top of page

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

Foreword

Since the development of civilization, humanity has searched for a series of rules, principles, and regulations capable of organizing and safeguarding those fundamental rights and provisions inherent to human character. This ever-present effort has led to the emergence of a system of laws and international agreements whose objective is committed to the protection of human rights. Its strength and future developments have been the topic of interest to many scholars. This 101 series aims to focus on the historical and political developments of these mechanisms to properly frame the current human rights system and the perspective that will ensue.

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



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 possessing 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 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”. 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 Convention 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.



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

Human rights, when interpreted as a socio-political concept, find their origin in the inherent need for the security of human beings through an overt justification of rights-based provisions. 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). 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 remain one of the most debated political science topics.

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 infrastructure that asks what the relation of human rights is to the declarations, treaties, and international law that have emerged in the past decades. Although on a purely procedural plane, human rights are indeed shaped by the aforementioned instruments, this view is inherently flawed because these elements only serve to declare, protect, ensure, implement, monitor, and observe human rights (Langlois, A. 2004). The ontological question of contemporary human rights has been developed differently throughout time and space with the common thread of the claims surrounding the value of the human connecting the various positions.


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

Firstly, while the Second World War and the Convention 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 Convention, highlights such interpretations of human rights through the lenses of natural law. This approach finds its value in the theological assumptions, according to which natural law constitutes some form of prescriptive law that allows humans to follow God’s commands and realize ‘‘creatureliness’’ in so doing (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 – has towards other beings, fundamentally providing the foundations for legal protection, but leaving the question of ontology open and unanswered.


The historical departure from the political theology of natural law was represented by the novel understandings of human nature that emerged after the scientific revolution. This development could also be exploited in an attempt to identify the ontological foundations on which the current human rights system is based. 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). 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. The emergence of subjective rights expands and steps away from the framework of natural law because it removes the necessity to find the justification for rights-bearing in an external source. It instead refers to the internal and inherent character of humans. 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 soul. This individualistic conception of the self and the rights that are embedded in the self is fundamental. These elements became the core of many legal instruments like the International Covenant on Civil and Political Rights (ICCPR). The Covenant underlines in its preamble how the rights put forth in the text “…derive from the inherent dignity of the human person…” (ICCPR, 1966). 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 what elements of humanity sets 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 practical, but also the theoretical 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 regarding which different actors show commitment and dedication (Baxi, 2002). This school of thought focuses mainly on the “discourse” surrounding the system. In this case, discourse is understood as the institutional and socio-political framework that allows power and regulations to be put in place. Discursive stances represent a departure from the starting point of the analysis, specifically because they regard instruments, such as the UDHR, as merely means to put theory into practice. At the core is the process of internalizing human rights in the social practice of actors (Goodale, et al., 2007). The 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.

Conceptualizing human rights and the systems that emerge from them is therefore a constant process of re-conceptualization. The idea revolves around identifying 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

Baxi, U. (2002). The Future of Human Rights. Oxford: Oxford University Press.

Dembour, M.-B. (2010). What Are Human Rights? Four Schools of Thought. Human Rights Quarterly, 32(1), 1–20. http://www.jstor.org/stable/40390000 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., & Merry, S. (Eds.). (2007). The Practice of Human Rights: Tracking Law between the Global and the Local (Cambridge Studies in Law and Society). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511819193


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


Langlois, A. J. (2004). The elusive ontology of human rights. Global Society, 18(3), 243–261. https://doi.org/10.1080/1360082042000221469

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

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

Visual Sources




Author Photo

Niccolò Fantin

Arcadia _ Logo.png

Arcadia

Arcadia, has many categories starting from Literature to Science. If you liked this article and would like to read more, you can subscribe from below or click the bar and discover unique more experiences in our articles in many categories

Let the posts
come to you.

Thanks for submitting!

  • Instagram
  • Twitter
  • LinkedIn
bottom of page