to be told the truth by one's friends.

And a human right that is a legal right but not constitutionally entrenched. A statutory anti-discrimination guarantee in a State without a bill of rights, which protects until the legislature changes its mind.

Worked example

A State's statute guarantees paid maternity leave. Its constitution guarantees equality and personal liberty but says nothing about maternity. It has ratified the Covenant on Economic, Social and Cultural Rights and the Women's Convention. A new legislature repeals the maternity statute. A worker complains.

As an ordinary legal right, the claim is gone. The legislature that made it has unmade it, and that is what a legal right's weakness consists of. A candidate who stops here has answered a quarter of the question.

As a human right, the claim survives the repeal. Article 25(2) of the Universal Declaration provides that motherhood and childhood are entitled to special care and assistance; article 10(2) of the Covenant on Economic, Social and Cultural Rights requires special protection to be accorded to mothers during a reasonable period before and after childbirth, with working mothers to be accorded paid leave or leave with adequate social security benefits; and article 11 of the Women's Convention addresses maternity protection in employment. The entitlement did not disappear when the statute did.

As a treaty obligation, the repeal is a retrogressive measure. Article 2(1) of the Covenant on Economic, Social and Cultural Rights requires steps towards progressively achieving full realisation, and a deliberate step backwards has to be justified.

And as a constitutional claim, the route is indirect but real. The constitution guarantees equality and personal liberty; the argument is that withdrawing maternity protection burdens one sex and engages equality, and that the international obligations are read into those guarantees where no inconsistent domestic law occupies the field, which is the technique in [Interdependence of Rights and Duties in a Democratic Society] under article 51(c).

The point of the example. The four categories are four different answers to the same repeal, and only by separating them can a candidate say what survives and in which forum.

What it does NOT mean

The four are not a hierarchy of strength. A legal right with a remedy is often worth more in practice than a human right without one.

A right is not disqualified from being a human right by also being statutory. Most human rights are statutory somewhere.

Constitutional entrenchment is not proof of a human right, and its absence is not proof of the opposite.

And a moral right is not a lesser thing. It is the category from which the others came.

Quick revision

• The test: who can take it away, and how? Moral right, nobody and nobody enforces; legal right, its maker by ordinary process; constitutional right, only by the special amending process; human right, on the theory nobody at all.
• In Hohfeld's terms: a legal right leaves the holder under a liability; a constitutional right gives an immunity and puts a disability on the legislature.
• The four overlap. Freedom from torture is a moral right by argument from dignity; a human right in UDHR article 5; a treaty right in ICCPR article 7, made non-derogable by article 4(2); a constitutional right within article 21, enforceable under article 32; and an ordinary legal right through the criminal law and tort.
• Where they come apart: a legal right that is not a human right (pre-emption); a human right not legally recognised in a State; a constitutional right that is not a human right (entrenched interstate trade); a moral right that is neither; and a human right protected only by ordinary statute.
• The right question is not which category an entitlement belongs to, but which categories it is in on these facts and in this forum, because that determines the remedy.

Test yourself

1. What single question separates the four categories, and what does it reveal? Who can take the right away, and by what process. A moral right cannot be taken away by anyone, because it does not depend on recognition, but nobody enforces it either, so its security is matched by its uselessness in a forum. A legal right can be removed by the body that created it through the ordinary process, which is its decisive weakness for this subject, since a right that survives only while the legislature is content is no protection against the legislature. A constitutional or fundamental right can be removed only by the special amending process, and sometimes not even then, which is what entrenchment achieves. A human right cannot, on the theory, be removed at all, because it belongs to a person by virtue of their humanity rather than by anyone's grant. In Hohfeld's vocabulary the difference between the second and third is the difference between a liability and an immunity: the ordinary right-holder is exposed to having their position changed, while the constitutional right-holder faces a legislature under a disability.

2. Show how one entitlement occupies all four categories. Freedom from torture. As a moral right it is defensible by argument from human dignity without reference to any text, and it would remain arguable in a State whose law said nothing about it. As a human right it appears in article 5 of the Universal Declaration, which provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. As a treaty right it is article 7 of the Covenant on Civil and Political Rights, binding on States parties, and article 4(2) makes it non-derogable even in a public emergency threatening the life of the nation, which is the strongest protection the framework can give. As a constitutional right in India it forms part of the content of article 21 and is enforceable by writ under article 32. And as an ordinary legal right it is supported by the criminal law of assault and by the law of tort, which is how a victim actually recovers damages. The lesson is that asking which category an entitlement belongs to is usually the wrong question; the useful question is which categories it occupies on these facts and in this forum.

3. Give an example of each way the categories come apart. A legal right that is not a human right: a statutory right of pre-emption over neighbouring land, which is created, enforceable and repealable, and is not held by virtue of humanity. A human right that is not a legal right in a particular State: any entitlement in the Universal Declaration that the State has not enacted and whose treaty it has not ratified, so the claim exists and the forum does not. A constitutional right that is not a human right: an entrenched guarantee of free interstate trade or a particular allocation of legislative power, which is protected against the ordinary legislature but is not about human beings as such. A moral right that is neither legal nor constitutional: a right to be told the truth by one's friends. And a human right that is a legal right without entrenchment: a statutory anti-discrimination guarantee in a State with no bill of rights, which protects the holder exactly as long as the legislature is content to leave it standing.

4. A legislature repeals a maternity leave statute. What survives, and where? As an ordinary legal right, nothing survives: the body that made the right has unmade it, which is precisely the weakness of a legal right, and an answer stopping there has done a quarter of the work. As a human right the entitlement survives the repeal, because article 25(2) of the Universal Declaration provides that motherhood and childhood are entitled to special care and assistance, article 10(2) of the Covenant on Economic, Social and Cultural Rights requires special protection for mothers during a reasonable period before and after childbirth with working mothers accorded paid leave or leave with adequate social security benefits, and article 11 of the Women's Convention addresses maternity protection in employment. As a treaty obligation the repeal is a retrogressive measure that must be justified, since article 2(1) of the Economic, Social and Cultural Rights Covenant requires steps towards progressively achieving full realisation. And constitutionally the route is indirect but real: the guarantees of equality and personal liberty are engaged because withdrawing maternity protection burdens one sex, and the international obligations are read into those guarantees where no inconsistent domestic law occupies the field. Four categories, four answers to one repeal.

Each freedom carries its own restriction clause. Clause (2) allows reasonable restrictions on speech in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Clauses (3) to (6) do the same work for the other freedoms on their own grounds.

This is the Indian form of the general limitation structure that [Limitation: When a Right May Be Restricted] sets out. The restriction must be by law, must serve one of the enumerated grounds and no other, and must be reasonable. Reasonableness is what the courts have built proportionality out of.

Article 21: life and personal liberty

The text, and it is one sentence. No person shall be deprived of his life or personal liberty except according to procedure established by law.

The most productive sentence in Indian constitutional law, and the reason is a piece of drafting history worth knowing. The Assembly considered the American phrase "due process of law" and chose the narrower "procedure established by law" instead. On its face that gives a court no power to ask whether the law is fair; it asks only whether a procedure existed.

What the courts made of it. The early reading was the literal one: any procedure enacted by a competent legislature sufficed. That reading was abandoned. The court held that the procedure must be right, just and fair, and not arbitrary, fanciful or oppressive, and that articles 14, 19 and 21 are not watertight compartments but must be read together, so that a law depriving a person of liberty must also satisfy equality and must not unreasonably restrict the article 19 freedoms.

What article 21 now carries. Because "life" was read as more than animal existence, article 21 has been held to include the right to live with human dignity, and to carry a right to livelihood, to a clean environment, to health, to shelter, to education for children of a certain age, to a speedy trial, to legal aid, to privacy, and to die with dignity in the narrow sense of refusing life-prolonging treatment.

A caution you should state and not hide. This expansion is judicial. It gives India a route by which the second generation of rights, discussed in [Second Generation: What Economic, Social and Cultural Rights Are], became enforceable without the constitutional text saying so, and its critics say the same reasoning that reads a right in could read one out. Both halves belong in an answer.

