The Process of the Emergence of Human Rights, Why and How? Norm-setting in International Human Rights Law

Abstract

Within the international human right law scholarship and philosophy of human rights, there is no clear picture how human rights, old and new, emerge from the ground, from the small idea that a new human right is needed. There is no theory why and how human rights emerge, as well as there is no methodology how the idea could come through the process of development, then emerge as a human right in the minds of people (moral human right) and later acknowledged in a human rights treaty as legal human rights through the norm-setting process of human rights.
All we have today are states who somehow decide which right is universal and codify it or use progressive development, which is essentially norm-setting in human rights. However, nobody has been interested in the description of the whole process of human rights emergence, not only the establishment of legal human rights, which is the last stage of the process not the one and only, but to look at the process from the start, when people understand the need for human rights, and in particular, new human rights.
Therefore, the thesis is the first attempt in the human rights scholarship to provide the theory and methodology suitable for the explanation of the process of emergence of human rights, old and new, it is an attempt to answer why human rights emerge, what is the driving force for it, who are the actors of the process, what are the stages and when is the moment when we could say that a human right has emerged.
The present thesis examines what is a human right, its special character. It illustrates that human dignity is the foundation of human rights, where human rights belong to us due to human nature, not because a state gave it to people. Then the thesis describes human needs theory which was wade as another justification of the foundation of human rights and argue that it is not the case, but human needs theory could complement human dignity and with little modifications serve as the theory for the process of the emergence of human rights together with Maslow’s hierarchy and evolution theory of human, society and law. Therefore, the separate author’s theory on the process of the emergence of human rights is established.
Human needs theory gives the explanation that human needs are the starting point for the emergence of human rights, only by identifying human needs on the ground, a new human right or old one could be developed into the universal legal human right. The thesis argues that human rights are evolutionary in its scope, as human, his/her values, attitudes and, what is important, human needs, together with society, law and international human rights law always evolve and its development is interrelated. Thus, if human needs emerge due to certain reasons, the process of the emergence of the human right starts and continuing until the norm-setting stage is finished and legally binding human right is established in the treaty or through custom. The methodology of the process of the development of human rights established as well, where firstly essential human need is identified by the actors such as individual, local non-governmental organizations, the international community, etc., the process starts. Secondly, if human need in a new human right was identified by an individual or local non-governmental organization, the non-governmental organization begins to work on the raising awareness, lobbying of the topic and bringing international attention to the need, after the international community saw the sign, the norm-setting stage is starting. However, if the identification of need comes from the state or the United Nations(international community), then the process of the emergence of human rights starts immediately from the norm-setting stage. The present thesis describes norm-setting process, its complexity and obstacles and conclude by the several examples of the norm-setting of human rights, old and new, with the reference to the historical background, where the thesis identify common features and strategies how new human rights could emerge, with what means. The thesis provides with the 2 ways of justification of emergence of new human rights: 1. by reference to the scope of existing human rights (basic human rights written in the Universal Declaration on human rights, and claiming that a new human right is covered by one of the basic rights; 2. Claim that a new human right is a separate right, whether basic or non-basic.
The thesis concludes with the hope that the provided theory and methodology will be used in practice and new human rights will be emerged to safeguard human dignity of the people by satisfying human needs.

• author: Sharypina, Iryna
• supervisor: Karol Nowak
• organization: Department of Law; Faculty of Law
• course: JAMM07 20201
• year: 2020
• type: H2 - Master's Degree (Two Years)
• subject: Law and Political Science; Philosophy and Religion; Social Sciences
• keywords: human rights, philosophy of human rights, process of the emergence of human rights, emergence of human rights, development of human rights, evolution of human rights, evolutionary nature, norm-setting, norm-setting of human rights, norm setting, basic needs, basic rights, basic human rights, nature of human rights, methodology of the emergence of human rights
• language: English
• id: 9029462
• date added to LUP: 2020-09-17 17:22:00
• date last changed: 2020-09-17 17:22:00