Making Sense of Human Rights Revised Edition 11 September 2004 all rights reserved



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Overview

Human rights deal with severe political abuses that undermine fundamental interests and deprive people of dignity. Accordingly, their content is varied. Some deal with basic liberties, others with due process, and still others with security and survival. The unity found in these diverse rights is that they protect decent or minimally good human lives against standard threats. Human rights are primarily political rather than interpersonal norms.

Human rights impose duties and other normative burdens on their addressees. They are primarily against governments but secondarily against individuals and international organizations. Secondary addressees often play a back-up role, stepping in when the primary addressees are unwilling or unable to fulfill their responsibilities.

Human rights are high-priority norms that are universal and hard to lose. But qualifications are needed. I have denied that high-priority means that human rights are absolute, noted that "universal" human rights are sometimes rights of citizens and sometimes rights of groups, and denied that human rights are generally impossible to forfeit or abandon.

Legal enforcement is often important to making rights effective, but such enforcement is not necessary to their existence. Human rights provide direct guidance to their holders and addressees. Fundamental rights do not, however, provide complete guidance as to details of implementation, appropriate responses to noncompliance, and strategies for promoting compliance. Thus a list of rights cannot serve as an alternative to political thought and deliberation.
Chapter 4
Lists of Human Rights

The Universal Declaration of Human Rights and the human rights treaties that followed attempted to give determinate meaning to the idea of human rights and gain widespread international acceptance of that conception. Amazingly, this attempt was largely successful. By 2000 the main human rights treaties had been ratified by a large majority of the world's countries. As Ann Bayefsky writes, "Every UN member state is a party to one or more of the six major human rights treaties. 80% of states have ratified four or more" (Bayefsky 2001). This is not to say, of course, that all or most states largely comply with these treaties. Nevertheless, within international law and politics, the selection and enactment of an authoritative list of human rights has been substantially completed. The UDHR's content is no longer a subject of international controversy.

The UDHR sets out a list of over two dozen specific human rights that countries should respect and protect. These specific rights comprise at least seven families: (1) security rights that protect people against crimes such as murder, massacre, torture, and rape; (2) due process rights that protect against abuses of the legal system such as imprisonment without trial, secret trials, and excessive punishments; (3) liberty rights that protect freedoms in areas such as belief, expression, association, assembly, and movement; (4) political rights that require a democratic political process in which people can participate through actions such as voting, serving in public office, communicating, assembling, and protesting; (5) equality rights that guarantee equal citizenship, equality before the law, and nondiscrimination; and (6) economic and social rights that require provision of education to all children and protections against severe poverty and starvation. Another family of rights that should be mentioned here is (7) minority and group rights. The UDHR does not include group rights, but several human rights treaties do, beginning with the Genocide Convention (United Nations 1948a). Group rights include protections of ethnic groups against genocide and the ownership by countries of their national territories and resources. Minority and group rights are discussed in Chapter 10 below.

This classification of human rights into seven families is much more fine-grained than the familiar division of human rights into civil and political rights and economic and social rights. By disaggregating "civil and political rights" into security rights, liberty rights, political rights, and equality rights, this scheme makes clear the different sorts of rights that need to be justified. Liberty rights (or "fundamental freedoms)" illustrate the liberal dimension of contemporary human rights. Political rights enshrine the democratic dimension of human rights today. And equality rights, along with economic and social rights, comprise the egalitarian dimension of contemporary lists of human rights.

This chapter explores the list question by presenting and criticizing the minimal list of human rights proposed by John Rawls in The Law of Peoples (Rawls 1999). Rawls is a distinguished political philosopher who authored the immensely influential book, A Theory of Justice (Rawls 1971). Rawls did not discuss international human rights until the last decade of his life. Shortly before his death he published, The Law of Peoples, which sketches a normative philosophy of international relations. One of the eight principles of international justice proposed is that countries "honor human rights" (Rawls 1999, 37). But Rawls thinks that human rights are more plausible if they are kept to a very minimal list. Rawlsian minimalism is not the view, familiar from Cranston, that economic and social rights are not genuine human rights (Cranston 1967, 1973). Indeed, Rawls endorses the right to subsistence (Rawls 1999, 65), which is arguably the most important economic and social right. Instead, Rawlsian minimalism is a view that greatly reduces the liberal, egalitarian, and democratic dimensions of human rights while retaining all seven families of rights.
Rawlsian Minimalism

Rawls distinguishes "rights that citizens have in a reasonable constitutional democratic regime" from international human rights: “Human rights are distinct from constitutional rights, or from the rights of liberal democratic citizenship" (Rawls 1999, 78-79). Rawls offers the following broad description of the international human rights he endorses: (1) "the right to life (to the means of subsistence and security)"; (2) "liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought)." Rawls also mentions the "right of emigration" (Rawls 1999, 74). (3) "property (personal property)"; and (4) "formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly)" (Rawls 1999, 65).