Article 32: the remedy, and the right to the remedy

The text. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. The Supreme Court has power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate. Parliament may empower other courts to exercise the same powers. And the right guaranteed by the article shall not be suspended except as otherwise provided for by this Constitution.

The point that carries marks. Article 32 is not merely a procedural provision. It is itself a fundamental right, sitting in Part III alongside the rights it enforces. Ambedkar called it the article without which the Constitution would be a nullity, the very soul and heart of it. That is the structural answer to the positivist objection in [The Positivist Objection]: a right with a forum is a legal right, and article 32 is what supplies the forum.

The five writs, in one line each.

Article 226 alongside it. The High Courts have a writ jurisdiction of their own, and it is wider: it runs for the enforcement of fundamental rights and for any other purpose. But article 226 is not itself a fundamental right, and that is the difference between the two.

How the four work as a system

Take a person detained without a warrant and held incommunicado.

Article 21 is engaged: they have been deprived of personal liberty, and the question is whether it was according to a procedure that is right, just and fair.

Article 22 supplies the specific procedural protections on arrest, and article 14 asks whether the treatment was arbitrary or singled the person out.

Article 19 may be engaged if the detention is aimed at their speech or association.

And article 32 is what turns all of that into a hearing, by a petition for habeas corpus in which the State must produce the body and justify the detention.

The system, in a sentence a student can write: the guarantees would be a statement of ideals without article 32, and article 32 would have nothing to enforce without the guarantees.

What it does NOT mean

Part III is not the whole of Indian human rights law. The Directive Principles in Part IV are not enforceable by any court and yet are fundamental in the governance of the country, and much of the second generation lives there. Article 51(c), which directs the State to foster respect for international law and treaty obligations, is the hinge by which international human rights instruments enter Indian reasoning.

Fundamental rights are not absolute. Every article 19 freedom carries a restriction clause, and article 21 permits deprivation by a valid procedure.

And they are not beyond amendment, as the omission of the property right proves, though the basic structure doctrine has held that the amending power cannot destroy the Constitution's essential features.

Quick revision

• Article 14: equality before the law and the equal protection of the laws, for any person, not only citizens. Classification must rest on an intelligible differentia with a rational nexus to the object.
• Article 19: six freedoms for citizens, each with its own reasonable-restriction clause on enumerated grounds. The seventh, property, was omitted by the Forty-fourth Amendment in 1978.
• Article 21: no deprivation of life or personal liberty except according to procedure established by law. The Assembly rejected "due process"; the courts later required the procedure to be right, just and fair, and read articles 14, 19 and 21 together.
• Article 32: the right to move the Supreme Court is guaranteed, with the five writs, and it is itself a fundamental right. Article 226 is wider in reach but is not a fundamental right.
• Chronology: Assembly from 1946, Universal Declaration 10 December 1948, Constitution adopted 26 November 1949, commenced 26 January 1950. Drafted alongside, not copied.

Test yourself

1. What are the two guarantees in article 14, and how do they differ? Equality before the law is the negative and older idea, associated with Dicey: no person is above the law and none is beneath its protection, so the article forbids privilege. Equal protection of the laws is the positive idea taken from American practice: those similarly situated must be treated alike, which permits classification while forbidding arbitrariness. The working Indian test is that a classification must rest on an intelligible differentia, meaning a real and identifiable basis for separating one group from another, and that differentia must bear a rational nexus with the object the law seeks to achieve. The words that matter most for this paper are "any person": article 14 protects persons, not only citizens, which is what makes it a human right in the strict sense of belonging to a person by virtue of their humanity rather than their nationality. Article 19, by contrast, is confined to citizens, and the difference is deliberate.

2. Why is article 21 the most productive sentence in Indian constitutional law? Because the Constituent Assembly deliberately chose "procedure established by law" over the American "due process of law", which on its face confines a court to asking whether a procedure existed rather than whether it was fair. The early reading was the literal one, and any procedure enacted by a competent legislature sufficed. That reading was abandoned: the court held that the procedure must be right, just and fair, and not arbitrary, fanciful or oppressive, and that articles 14, 19 and 21 are not watertight compartments but must be read together. Once "life" was read as more than animal existence, the article came to carry the right to live with human dignity, and with it livelihood, a clean environment, health, shelter, education for children of a certain age, speedy trial, legal aid, privacy and the narrow right to refuse life-prolonging treatment. The caution belongs in the same answer: this expansion is judicial rather than textual, it is the route by which second generation rights became enforceable in India without the text saying so, and its critics point out that reasoning which reads a right in could read one out.

3. Why is article 32 called a fundamental right rather than a procedural provision? Because it sits in Part III alongside the rights it enforces, so the right to approach the Supreme Court for enforcement is itself guaranteed and cannot be defeated by ordinary law; clause (4) adds that it shall not be suspended except as the Constitution itself provides. Ambedkar described it as the article without which the Constitution would be a nullity, its very soul and heart. Structurally it is the answer to the positivist objection that human rights without a forum are not rights at all, because article 32 supplies exactly the forum the objection says is missing, along with the five writs: habeas corpus to produce a detained person and justify the detention, mandamus to command a public authority to perform its legal duty, prohibition to stop a tribunal exceeding jurisdiction, certiorari to quash an order already made, and quo warranto to ask by what authority a person holds public office. Article 226 gives the High Courts a wider jurisdiction, running for the enforcement of fundamental rights and for any other purpose, but it is not itself a fundamental right, and that is the difference between them.

4. Show the four articles working together on a single set of facts. Take a person arrested without a warrant and held incommunicado. Article 21 is engaged immediately, because the person has been deprived of personal liberty, and the question is not merely whether some procedure exists but whether it is right, just and fair. Article 22 supplies the specific protections on arrest, and article 14 asks whether the treatment was arbitrary or singled this person out without an intelligible differentia bearing a rational nexus to any legitimate object. Article 19 enters if the detention is aimed at what the person said or whom they associated with, and then the State must bring the restriction within an enumerated ground and show it is reasonable. Article 32 is what converts all of this into a hearing, by a petition for habeas corpus in which the State must produce the body and justify the detention. The guarantees would be a statement of ideals without article 32, and article 32 would have nothing to enforce without the guarantees.

Territory, and the harder question of control

The ordinary rule. A State owes the duty to everyone within its territory and subject to its jurisdiction. The Covenant on Civil and Political Rights puts it in article 2(1) in exactly those terms, and the words carry the whole of the extraterritoriality debate.

The hard cases, which examiners like because the answer is not obvious.

Occupation. A State in effective control of foreign territory exercises jurisdiction there, and the human rights obligations travel with the control.

Custody. A State holding a person in a facility abroad exercises authority over that person, and the duty follows the person.

Embassies and vessels. Jurisdiction is exercised in places under a State's flag or control.

But not everywhere the State acts. A State that sells weapons, or that pollutes across a border, is not thereby exercising jurisdiction over everyone affected, and the framework has no settled answer to harms of that shape. [Third Generation: The Solidarity Rights] and the third generation chapters take that gap.

Consequences of the design choice, in both directions

What it gained

A named respondent. A petition under article 32 names a State respondent, and the State must appear and answer. That is what makes an Indian fundamental rights claim a claim and not a complaint.

A single standard. Because the duty-bearer is the same everywhere, one instrument can be written for all of them, and comparison between States becomes possible.

And an entry point for machinery. Reporting, periodic review and treaty bodies all work because there is a State to report, be reviewed and answer.

What it cost

Violations by non-State actors fall outside the direct reach of the framework, and are captured, if at all, through the State's failure to protect. That indirect route is the subject of [Respect, Protect, Fulfil].

A collapsed State has no duty-bearer, which is a defect exactly where protection is most needed.

And the strongest actors in a globalised economy are not States, which is the argument [Corporations and the Non-State Actor] and [Globalization and Human Rights: the Argument Both Ways] take up.

Worked example

A private security company guards a State-owned mine under a contract with the State. Its guards beat protesters at the gate. The protesters claim a violation.

First ask whether the conduct is attributable. If the company was empowered by law to exercise elements of governmental authority, or acted on the State's instructions or under its direction or control, the beating is the State's own act and the analysis stops there.

If it is not attributable, the claim shifts to the duty to protect. The question is no longer whether the State beat anyone but whether it did what a State must: regulate private security, licence and train, investigate the assault, prosecute where the evidence supports it, and provide a remedy.

