11 September 2004
ALL RIGHTS RESERVED
James W. Nickel
Georgetown University Press
Chapter 1 The Contemporary Idea of Human Rights
Chapter 2 The Concept of A Right
Chapter 3 Making Sense of Human Rights
Chapter 4 Lists of Human Rights
Chapter 5 Starting Points for Justifying Rights
Chapter 6 Justifying Specific Rights
Chapter 7 Resources and Rights
Chapter 8 Economic Liberties
Chapter 9 Economic and Social Rights
Chapter 10 Minority Rights as Human Rights
Chapter 11 Worldwide Acceptance of Human Rights?
Chapter 12 Conclusion: The Good Sense in Human Rights
Bibliography and References
Appendixes [to be provided]
The Universal Declaration of Human Rights
The European Convention on Human Rights
The International Covenant on Civil and Political Rights
The International Covenant on Economic, Social, and Cultural Rights
When governments do horribly cruel and unjust things to their citizens we are now likely to describe those actions as violations of human rights--instead of simply saying that they are unjust, immoral, or barbaric. Appealing to human rights in order to describe and criticize the actions of repressive governments is relatively new as a popular phenomenon. Talk of natural rights and of constitutional rights has long been common, but since 1948, the idea of human rights has gradually been adopted by journalists, politicians, and the public in much of the world. Violations of human rights are now frequently recognized and reported as such by journalists, and many people around the world have come to have some new categories of political thought and appraisal and--perhaps--decreased tolerance of repressive governments and the ways they mistreat their citizens. Beginning with the Universal Declaration of Human Rights (UDHR), an effort to create an international political morality with legal and institutional backing has commenced and made some headway.
The formulation by the United Nations in 1948 of the UDHR made possible the subsequent flourishing of the idea of international human rights. The UDHR's list of human rights is, broadly speaking, the list that is still in use today. And the international human rights treaties that followed in its wake refined the formulations of these rights and gave them the status of international law.
Many philosophers have constructed theories of rights without reference to the international human rights movement and its documents (Thomson 1990, Veatch 1985). Perhaps they proceeded in this way because they were interested in interpersonal morality rather than international political morality, or simply because they wished to construct a moral vision unencumbered by the sometimes dubious normative decisions of politicians and diplomats. My approach is different. It focuses on the contemporary political project of creating an international law of human rights that promotes decent treatment of people by their governments and hopes thereby to establish a more stable and humane international order. I focus on the UDHR and subsequent human rights treaties because they have given the idea of human rights a determinate meaning that has gained widespread international acceptance (see Chapter 11).
For human rights norms to succeed in practice they need to be supported both by strong reasons and by effective implementation. Despite many obstacles and setbacks, a system of international implementation for human rights has been emerging in the United Nations and other international organizations. (This system is described in Chapter 1). Human rights are now (2004) more widely accepted and better institutionalized than they were when this book was first published (1987). Nevertheless, many people still find the idea of international human rights perplexing and raise questions about what human rights are, what their content is or should be, and whether they can be justified in our messy and diverse world. Conceptual questions pertain to the nature or status of human rights; here one might ask whether human rights are really rights (rather than, say, political goals) or question whether international law is a suitable home for real and robust rights. Questions about the content of human rights pertain to which rights can be plausibly viewed as universal and about which parties bear duties in connection with these rights. Questions of justification ask whether there are good grounds for believing in universal human rights, whether these grounds are transcultural, and what steps are involved in justifying a right.
This book addresses these questions, moving from historical and analytical topics to issues of justification and affordability and then on to some particular families of rights. Overall, the book defends the contemporary idea of human rights against a variety of philosophical and practical objections. It tries to show that the idea of human rights makes good sense and suggests that people should be comfortable, but not unreflective, in appealing to human rights.
At the conceptual or analytical level my intention is to explain the concept of rights and to show that it is an attractive vehicle for expressing the norms of the international human rights movement. I also offer a general account of what human rights are (a definition, that is, rather than a list) and of their characteristics. My account of the nature and justification of specific human rights, such as the right to a fair trial or the right to freedom of movement, does not take such specific rights to be ultimate moral standards that are underived and unchanging. Instead, I see the several dozen norms that we now call human rights as attempts to identify the implications for political morality and for national and international law of deeper and more abstract values and norms. Specific human rights respond to familiar and recurrent threats to fundamental human interests. An account of human rights requires reflection both on what are the most basic human interests and on which political, social, and legal abuses are most dangerous to those interests.
