Two key issues that struck me after the read: Universality and International Law

Universality:

                All the declarations are founded on one premise: that the statements contained therein are all common sense. They are composed of ideals that are obvious rights or wrongs but for some reason or another –a war, evil counselors, genocide, etc.—have been abused or neglected and therefore must now be written down as a reminder to humanity. These ideals by default must be considered “universal” – they are an attempt to establish a universal morality and respect for humanity that is bound in both honorable agreement and universal law.

                Problems:

              The mere fact these declarations exist means that these ideals were obviously not so commonsensical at one point or another. That there was a point in history where these ideals were NOT understood as universal.  The roles of individual [and by ‘individual’ I mean individual people as well as states and organizations] subjectivity and interpretation seem to be glossed over within the framework of many declarations.  They tend to be interpreted differently in different contexts as understood by different people and entities. This becomes problematic when we are posed with vague definitions and non-descript statements within declarations ESPECIALLY when accusations of abuse are brought into the legal realm. Article 5 of the Universal Declaration of Human Rights states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” – defining ‘torture’ or ‘cruel’ or ‘inhuman’ is not addressed. This opens up space for interpretation by declaration signatories and allows for loopholes whereby instances such as those in Abu Ghraib and Guantanamo Bay occur.

Which brings me to the relationship between Law and Human Rights…

                It is foolish to think that any Universal declaration of Human Rights can be upheld on a system of honor and agreement.  Without an international enforcement mechanism or international legal system [ICJ maybe?], international law is of little use. It depends on the resources and legal systems within individual states to upkeep and incorporate these international ideals as part of their domestic legal framework.  This is unrealistic as many states lack the resources and infrastructure to put into effect the legal system that is required to adhere to the protocols set forth in many declarations—Article 10 of the Universal Declaration of Human Rights: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal….” The point here is that law is nothing without enforcement and we have yet to establish a legitimate international enforcement/punishment/repercussion mechanism.  [[ This is not taking into consideration the International Court of Justice mostly because I am not very well read on the topic ]]

                 

Random thoughts:

-       *  I think the French Declaration of the Rights of Man is my favorite – Concise, to the point, legible and well-defined.

-       *   The English Bill of Rights: King James the II and his evil employees- how dare they. 

I had never read The Universal Declaration of Human Rights. But out of the list of readings for this week, I saw the word Universal and decided that is should be an interesting read. A universal declaration, must mean that it is something that applies to everyone, right? Now, I’m not so sure. I wish “real life” was as simple as this universal declaration makes it seem. When I finished I imagined a cartoon that depicts states/countries dancing around holding hands in a circle, singing about universal rights. Then I scoffed at myself, bringing myself back to reality and thinking about the scale of problems around the world from famine, the drought in Africa, disease, war, poverty, animal cruelty, environmental abuses by corporations and the list goes on. It seems to me that nobody else has ever heard of this document. And after a few depressing moments, I started to think about the why’s.

Why isn’t it that simple? Could it ever be? And as trivial as it is, why can’t we all just get along? I mean can it really be as simple as to treat others the way you want to be treated?

Following the 10 year anniversary of the “terrorist” attacks in New York, Article 5 jumped out at me, as I was remembering the controversy regarding if the united states had used interrogation techniques such as water boarding to gain information on terrorists (I’m NOT claiming to know anything about this just that I saw something in the news about it  and article 5 reminded me of it).

I thought Article 23 was interesting in thinking about migrant workers that have come to Canada and get taken advantage of, and similarly people with disabilities who are often marginalized in the workplace. Also, for so many years men were paid more than women for the same levels of work although they have the same universal rights. In the end, for as many UN official documents and covenants declaring rights as there are, the universe still seems as complicated as ever. People and nations are marginalized and the world seems to operate on a hierarchical scale when all these documents seem to say that everyone is equal, in a brotherhood and should behave as such. I have to say, I don’t think it will be much longer until I’m on Jon’s side; What’s the Point of Universal Human Rights, or Declarations of Independence or otherwise when there is so much tragedy happening all over the world?

I also thought about Article 13 and that next time I go to Seattle for some shopping when the border agents ask me the purpose of my visit to reply simply that it is my universal right and see what happens.