Rawls’ abstract description is unclear as to exactly what it includes and excludes, and Rawls did not provide a comparison between his proposed list and the UDHR. We can construct one, however, using the seven families of rights explained earlier.

1. Security Rights Rawls endorses security rights. He mentions "life" and "security of the person" (Rawls 1999, 3). Security rights include "the security of ethnic groups from mass murder and genocide" (Rawls 1999, 79). Rawls does not mention rights against torture and cruel punishments. It is unclear whether he meant to include or exclude these rights, but I will assume that he intended to include them.

2. Liberty Rights Rawls proposes a far more restricted conception of "fundamental freedoms," than the one found in the UDHR. He endorses the prohibition of slavery and forced occupation, and requires sufficient freedom of conscience and religious belief to permit freedom of thought (Rawls 1999, 65). Rawls endorses a requirement that "no religion be persecuted, or denied civic and social conditions permitting its practice in peace and without fear (Rawls 1999, 74). He also endorses freedom to emigrate, to leave a country (Rawls 1999, 74).

A large number of the fundamental freedoms found in the UDHR and human rights treaties are excluded by Rawls's short list of freedoms. These include freedom of opinion and expression (UDHR Articles 18-19); peaceful assembly and association (UDHR Article 20); and freedom to choose one's own marriage partner (UDHR Article 16).

3. Political Rights Rawls does not endorse the view of political rights found in Articles 20-21 of the UDHR. Those articles declare rights to peaceable assembly and association (which allows one to hold political rallies and to form and join political parties), to participate in one's country's governance, to equal access to public service, and to periodic and genuine elections with universal suffrage. Rawls replaces these commitments to democracy with a requirement that political leaders receive petitions from and consult with the leaders of the country's constituent groups. Rawls says that countries must at least have a "decent consultation hierarchy" with "a family of representative bodies whose role in the hierarchy is to take part in an established procedure of consultation..." (Rawls 1999, 71f).

4. Due Process Rights Rawls does not directly discuss due process rights, but I believe that this is an oversight. As we saw earlier, Rawls requires that legal systems adhere to formal equality, the requirement that "similar cases be treated similarly." (Rawls 1999, 65). I speculate that Rawls intended to endorse a human right to a fair trial in criminal cases.

5. Equality Rights Rawls believes that human rights require that rulers govern rationally and with concern for the common good, but that international human rights do not exclude political hierarchy or the political subordination of women and minority religious groups. A legal system that fulfills human rights must display "formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly)" (Rawls 1999, 65), but this does not exclude hierarchical and group-based differences. Rawls allows that one religious group may be favored, that there may be "inequality of religious freedom," and that there may be religious (and presumably therefore gender) discrimination in access to higher political and judicial appointments (Rawls 1999, 74-75). Women's place in society need not be equal, but he imagines that "dissent has led to important reforms in the rights and role of women" (Rawls 1999, 78).

These are not, of course, Rawls's own preferences on these matters, but he thinks that these standards set out what is required by international human rights. Rawls's proposed list of human rights has very weak commitments to equality.



6. Economic and Social Rights Rawls's conception of international human rights agrees with the UDHR in requiring state protections for "subsistence" or "minimum economic security" (Rawls 1999, 65). However, Rawls mentions no human right to education or to equal education.

Minority and Group Rights According to Rawls, human rights forbid persecution of religious minorities, and ensure security from "mass murder and genocide" (Rawls 1999, 74, 77, 79). But he thinks human rights permit a subordinate position for minorities that excludes them from access to higher political and judicial positions. Discrimination on the basis of religion, race, or gender is not prohibited.