And the answer is fact-specific. A State that knew of a pattern of violence at that mine and did nothing has failed. A State that investigated promptly and prosecuted has not, even though the beating happened.

The examinable point: the same facts produce two completely different legal questions depending on attribution, and a candidate who does not separate them will answer neither.

What it does NOT mean

It does not mean private wrongs do not matter. It means they enter the framework through a different door.

It does not mean the State is liable for everything that happens in its territory. The duty to protect is a duty of due diligence, measured by what the State knew or ought to have known and what it could reasonably have done, not a guarantee of results.

And it does not mean human rights are only about government. [Culture, Religion and Rights Inside a Society] deals with the violations that happen inside families and communities, where the State's role is real but indirect.

Quick revision

• Three reasons the State is the paradigm duty-bearer: capacity to violate on a scale nothing else matches, monopoly on legitimate force leaving the victim nowhere else to go, and answerability to a body of law made by and binding on States.
• Attribution: the conduct of any State organ is the State's act, legislative, executive or judicial, central or local, and even where the organ exceeded its authority if it acted in an official capacity. Private persons count when empowered to exercise governmental authority or acting on instructions, direction or control.
• India's version is article 12's definition of "the State", including local and other authorities, tested by financial, functional and administrative control rather than legal form.
• Reach: everyone within the territory and subject to the jurisdiction (ICCPR article 2(1)), extending to occupation, custody abroad, and flag jurisdiction.
• The design choice cut both ways: it gave a named respondent, a single standard and workable machinery, and it left non-State violations reachable only indirectly, collapsed States with no duty-bearer, and the strongest global actors outside the frame.

Test yourself

1. Why did the framework put the duty on the State rather than on everyone? For three reasons that are historical rather than logical. Capacity: only a State commands police, prisons, armies, courts, taxes and registries, and the wrongs the post-war framework was legislating against were committed by a State using precisely that apparatus. Monopoly: the State claims a monopoly on the legitimate use of force, so a person facing it has nowhere else to go, and the ordinary remedies of private law are worthless against the body that runs the courts. Answerability: international law is made by States and binds States, so putting the duty on the State placed it where the law could actually reach. The important qualification is that this was a design choice and not a discovery. A framework of duties owed by everyone to everyone was possible and was not built, and the gaps that follow, particularly the reach of the framework to armed groups and corporations, are the price of the choice.

2. Whose acts count as the State's acts? The conduct of any organ of the State is attributable to it, whether the organ exercises legislative, executive or judicial functions, whatever its position in the State's organisation, and whether it belongs to the central government or to a territorial unit. Crucially the rule extends to organs that exceed their authority or contravene instructions, provided they acted in an official capacity, because any other rule would let every State disclaim every violation by pointing to the standing order the violator broke. Private persons are also caught in two defined situations: where they were empowered by law to exercise elements of governmental authority, and where they acted on the State's instructions or under its direction or control. India states the same idea through article 12's definition of "the State", which includes the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory or under the control of the Government of India, with the courts testing "other authority" by financial, functional and administrative control rather than by legal form.

3. A private security firm guarding a State mine beats protesters. Analyse it. Begin with attribution, because the same facts generate two different legal questions. If the firm was empowered by law to exercise elements of governmental authority, or acted on the State's instructions or under its direction or control, the beating is the State's own act and the claim is a direct one. If attribution fails, the claim moves to the duty to protect, and the question stops being whether the State beat anyone and becomes whether the State did what a State must: regulate and licence private security, train it, investigate the assault, prosecute where the evidence supports it, and provide a remedy. That duty is one of due diligence, measured by what the State knew or ought to have known and what it could reasonably have done, so the answer is fact-specific. A State aware of a pattern of violence at that mine which did nothing has failed; a State that investigated promptly and prosecuted has not, even though the beating still happened. A candidate who does not separate the two questions will answer neither.

4. What did the State-centred design cost the framework? Three things. Violations by non-State actors fall outside its direct reach and are captured, if at all, through the State's failure to protect, which is an indirect route with a due diligence standard rather than a guarantee. A collapsed State leaves no duty-bearer at all, so the framework is weakest exactly where protection is most needed. And in a globalised economy several of the strongest actors are not States: a corporation with revenues larger than a small State's budget owes no direct obligation under the core instruments, which is why the corporate responsibility debate exists. The gains were real and should be stated alongside the costs: a named respondent who must appear and answer, a single standard that lets one instrument be written for every duty-bearer and lets States be compared, and machinery for reporting and review that works only because there is a State to report and be reviewed.

Its edge. It is criminal, so it needs a high standard of proof, a suspect in custody and a court with jurisdiction, and it reaches only the gravest conduct. Most rights violations are not international crimes, and most perpetrators are never tried.

Route three: through international humanitarian law

The one body of law that binds armed groups by name. Common Article 3 of the Geneva Conventions of 1949 applies in armed conflict not of an international character and binds each Party to the conflict, which includes non-State parties. Additional Protocol II develops the protections in conflicts of a certain intensity.

What it forbids as a minimum: violence to life and person, in particular murder, mutilation, cruel treatment and torture; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and sentences and executions without a regularly constituted court affording all the judicial guarantees recognised as indispensable.

Its edge, and it is a sharp one. It applies only in armed conflict. Below that threshold the armed group is a criminal gang and this route is closed. And it protects a floor rather than the full range of rights: it says nothing about elections, education or expression.

Route four: through soft law and self-regulation

What exists. The Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in 2011, set out three pillars: the State duty to protect, the corporate responsibility to respect, and access to remedy. Alongside them sit the Global Compact, industry codes and reporting standards. India's own company law route runs through the corporate social responsibility obligation in section 135 of the Companies Act 2013, which is a spending duty rather than a rights duty and should not be confused with one.

The corporate responsibility to respect is described as a responsibility rather than an obligation, expected to be discharged through a policy commitment, human rights due diligence and remediation processes.

Its edge is its nature. Soft law is not binding, has no forum and no sanction beyond reputation. That is the honest assessment, and the answer to it is that the negotiation of a binding business and human rights treaty has been under way since 2014 without agreement, which tells you how hard States find the question. [Corporations and the Non-State Actor] takes the full argument.

The three actors, side by side

Worked example

A company operating a factory in State A is owned by a parent in State B. The factory collapses and kills workers. State A's inspectorate had been bribed to certify the building.

Against State A, the claim is a failure of the duty to protect: it licensed, it inspected, its officers were corrupted, and it did not do what a State must to prevent a foreseeable harm.

Against the company in State A, the claim is ordinary domestic law: criminal negligence, labour law, tort.

Against the parent in State B, the difficulty appears. The parent owes no treaty duty. A claim depends on whether State B's courts take jurisdiction and whether the corporate veil can be looked through on a duty of care owed by the parent for the way the subsidiary's operations were controlled.

And under soft law, the parent had a responsibility to conduct human rights due diligence across its operations, which it manifestly did not, with no forum in which that failure is by itself actionable.

The examinable structure: one set of facts, four routes, four different answers, and the honest conclusion that the workers' best claim is against the State that took the bribe.

What it does NOT mean

It does not mean non-State actors may violate rights freely. It means the legal handle is indirect.

It does not mean the responsibility to respect is worthless. Due diligence expectations have changed corporate behaviour and have fed into binding domestic legislation in several States.

And it does not mean the gap is permanent. The framework has closed comparable gaps before; whether it closes this one is a question of political will, not of legal impossibility.

Quick revision

• The problem: treaties bind parties, and an armed group, a company and a family cannot become parties. Article 2(1) of the Civil and Political Covenant binds each State Party and nobody else.
• Route 1, the State's duty to protect, on a due diligence standard: prevent, investigate, punish, remedy. Stops where the State is absent, unwilling or complicit.
• Route 2, criminal law: binds individuals directly for genocide, crimes against humanity and war crimes. Needs custody, a court and the gravest conduct.
• Route 3, humanitarian law: Common Article 3 binds each Party to a non-international armed conflict, including non-State parties, and forbids murder, mutilation, cruel treatment, torture, hostage-taking, outrages upon personal dignity and sentencing without a regularly constituted court. Needs an armed conflict; protects only a floor.
• Route 4, soft law: the 2011 Guiding Principles with three pillars, protect, respect, remedy. Not binding, no forum. A binding treaty has been negotiated since 2014 without agreement.

