Human rights are a hot topic for those who are criminally convicted and for international countries. This is because people generally use the ‘human rights card’ to try to avoid punishment and human rights issues are more visible in third world international countries as privileged Westerners can criticize. Universalism in terms of human rights refers to the application of the same rights to everyone no matter their circumstance. Individualism is referring to human rights applying to each individual, and their ability to be protected by those rights and challenge them if they feel their rights are being violated. Collective rights apply to individuals and their status as a social group, region, or entire country depending on the circumstances of the case. The saying “the needs of the many outweigh the needs of the few” is applicable in this case. This essay will examine cases in favour of individual rights, in favour of collective rights, and the debate on human rights being a western phenomenon with a glance at non-western practices. It will be demonstrated that human rights are a Western phenomenon that needs to be adapted to suit other countries.
Individual Rights over Collective Rights
“Collective rights only exist where law formally recognizes institutions. Collective rights strengthen individual rights and their application” (UOttawa, n.d., para.17). This is because in order for collective rights to occur there has to be the underlying individual rights existing within that group. Sometimes there is conflict as to whether precedent should be given to individual rights or the collective rights. For instance, indigenous populations have issues with their rights being violated because generally, only their individual rights are assessed in situations rather than looking at the person in question as a member of a group (Individual Rights vs Collective Security, n.d., para. 6-7). Many cases involving religion take the collective right of safety over the individual’s right to freely express their religion especially in cases of terrorism. When it comes to cases involving death such as euthanasia or abortion, individual rights have been selected over the collective rights of the community.
In R v. Morgentaler (1988) is an example of individual rights persevering over the collective rights. In R v. Morgentaler (1988) it was found that abortion laws in the Criminal Code infringed the Charter under section 7 (R v. Morgentaler, 1988). By striking down abortion law, it has provided women with the ability to choose whether they are pro choice or pro life as an individual rather than depending on the thoughts or religion of the collective community (Sharpe & Roach, 2013, pp. 253-254). As a nation, we decided that the well-being of the mother and her individual rights take precedent over an unborn fetus.
The following two cases: Multani v. Commission scolaire Marguerite‑Bourgeoys (2006) and B. (R.) v. Children's Aid Society of Metropolitan Toronto (1995) will demonstrate instances where collective rights may be favoured. In Multani v. Commission scolaire Marguerite‑Bourgeoys (2006) it was determined that students could not bring ceremonial knives to school which denied the religious rights of an individual over the collective right to safety for all other students. B. (R.) v. Children's Aid Society of Metropolitan Toronto (1995) is another religious case where parental rights can be overridden by the state in cases where the child’s health is endangered by the parent’s religious agenda. This is another case that demonstrates the collective rights of a child’s right to safety and life outweigh the parent’s individual right to religion.
Are Human Rights too Individualistic?
Human rights are favourable to those of a lower socio-economic status as they risk being ‘bullied’ by those of power (Koji, 2001, pp. 937-938). Third world countries operate on a socialist system rather than a capitalist system so they are concerned with collective rights because they are not concerned about being controlled as an individual in a hierarchy (Koji, 2001, pp. 937-938). Collective rights are only valid for those groups that can maintain an identity to protect them from the government. Collective rights can also describe the rights given to humans as a whole. Generally, the larger the group in question, the more controversial the idea of a commonly held right. In The Queen v. Drybones (1970), s. 94 of the Indian Act was found inoperable as it did not provide people of Indian status equality before the law. An individual not of Indian status would not have been punished. This case still shows the reservations towards groups of people. This may be because society is accustomed to individual rights that it may take years before the law initially looks at a person on an individual and collective level without being asked.
Individual Rights as a Protection of Social Groups
Human rights have evolved to protect social groups such as the LGBT community and indigenous population. Section 15 of the Charter protects members of the LGBT community as individuals against discrimination on the basis of sexual orientation. School District No. 44 (North Vancouver) v. Jubran (2005) decided that no matter a person’s sexual orientation, they have a right to learn at an institution free of bullying. This provides the protection to various social groups that may be more prone to be targets of bullying but also individuals that do not identify with a targeted social group. Section 7 of the Charter is believed to be harmful to our principles as a civilization because of the number of cases that have found laws to infringe upon this section (Fine, 2015, para.7 & 9). The government hopes to be given more authority in the future in order to prevent the harm that courts cause by allowing changes (Fine, 2015, para.3 & 12). If the government is given more authority, then the fight for human rights will remain at a standstill as society would not be able to move forward with their evolving beliefs. The government hopes society will conform to the long held moral beliefs of the land while pushing their own social agenda on their people. The government puts fourth an attitude that the citizens must follow the law because it is law, not because it is the right thing which is putting an anchor on an accepting civilization (King, 2005, p. 99). In order for human rights to be taken seriously and discrimination to be diminished in regards to social groups, the government needs to show acceptance towards Western country’s changing values.