Rawls's minimal list of human rights fails to address many severe injustices. True, it does protect people's security, and thus if it were respected it would prohibit some of the worst and most dangerous sorts of human rights violations. Nevertheless, it has substantial deficits in regard to liberty, democracy, and equality. It would not have been thought adequate in 1948 when the UDHR was being authored, and it fails to incorporate areas of important political progress in the last two centuries. Rawls clearly did not believe that a country that fulfilled his minimal list of human rights would thereby be a just society. The deficits in liberty, equality, and democracy were deliberately selected, not an accident, even though they did not represent Rawls's own political preferences as a progressive liberal. So why did Rawls choose this minimal list?

There are two main reasons. One is that Rawls assumed a conception of human rights which made it definitional that they could be coercively imposed by the international community whether or not a country accepted them or had agreed to participate in a human rights enforcement system. The second reason is that Rawls believed that liberal constitutional democracies had duties of tolerance towards countries that were "decent" even though they were illiberal, undemocratic, and hierarchical. In the two sections that follow I explain and criticize these reasons. I will try to show that Rawls's case for his minimal list of human rights is far from compelling.
Are All Human Rights Internationally Enforceable?

Rawls takes it to be definitional of human rights that they help specify when outside intervention in a country is permissible. Rawls says that human rights "specify limits to a regime's internal autonomy" and that their fulfillment "is sufficient to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or...by military force" (Rawls 1999, 79-80). A country that "fulfills" human rights, along with the other principles of international justice, is entitled to tolerance, which Rawls takes to mean that other countries are required to recognize that country as an equal member in good standing in the international community and to refrain from coercion and force in their dealings with that country. Negatively, if a country does not fulfill human rights, then it is permissible (if not always wise) for other countries to use coercion and force to get that country to change its practices. For Rawls, human rights are norms that can justifiably be imposed on countries even when they reject them on principle. The means of imposition, whose appropriateness depends on the severity of the violation, are diplomatic, economic, and military sanctions.

Since a human right is one that is justifiably imposed by coercion or force, it must have great importance or weight. Some of the rights in the UDHR do not have that level of importance and hence they should be axed. Rawls's minimal list attempts to identify all and only rights that have sufficient importance to warrant international enforcement. If the right to assistance of counsel in criminal trials, for example, does not have sufficient importance to be forced on unwilling countries, it does not qualify as an international human right.

Tying the definition of human rights so closely to what standards it is justifiable to impose with coercion and force is not very plausible. In fact, human rights serve many international roles, some of them unconnected to enforceability. First, they serve as standards for noncoercive international persuasion. They say to countries: "Here are the standards for good government that the world community endorses. Consider adopting them." Second, they serve as standards for domestic aspiration and criticism, as rights to enact and implement nationally. People and NGOs who appeal to them in domestic political debate can defend them as internationally endorsed and widely-accepted. Third, they function as operative norms within treaties that are voluntarily accepted. A norm does not need to have any special character, or ultimate importance, to be subject to review and adjudication within a system created by a treaty that binds only countries that ratify it. Fourth, they serve as standards to be promoted within international organizations using methods of persuasion and criticism that are non-coercive, or that involve very low levels of coercion. Finally, some of them serve as standards for permissible international intervention using coercion and force (the function that Rawls takes to be essential).

As human rights function today within international organizations it is just untrue to say that they are mainly about intervention using coercion and force. A better description of their main role is that they are used to persuade and encourage governments to treat their citizens humanely with respect for their lives, liberties, and equal citizenship. The human rights system puts this emphasis on persuasion and encouragement because of the high costs and dangers of enforcing public norms within the international system we currently have. Because enforcement efforts are costly and dangerous it is reasonable to restrict their use to the most severe human rights crises. These tend to be situations in which large numbers of people are being killed. To avoid narrowing the human rights agenda to such crises, means for promoting human rights have been devised that do not require intervention or the imposition of heavy diplomatic or economic sanctions. These means are weaker, but they allow the human rights agenda to cover a wider but still very important set of issues.
What Duties of Tolerance are Owed to "Decent" Countries?

An important theme of The Law of Peoples is that liberal democratic countries have duties of tolerance towards illiberal and undemocratic countries as long as those countries are "decent" (Rawls 1999, 59-62). No tolerance is owed to "outlaw" states, since they engage in egregious human rights violations and are dangerous to other countries (Rawls 1999, 81). But "decent" countries are peaceable and sufficiently just to warrant toleration from liberal democracies. They are worthy of full membership and respect, even though liberal peoples find them far from just.

