Are There Really an such things as Human Rights?

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22 hours ago
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The question of whether human rights possess a reality beyond the paper on which they are inscribed is a central tension in contemporary geopolitical discourse. At the heart of this inquiry lies a fundamental paradox: while the Universal Declaration of Human Rights (UDHR) enjoys nearly universal rhetorical acclaim, the subsequent transition to legally binding covenants has been marked by selective participation, extensive reservations, and a growing public perception that these protections have been subverted to serve the interests of the guilty over the security of the state. This report examines the philosophical foundations of human rights, the legal mechanisms that dilute their universal application, and the socio-political backlash currently challenging the legitimacy of international human rights regimes.

The Jurisprudential Divide: Natural Law versus Legal Positivism

To determine if human rights "really" exist, one must first engage with the competing jurisprudential theories that define their origin. The debate is historically anchored in the tension between natural law and legal positivism. Natural law theory posits that human rights are inherent to the individual, existing prior to and independent of any government or legal system. These rights are considered universal, inalienable, and fundamental, derived from a higher moral order, human reason, or divine mandate. Proponents of this view, from classical philosophers like Aristotle to Enlightenment thinkers such as John Locke, argue that because these rights are inherent to human nature, they cannot be repealed by human laws. In this framework, the state does not "create" rights; it merely recognizes and protects them. If a state enacts a law that violates these natural rights, that law is viewed by jusnaturalists as illegitimate and unjust.

In stark contrast, the school of legal positivism argues that rights are entirely a social and legal construct. From this perspective, rights do not exist in a "state of nature" but are bestowed upon individuals by a sovereign authority through a formal legal system. Legal positivists such as Jeremy Bentham and John Austin contended that the concept of natural rights was "nonsense upon stilts," arguing that a right is only real if it can be enforced by a court of law. This view shifts the focus from the moral "inherence" of rights to the procedural "conferral" of rights, suggesting that human rights only "exist" to the extent that they are codified in positive law—statutes, treaties, and constitutions.

Theoretical Dimension	Natural Law Perspective	Legal Positivism Perspective
Origin of Rights	Inherent in human nature and reason	Bestowed by the state and legal systems
Universality	Rights exist across all cultures and times	Rights are contingent on specific laws
Role of the State	Duty to protect pre-existing rights	Authority to define and grant rights
Legitimacy of Law	Laws must align with universal morality	Laws are valid if enacted by proper authority
Enforceability	Morally binding regardless of legal status	Only real if enforceable through courts

The evolution of modern international law represents an attempt to bridge this divide by transforming natural law aspirations into positive law obligations. The UDHR, adopted in 1948, was the first global attempt to articulate these rights, yet its status as a "declaration" meant it was not a binding treaty but a statement of principles. For the positivist, the UDHR did not create "rights" so much as it established a normative framework that required further codification through treaties like the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) to become legally operational.

The Evolution of the International Bill of Rights and the Bindingness Problem

The transformation of human rights from "soft law" into "hard law" began with the drafting of the two core UN Covenants. While the UDHR provided a comprehensive list of rights, the subsequent ideological split of the Cold War era necessitated the creation of separate instruments. Western nations emphasized civil and political rights (the first generation of rights), leading to the ICCPR, while the Soviet bloc and developing nations focused on economic, social, and cultural rights (the second generation), resulting in the ICESCR. These two treaties, along with the UDHR, constitute the International Bill of Human Rights.

The fundamental difference between a declaration and a covenant is the principle of pacta sunt servanda—the legal requirement that treaties in force are binding upon the parties and must be performed in good faith. However, the reality of human rights is complicated by the fact that while almost every nation has signed the UDHR, the commitment to binding conventions is far from universal. Many countries have either refused to ratify these treaties or have done so with extensive reservations, understandings, and declarations (RUDs) that effectively hollow out their obligations.

Instrument	Characterization	Legal Force	Key Function
UDHR (1948)	Normative Declaration	Soft Law (Customary Evidence)	Sets universal moral and political standards
ICCPR (1966)	Binding Covenant	Hard Law (for State Parties)	Codifies civil and political liberties
ICESCR (1966)	Binding Covenant	Hard Law (for State Parties)	Focuses on progressive realization of social rights

A significant obstacle to the "reality" of these rights is the mechanism of reservations. Under the Vienna Convention on the Law of Treaties, a state can exclude or modify the legal effect of certain provisions of a treaty. While these are intended to allow for cultural and legal diversity to encourage wider participation, they are often used to exempt a state from the very obligations that define the treaty’s purpose. For example, the United States ratified the ICCPR with five reservations, five understandings, and four declarations, including a "non-self-executing" declaration that prevents the treaty from being enforced in domestic courts. This creates a situation where a country can claim to support human rights internationally while ensuring they have no legal teeth at home.