As several others have pointed out, it seems that all these manifestos on the self evident rights and fundamental freedoms people are entitled to are made to preserve social order.  Everyone of these documents were created by a state, in the interests of the state.  This from the onset proves that the motive is something entirely different than trying to bestow upon one another endowments of benevolence and harmony. These are made with interests at hand that ultimately have been constructed from the top-down.  Everything in the documents is totally fine, they all sound good to me given the context of the time period and what the ruling class saw a socially acceptable, hence the anti-Semitism in the magna carta. But do we really trust the state to act in the name of social justice?

As Jon mentioned last week, these documents are not revolutionary, they are conservative in their goal to maintain the peace.  Peace in this case is coupled with complacency. When people are safe, when they are not being directly trampled upon, or directly persecuted, when they do not starve, then complacency is widespread.  People do not think about power shifting, which is ultimately what would needs to happen if society is to truly be democratic.  Its no secret that we live in one of the nicest societies in the world, where wealth is so widespread and so bountiful.  That’s clearly at the expense of many peoples, but i’ll save that for another day.  We don’t protest over anything meaningful, and we seldom take our dignified rage to the street.  When protest comes against something sociopolitical or economic, like the 2010 Olympics or the Toronto G20, then we get beat down by the cops, because they are manifestations of people organizing to show that the state is acting in interests that oppose the desire of the majority.  In sum, documents like this are diametrically opposed to the powers of people, especially dissenting organized people.  This is what makes Anarchism the “A” word in society.  Without structures, without hierarchy, without oligarchy, I think a society such as Canada’s, with its deeply entrenched notion of hyper-order and classism, would crumble if power shifters took over. Shame.

One note that struck me, in going through the Universal Declaration of  Human Rights, was Article 15 – “Everyone has a right to a nationality.” At first, I thought it was a slightly strange thing to have a right to since a Nation is technically a cultural group. Essentially, it seems to infer that everyone has a right to an identity.

In contrast, there isn’t an explicit ‘right to citizenship’ within the declaration. There are a few instances of people having rights “in his country” or “in the country where he belongs.”  All of these things imply citizenship, but they never quite grant you a passport.

In fact, the word ‘citizen’ never appears in the document. Which is interesting because often in debates over human rights abuses the question of who should be protecting people often comes up. Therefore, using the wording of his or her country rather than the country of his or her citizenship is problematically vague from a legal standpoint.  For a country is technically a geographic region, but not necessarily a sovereign state. If you are defining what or who should be protecting a person from human rights abuses, using these definitions, it seems to me that responsibility could be passed off quite a bit.

Another point on the “right to a nationality” is that when you think about it this ‘right’ seems to be integral to most of the Human Rights documents. Often a nation is defined as a group of people who share common social values, such as religion, language and way of life. More or less all of these broad categories are covered in every document with rights like “freedom of religion.” Are these documents really protecting rights to identity?

This seems to be a very ‘Western’ way of viewing the world to say that everyone has this right to a nationality aka a right to an identity. However, the identity also seems very fluid in a “you can be anything you want to be” type of way. All of which really seems to be founded on everyone being “born free.” However, I would argue that not everyone is “born free,” or, perhaps, that there is a grey scale of freedom. One might be born free to make choices, but different advantages give some people choices that others may never obtain.

My overall questioning is of what it is that we value, is it citizenship or nationality? For it seems that in these documents identity is held in high regard. However, in practice it often seems that what passport you hold really defines a lot of your human rights.

As I was reading the Magna Carta tonight, I drifted through memories of medieval movies where average people really never had rights, lived in permanent fright over debts, fees and inheritances and social inequalities were severely deep. I could easily see Cate Blanchet or Jeremy Irons performing in this “movie,” where only laws and obligations were stated and I could only identify one possible “ human right.”

 

“No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

I am inclined to say that the exquisite, yet intangible, language used in this Magna Carta was a strategy to keep the “people” and the poor uninformed and very confused. At the end, the letter only shows concern for the needs of the Crown and the Church, focused on taxing those working the land after several wordy paragraphs that I think I understood only 40 per cent of.