For Rawls, the relation between tolerance and human rights is very neat. What a country must tolerate is not a matter of human rights, and violations of human rights never need to be tolerated on principled grounds. Human rights violations always generate a prima facie permission to intervene using diplomatic, economic, or military sanctions. It seems unlikely to me that the alignment between human rights violations, justified intolerance, and justifiable intervention using coercion or force is as uncomplicated as Rawls suggests. Consider a short argument, implicit in Rawls's position, that connects human rights and tolerance:

Premise 1: If a norm is a human right then it is permissible for the international community to use coercion and force to impose that norm on countries that reject and violate it.

Premise 2: If the international community is committed to tolerating violations of a norm, then it must regard it as impermissible for the international community to use coercion and force to impose that norm on countries that reject and violate it.

Conclusion: If the international community is committed to tolerating violations of a norm, then that norm is not a human right.

If this argument is correct, it is contradictory to hold that something is a human right but to regard it as impermissible or generally inappropriate for the international community to use coercion and force to impose that norm on countries that reject and violate it. If the international community decides that it will tolerate violations of the right to assistance of counsel in criminal trials in the sense that it will not use diplomatic, economic, or military sanctions to enforce that right, then according to Rawls it has decided that the right to assistance of counsel in criminal trials is not an international human right.

I believe that this argument is unsound because its premises are false. My criticism of Premise 1 was presented in the previous section. Human rights as we know them today have not been subject to the requirement that countries be prepared to coercively enforce each and every one of them. As we saw, the international human rights movement mainly uses persuasion and encouragement to promote its norms. Coercive enforcement is not envisioned for every human right. Only very severe violations of certain human rights are thought to warrant such enforcement.

My criticism of Premise 2 is that a commitment, even on principle, to tolerance of violations of a norm, does not require one to believe that it is never permissible to use coercion and force to impose that norm on countries that reject and violate it. Tolerance is disliking or disapproving something while doing nothing to stop it other than using noncoercive forms of criticism and persuasion. One can believe that the use of coercion and force is potentially permissible to impose compliance with a norm, but nevertheless foreswear their use for reasons of principle. Consider an analogy. A Native American tribe has a lake on its territory that is subject to illicit fishing by people who are not members of the tribe. The tribe would not do anything morally or legally impermissible if it built a fence around the lake or prosecuted trespassors. It would be fully within its rights in doing those things. Yet it may decide, on grounds of tolerance and good relations with neighboring people, to tolerate the illicit fishing. To avoid the evolution of a customary legal right of outsiders to fish in the lake it may need to protest the illicit fishing, perhaps by posting signs forbidding fishing. But the group can perfectly well tolerate illicit fishing on principled grounds while having the right to stop it. Further, it can tolerate the illicit fishing while criticizing it publicly.

Analogously, the international community may decide on principled grounds to tolerate violations of certain rights without having to believe that it would be impermissible to use diplomatic, economic, or military sanctions to bring about compliance with those rights. Suppose that a country is not providing assistance of counsel in some serious criminal cases, and that the international community views this as a violation of human rights (as in fact it would). The international community may have moral and legal permission to use coercive measures to make the country provide assistance of counsel, but nevertheless decide to tolerate its practices in this area while trying to persuade it to change. The principle requiring tolerance might be that harmonious relations between countries are best promoted and preserved by using serious sanctions only in the most egregious of human rights violations.

Further, tolerance may be compatible with using mild forms of coercion to promote better behavior. To return to our earlier example, an indigenous group might decide to publish in the local newspaper pictures of people engaging in illicit fishing in its lake in hopes of embarrassing them into stopping. It could do this while (1) having the right to use more coercive measures and while (2) tolerating ongoing violations on principled grounds. The relations between tolerance and rights to intervene coercively are not nearly as simple as Rawls makes them out to be.