Test yourself

1. Why do non-State actors owe no direct human rights duty, and why does it matter? Because human rights treaties are treaties: they bind those who become party to them, and an armed group, a company or a family cannot accede. Article 2(1) of the Covenant on Civil and Political Rights binds each State Party, and it does not purport to bind anyone else. The gap matters because it sits exactly where much of the harm is. In an internal armed conflict most killing is done by parties that are not the State; in a globalised economy the actor able to displace a community is often a firm whose turnover exceeds a small State's budget; and in most societies the violence a woman is most likely to suffer happens inside a home. A framework that reached only governments would miss the majority of what it exists to prevent, which is why four indirect routes were developed and why each of them has to be assessed on its own limits.

2. Set out the four routes and where each stops. The first is the State's duty to protect, which converts a private violation into a State failure to prevent, investigate, punish and remedy, on a due diligence standard measured by what the State knew or ought to have known and could reasonably have done. It stops where the State is absent, unwilling or allied to the violator, and a collapsed State leaves no duty-bearer at all. The second is criminal law: international criminal law binds natural persons directly for genocide, crimes against humanity and war crimes, and a commander of an armed group can be convicted regardless of the group's legal personality. It stops at the need for custody, a court with jurisdiction, proof to a criminal standard, and conduct grave enough to qualify. The third is international humanitarian law, the one body that binds armed groups by name: Common Article 3 of the 1949 Geneva Conventions applies in non-international armed conflict and binds each Party to it, forbidding murder, mutilation, cruel treatment, torture, hostage-taking, outrages upon personal dignity and sentencing without a regularly constituted court. It stops below the threshold of armed conflict and protects only a floor. The fourth is soft law, principally the 2011 Guiding Principles with their three pillars of protect, respect and remedy, whose limit is that it is not binding and has no forum.

3. A factory collapses in State A; the parent company sits in State B. Work through the routes. Against State A the claim is a failure of the duty to protect: it licensed the building, its inspectorate was bribed to certify it, and it did not do what a State must to prevent a foreseeable harm, so the corruption of its officers is the centre of the case. Against the operating company the claim is ordinary domestic law, criminal negligence, labour law and tort, which requires no international framework at all. Against the parent in State B the difficulty appears, because the parent owes no treaty duty, and any claim depends on whether State B's courts will take jurisdiction and whether a duty of care can be established on the way the parent controlled the subsidiary's operations. Under the Guiding Principles the parent had a responsibility to conduct human rights due diligence across its operations, which on these facts it did not, but there is no forum in which that failure is by itself actionable. The honest conclusion is that the workers' strongest claim lies against the State that took the bribe, which is a fair summary of the framework's shape.

4. Is the responsibility to respect worth anything, given that it is not binding? It is worth something and it is not worth what an obligation would be worth, and an answer should say both. It is not binding, has no forum, and its only sanction is reputational, which is a real weakness when the actors most likely to violate are those least exposed to reputational cost. But due diligence expectations have changed corporate practice, have been written into binding domestic legislation in several States, and have given claimants and investors a standard against which to measure conduct. The negotiation of a binding business and human rights treaty has run since 2014 without agreement, which is evidence both that the gap is recognised and that States find closing it difficult. India's own route runs through the corporate social responsibility obligation in section 135 of the Companies Act 2013, which is a spending duty rather than a rights duty, and a candidate should not present it as the latter.

The point of the framework: applied to one right from each generation

A civil right: the right to life

Respect. Do not kill. No extrajudicial execution, no death in custody, no unlawful use of lethal force by police.

Protect. Investigate killings by private persons, prosecute murder, disarm and control those who threaten others, protect a person under credible threat.

Fulfil. Reduce infant mortality. Run emergency services. Take positive measures against life-threatening conditions the State knows about.

This right, the paradigm of the "negative" first generation, plainly generates a duty that costs money. A State with no ambulances and no maternal care has a right to life problem, not merely a health policy problem.

A social right: the right to education

Respect. Do not close a minority-language school, do not expel a child because of caste, do not bar girls.

Protect. Stop employers using child labour that keeps children out of school, and stop private schools discriminating.

Fulfil. Build the schools, train and pay the teachers, and make primary education free and compulsory.

And this right, the paradigm of the "positive" second generation, plainly generates duties that cost nothing. The duty not to expel a child on grounds of caste requires no budget at all.

So the negative and positive labels do not track the generations, and a candidate who says the first generation is free while the second is expensive has said something demonstrably false in both directions. [Second Generation: What Economic, Social and Cultural Rights Are] takes the argument in full.

A solidarity right: the right to a healthy environment

Respect. Do not let the State's own operations poison a river.

Protect. Regulate the industries that would, and enforce the regulation.

Fulfil. Monitor air quality, publish the data, plan for the harm already done.

Why this analysis wins marks

It converts a vague right into a checklist, and a checklist is answerable. Ask of any right on any facts: did the State violate it, did it fail to stop somebody else, or did it fail to do the positive thing it should have done?

It locates the failure precisely. "The State violated the right to health" is a weak sentence. "The State complied with respect and protect but failed to fulfil, because it neither stocked the clinic nor licensed anyone else to" is an answer.

And it explains the machinery. Reporting under the Covenants asks States what measures they have adopted, which is a question about fulfil, and complaints procedures usually concern respect and protect.

Worked example

A river is contaminated. Downstream villagers fall ill. A State-owned refinery and two private factories discharge into the river. The State has an environmental statute it does not enforce, and the nearest clinic has no medicine.

Respect is breached by the State-owned refinery's discharge, because that is the State's own act.

Protect is breached in respect of the two private factories, because the State has a statute, knew of the discharges, and did not enforce it: a due diligence failure on facts where the knowledge is admitted.

Fulfil is breached by the empty clinic and by the absence of monitoring that would have revealed the contamination earlier.

And the remedy follows the analysis. Respect is remedied by stopping the State's own discharge, which is immediate. Protect is remedied by enforcement, prosecution and compensation from the polluters. Fulfil is remedied by supply and monitoring, which takes budget and time, and is where progressive realisation is argued about.

What it does NOT mean

The three are not stages. A State does not discharge respect first and reach fulfil later. All three run at once.

Fulfil is not unlimited. It is bounded by resources and by progressive realisation, though the treaty body's position is that certain minimum core obligations are immediate whatever the resources.

And respect is not always cost-free in political terms. Not torturing costs no money and costs a security service its shortcut, which is why the duty needs enforcement rather than exhortation.

Quick revision

• Three duties from every right: respect (do not violate), protect (stop others, on a due diligence standard), fulfil (positive measures, broken into facilitate, promote, provide).
• Origin: developed in the study of the right to food and adopted as the treaty bodies' standard analysis.
• What it destroys: the negative-versus-positive division. The right to life generates costly fulfil duties (ambulances, maternal care) and the right to education generates cost-free respect duties (do not expel a child on grounds of caste).
• Why it earns marks: it turns a right into a checklist, locates the failure precisely, and explains why reporting asks about measures adopted.
• The three run simultaneously, not in sequence, and minimum core obligations are immediate even though fulfil is otherwise progressive.

Test yourself

1. State the three duties and what each requires. Respect requires the State not to interfere with the enjoyment of the right through its own conduct: not to torture, not to censor, not to evict, not to deny treatment already available to others. It is the abstention duty and it costs nothing in money. Protect requires the State to prevent third parties from interfering, and where prevention fails, to investigate, punish and remedy; this is the door through which non-State violations enter the framework, and its standard is due diligence, measured by what the State knew or ought to have known and what it could reasonably have done. Fulfil requires positive measures, legislative, administrative, budgetary, judicial and promotional, towards full realisation, and is usually broken into facilitate, meaning creating the conditions in which people can realise the right themselves, promote, meaning teaching people what the right is, and provide, meaning directly supplying the right to those who cannot obtain it. The typology was developed in work on the right to food and is now the treaty bodies' standard way of stating what any right requires.

