The Human Rights System 101: What Are Human Rights? The Ontological Question of Rights-Bearing

Foreword

The search for a series of rules, principles, and regulations capable of organizing and safeguarding those fundamental rights and provisions inherent to the human character has represented, since the dawn of time, a primary interest of humanity as a whole. Human rights emerged from an institutional standpoint with the adoption of the Universal Declaration on Human Rights, adopted after the atrocities of the Second World War to make amends for the crimes committed during the conflict, but their roots predate the 1900s and their character has evolved and morphed drastically since the signing of the Universal Declaration on Human Rights. Indeed, questions concerning their ontology, scope of action, enforceability, and overall efficacy have characterized the debate surrounding the human rights system since its onset, sparking countless chances for debate and development.

This series entails 6 articles, each presenting a different question that emerged in the definition and implementation of the current human rights system, with the aim to analyze the historical and political developments that characterized this mechanism. Such analysis is fundamental in order to properly frame the current human rights system and its provisions but, given the mutable character of this notion and its different interpretations according to the geographical area and the socio-cultural background taken into consideration, the process is still subjected to constant questioning and development.

The Human Rights System 101 will be mainly divided into the following chapters of content:

1. The Human Rights System 101: What are human rights? The ontology of right-bearing
   

2. The Human Rights System 101: Generations of rights. The route to the system
   

3. The Human Rights System 101: Particular or universal? Applicability of rights
   

4. The Human Rights System 101: The enforceability of human rights
   

5. The Human Rights System 101: Regional integration and global development
   

6. The Human Rights System 101: The role of media and civil society

The Human Rights System 101: What Are Human Rights? The Ontology of Rights-Bearing

December 1948 represented a historical milestone in the development of a commonly-shared regime concerning the protection and promotion of human rights. The atrocities of the Second World War breathed new life into the discourse surrounding the question of right bearing and the inherent entitlement of human beings to a series of fundamental rights. These ideas were translated into political terms by a legislative act that became known as the Universal Declaration for Human Rights (UDHR). The UDHR constituted some form of global road map for states and international organizations to pursue freedom, equality, and inclusivity, fundamentally translating into procedural terms the willingness to protect the rights of every individual, globally (Amnesty International, 2017). Such willingness was transposed into the text of the UDHR through the work of a drafting committee composed of representatives of many countries like the United States, Chile, China, and Australia that brought differentiated cultural, political, and historical heritages into the document (United Nations, n.d.). The ratification of this unprecedented piece of legislation represented the threshold to a series of internationally-shared commitments that would become the supporting pillars of the current human rights system. The Declaration, in Article 2, states that “everyone is entitled to all the rights and freedoms outlined in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or another status” (General Assembly of the United Nations, 1948). The specific choice of words reflected a general interest in defining universal norms whose scope could be ever-expanded in the search for a common understanding of rights. Ever since 1948, the Declaration has attempted to identify the character of these rights and their owners through a list of fundamental provisions that should be awarded to every human being because of their human character.

Analyzing the text of the UDHR would highlight how human rights, when interpreted as a socio-political concept, find their origin in the inherent need for the security of human beings. By leveraging on natural law and political principles, the Western interpretation of human rights that was embraced by the United Nations (UN) attempts to claim that everywhere and at all times humans, because of their human character, require some minimum standards of treatment by society (Sarbani, 2010). Nonetheless, although the UN and an ever-increasing number of states have been promoting the codification of human rights through resolutions, covenants, treaties, and monitoring bodies, the concept of human rights remains one of the most debated political science topics.

Image 1: Human rights day concept illustration. Designed by Storyset - Freepik

As of today, the UDHR is considered the normative nexus through which an array of legal instruments have emerged to protect and promote human rights. Nonetheless, its prominence has favored an interpretation of the international human rights regime as strictly dependent on the declarations, treaties, and international law instruments that have emerged in the past decades. In this perspective, such instruments, revolving around the principles underlined in the UN framework to create supranational networks of commitments, might be identified as the clearest answer to the doubts surrounding the ontology of human rights. However, although on a purely procedural plane, human rights are indeed shaped by the aforementioned instruments, this view is inherently limiting because these elements only serve to declare, protect, ensure, implement, monitor, and observe human rights, not to define them (Langlois, A. 2004). Indeed, the ontological question of human rights is not necessarily a purely contemporary issue and instead predates instruments like the UDHR and the UN frameworks for human rights.