Thus, it is remarkable to notice how little importance women had at that time. Notification (which sounded more like permission) to the authorities to re-marry was needed for widows and women had no right to ask for the imprisonment of anyone but her husband or free access to her inheritance. But years have passed, and are women any more supported than before? Maybe in some cases and regions, but women as a group, continue to face higher percentages of poverty and violence than any man.

There are basically three broader terms in which I see the documents connected. The first one is their dependence of the historical context from which they emanated. Although, rights are often described as abstract and legal entities, there is a sense in which those legal and abstract entities are tied to specific historical contexts. In other words, most of the declarations of rights are preceded by the wrongs that prompted their existence. The other point is that although there are constant references to the universality of rights, that universality is dependent upon the acknowledgement and responsibility of States and once one of those States refuses to comply, the supposed universality and self-evidence of the mentioned rights is questioned. The third point is that it is almost unavoidable to see the declarations of rights as rules of chess, or rules that should be followed inasmuch as one wants to play a certain game; the game of life in community one could argue.

1- Most of the declarations of rights seem to be tied to specifically historical contexts, like the Magna Carta, the US Constitution and the Canadian Charter of Rights and Freedoms. Even when those historical contexts are made explicit as in the case of the Magna Carta or the US declaration or when they are made implicit, as in the Canadian Charter, those texts are more like road maps, a plan which dwells on the reasons for its existence, a point of departure, a wrong that they are meant to redress.

Usually when people talk about rights, one thinks of a fairly abstract figure to which one only appeals when one does not have rights; however, reading those declarations of rights one after the other brought to light the fact that none of them can escape their local specificity. If rights are so self-evident, why each of those declarations dwells so much on the conditions of their coming to light? Sometimes when one reads constitutional documents there is a point at which it is really difficult to see  the ‘nationality’ of the document. It may refer to previous laws, or constitutional amendments, but there are not historical references in the text. But in most of the declarations of rights, there are historical references done through the text that locate it historically, either through an overt exposition of the context as in the case of the Magna Carta, or through an acknowledged of a quarrel, which the text is meant to correct.

In the particular case of the Canadian Charter of Rights and Freedoms it is truth that there is not implicit reference in the body of the text about the social tensions that the text is trying to resolve. Perhaps because of that lack of reference, perhaps due to a lack of knowledge of the context in which the Charter is written, the sections on language tend to be seen as obscure and unnecessary. However, when one looks closely at the historical context, one could argue that the Charter is a piece of a broader intent within Canadian politics to try to ground the legal basis that could unite the country to something other than its dependency to the British Crown. But not only to unite into something other than the consciousness of a colony; at the same time the Charter wanted to integrate the demands of the Quebec population, which had served as the argument for their interest in independence. In other words, most of the provisions on language in the Charter, are a response to the complaints from the Quebecois about their perceived threats to the existence of their language and it is that context that the text is written. So even if the context is manifestly put forward as in the case of the Magna Carta, even within the legal abstractness in which rights are written, those rights are tied to historical contexts that determined them.

2- Declarations of rights are dependent upon the states that are supposed to enforce that universality. So they are not so much universal, they are only pretended to be universal, but that universality is only attained through the compliance of each State and as soon as one of those States decides to transgress the act of faith that rights entail, there is a conundrum and a whole ethical debate about how to resolve the violation of rights. In other words, declarations of rights are statements of good faith that are dependable on the good faith of the signatories. Perhaps that is one of the biggest difficulties of rights; they are too grandiose to be declared and too feeble to be enforced.

3- To a certain extent I cannot avoid thinking of rights as one thinks of the rules of chess. Certain rules that one is supposed to follow in order to “play” a “proper game”, but there are instances when a proper game is not precisely what is sought and there seems to be shortage of alternatives to enforce those proper rules of play, once one of the players decides not to abide by those rules. Sure it could be argued that diplomacy and moral coercion can eventually serve the purpose of persuade the non-complying states to agree with the ‘universal’ declarations of rights, but history is full of examples where neither diplomacy, not moral coercion have been enough to guarantee the universality of human rights.