Human rights are minimal standards. They are concerned with the moral minimum and focus on areas of great injustice. They need to be supported by very strong reasons of universal appeal, to have high-priority, and to resist claims of national and cultural autonomy. Still, it is hard to determine where lists of human rights should end. There are many areas of great injustice in human societies and it is tempting to extend the reach of human rights norms to address them all. The advocates of many causes would like to get their agendas incorporated in the norms, institutions, and activities of the human rights movement. The question of which families of rights should be included in human rights documents and treaties will be discussed at length, particularly in Chapter 4.
The justification of human rights has several stages. The most basic stage involves trying to identify and justify the abstract values or norms that underlie human rights. The second stage involves trying to show that some specific norms follow from these abstract considerations, and that these norms are plausibly conceived as universal rights. Using an analogy to chess, I will often refer to this second stage as the “middle game.” A third stage of justification involves defending the measures that will be necessary to protect and promote human rights internationally. To extend the analogy, this is the “end game.”
This book gives considerable attention to the middle game. Philosophers typically focus on ultimate justification, and political scientists and lawyers usually focus on the end game, with the result that the middle level is largely ignored. I try to remedy this lack of attention by developing an account of the kind of case that needs to be made for a specific right at the middle level of justification. The result may seem insufficiently theoretical to philosophers and insufficiently practical to political scientists and lawyers, but this is a risk I willingly take. I hope to show that the middle level of justification is a significant area in which the concerns of philosophers, anthropologists, political scientists, economists, and lawyers come together.
This book was first published in 1987 as Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (University of California Press, 1987). This revised edition brings the book up to date and makes many changes and additions. The subtitle has been dropped because the revised version focuses as much on human rights treaties as on the UDHR. All of the chapters, except for Chapter 2, have been substantially rewritten. Three old chapters were cut. And new chapters were added on lists of human rights (4), economic liberties (8), minority rights (10), and the prospects for the worldwide acceptance of human rights (11).
This was and continues to be a short book, with chapters that can be read in a single sitting. Extensive bibliographic references are provided. When I first began working on human rights in the 1970s, the human rights literature in philosophy, law, and political science was very limited. I am pleased to be able to say that there is now an abundance of good books and articles on human rights.
I am grateful to Georgetown University Press for bringing out this new edition, and to Richard E. Brown, the Director, for his help and encouragement. I also wish to acknowledge gratefully the editorial and substantive help given by my friends Stephen Munzer and M. B. E. Smith.
The Contemporary Idea of Human Rights
Human rights as we know them today draw on historic ideas of justice and natural rights, but they are applications of those and other ideas in service of a political project that was initially undertaken after World War I in the minority rights treaties and then continued on a larger scale after World War II (Burger 2000). This project's goals are to prevent governments from doing horrible things to their people and thereby promote international peace and security. To make sense of the contemporary idea of human rights, and to avoid confusing it with earlier ideas of natural rights, one must understand both its intellectual character and its political dimensions.
During World War II it was easy to recognize that a dangerous aspect of Hitler's rule was its lack of concern for people's lives and liberties. The war against the Axis powers was often defended in terms of preserving human rights and fundamental freedoms. The Allied governments declared in early 1942 that victory was “essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice” (Declaration By United Nations 1942). The carnage and destruction of World War II led to a determination to do something to prevent war, to build an international organization to address severe international problems and to impose standards of decency on the world's governments. The United Nations Organization (hereinafter UN) was created in 1945. It has played a key role in the development of the contemporary idea of human rights.
The creators of the UN believed that reducing the likelihood of war required preventing severe and large-scale oppression within countries. Because of this belief, even the earliest conceptions of the UN gave it a role in promoting rights and liberties. Some early conceptions of the UN Charter suggested that it contain an international bill of rights to which any member nation would have to subscribe, but the idea did not succeed. Instead, the Charter committed the UN to promoting human rights in the abstract. The Charter expressed “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” (United Nations Charter 1945, Preamble). Its signatories pledged themselves to “take joint and separate action in cooperation with the organization” to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion" (United Nations 1945, Article 1.3).