Human Rights are an inherently Western Phenomenon
Human rights came into practice after the hardships of war (Bhabha, 2013, p. 2). The use of human rights was to ensure individuals were provided with security of their person under the ruling of a government (Bhabha, 2013, p. 2). Human rights were to hold the morality of the land which is why laws are continuously changing as we grow as a nation with a different mindset (Bhabha, 2013, p. 2). Currently, 585 people are held in Guantanamo Bay without having been charged for a crime on average of two years or longer (The Lancet, 2004, p. 637). Within many Western countries such as Canada, it is a person’s right to know what they are being detained for and charged with. There are also laws surrounding how long a person can be held before their trial. Guantanamo Bay is an example of how human rights could be interpreted as a western phenomenon. However, about 10% of inmates are receiving counselling or medical treatment for mental illness which would not normally be provided if their rights were being ignored (The Lancet, 2004, p. 637). Other examples of human rights issues world wide would be Rwanda, and problems in North Korea to name a few (The Lancet, 2004, p. 637). The Geneva Convention and organizations such as The United Nations are meant to help with human rights however, the same results are not seen world wide (The Lancet, 2004, p. 637). To this extent, it is evident that human rights are a Western phenomenon as they are developed countries free of dictatorship. Generally, western civilizations are the example that everywhere else aims to be which can be seen in fashion as well.
Are Human rights compatible with other Cultures and Traditions?
The Europeans were the main innovators of international human rights at a global level, with a strong guidance over the International Criminal Court (ICC) (Hopgood, 2014, p. 70). Many countries have yet to join the ICC which is problematic as the apex institution promotes unequal justice (Hopgood, 2014, p. 70). The issues surrounding the lack of a human rights movement includes: the decline of Western influence and the emergence (or re-emergence) of new powers, the politicization of human rights language, and pushback against human rights on principle, particularly in cases of religious belief (Hopgood, 2014, p. 69). Human rights began after the United States became a dominant advocate after the cold war (Hopgood, 2014, p. 69).
In Rwanda, there is a new president that may not align with the Western dream but has provided the people of Rwanda with a better chance at life (Kinzer, 2010, para. 12). Even though this new regime forbids certain actions that Western communities would consider a human rights issue, it is what works for their community (Kinzer, 2010, para. 12-13). One solution does not fix everything as communities have individually formed and therefore have decided on different values and opinions like every person in a Western society is entitled to. A person living half way across the world cannot decide what every country needs without ever leaving their own country (Kinzer, 2010, para. 15). Every country’s human rights plan should be different and catered to their needs and values just like doctor’s tailor different treatment plans to patients because every case is different.
Western society believes that individuals are separate entities from society whereas other societies believe all individuals collectively form society as a unified entity. An analogy is: Western society is essentially competing in an individual sport, whereas other countries are competing in a team sport. Western societies values may not be fully applicable to other countries because of their conflicting views which may be why human rights issues still occur around the world (Heard, 1997, para. 26). Non-western countries are under the belief that laws do not need to be made to protect individuals from society (Heard, 1997, para. 26). These group rights could be considered a form of social control which can be seen in dictatorship/communist countries. Individual rights are considered to be economic freedom because they allow people to independently operate and develop their own opinions in comparison to others (Heard, 1997, para. 67).
Bhabha, F. (2013). International human rights in Canada: At the juncture of law and politics. International Journal of Legal Information, 41(1), 1–15. Retrieved from http://heinonline.org
Fine, S. (2015, July 26). Supreme Court unfair to Harper government, new Ontario justice wrote as professor. Retrieved from http://www.theglobeandmail.com
Heard, A. (1997). Human rights: Chimeras in sheep's clothing? Retrieved from http://www.sfu.ca
Hopgood, S. (2014). Challenges to the Global Human Rights Regime: Are Human Rights still an Effective Language for Social Change? Sur International Journal on Human Rights, 11(20), 66-75. Retrieved from http://proxy.lib.sfu.ca/login?url=https://search- proquest-com.proxy.lib.sfu.ca/docview/1636654335?accountid=1380
Individual Rights vs Collective Security. (n.d.). Retrieved from http://www.unric.org/en/indigenous-people/27309-individual-vs-collective-rights
King, Jr, M.Luther. (2005). Letter from Birmingham jail. In D. M. Adams (ed.), Philosophical problems in the law (5th ed., pp. 96-101). Boston, MA: Wadsworth.
Kinzer, S. (2010, December). End human rights imperialism now. Retrieved from https://www.theguardian.com/commentisfree/cifamerica/2010/dec/31/human-rights- imperialism-james-hoge
Koji, T. (2001). Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights. European Journal of International Law, 12, 917- 941.
Sharpe, Robert J., & Roach, Kent (2013). The Charter of Rights and Freedoms. (5th ed.). Toronto: Irwin Law.
The Lancet. (2004). How complicit are doctors in abuses of detainees? The Lancet,364(9435), 637-638.
UOttawa. (n.d.). The Nature of Canadian Bilingualism: Individual Rights and Collective Rights. Retrieved from https://slmc.uottawa.ca/?q=bi_canadian
B. (R.) v. Children's Aid Society of Metropolitan Toronto,  1 SCR 315, 1995 CanLII 115 (SCC), <http://canlii.ca/t/1frmh>, retrieved on 2017-07-10
Multani v. Commission scolaire Marguerite‑Bourgeoys,  1 S.C.R. 256, 2006 SCC 6
R v Morgentaler,  1 SCR 30
School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201
The Queen v. Drybones,  S.C.R. 282