This was my first time reading many of these documents. Although aware in some form of all of them I think the diversity among them attests to the fact that an individual’s interpretations of “rights” varies both in time and in place. The evolution of human/ white male/elitist thought through these declarations would be an interesting point to analyse. While the earlier declarations pertain to a specific segment of the population (white, property-owning and Christian males) the later declarations are very inclusive of all segments of the population. Similarly, while the former declarations, like the Magna Carta, the English Bill of Rights up till the French Declaration of the Rights of Man the majority of the “rights” are portrayed as economic rights.

While this has been seen as a criticism by many I think that this is an interesting point to dwell on. It would be more conducive to creating a more just society if more of the human rights declarations were to focus more specifically on resource rights and legal rights. For although the notion of “rights” has become more abstract, I think it does boil down to a discussion about entitlement. If people are secure in their knowledge that they have a right to a specific resource, they will conserve it, conserve the people that manage it and secure their well being.

For me of particular interest was the UN declaration on the rights of indigenous peoples. The article I researched was about a Vancouver based mining company that has bought land on a reserve in Mexico that is considered by the Huichol people of the area to be one of their holiest sites and is a significant cultural and traditional landmark. This is completely against the provincial and federal law as well as against the UN declaration which states:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(…)

If these were considered more property rights than human rights and embedded more strongly in the legal system of Mexico maybe this wouldn’t happen? Or maybe it is our job to stand up to the Vancouver-based mining company (First Majestic Silver Corp, 925 West Georgia Street #1805, Vancouver, BC V6C 3L2  (604) 688-3033 () ‎ · firstmajestic.com )

If you want to learn more about this issue, there is a silent auction fundraiser and information session at the Anza Club on October 13^th at 8pm that will show a documentary and have a discussion session with a key Huichol leader.

Declarations of rights throughout the ages are born out of the events and individuals of their times. While there are some universal and lasting principals, declarations are often declared following abuses of power inflicted during that era. Declarations of rights are also often seen as idealistic, something to strive for, but are often dismissed or ignored when they conflict with the self-interests of dominant governments.

Our readings start with the magna carta. Unlike the post-enlightenment decarations, the magna carta does not specify the equality and freedom of all. In fact, punishments under the law differ according to social class. The magna carta, while bestowing certain rights and freedoms to men they did not previously explicitly enjoy under the law, primarily aims to protect the rights and interests of the upper classes of men. Property and free trade are key to these rights. While widows are oft mentioned, women are still treated as lesser beings and not considered credible witnesses under the law.

The English bill of rights was born out of the catholic and protesant clashes of the era following the reign of king james, a catholic who was deemed a tyrant by the protestants. This Bill of rights focused much on the various injustices that the protestants accused king james of. Out of these injustices, the rule of law became enshrined as no laws could be suspended or executed without the consent of parliament.

The US Declaration of Independence was again influenced by the events of the day as the American colonists felt as though England was abusing their rights. While the US Declaration of Independence states that all men are created equal, it was stating rather that all states are equal, meaning the colonies should be allowed to be sovereign over themselves rather than be lorded over. This was not the era of equality of men, as most of the signers were slave holders. This declaration was more about conserving the colonists way of life and their social order rather than radically changing it. The colonies wanted to live the way they had been prior to 1763, fairly uninterrupted and taxfree. Like the English bill of rights, it was a condemnation of the king of England.

The Federalist papers posed many intriguing possibilities. It stated that a bill of rights was not actually necessary since a government for and of the people requires equality and the rule of law; it is not a monarchy which can bestow rights to its subjects, rather the equal citizens create their own system of government where equality is essential. Hamilton was a bit contrarian though as he also argued for the necessity of a strong central government, rather than the more democratic Jeffersonian style.

The French declaration seems to be the most idealistic and egalitarian of the enlightenment era, as it states not only is everyone equal but anyone has the right to do as they wish as long as it does not hurt others.  Again, this declaration was born out of the tyranny of a monarch.

The US Bill of rights is interesting, especially in our post 9/11 era where many, if not all, of these supposed inalienable rights have been suspended at sometime.

The human rights declarations of the post WWII era attempt to create a more egalitarian and peaceful world but as with the US Bill of rights, they are often ignored or suspended when the self interest of the dominant nations come into conflict with the declarations. The UN Charter  and its subsequent declaration of human rights are prime examples as they state the equality of all men and promise swift justice against aggressive nations but dominant nations such as America are never prosecuted when they violate the declaration and charter.