2. How does the typology destroy the negative-positive division? By showing that a single right occupies all three categories at once, so the categories cannot sort rights into two kinds. Take the right to life, the paradigm of the supposedly negative first generation. Respect forbids extrajudicial killing and unlawful lethal force. Protect requires investigation and prosecution of private killings and the protection of a person under credible threat. Fulfil requires reducing infant mortality, running emergency services and acting against known life-threatening conditions, all of which cost money. Now take the right to education, the paradigm of the supposedly positive second generation. Fulfil requires building schools and paying teachers, which is expensive. But respect forbids closing a minority-language school or expelling a child on grounds of caste, and that duty costs nothing whatever. The labels therefore do not track the generations in either direction, and a candidate who says the first generation is free and the second expensive has stated something demonstrably false about both.

3. Analyse a contaminated river using the three duties. Suppose a State-owned refinery and two private factories discharge into a river, downstream villagers fall ill, the State has an unenforced environmental statute, and the nearest clinic has no medicine. Respect is breached by the refinery's discharge, because that is the State's own act through its own organ. Protect is breached in relation to the two private factories, because the State had a statute, knew of the discharges and did not enforce it, which is a due diligence failure on facts where the knowledge is admitted. Fulfil is breached by the empty clinic and by the absence of monitoring that would have revealed the contamination earlier. The remedies then follow the analysis rather than being asserted: respect is remedied immediately by stopping the State's own discharge; protect is remedied by enforcement, prosecution and compensation recovered from the polluters; and fulfil is remedied by supply and monitoring, which takes budget and time and is where progressive realisation is argued about. Stating the failure precisely is what distinguishes an answer from an assertion that the State violated the right to health.

4. Are the three duties sequential, and is fulfil unlimited? They are not sequential. A State does not discharge respect first and reach fulfil years later; all three run simultaneously from the moment the right binds, and a State that is scrupulous about not torturing while running no courts has failed even though it has satisfied respect. Fulfil is not unlimited: it is bounded by available resources and by progressive realisation, which is the express standard in article 2(1) of the Covenant on Economic, Social and Cultural Rights. The important qualification is that the treaty body's position is that every right carries minimum core obligations that are immediate whatever the resource position, so a State cannot answer a claim of starvation or of complete absence of primary education by pleading poverty alone. And respect, though free in money, is not free in political terms: not torturing costs a security service its shortcut, which is why the duty requires enforcement and not exhortation.

3. Necessary in a democratic society

What it requires. Not merely useful, convenient or reasonable, but responding to a pressing social need.

The phrase carries its own standard, because the words "in a democratic society" import pluralism, tolerance and broadmindedness, and a restriction that could only be justified in a society without those qualities fails.

4. Proportionate

The four sub-questions, which are the ones a good answer walks through.

Is the measure suitable, meaning capable of achieving the aim at all?

Is it necessary in the narrow sense, meaning is there no less restrictive measure that would achieve the aim as well?

Is it proportionate in the strict sense, meaning does the benefit to the aim outweigh the damage to the right?

And does it leave the essence of the right intact, or does it hollow it out while preserving the form?

The burden is on the State throughout. The claimant proves the interference; the State justifies it. Getting the burden the right way round is worth marks on its own.

The Indian version of the same test

Article 19 states it structurally. Each freedom in clause (1) is matched by a clause permitting reasonable restrictions in the interests of enumerated grounds: for speech, in clause (2), the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence.

Three points a candidate should make.

The grounds are exhaustive. A restriction on speech that does not fall within clause (2) cannot be saved by showing it is otherwise sensible.

"Reasonable" is where proportionality lives. The Indian courts have built, out of that single word, a test of legitimate goal, suitable means, necessity and balancing that maps onto the international test almost exactly.

And article 21's "procedure established by law" was read the same way, as [Fundamental Rights: the Indian Form] sets out: the procedure must be right, just and fair.

Limitation compared with three neighbours

Do not confuse limitation with derogation. Limitation is the normal operation of a right. Derogation is an emergency departure from the obligation itself, and [Derogation and the Non-Derogable Core] takes it.

The economic and social side

Article 4 of the Covenant on Economic, Social and Cultural Rights allows a State to subject the rights it provides only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Note what is different. There is no list of aims; there is a single aim, the general welfare. And the limitation must be compatible with the nature of the right, which is a substantive check the civil and political clauses state differently.

Worked example

A city bans all public demonstrations within one kilometre of the legislature, by an order of the police commissioner, citing the risk of disorder. A trade union challenges it.

Prescribed by law? An order of a commissioner may or may not be. The question is whether a statute authorises it, whether it is published, and whether it is precise. If the enabling provision permits "such orders as the commissioner thinks fit", the vagueness point is live.

Legitimate aim? Public order is on the list for assembly, so the aim survives.

Necessary in a democratic society? Here the ban is in difficulty. Demonstrating near a legislature is close to the core of what assembly is for, and a blanket geographic ban treats the peaceful and the violent identically.

Proportionate? Almost certainly not. Less restrictive measures are obvious and standard: notice requirements, time limits, a policed route, conditions on numbers. A blanket ban fails the necessity limb because those alternatives exist, and it fails the essence question because it removes the possibility of protesting where protest is most meaningful.

Conclusion. The restriction fails on limbs one, three and four, and the union succeeds. Notice that identifying the legitimate aim was the easy part and decided nothing.

What it does NOT mean

It does not mean every right is limitable. Torture, slavery and the freedom to hold an opinion are not, and neither is the freedom to hold a belief as distinct from manifesting it.

It does not mean a State's own view of necessity governs. The State asserts; the court assesses.

And it does not mean proportionality is a licence for a court to substitute its policy. [Universality, Sovereignty and the Margin of Appreciation] takes the deference question, which is exactly where the argument about judicial overreach lives.

Quick revision

• Four limbs: prescribed by law (accessible, precise, foreseeable), legitimate aim from a closed list, necessary in a democratic society (a pressing social need, not mere convenience), and proportionate (suitable, least restrictive, benefit outweighing damage, essence intact).
• The burden is on the State. The claimant proves the interference only.
• UDHR article 29(2) limits by law solely for the rights of others and the just requirements of morality, public order and the general welfare in a democratic society. The words only and solely make it a restriction on the power to restrict.
• ICCPR article 19(3) for expression: provided by law and necessary for the rights or reputations of others, national security, public order, public health or morals. Article 18(3) limits only the manifestation of religion, never the belief.
• ICESCR article 4 differs: no list of aims, only the general welfare, and the limitation must be compatible with the nature of the right.
• India: article 19's clauses (2) to (6) allow reasonable restrictions on exhaustive grounds, and "reasonable" is where the courts built proportionality.

Test yourself

1. Set out the four-part test and say where the burden lies. First, the restriction must be prescribed by law, meaning there is a legal basis that is accessible and precise enough for a person to foresee the consequences of their conduct, which excludes an executive instruction with no statutory footing, an unwritten practice, and a statute so vague that nobody can tell what it forbids. Second, it must pursue a legitimate aim drawn from the list the instrument itself provides, and the lists are closed, so a State restricting expression to protect the dignity of an office has not found an aim and the analysis stops. Third, it must be necessary in a democratic society, which means responding to a pressing social need rather than being merely useful or convenient, and the phrase imports pluralism, tolerance and broadmindedness, so a measure defensible only in a society lacking those fails. Fourth, it must be proportionate, which unpacks into whether the measure is suitable to achieve the aim, whether a less restrictive measure would do as well, whether the benefit outweighs the damage to the right, and whether the essence of the right survives. Throughout, the claimant proves only the interference and the State bears the burden of justifying it on every limb.

2. Why is article 29(2) of the Universal Declaration a restriction on the power to restrict? Because of two words. It provides that in the exercise of rights and freedoms everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. The word "only" confines the permissible limitations to those determined by law, and the word "solely" confines the permissible purposes to those listed. Read carelessly the clause looks like a general licence to restrict, and candidates frequently cite it that way; read as written it is the source of the requirement that a restriction be legal and purpose-limited, which is the first two limbs of the modern test. Article 29(1)'s statement that everyone has duties to the community in which alone the free and full development of his personality is possible supplies the justification for having any limitation clause at all, and article 29(3) adds that rights may in no case be exercised contrary to the purposes and principles of the United Nations.