Shortly after the approval of the Charter, a UN committee was charged with writing an international bill of rights. It was to be similar in content to bills of rights already existing in some countries, but was to be transnational in its scope. It was to apply to all people in all countries. The UN took a familiar institution, a national bill of rights, and adapted it for use at the international level. The international bill of rights emerged in December 1948 as the Universal Declaration of Human Rights (hereinafter UDHR). The UDHR was a declaration, a set of proposed standards, rather than a treaty. It recommended promotion of human rights through “teaching and education” and “measures, national and international, to secure their universal and effective recognition and observance” (United Nations 1948b; for histories of the UDHR see Glendon 2001, Lauren 1998, and Morsink 1999).
The first twenty-one articles of the UDHR present rights similar to those found in historic bills of rights. These civil and political rights include rights to equal protection and nondiscrimination, due process in legal proceedings, privacy and personal integrity, and political participation. But articles 22 through 27 make a new departure. They declare rights to economic and social benefits such as social security, an adequate standard of living, and education.
The UDHR has been amazingly successful in establishing a fixed worldwide meaning for the idea of human rights. Broadly speaking, the list of human rights that it proposed is the one that is still in use--and that has been incorporated into many national bills of rights. Its list of rights also set the pattern for the numerous human rights treaties that have gone into operation since 1948. Those treaties include the European Convention on Human Rights (Council of Europe 1950), the International Covenants (United Nations 1966), the American Convention on Human Rights (Organization of American States 1969), and nearly a dozen others.
Defining Features of Human Rights
Human rights, as conceived in the UDHR and subsequent human rights treaties have a number of general characteristics. Eight important features are described briefly in this section. A fuller treatment of the defining features of human rights is provided in Chapter 3.
First, lest we miss the obvious, human rights are rights. But the exact import of this status is unclear and will be one of my subjects of inquiry. I’ll suggest that at a minimum it means that human rights have rightholders (the people who have them); addressees (parties assigned duties or responsibilities); and scopes that focus on a freedom, protection, or benefit. Further, rights are mandatory in the sense that some behaviors of the addressees are required or forbidden.
Second, human rights are universal in the sense that they extend to everyone living today. Characteristics such as race, sex, religion, social position, and nationality are irrelevant to whether one has human rights.
Third, human rights are high-priority norms. They are not absolute but are strong enough to win most of the time when they compete with other considerations. To have high priority human rights must have strong justifications. These grounds for human rights must apply all over the world and support the independence and high-priority of human rights. The UDHR states that human rights are rooted in the dignity and worth of human beings and in the requirements of domestic and international peace and security.
Fourth, human rights are not dependent for their existence on recognition or enactment by national governments. They exist as moral and legal norms at the national and international levels. They aspire to acceptance within people’s moralities and to effective institutionalization within law, government, and international organizations. In promulgating the UDHR as a "common standard of achievement," the UN did not purport to describe rights already recognized everywhere. Instead, it attempted to set forth an enlightened international political morality. Subsequently, however, international treaties were used to make human rights norms part of international law.
Fifth, human rights are international standards of evaluation and criticism unrestricted by political boundaries. They provide standards for criticism by "outsiders" such as international organizations, people and groups in other countries, and foreign governments.
Sixth, human rights are primarily political norms rather than interpersonal standards. They are standards of decent governmental conduct and mainly speak to social and political leaders and institutions. Governments are their primary addressees. We must be careful here, however, since rights against racial and gender discrimination, for example, are concerned to regulate behavior that is more often private than governmental (Okin 1998). Still, governmental action is directed in two ways by rights against discrimination. First, the rights forbid governments to discriminate in their actions and policies. Second, they impose duties on governments to prohibit and discourage both private and public forms of discrimination.
Seventh, human rights are numerous and specific rather than few and general. Like other bills of rights, the UDHR is a list of specific rights that addresses severe but familiar problems of governments. Accordingly, the UDHR is not a restatement of Locke's rights to life, liberty, and property (Locke 1690), although some abstract values are identified in the preamble. Instead, it is a list of roughly two dozen specific rights. Among the civil and political rights asserted are rights to freedom from discrimination; to life, liberty, and security of the person; to freedom of religion; to freedom of thought and expression; to freedom of assembly and association; to freedom from torture and cruel punishments; to equality before the law; to freedom from arbitrary arrest; to a fair trial; to protections of privacy; and to freedom of movement. The UDHR’s social and economic rights include rights to an adequate standard of living including adequate food, to education, to work and economic opportunities, and to support during disability and old age.