The Strategy of Reservations and the Paradox of Compliance

The use of RUDs reveals a counterintuitive trend in international relations: liberal democracies, which ostensibly champion human rights, often enter more reservations than authoritarian regimes. This "strategic ratification" occurs because democracies with an independent judiciary and a strong rule of law view treaty obligations as credible threats to their domestic legal sovereignty. They enter reservations to protect existing constitutional arrangements from international interference. Conversely, authoritarian states may ratify treaties without any reservations because they have no intention of complying and face little internal pressure to do so, making the "cost" of ratification low.

Furthermore, some states use broad reservations based on religious or cultural frameworks, such as those subordinating treaty obligations to Sharia law. The Committee on the Rights of the Child (CRC) and other treaty bodies have consistently expressed concern that such general reservations are incompatible with the "object and purpose" of the treaties. This conflict underscores the cultural relativist critique: the argument that human rights are a Western construct that ignores the communal and duty-based values of non-Western societies.

Ratification Profile	Frequency of RUDs	Primary Motivation	Impact on Rights Realization
Liberal Democracy	High	Protect domestic legal sovereignty	Consistent with local law but limited by it
Authoritarian State	Low	Gain international legitimacy ("cheap talk")	Superficial commitment with frequent violations
Theocratic/Traditional State	Medium-High	Protect religious/cultural identity	Rights are conditional on cultural interpretations

This strategic behavior suggests that for many states, human rights are a tool of foreign policy rather than a set of intrinsic values. The reality of human rights, therefore, depends less on the act of signing a treaty and more on the domestic mechanisms of accountability and the political will to implement those standards.

The Death Penalty: A Case Study in Sovereignty and Human Dignity

The debate over the death penalty exemplifies the conflict between evolving international human rights norms and the traditional exercise of state sovereignty. From a human rights perspective, the death penalty is increasingly viewed as a violation of the right to life and the prohibition of cruel, inhuman, or degrading punishment. The Second Optional Protocol to the ICCPR is the only global treaty dedicated to the total abolition of capital punishment, and its preamble explicitly links abolition to the enhancement of human dignity.

Despite a measurable global trend toward abolition, several powerful states continue to retain the death penalty, asserting their sovereign right to determine the appropriate punishment for the most serious crimes. Countries such as China, the United States, and Saudi Arabia represent a "retentionist" core that resists international pressure. In these jurisdictions, the death penalty is often justified through the lens of retribution and public safety, with governments arguing that capital punishment serves as a deterrent and fulfills a societal demand for justice in the wake of vicious crimes.

Death Penalty Status (2023)	Number of Countries	Representative Nations	Key Justifications for Retention
Abolitionist for all crimes	~110+	Most of Europe, Australia, Canada	Inherent right to life; risk of error
Abolitionist in practice (de facto)	~50	Many African and Asian nations	Moratorium; shifting political will
Retentionist	~55	China, Iran, Saudi Arabia, USA	Sovereignty; Retribution; Public Support

In China and the United States, public opinion is a critical factor in maintaining the death penalty. Research indicates that both governments view retention as essential for political legitimacy, catering to a pro-retentionist public that views capital punishment as a necessary tool of social accountability. In China, support for the death penalty has historically been recorded as high as 96% in some surveys, while in the United States, the decentralized legal structure allows individual states to maintain the practice even as the federal government faces international scrutiny. This suggests that the "right to life" is not a universally accepted absolute, but a contested norm that is frequently subordinated to national criminal justice policies and populist sentiment.

Public Backlash: The "Criminals' Charter" and the Crisis of Legitimacy

In recent years, a significant rise in public dissatisfaction with human rights frameworks has emerged, particularly in the United Kingdom and parts of Europe. Critics argue that human rights laws have become a "charter for criminals," providing a shield for the "undeserving" while hampering the state's ability to protect its citizens. This sentiment is often focused on the European Convention on Human Rights (ECHR) and its judicial arm, the European Court of Human Rights (ECtHR).

The core of this backlash involves the perceived expansion of rights to protect foreign national offenders from deportation. Articles 3 (prohibition of torture) and 8 (right to private and family life) of the ECHR are frequently cited as obstacles to removing individuals who pose a threat to national security or have committed serious crimes. High-profile cases, such as the decade-long struggle to deport the cleric Abu Qatada to Jordan, have fueled the perception that human rights laws are being used to circumvent justice. In the Abu Qatada case, the ECtHR blocked deportation not because of a risk of torture, but because it believed the use of evidence obtained by torture in a Jordanian retrial would constitute a "flagrant denial of justice".

Perception Factor	Public Narrative	Empirical Evidence / Legal Reality
Deportation Barriers	Human rights stop almost all deportations	Only ~3.5% of UK deportations are successfully challenged on HR grounds
"Trivial" Protections	Criminals stay because of "pet cats" or "chicken nuggets"	These are often misrepresentations or rejected arguments in court
National Security	Courts "move the goalposts" to protect terrorists	Courts aim to ensure the rule of law and fair trials even in extreme cases
Parliamentary Sovereignty	Strasbourg judges overrule elected MPs	The "Margin of Appreciation" allows states significant discretion

The narrative that human rights "just protect the guilty" is often exacerbated by "clickbait headlines" and the misreporting of judicial decisions. Research by the Bonavero Institute for Human Rights identifies a trend of reporting rejected legal arguments as if they were the basis for the court's final decision, thereby eroding public trust in the integrity of the system. This creates a political environment where leaders feel pressured to consider withdrawing from human rights treaties to regain "control" over borders and security.