3. A police commissioner bans all demonstrations within a kilometre of the legislature. Apply the test. On prescribed by law, the question is whether a statute authorises such an order, whether it is published, and whether it is precise; if the enabling provision permits such orders as the commissioner thinks fit, the vagueness objection is live and may dispose of the case. On legitimate aim, public order appears in the assembly clause, so this limb is satisfied, and identifying it decides nothing. On necessity in a democratic society, the ban is in serious difficulty, because demonstrating near a legislature is close to the core of what freedom of assembly is for, and a blanket geographic ban treats the peaceful and the violent identically rather than responding to a pressing social need. On proportionality it almost certainly fails, since obvious and standard less restrictive measures exist, including notice requirements, time limits, a policed route and conditions on numbers, and the ban removes the possibility of protesting where protest carries most meaning, which goes to the essence of the right. The restriction therefore fails on the first, third and fourth limbs, and the union succeeds.

4. How does the limitation clause in the Economic, Social and Cultural Rights Covenant differ? Article 4 permits a State to subject the rights it provides only to such limitations as are determined by law, only in so far as this may be compatible with the nature of these rights, and solely for the purpose of promoting the general welfare in a democratic society. Three differences follow. There is no enumerated list of aims of the kind the Civil and Political Covenant attaches separately to expression, assembly, association, movement and the manifestation of religion; there is a single permissible purpose, the general welfare. There is an express compatibility requirement, that the limitation must not be inconsistent with the nature of the right itself, which does the work the essence limb does elsewhere and does it textually. And the clause is general to the Covenant rather than right-specific, which reflects the different drafting technique of the two Covenants and is a useful detail when the question asks why there are two.

Paragraph 3: telling everybody

A State availing itself of derogation shall immediately inform the other States Parties, through the intermediary of the Secretary-General, of the provisions from which it has derogated and the reasons, and shall make a further communication on the date it terminates the derogation.

Why that matters. Notification is what converts an emergency from a domestic fact into an internationally reviewable one. A State that derogates without notifying has broken article 4 by that omission alone, whatever the merits of the measures.

Derogation is not limitation

The examinable sentence: limitation is how a right operates normally, derogation is a temporary departure from the obligation, and a State that reaches for derogation when a limitation clause would have sufficed has taken a heavier and more scrutinised route for no reason.

What survives even under derogation

The non-derogable seven, by the express words of paragraph 2.

The proportionality of every derogating measure, because "strictly required" is itself a legal standard and not a formula of deference.

Non-discrimination on the listed grounds, so an emergency cannot be used to target one community.

And the procedural guarantees essential to protecting the non-derogable rights. This is the point most often missed. Article 9's protection against arbitrary detention is not in the list, yet a right to life that cannot be enforced by any court is not the right in article 6. The treaty body's position is accordingly that the remedies necessary to protect non-derogable rights, including habeas corpus, survive an emergency, because otherwise paragraph 2 would guarantee a right and permit the abolition of every means of asserting it.

The Indian position

A different architecture, with the same problem. Article 352 of the Constitution provides for a Proclamation of Emergency. Article 358 suspends the article 19 freedoms during an emergency proclaimed on the ground of war or external aggression, and article 359 empowers the President to suspend the right to move any court for enforcement of specified Part III rights.

The decisive amendment. After the experience of the Emergency of 1975 to 1977, the Constitution (Forty-fourth Amendment) Act 1978 provided that articles 20 and 21 may not be suspended under article 359. Article 20 protects against retroactive criminal law, double jeopardy and compelled self-incrimination; article 21 protects life and personal liberty.

Why that is the right comparison to draw. India arrived, by constitutional amendment and after a domestic catastrophe, at the same conclusion the Covenant had reached in 1966 by drafting: an emergency power that reaches life and retroactivity is not an emergency power but a licence. A candidate who puts articles 20 and 21 next to Covenant articles 6, 7 and 15 has made the comparative point the examiner is looking for.

Worked example

A State faces a sustained bombing campaign. It proclaims an emergency, notifies the Secretary-General, and enacts three measures: detention without trial for up to ninety days, subject to review by a judge every fortnight; a curfew in three districts; and an order permitting interrogators to use stress positions on suspects.

The emergency itself. A sustained bombing campaign can threaten the life of the nation, and the proclamation and notification satisfy the formal conditions.

The curfew. Lawful if strictly required, geographically confined and time-limited. It restricts movement, and article 12 is derogable.

The detention. Article 9 is derogable, so the measure is not barred outright. But it must be strictly required, and the fortnightly judicial review is what makes it arguable. Ninety days with no review at all would be a different case, and habeas corpus must remain available because it is the remedy that protects the non-derogable core.

The stress positions. Unlawful, immediately and without inquiry into necessity. Article 7 is non-derogable by paragraph 2, the prohibition admits of no balancing, and the severity of the emergency is legally irrelevant to it.

The structure of the answer: formal conditions, then measure by measure, then the non-derogable stop. The third measure needs no proportionality analysis at all, and saying so is the mark of an answer that understands what paragraph 2 does.

What it does NOT mean

A proclamation does not suspend the Covenant. It permits specific, notified, proportionate departures from specific articles.

Derogation is not indefinite. It lasts as long as the exigency, and paragraph 3 requires notification of its termination.

And non-derogable does not mean unlimited in scope. Article 18 is non-derogable, but article 18(3) still permits limitation of the manifestation of religion in ordinary times. What cannot be touched even in an emergency is the freedom of thought, conscience and belief itself.

Quick revision

• Article 4(1) conditions: a public emergency threatening the life of the nation, officially proclaimed, measures strictly required by the exigencies, consistent with other international obligations, and no discrimination solely on race, colour, sex, language, religion or social origin.
• Article 4(2) non-derogable seven: 6 life, 7 torture, 8(1) and 8(2) slavery and servitude, 11 no imprisonment for contractual debt, 15 no retroactive crime or heavier penalty, 16 recognition as a person before the law, 18 thought, conscience and religion.
• Article 4(3): immediate notification through the Secretary-General of the provisions derogated from and the reasons, and again on termination. Failure to notify breaches article 4 by itself.
• Limitation is not derogation: limitation restricts the exercise of a right in ordinary times on a necessity and proportionality test; derogation departs from the obligation in a proclaimed emergency on a strictly required test.
• India: articles 358 and 359 suspend rights in emergency, but the Forty-fourth Amendment 1978 put articles 20 and 21 beyond suspension, which is the domestic arrival at the Covenant's 1966 conclusion.

Test yourself

1. State the conditions in article 4(1) and explain why each is there. There must be a public emergency, which is more than serious disorder or a difficult political situation. It must threaten the life of the nation, a deliberately high threshold requiring that the organised life of the community be imperilled rather than merely a policy or a government. Its existence must be officially proclaimed, which makes the emergency public, dateable and reviewable and denies a State the option of governing by silent emergency while claiming normality abroad. Measures may be taken only to the extent strictly required by the exigencies of the situation, which is proportionality in the strongest form the framework uses and is stricter than the ordinary necessity test in a limitation clause. And the measures must be consistent with the State's other obligations under international law and must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin, so an emergency cannot become a licence to target a community. Article 4(3) adds a procedural condition: immediate notification to the other States Parties through the Secretary-General of the provisions derogated from and the reasons, and a further communication when the derogation ends.

2. List the non-derogable articles and say what their composition reveals. Articles 6, 7, 8 paragraphs 1 and 2, 11, 15, 16 and 18: the inherent right to life; freedom from torture and from cruel, inhuman or degrading treatment and from medical or scientific experimentation without free consent; freedom from slavery, the slave trade and servitude; freedom from imprisonment merely for inability to fulfil a contractual obligation; freedom from retroactive criminal law and from a heavier penalty than was applicable at the time; the right to recognition everywhere as a person before the law; and freedom of thought, conscience and religion. Four of these are what anyone would predict. The other three are the interesting ones. Debt imprisonment, retroactivity and legal personhood are on the list because the drafters were protecting not only against cruelty but against a State that abolishes a person in law, punishes what was lawful when done, or jails people for poverty. Note also the precision on article 8: paragraphs 1 and 2 are non-derogable while paragraph 3, forced or compulsory labour, is not, and that paragraph already excludes military service, ordinary civic obligations and work required in an emergency.