Finally, human rights are minimal standards. They constrain legislation, policy-making, and the behavior of officials but leave most political decisions in the hands of national leaders and electorates.
Although the today's conception of human rights mainly comes to us from the effort to reconstruct the international system that occurred after World War II, its authors used familiar ideas about freedom, justice, and individual rights. It is not a distortion to view human rights as the recycling of an old idea within a new, transnational context. The notion of a natural or divine law requiring decent treatment of everyone is ancient, and it was wedded to the idea of rights in by theorists such as Locke and Jefferson as well as in declarations of rights such as the French Declaration of the Rights of Man and the Citizen (1789) and the U.S. Bill of Rights (1783). The idea of individual rights against government is far from new.
If we take the UDHR and the subsequent human rights treaties to represent the contemporary view of human rights, we can say that it differs from earlier--particularly eighteenth-century--conceptions in three ways. Human rights today are more egalitarian, less individualistic, and more internationally oriented.
The egalitarianism of recent human rights documents is evident, first, in the great emphasis they place on equality before the law and protections against discrimination. Although eighteenth-century rights manifestos sometimes declared equality before the law, protections against discrimination are nineteenth and twentieth-century developments. Victory over chattel slavery in the Americas came in the nineteenth century, but racist attitudes and practices remain a central problem of our time. The demand for equality for women in all areas of life has also become part of the human rights agenda. The Convention on the Elimination of All Forms of Discrimination against Women (United Nations 1979) condemns discrimination against women and advocates equality and equal rights. Article 11, for example, commits the participating countries to taking "all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights...."
The egalitarianism of contemporary human rights documents can also be seen in the inclusion of economic and social rights. Earlier conceptions of political rights generally viewed their role as keeping government off the backs of the people. Abuse of political power was seen as a problem of governments doing things they should not, rather than failing to do things they should. The duties generated by these rights were mainly negative --duties of restraint. Positive duties were found mainly in the duty of governments to protect people's rights against internal and external invasions. Due process rights such rights to a fair trial, freedom from arbitrary arrest, freedom from torture and cruel punishments were seen as remedies for abuses of the legal system. These abuses included manipulating the legal system to favor the friends and disadvantage the enemies of those in power, jailing political opponents, and ruling through terror. Rights of privacy and autonomy such as rights to freedom from warrantless invasion of home and correspondence, freedom of movement, free choice of residence and occupation, and freedom of association were seen as remedies for invasions of the private sphere, which included governmental prying into the most intimate areas of life and attempts to control people by limiting where they are able to live, work, and travel.
Rights of political participation such as rights to freedom of expression, to petition government, to vote, and to run for public office were seen as remedies for such abuses as refusing to consider complaints by citizens, suppressing dissent and opposition, crippling the development of an informed electorate, and manipulating the electoral system to stay in power.
Even if government were restrained from the various abuses just listed, such social and economic problems as poverty, ignorance, disease, discrimination, sexism, and economic exploitation would be undisturbed. Many contemporary political movements have mainly focused on these social and economic problems. One result has been to broaden the scope of the rights vocabulary to include these problems within the human rights agenda. The vehicle for delivering the services these rights demand is the modern welfare state, a political system that uses its taxation powers to collect the resources required to supply essential welfare services.
The second difference between today’s human rights and eighteenth century natural rights is that today's human rights are less individualistic. Recent rights manifestos have tempered the individualism of classical theories of natural rights. They continue to protect individual rights and liberties, but they often conceive of people as members of families and communities, not as isolated individuals (Glendon 2001, 93). In the International Covenants, rights of groups have been brought within the human rights framework by giving a prominent place to the rights of nations to self-determination and to control of their natural resources (United Nations 1966, Article 1). Further, human rights are no longer closely associated with social contract theory. Indeed, there are few references to philosophical theories of human rights in contemporary human rights documents. Postwar efforts to formulate international human rights norms have gone forward despite persistent philosophical and ideological divisions. To gather as much support for the movement as possible, the philosophical underpinnings of human rights were sketched broadly in the UDHR by saying that people are "born free and equal in dignity and rights," and have "equal and inalienable rights."