Human Rights vs. National Security: The "Protection of the Country" Argument

The tension between individual rights and national security is perhaps the most acute challenge to the idea of universal human rights. Many governments argue that the primary duty of the state is to protect the nation from external threats and internal disorder, a function that may require the temporary or permanent limitation of certain liberties. This "common good" approach suggests that government must put the public interest above the specific rights of individuals who threaten that interest.

Historically, this trade-off has led to the adoption of "sweeping strategies of domestic security" that restrict rights in the name of law enforcement, immigration control, and counter-terrorism. In 2024 and 2025, the world has seen a continued trend of "democratic backsliding," where authoritarian leaders use the language of national security to justify digital repression, the silencing of dissent, and the erosion of judicial independence. According to Freedom House, 2024 marked the 18th consecutive year of decline in global democratic freedoms, often driven by conflicts and the perceived need for strong-man leadership in the face of insecurity.

The legal framework for these trade-offs is found in the concept of "derogation." Treaties like the ICCPR allow states to suspend certain rights during a "public emergency which threatens the life of the nation". However, the debate remains over what constitutes a legitimate emergency and whether states use these powers to permanently shift the balance toward authoritarianism. The Rise of "Eurocrimes" and the expansion of criminalization powers in the EU to combat hate speech and extremist ideologies online demonstrate how even democratic systems are grappling with the limits of freedom of expression in the interest of social stability.

The Problem of Enforcement: Non-Compliance and the UPR

The ultimate critique of the "reality" of human rights is the difficulty of enforcement. Unlike domestic law, there is no global police force to compel states to respect human rights. The international system relies on a combination of judicial oversight (such as the ECtHR), diplomatic pressure, and peer-review mechanisms like the United Nations Universal Periodic Review (UPR).

However, even binding court rulings are frequently ignored. Turkey, for instance, has a systemic issue with the non-implementation of ECtHR judgments. According to Council of Europe data, over 70% of freedom of expression violation judgments against Turkey in 2023 were not implemented. High-ranking Turkish officials have openly stated that ECtHR decisions "do not bind" them, characterizing the court's rulings as political interference in domestic affairs. Similarly, Russia's relationship with the ECHR system collapsed following its invasion of Ukraine, leading to its expulsion from the Council of Europe in 2022 and its subsequent refusal to recognize the court's jurisdiction.

The UPR, established in 2006, was designed to move away from "naming and shaming" toward a more collaborative and universal peer-review process. While it has succeeded in ensuring that every UN member state is reviewed, its effectiveness is limited by the fact that it has no enforcement "teeth" and depends entirely on the willingness of the state under review to accept and implement recommendations. The refusal of the United States to participate in the 2025 review cycle highlights the vulnerability of these universal mechanisms to political shifts in major powers.

Enforcement Mechanism	Nature of Oversight	Primary Challenge	Effectiveness Case Study
ECtHR Judgments	Binding Judicial Rulings	State non-compliance and "backlash"	Turkey's refusal to release Osman Kavala
Universal Periodic Review	Cooperative Peer Review	Lack of enforcement; politicization	US refusal to participate in 2025 cycle
Treaty Body Committees	Expert monitoring (e.g., HRC)	Findings are generally non-enforceable	Australia's selective adoption of HRC views
Diplomatic Assurances	Bilateral agreements	Often "unreliable and unenforceable"	UK-Jordan agreement in Abu Qatada case

Conclusion: Are Human Rights Real?

The existence of human rights is not a binary fact but a spectrum of legal, moral, and political reality. Philosophically, the idea of inherent rights continues to provide a powerful moral language for challenging state abuse. Legally, the transformation of the UDHR into binding covenants has created a robust framework of obligations that, while imperfectly followed, sets a global standard for legitimate governance.

However, the "bindingness" of these rights is clearly qualified by state practice. The widespread use of reservations, the persistence of the death penalty among major powers, and the systemic non-compliance of states like Turkey and Russia suggest that human rights are often secondary to state sovereignty and national interests. Furthermore, the rising public perception that human rights prioritize the "guilty" over the "innocent" or the "protected" indicates a growing crisis of legitimacy that democratic governments must address.

If human rights are to remain "real" in the 21st century, they cannot be seen merely as a set of static legal rules imposed from above. They must be continuously defended and adapted to ensure they provide security and justice for all members of society, not just a selected few. The ongoing struggle between universalism and relativism, between individual liberty and national security, ensures that the question of whether human rights "really exist" will remain one of the defining challenges of the modern era. The reality of human rights lies not in their universal enforcement—which remains an aspiration—but in their persistent role as a site of global contestation over the limits of power and the value of human life.

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