3. Does anything survive an emergency beyond the seven articles? Yes, and this is the point most often missed. The proportionality standard survives, because "strictly required by the exigencies" is a legal test to be assessed and not a formula of deference to the State's own view. Non-discrimination on the listed grounds survives by the express words of paragraph 1. And the procedural guarantees necessary to protect the non-derogable rights survive even though they are not themselves listed. Article 9's protection against arbitrary detention is derogable, yet a right to life that no court can enforce is not the right article 6 guarantees, so the treaty body's position is that remedies such as habeas corpus remain available in an emergency. The reasoning is structural rather than textual: paragraph 2 would be worthless if it guaranteed a right while permitting the abolition of every means of asserting it.

4. Compare article 4 with the Indian emergency provisions. The architecture differs and the conclusion converges. Article 352 provides for a Proclamation of Emergency; article 358 suspends the article 19 freedoms during an emergency proclaimed on the ground of war or external aggression; and article 359 empowers the President to suspend the right to move any court for the enforcement of specified Part III rights, which is a suspension of remedies rather than of rights. After the Emergency of 1975 to 1977 the Constitution (Forty-fourth Amendment) Act 1978 provided that articles 20 and 21 may not be suspended under article 359. Article 20 protects against retroactive criminal law, double jeopardy and compelled self-incrimination, and article 21 protects life and personal liberty, so India placed beyond emergency exactly the interests the Covenant had protected in 1966 through articles 6, 7 and 15. The comparative point worth making is that India reached the position by constitutional amendment after a domestic catastrophe, whereas the Covenant reached it by drafting, and both arrived at the same principle: an emergency power that reaches life and retroactivity is not an emergency power but a licence.

Where consent does not operate

Torture. Article 7 of the Covenant on Civil and Political Rights is absolute, and it names the point expressly: no one shall be subjected without his free consent to medical or scientific experimentation. The drafters wrote consent into the experimentation limb and left it out of the torture limb, which tells you the omission was deliberate.

Slavery and servitude. A person cannot validly sell themselves into slavery. This is the clearest case in the whole subject, and it is the one that shows inalienability doing work no other doctrine does: the contract is not voidable for duress or unconscionability, it is void because the object is outside what consent can reach.

Bonded labour, which is the Indian form of the same point and is prohibited under article 23 of the Constitution and by statute, and where the consent of the labourer is not merely suspect but legally irrelevant.

And the surrender of the right itself, as against the exercise. A person may decline to vote in every election of their life and has not surrendered the franchise; they may not sign it away.

The line, stated in one sentence a student can reuse: consent can govern an exercise of a right on an occasion, and cannot govern the existence of the right or reach conduct the framework places beyond bargaining.

The hard cases, which is where the marks are

Consent to serious harm. A person consents to a dangerous operation, an extreme sport, or a fight. Legal systems draw a line, usually between harm within recognised social practice and harm outside it, and the line is drawn by law rather than by the consent.

Dwarf-throwing and dignity. A person willing to be used as a projectile for pay was held, in a famous administrative law episode, not to be able to consent to it, because the human person's dignity is not at the disposal of the person. The reasoning is controversial precisely because it overrides the individual in the name of a value the individual holds.

Assisted dying. The debate is whether the right to life includes a right to decide when it ends, or whether life is the paradigm inalienable right and consent cannot reach it. Note that both sides invoke dignity, which is the difficulty [Human Dignity as the Ground of Rights] identified.

Selling an organ or a kidney. Prohibited in most systems, and defended on two different grounds: that the consent of the very poor is not free, and that the body is not a market commodity. Only the first is really about consent.

And data, which is the modern version. A user clicks "agree" to a privacy policy nobody reads. The consent is nominally free and formally informed and is neither in substance, which is why data protection law has moved towards purpose limitation and necessity rather than relying on consent alone.

Worked example

A worker signs a contract with three clauses: they will not join a union; they consent to searches of their person on leaving the premises; and they waive any claim for injury caused by unsafe equipment.

The union clause is void. Freedom of association is a right whose exercise the employer is bargaining to extinguish permanently, not a waiver of an occasion, and the imbalance of power makes the consent unfree in any event.

The search clause is arguable. Bodily searches engage privacy and dignity, and a specific, limited consent to a defined and non-intrusive search may be effective. A general consent to any search at any time by anyone is not, because it is not specific.

The injury waiver is void, and the reason is worth naming precisely: it does not merely waive an occasion, it removes the employer's duty prospectively for all occasions, and it is the kind of clause that consent cannot reach because the resulting harm is not the worker's to authorise in advance.

The analysis in each case runs the same way: is this a waiver of an exercise or a surrender of a right, was the consent free, informed and specific, and does the subject-matter lie inside or outside what consent can reach?

What it does NOT mean

It does not mean rights cannot be lost in practice. They are lost constantly, by violation. Inalienability is a normative claim about validity, not a factual claim about the world.

It does not mean the State's restrictions are inalienability problems. Those are limitation questions, governed by [Limitation: When a Right May Be Restricted].

And it does not mean consent is worthless. Consent is what distinguishes surgery from assault and journalism from intrusion. The claim is only that consent has a boundary.

Quick revision

• Four senses: non-transferable (cannot be assigned, the contrast with property), non-forfeitable (not lost by wrongdoing, which is why prisoners have rights), non-surrenderable (the contested sense), and non-derogable, which is a different idea about what the State may suspend in an emergency.
• Sources: the American Declaration's unalienable rights in 1776, and the Universal Declaration's preamble on the equal and inalienable rights of all members of the human family.
• Consent works on privacy, liberty, property, expression and fair trial rights, if it is free, informed, specific and revocable, and given with capacity.
• Consent fails on torture, slavery, servitude and bonded labour. ICCPR article 7 writes consent into the experimentation limb and leaves it out of the torture limb, and the omission is deliberate.
• The line: consent governs an exercise on an occasion; it cannot govern the existence of the right or reach conduct placed beyond bargaining.

Test yourself

1. Distinguish the four senses of inalienability. Non-transferable means the right cannot be assigned to anyone else, which is the sharpest contrast with property, since property is defined by its transferability and a transferable right would be property rather than a human right. Non-forfeitable means the right is not lost by the holder's wrongdoing, which is why a convicted murderer retains the right not to be tortured and the right to recognition as a person before the law, and why prisoners have rights at all; it follows directly from grounding rights in dignity rather than in merit. Non-surrenderable means the holder cannot give the right up even willingly, and this is the contested sense that the chapter is really about. Non-derogable is a different idea entirely and belongs to article 4 of the Covenant on Civil and Political Rights: it concerns what the State may suspend in a proclaimed emergency, not what the holder may give away, and confusing the two is a common and expensive error in an answer.

2. When does consent work, and what makes it valid? Consent works wherever the right protects an interest the holder may choose not to assert on a particular occasion. A person may publish their own medical history, and article 17's protection against arbitrary or unlawful interference is not engaged by an interference they invited. A person may agree to confinement for medical isolation or in a religious community, and the detention is not arbitrary. A person may sell their work or contract not to disclose a former employer's trade secrets. An accused may plead guilty, waive counsel or agree to a summary procedure. But the framework does not treat consent as self-proving: to count, a waiver must be free, informed, specific and revocable in principle, and given by a person with capacity. Consent extracted by threat, obtained by concealment, or given in advance and in general terms for everything is no consent at all, which is why data protection law has moved towards purpose limitation and necessity rather than relying on a click on an unread policy.

3. Why can nobody consent to slavery or torture? Because these lie outside what consent can reach, which is inalienability doing work no other doctrine does. A contract of self-enslavement is not voidable for duress or unconscionability, to be set aside on proof that the particular consent was defective; it is void because its object is beyond bargaining, and it would remain void if the consent were demonstrably free. Bonded labour is the Indian form of the same proposition, prohibited by article 23 of the Constitution and by statute, and there the labourer's consent is not merely suspect but legally irrelevant. Torture is the same, and the Covenant proves the point textually: article 7 forbids torture and cruel, inhuman or degrading treatment absolutely, and then adds that no one shall be subjected without his free consent to medical or scientific experimentation. The drafters wrote consent into the experimentation limb and deliberately left it out of the torture limb, so the difference between the two is on the face of the article.

