The Concept of Human Rights: Theory and Contestation

• Author: Mark Freeman, Gibran Van Ert
• Pages: 24-50

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This chapter reviews the principal characteristics of the concept of

human rights as it is expressed in contemporary international law. The

aim is to provide the reader with a basic conceptual framework to

undergird the more detailed treatments of individual treaties and

norms in subsequent chapters.

There is a general consensus that human rights are useful and

important, but criticisms of the theory and practice of human rights

persist. There remains disagreement about, for example, the relative

priority of different human rights, how they are best protected, whether

there is an underlying historical or cultural bias in their formulation,

and whether they are the best way of conceptualizing the relationship

between the individual and the state. This chapter will survey some of

these criticisms or challenges, and offer some tentative responses.

A. Defining Characteristics of the

Concept of Human Rights

1) Founded on Human Dignity

As Chapter One demonstrates, the law of human rights was preceded

and influenced by a mixture of natural law theory and domestic consti-

tutional law. While most early rights theorists asserted that the source

of rights was divine or natural, by the twentieth century the concept of

THE CONCEPT OF

HUMAN RIGHTS:

THEORY AND

CONTESTATION

chapter 2

The Concept of Human Rights: Theory and Contestation 25

“natural rights,” in the divine sense, had been largely discredited.1Con-

temporary justifications for human rights are based instead on notions

of human dignity and the inherent worth of human beings. For exam-

ple, the preamble of the Universal Declaration of Human Rights 1948

(UDHR)2declares “recognition of the inherent dignity . . . of all mem-

bers of the human family” to be “the foundation of freedom, justice and

peace in the world . . . .” Similarly, the preamble to the International

Covenant on Civil and Political Rights 1966 (ICCPR)3and the Interna-

tional Covenant on Economic, Social and Cultural Rights 1966 (ICE-

SCR)4proclaim that human rights “derive from the inherent dignity of

the human person.” None of these instruments posits a foundational

theory, natural or divine, as to why humans possess human rights; each

simply declares that they do.

While competing foundational theories for human rights abound,5

none has achieved significant consensus. Although this may leave the

theory of human rights, like many moral and legal theories, somewhat

unmoored, it may be enough to show that human rights are necessary

or useful or advantageous to individuals and to human society as a

whole.6

2) Prescribed by International Law

International human rights law and its regional equivalents form a

branch of public international law. Human rights are principally estab-

lished by way of treaties created at the international level by the inter-

national community. International human rights law is like most law in

that its central purpose is to regulate behaviour, but in this case the pri-

mary focus of regulation is state behaviour and not individual behav-

iour. Human rights law is also like other forms of law in that it expresses

not only substantive norms, but also procedural norms and remedies.

1 L. Henkin et al., Human Rights (New York: Foundation Press, 1999) at 79.

2 GA res. 217(III) (1948).

3 [1976] CanTS no. 47.

4 [1976] CanTS no. 46.

5 For a summary of most of the leading theories, see J. Donnelly, Universal Human

Rights in Theory and Practice, 2d ed. (Ithaca: Cornell University Press, 2003)

[Donnelly, Universal] at 13–21.

6 Michael Ignatieff properly queries whether human rights would be worth having

if we could prove a natural law basis for having them, but not establish their

utility. M. Ignatieff, “Human Rights as Politics and Idolatry,” in A. Gutman, ed.,

Human Rights as Politics and Idolatry (Princeton: Princeton University Press,

2001) at 55 [Ignatieff, “Human Rights”].