Declarations of rights are often born out of the tyranny of the era. While they create admirable goals to strive for in society, the self-interest of the dominant groups/nations often nullify these rights. Perhaps declaring rights allows for their ultimate suspension when it is deemed “necessary” for the ruling elite. If the world were truly equal, suspension of basic rights would not be a possibility.

s0metim3s argues that

One has rights – or does not have them, as the case may be. One can be right, of course, but this particular formulation of the claim to legitimacy, this assertion of rightness, is not necessarily of the same register as an assumed, or claimed, legal or moral entitlement which might transform the circumstantial, concrete instance of being correct about this or that into having just claim or, more simpy put: of being right into having a right – which is to say, into a property. The language of rights is, in its grammar, the language of property.

It's certainly true that the language of rights and the language of property overlap. But I'm not entirely sure that the two can be conflated so quickly. Or rather, it might be worth unpicking the differences that someone such as Locke (whom s0metim3s quotes) obscures.

So, yes, property discourse infiltrates rights discourse at almost every turn. The UN Universal Declaration, for instance, delcares in its first article that "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towoard one another in a spirit of brotherhood." And for "endow," the OED gives "1 a. To give a dowry to (a woman) [. . .]; 2. To enrich with property; to provide (by bequest or gift) a permanent income for (a person, society, or institution)."

(Let's hold off for a moment on the familial language of "brotherhood" and the innate connection between rights and reason.)

On the other hand, rights constitute a peculiar kind of property, if property they are.

First, in that (some?) rights are held to be, as the US Declaration of Independence puts it, "unalienable." They are not to be bought and sold; they are innate, whether that innateness stems from the fact that they are natural, or from some legal or constitutional framework. Human, natural, and civil rights can all be considered "unalienable" from this perspective. They may be abrogated or abused, but they can never be taken away.

Yet, second, rights discourse also sometimes indulges in the language of alienability. Some rights can be won or lost; they are precarious or (again, from the US Declaration) need to be "secure[d]." In so far as we can be deprived of our rights, then it is simply not true for instance that (as the UN Declaration has it), "everyone has the right to freedom of movement and residence within the borders of each state."

So rights are at turns almost ontological, in that they are coterminous with existence: I am, therefore I have rights. And at other turns, they are a precious commodity, all too easily forfeited (if we do not act upon them) or lost (if we are deprived of them).

To what extent then can rights be exchanged? Social contract theory seems to suggest precisely such an operation, as natural rights are given up in favour of civil rights. But Spinoza (for instance) implies that in fact such rights can never be surrendered; indeed, that it is pure ideology to suggest so.

Do we have the right not to have rights? I suspect that this is what's at issue when the state steps in to criminalize suicide or euthanasia, for instance. But then suicide, or self-harm of any sort, is rather a tricky issue for Spinoza, too.

Meanwhile, as to the slippage between "being right" and "having rights": Marguerite Feitlowitz points out that the Argentine junta played out precisely such a game of words in the context of other games at the time:

This war of words culminated in a dramatic display in 1978, when the World Soccer Championships were held in Argentina. Taking advantage of their access, foreign journalists pressed the regime for information on reported disappearances, torture, and secret concentration camps. "What do you mean, 'human rights'? the commanders fumed. "We Argentines are human, we Argentines are right." The message was writ large on a huge banner in the reception area of Ezeiza, the international airport. Shiny decals with this slogan appeared in shop windows and offices, on private cars and taxi cabs. Employees at the Ministry of the Interior--who routinely shredded writs of habeas corpus--wore the decals and demonstrated in Plaza de Mayo. This group came face to face with another demonstration--parents, spouses, and children of desaparecidos who marched silently, wearing pictures of their loved ones and signs that asked ¿Dónde están? "Where are they?" The official reply? "We Argentines are human, we Argentines are right." (A Lexicon of Terror 35-36)

Clarín has an article on this same campaign, ""Somos derechos y humanos": cómo se armó la campaña", and see also Rubén Morales's "Somos derechos y humanos". Morales also bears out Feitlowitz's contention that public relations (PR) functioned for the Argentine military in the way that radio served the Nazis (41).