4. A worker's contract bars union membership, permits searches and waives injury claims. Analyse it. The union clause is void. It is not a waiver of an exercise on an occasion but a bargain to extinguish freedom of association permanently, and the imbalance of power between employer and worker makes the consent unfree in substance whatever it says on the page. The search clause is arguable and turns on specificity. Bodily searches engage privacy and dignity, and a specific, limited consent to a defined and non-intrusive search on leaving the premises may be effective, while a general consent to any search at any time by anyone is not, because it fails the requirement that a waiver be specific. The injury waiver is void, and it is worth naming the reason precisely: it does not waive an occasion but removes the employer's duty prospectively for all occasions, and the harm it authorises in advance is not the worker's to authorise. The same three questions run through all three clauses: is this a waiver of an exercise or a surrender of the right, was the consent free, informed and specific, and does the subject-matter lie inside or outside what consent can reach.

The four compared

Eight more the instruments use precisely

Inherent. Belonging to the thing itself and not conferred. The Covenant on Civil and Political Rights says every human being has the inherent right to life, and the preambles derive rights from the inherent dignity of the human person. It is the textual anchor of everything in [What a Human Right Is].

Inalienable. Not transferable, forfeitable or surrenderable, as [Are Human Rights Inalienable] sets out.

Universal. Held by all, everywhere, which is the claim [The Claim of Universality] examines.

Indivisible. No category of rights may be dropped in favour of another, which is the Vienna proposition in [Vienna 1993: Universal, Indivisible, Interdependent and Interrelated].

Interdependent. Each right's realisation depends on others.

Non-derogable. Not suspendable even in a proclaimed emergency, which is the article 4(2) list.

Justiciable. Capable of being decided by a court. A right may exist and not be justiciable, which is what Part IV of the Constitution demonstrates.

Progressive realisation. The standard in article 2(1) of the Covenant on Economic, Social and Cultural Rights, requiring steps to the maximum of available resources with a view to achieving progressively the full realisation of the rights.

Two pairs students routinely swap.

Inalienable and non-derogable. The first is about what the holder can give away; the second about what the State can suspend in an emergency.

Indivisible and inalienable. The first is about the relationship between categories of rights; the second about the relationship between a right and its holder. The words look alike and mean nothing like each other.

Using the vocabulary in an answer

A worked sentence. "The applicant has a right to freedom of expression: a claim against the State, correlating with the State's duty not to interfere, grounded in the inherent dignity of the person, inalienable so that the contract purporting to waive it is void, but not absolute, since article 19(3) permits limitation, and not non-derogable, since article 19 is not in the article 4(2) list."

Every technical word in that sentence is carrying weight, and a marker can see the candidate knows what each one does. That is what this chapter is for.

Worked example

A statute provides that "every citizen is at liberty to publish, subject to such conditions as the Government may specify". A newspaper is refused permission and sues.

Read the word "liberty" literally and the newspaper is in trouble. A bare liberty means only that the citizen is under no duty to refrain. It gives no claim against anyone, so on its face the statute grants nothing the Government must respect.

But that is not how the provision will be read, and the reason is the vocabulary of the framework rather than of the statute. Expression is protected as a right, so the State is under a duty not to interfere, and the statute cannot reduce a right to a liberty by choosing a weaker word.

The operative attack is on the conditions clause, which is a limitation question: is the power prescribed by law with sufficient precision, does it serve an enumerated aim, is it necessary and proportionate? A power to specify any conditions at all fails the first limb for vagueness.

And the answer's opening move is the vocabulary. Saying that the statute uses "liberty" where the framework confers a right, and that the difference is the presence of a duty-bearer, is what makes the rest of the argument available.

What it does NOT mean

It does not mean the instruments are terminologically consistent. They are not, and article 18's "right to freedom of thought" proves it.

It does not mean a word's ordinary meaning is wrong. It means an answer should state which sense it is using when the distinction matters.

And it does not mean precision is pedantry. The difference between a right and a liberty is the difference between a claim somebody must answer and a bare permission nobody need respect, which is the difference between winning and losing.

Quick revision

• Right: a claim against an identified other, correlating with a duty. Name the duty-bearer or you are describing something else.
• Liberty: the absence of a duty in yourself, correlating with a no-right in others. Weak alone: it gives no protection against interference.
• Freedom: the ordinary-language condition, used as freedom from and freedom to, and used interchangeably with "right" in the instruments.
• Entitlement: a deliverable claim, identified and quantified. It is the answer to the vagueness charge against second generation rights.
• Eight technical words: inherent, inalienable, universal, indivisible, interdependent, non-derogable, justiciable, progressive realisation.
• Two pairs never to swap: inalienable (what the holder may give away) against non-derogable (what the State may suspend); and indivisible (between categories of rights) against inalienable (between a right and its holder).

Test yourself

1. Distinguish a right from a liberty, and say why the difference matters. A right is a claim held against an identified other and correlating with a duty in that other, so the test is whether you can name the duty-bearer and state the duty. A liberty is only the absence of a duty in yourself not to act, and its correlative is a no-right in everybody else, meaning nobody has a claim that you refrain. The classic illustration is two people racing for the same unowned object: each is at liberty to pick it up, neither is under a duty to stand aside, and neither has a right that the other do so. The difference matters because a bare liberty offers no protection against interference. What makes freedom of expression valuable is not the liberty to speak, which a State can leave untouched while silencing you by other means, but the right that the State not interfere, which is a claim with a duty attached and a forum to assert it in. A candidate who treats the two as synonyms cannot explain why a right requires a duty-bearer at all.

2. What does "entitlement" add, and why does it matter for this paper? It emphasises the deliverable content of a claim rather than its abstract standing: what a person may demand and actually receive. Its natural home is the second generation, where a pension, a ration, a school place or a hospital bed is identified, quantified, deliverable and claimable by a named person from a named authority. That matters because the standing objection to economic and social rights is that they are too vague to be rights at all, and the objection dissolves at exactly the point where a right becomes an entitlement. A right to food stated in the abstract is hard to adjudicate; an entitlement to a specified quantity of grain from a specified shop on production of a specified card is as justiciable as any contract, and a court can order delivery. The word therefore marks the transition from a standard addressed to a legislature into a claim enforceable in a forum.

3. Which technical words do students most often swap, and what does each actually mean? Two pairs. Inalienable and non-derogable look similar and belong to different halves of the subject: inalienable concerns what the holder may transfer, forfeit or surrender, so it is about the relationship between a right and the person who holds it, while non-derogable concerns what the State may suspend during a proclaimed public emergency, which is the article 4(2) list of the Covenant on Civil and Political Rights. A right can be alienable in the loose sense that its exercise may be waived on an occasion while remaining non-derogable, and the two questions never meet. The second pair is indivisible and inalienable: indivisible is a claim about the relationship between categories of rights, namely that civil and political rights cannot be traded off against economic, social and cultural ones, which is the Vienna proposition of 1993, while inalienable is again about the holder. The words look alike and mean nothing like each other, and using one for the other tells a marker the vocabulary has not been learned.

4. A statute says citizens are "at liberty to publish, subject to such conditions as the Government may specify". Analyse it. Read literally, the word "liberty" gives the newspaper nothing: a bare liberty means only that the citizen is under no duty to refrain, correlating with a no-right in others, so nobody is obliged to respect it and the statute on its face confers no claim against the Government. That reading will not stand, because expression is protected as a right in the framework and in Part III, so the State is under a duty not to interfere, and a legislature cannot reduce a right to a liberty by choosing a weaker word. The operative attack then shifts to the conditions clause, which raises a limitation question rather than a vocabulary one: is the power prescribed by law with sufficient precision for a publisher to foresee what is permitted, does it serve an enumerated legitimate aim, is it necessary in a democratic society, and is it proportionate? A power to specify any conditions at all fails the first limb for vagueness without the court needing to reach the others. The vocabulary is the opening move rather than the whole answer: naming the gap between "liberty" and "right" is what makes the limitation analysis available.