What Are Human Rights Anyway?

Today is International Human Rights Day, the day to commemorate the signing of the Universal Declaration of Human Rights on December 10, 1948 (see my previous blog on the issue). This event has changed the world in many ways as we struggle to understand what it means to have human rights and as our governments struggle to implement that societal vision.

To understand the concepts involved and the values at stake, we need to start from the essentials: what does it mean to be human? As simple as this question might sound, it is so very complicated and so difficult to answer. It is like describing the colour green without reference to something that is green. Also, such a description depends on the author’s perspective: a scientist may describe being human physiologically or even evolutionary, a psychologist may describe a human emotionally, an anthropologist may describe a human collectively, and so on. Therefore, to come up with an encompassing universal concept of being human is challenging. So, instead of defining humanity, we have concentrated on defining what humanity universally enjoys and expects or has a right to enjoy and expect. Hence, the idea of human rights is born.

But what does having “human rights” mean? Let’s start with the conception of a “right.” One meaning of “right” is an act, which is morally or socially correct or just, such as right vs. wrong. But in the realm of human rights this definition is weak: is it “right” to open a door for someone who has his or her hands full? Yes it is, but the person has no special right or claim on you to open the door. In order to ensure our “rights” will be respected consistently and in order to give “human rights” the special weight it deserves, a right in the human rights context must involve a justified claim or a special entitlement for something, which can be enforced against a person or institution.

Rights however differ from a privilege or a gift: often for a privilege, like a driver’s license, one must apply and show themselves worthy of receiving the privilege. Therefore, having a privilege is discretionary and not given out to all. In contrast, human rights are universal and should not be dependent on any given scenario.

Furthermore, when one possesses a human “right,” one is specially entitled to do or to have or to be free from something, but also entitled to enforce claims against others to act or refrain from acting in certain ways. Thus, the claiming of a right involves, by necessity, someone from whom to claim the right. In other words, we need a society in order to give human rights meaning. Robinson Crusoe, for instance, while alone on the Island has “human rights” but they are irrelevant until Friday shows up.

This “two-way street” therefore requires a “right holder,” the person claiming the right and a “duty-bearer,” who has an obligation to respect those claimed rights. An example can be found under our own Charter of Rights and Freedoms, which is a human rights document outlining an individual’s rights, which then can be claimed or enforced against the State. According to s.10(b) of the Charter, I have a right to counsel upon arrest or detention. This is a special claim I possess or have but I need another actor to fulfill my right. Therefore, it is the State who must act to fulfill my claim; called a positive right. Oftentimes, in the realm of human rights, the State must refrain from acting as in the freedoms found in the Charter such as a person’s freedom of expression under s.2(b); known as a negative right.

It should be noted that our rights under the Charter are not absolute. Rights compete with one another and, at times, contradict with other just as viable rights. Thus, it is this balancing of rights, not the existence of rights, which forms the biggest part of our human rights discourse.

Now, we understand what “rights” mean but from where do human rights come? Human rights arise out of our humanity or human nature: I am human therefore I have human rights. Human rights may consist of the basics to keep us alive but they are much more than that: human rights are not needed for life but for living a life of dignity. What a life worth living looks like comes from a particular vision of what that life should look like. This moral vision then becomes integrated into the political and legal institutions of a society in order to give those human rights the special claim or force needed to make them meaningful. 

Human rights therefore are described as inalienable rights, which everyone equally enjoys. Rights are called inalienable, not because one cannot be denied access or enjoyment of human rights, but because losing these rights is morally impossible. Human rights cannot be given or taken away even though historically institutions have tried such as in Nazi Germany and in slave-holding countries.

There are however difficulties in the application of human rights. It is almost impossible to come up with a list of human rights with which all humanity would agree. Most people can agree on the essentials such as food and shelter but it is when the concepts become less concrete that disagreements arise. Even if we can agree on the right to life, liberty and security of the person (s. 7 of the Charter), we would all have a different conception of what those grand words mean. Does that include universal healthcare? Does that include the life of a fetus? And so on, and, quite frankly, on to the courts to figure these nuances out.

Now we understand human rights better (or maybe for worse?), we can enjoy International Human Rights Day. In the end, it is a celebration of who we are, of who we want to be, recognizing that we are “all in this together” merely because we are human. 

Connecting With International Human Rights Day

Today is International Human Rights Day, a celebration of the establishment of the Universal Declaration of Human Rights in 1948. The document was the natural progression of the newly formed United Nations in 1945, which was created in response to the atrocities of World War II. Below is a photograph of then Minister of Justice and Attorney General of Canada, Louis St. Laurent, signing the UN Charter in San Francisco:

This act in 1945, appeared to solidify Canada's presence at the UN as a peacekeeping nation and stolid protector of human rights.

In actuality, although John Peters Humphrey, a Canadian law professor, was the original drafter of the Declaration, Canada was not initially supportive of its implementation. William Schabas, presently a professor of international law and Director of the Irish Centre for Human Rights, in his excellent journal article entitled Canada and the Adoption of the Universal Declaration of Human Rights, explains Canada's initial refusal to support the Declaration when Lester Pearson, the then External Affairs Minister to the UN, abstained in an earlier vote.  It was only after pressure from Canada's allies, the UK and the USA, that Canada's final vote was changed in favour of implementation.

Schabas, through a detailed review of archival documents uncovered the real reason for this reluctance, bordering on "hostility," shown by the Canadian delegation. Pearson and others in the Canadian Government were concerned with the entrenchment of the broad human rights, which would become available under the Declaration, and could be used by "suspect" groups in Canada. In particular, the government feared the rights of freedom of religion and freedom of association would protect the Communists and Jehovah Witnesses, two groups identified by the government as "subversive" groups. Indeed at the time, the infamous Padlock Laws, enacted by then Quebec Premier Duplessis, which empowered authorities to "padlock" any building which held any "communist" literature or permitted the gathering of anyone associated with communism, was still in force.

It is, therefore, important to recall this dark side to Canada's history when rejoicing in our global commitment to freedom and choice through protections of human rights. Our successes in the area seem to be that much more impressive when we embrace the missteps of the past and move toward a more inclusive tomorrow.

This cannot be more so when we recall Canada's recent contribution to international human rights through Louise Arbour, an exceptional legal jurist who served as the High Commissioner for Human Rights and as Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda. Admittedly, her tenure did not go without controversy, however, she is a prime example of the dedication Canadians have shown to our international covenants.

More importantly, what makes today a cause for Canadian celebration and pride, is our commitment to human rights nationally. Our Charter of Rights and Freedoms has changed the fabric of Canadian society and has given life and meaning to fundamental freedoms and protections. It is this duality of commitment, which is epitomized by Louise Arbour as a former Supreme Court of Canada Justice, who wrote strongly in favour of the protection of rights, and, as the author of the Arbour Report, uncovered abuses at the Prison for Women at Kingston Penitentiary.

This truly is the legacy of the Declaration.