Veritably, while the Second World War and the Declaration represented a turning point in history, they only led to the recuperation of the natural law concept as a tool to promote the protection of human rights. The universalistic and inalienable character of the rights, put forth by the Declaration, indeed highlights such interpretations of human rights through the lenses of natural law. Natural law emerged primarily in the medieval theological setting, in which it was understood as a prescriptive form of law emerging from divine willingness. The claims and duties of society towards the dignity of human beings arose in this context through the identification of the human person as bearer of the divine image and a potential participant in the salvation which inevitably required socio-political implications for its respect (Porter, 1999). This approach finds its value in the aforementioned theological assumptions, according to which natural law constitutes some form of prescriptive law that allows humans to follow God’s commands and realize their ‘’creatureliness’’ (Langlois, A. 2004). The emergence of rights, therefore, developed in a framework that was connected with the natural law tradition. The framework attempted to answer the question of what rights are by identifying them as the natural consequence of following the divinely-imposed requirements of behavior. This position favored the creation of a series of duties that humans – and consequently society – have towards other beings, fundamentally providing the foundations for legal protection, but leaving the question of ontology open and unanswered.

Image 2: Malhotra, G. (2021). Keep your laws off my body. Unsplash

The development of secularism and the Enlightenment era between the 17th and 18th centuries created the premise for the ontological gaps left by the interpretation of human rights as divinely-imposed duties to be filled by new understandings of nature and humanity that freed these notions from divine intervention (Ferrone, 2017). The Enlightenment represented an era of great progress for political causes, among which human rights emerged as a prominent notion. In this period human rights were externalized from the theological tradition into a perspective that viewed humanity as the highest tribunal and therefore required it to set some ground rules to protect human dignity (Langlois, A. 2004). Indeed, undermining the idea that natural law was some sort of “given” set of truths and duties awarded to humans by a superior entity allowed humanity to become its legislator and find justification for rights in individualism and rationalism (Gay, P. 1969). Such a historical departure from the political theology of natural law and the adoption of novel understandings of human nature was favored in particular by the scientific revolution and the rise of rationalism through the employment of technical knowledge. This framework became known as that of “subjective rights”, an idea according to which rights were no longer derivatives and dependent on external sources, but were instead inherent to the human person and established by the “objective” legal order (Dedek, 2022).

The emergence of subjective rights expanded and distanced itself from the framework of natural law because it removed the necessity to find the justification for rights bearing in an external source. It instead referred to the internal and inherent character of humans. According to the subjective point of view, humans had rights because of said character, stressing the willingness to detach from the previous trend of deferring to an external authority such as the will of God to award rights (Langlois, A. 2004). The question of ontology, as interpreted through the lenses of liberalism and its subjective view of rights, served as a starting point for the development of human rights as universal and inalienable provisions that are inherent to human beings and their essence. This individualistic conception of the self and the rights that are embedded in the self is fundamental. Indeed, these elements became the core of many legal instruments like the International Covenant on Civil and Political Rights (ICCPR). The Covenant in particular underlines in its preamble how the rights put forth in the text “…derive from the inherent dignity of the human person…”, stressing the common sharing of virtues among humans and their collective entitlement to fundamental rights (ICCPR, 1966). Nonetheless, while this doctrine might help develop the scope of universality that resides at the core of many human rights provisions, it is unable to identify which elements of humanity set the precedent for rights-bearing.

Image 3: Banks, C. (2020). People March at the Black Lives Matter protest in Washington, Unsplash

Both the elements of natural law and of subjective rights have been at the core of the development of the human rights doctrine, but both theoretical interpretations have proven to feature analytical gaps in defining what the matter in question is truly composed of. In this sense, there is a need to take into consideration not only the theoretical but also the procedural aspects that gave birth to the current international system by seeing rights as an articulation of humanity's moral norms. Human rights, in this interpretation, are viewed as a collective of social actions aimed at giving voice to human suffering, making it visible, and ameliorating it through the commitment and dedication of different actors (Baxi, 2002). This school of thought, therefore, focuses mainly on the “discourse” surrounding the system, specifically understood as the institutional and socio-political framework that allows power and regulations to be put in place (Dembour, 2010). Discursive stances represent a departure from the starting point of the analysis, specifically because they remove the purely legal point of view on the topic by regarding instruments, such as the UDHR, as mere means through which the theory of human rights emerges in social practice (Goodale and Merry, 2007). Indeed, discursive analyses of human rights understand the normativity that characterizes this notion as the means through which the principles and ideas of humanitarian action mold social action and policymaking. Unlike the previous approaches, the core of a discursive one could be identified in the process of internalizing human rights in the social practice of actors (Goodale, et al., 2007). This analysis is particularly focused on the different avenues through which actors embrace this idea, both at a practical and ideological level. In this sense, social practice becomes the gear around which the entire system develops and flourishes, allowing for its implementation and promotion but once again leaving the question of what human rights truly are unanswered.

