HUMAN RIGHTS VS FUNDAMENTAL RIGHTS: THEORETICAL DIALECTICS OVER THE DEBATE BETWEEN UNIVERSALIST AND PARTICULARIST VIEWS

Abstract

The term “human rights” represents a universalist notion and doctrine of rights brought by the 1948 United Nations Universal Declaration of Human Rights, thus often appears to be in friction with particularistic notions of rights. Despite the Vienna Declaration 1993 purportedly settling the debate, problems appear to persist and often only escalates day after day. Here, I comparatively examine the doctrinal foundations of the “human rights” notion and compare it with the “fundamental rights” notion in how they affect the dilemma of universality versus particularism, and their impact on the enforcement and institutionalization of rights. This paper concludes by finding that the use of the term ‘fundamental rights’ instead of ‘universal human rights’ better accommodates states’ uniqueness ultimately achieving the ideals of human rights and is more acceptable to then afford more protection.