The previous analysis underlines the difficulties encountered in the task of conceptualizing human rights and the systems that emerge from them. Concepts like universality and inviolability, as well as the moral principles underlying the conviction that every human being is entitled to a set of fundamental rights, might help expand the notion but they do not clarify the essence of the matter. The phenomena have been characterized by a constant process of re-conceptualization which cannot stop at the mere identification of procedural mechanisms like treaties, agreements, and conventions. Indeed, the assimilation of human rights to such instruments can reduce the scope of the ontological question because it reduces their capacity to further expand and develop (Langlois, A. 2004). Nonetheless, the majority of the approaches to the ontological question concerning human rights have been faulty in some way, requiring instead a particularised approach capable of taking into consideration the mutable and diversified notion of rights. The such idea revolves around the identification of the core tenets of the matter, by analyzing the different ways in which they are engraved in regional and international social practices. These criteria can change, develop, and evolve according to the lenses through which they are interpreted, highlighting how the issue of denotation is bound to remain a fundamentally open question. It has been established that the ontological question of what a human right is cannot be answered by only referencing declarations and conventions, and even detaching the concept from its legalistic interpretation would leave gaps. As highlighted by Langlois, the philosophical foundations of the matter are ancient, but still unstable, since no theoretical approach could claim the certainty engendered by the rhetoric of human rights and its subsequent legal products (Langlois, A. 2004). To determine a principle whose value is found in its interpretation and implementation would be limited since it would mean constraining such an assumption to a fixed and unmovable position in time and space. Human rights are a concept to be understood as fluid and in constant development. Their value lies in the inherent need for justice and rightfulness, and their future is to be molded and shaped to safeguard human life, ensuring it is not boxed and defined into immovable categories.

Bibliographical References

Amnesty International (2017). Universal Declaration of Human Rights. [online] Amnesty.org. Available at: https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/.

Dedek, H. (2022). Subjective Right(s). [online] papers.ssrn.com. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4123676 [Accessed 9 Mar. 2023].

Dembour, M.-B. (2010). What Are Human Rights? Four Schools of Thought. Human Rights Quarterly, [online] 32(1), pp.1–20. Available at: https://www.jstor.org/stable/40390000.

Ferrone, V. (2017). The Rights of History: Enlightenment and Human Rights. Human Rights Quarterly, 39(1), pp.130–141. doi:https://doi.org/10.1353/hrq.2017.0004.

General Assembly of the United Nations (1948). Universal Declaration of Human Rights. [online] United Nations. Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights.

Ghosal, S. G. (2010). HUMAN RIGHTS: CONCEPT AND CONTESTATION. The Indian Journal of Political Science, 71(4), 1103–1125. http://www.jstor.org/stable/42748940

Goodale, M. and Merry, S.E. eds., (2007). The Practice of Human Rights: Tracking Law between the Global and the Local. [online] Cambridge University Press. Cambridge: Cambridge University Press. Available at: https://www.cambridge.org/core/books/practice-of-human-rights/01F98EA62A32B30FE0D2ADBFF1DCCC47 [Accessed 10 Mar. 2023].

ICCPR. (1996). International Covenant on Civil and Political Rights, Available at https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

Messer, E. (1993). Anthropology and Human Rights. Annual Review of Anthropology, 22, 221–249. http://www.jstor.org/stable/2155847

Porter, J. (1999). From Natural Law to Human Rights: Or, Why Rights Talk Matters. Journal of Law and Religion, 14(1), p.77. doi:https://doi.org/10.2307/1051779.

Renteln, A. D. (1988). The Concept of Human Rights. Anthropos, 83(4/6), 343–364. http://www.jstor.org/stable/40463371

United Nations (n.d.). Drafters of the Declaration. [online] United Nations. Available at: https://www.un.org/en/about-us/udhr/drafters-of-the-declaration.

Visual Sources