Rawls believes that "decent" peoples (or countries) are worthy of full respect and toleration even though they are deficient in their very limited commitment to the liberty and equality of citizens. "If all societies were required to be liberal, then the idea of political liberalism would fail to express due toleration for other acceptable ways (if such there are, as I assume) of ordering society" (Rawls 1999, 59). To accommodate such peoples, Rawls limits human rights to norms that he thinks they would be willing to accept. To exclude decent but nonliberal peoples from the community of peoples ("the Society of Peoples") would unjustifiably go against their fundamental interest in self-respect. "This interest is a people's proper self-respect of themselves as a people, resting on their common awareness of their trials during their history and of their culture with its accomplishments" (Rawls 1999, 34). Rawls believes that his minimal account of human rights has the advantage that it cannot reasonably be rejected as "politically parochial," "peculiarly liberal," or "special to the Western tradition" (Rawls 1999, 6).

Rawls excludes outlaw states from deliberations about the law of peoples and treats them under "Nonideal theory." But decent nonliberal peoples, whose practices are deeply unjust by the standards that flow from Rawls’ commitment to fair cooperation between free and equal persons, are treated as moral equals. The social contract with them forms the second part of "ideal theory" (Rawls 1999, 59f). Rawls does not adequately defend this way of proceeding. Why should liberal peoples view decent nonliberal peoples as agents with a moral nature whose conception of the good deserves full and equal respect? Why wouldn't liberal peoples rightly treat them with some mixture of respect and contempt, tolerance and intolerance? They doubtless merit respect in some areas as peoples, but not full and equal respect in all areas. If decent peoples were treated in a mixed way under nonideal theory, the resulting view of human rights could be far less minimal (Tan 2001, Tasioulas 2002a).

The representatives of decent nonliberal peoples demand that as countries they be treated as free and equal beings even though their leaders and institutions do not treat all of their citizens as free and equal beings. To liberal peoples this should be a troubling inconsistency that undermines claims to equal standing. How can decent peoples publicly claim freedom (self-determination, non-intervention) and equality (respect, full standing) within the community of nations, when in their practices at home they reject these very principles? They demand a full vote for themselves at the international level, for example, but do not extend voting rights to their citizens.

Rawls explicitly recognizes that decent peoples do not run a fair system of social cooperation; they rather run "a decent scheme of political and social cooperation" (66). And Rawls recognizes and rejects the worry about inconsistency in claiming fair treatment while failing to give it. He says, "some may object that treating the representatives of peoples equally when equality does not hold within their domestic societies is inconsistent, or unfair" (Rawls 1999, 69). He rejects this objection as follows.

"[E]quality holds between reasonable or decent, and rational, individuals and collectives of various sorts when the relation of equality between them is appropriate for the case at hand. An example, in certain matters, churches may be treated equally and are to be consulted as equals on policy questions--the Catholic and the Congregational churches, for instance. This can be sound practice, it seems, even though the first is hierarchically organized, while the second is not. A second example: universities may also be organized in many ways. Some may choose their presidents by a kind of consultation hierarchy including all recognized groups, others by elections in which all their members, including undergraduates, have a vote.... But the fact that universities' internal arrangements differ doesn't rule out the propriety of treating them as equals in certain circumstances" (Rawls 1999, 69-70).

This is a weak analogy for three reasons. First, churches and universities are effectively constrained in how they treat their members by the domestic law of liberal societies, but decent nonliberal countries are not constrained by (international) laws that are as effective and comprehensive. Second, churches and universities in liberal societies typically govern much less of a person's life, and typically have less impact on a person's prospects, than do a country's basic political institutions and practices. And third, people can typically leave abusive churches and universities with less cost than is involved in leaving one's country. It remains far from obvious why the injustice of the domestic institutions of decent societies does not undermine the claims they can make against other countries.

Rawls presents us with a false dilemma when he suggests that liberal peoples must either be intolerant and disrespectful of decent peoples as they impose their principles by pressure and force or extend full equality and tolerance. But a middle ground is available. The middle way is for liberal peoples to respect and admire what is good in the history, culture, and practices of decent nonliberal countries while being critical in a low-key but firm way of their deficiencies in regard to democracy, due process, liberty, and equality. Tolerance and respect are matters of degree. Rawls treats them as if they were monolithic (both in regard to their grounds and in regard to the actions involved). One can respect (and even admire) people and countries for some things while refusing to tolerate other things they do. And one can tolerate things in the sense of not doing anything forceful about them while criticizing them publicly. Qualified tolerance and respect, as we might describe it, can be extended to decent nonliberal countries. Serious economic sanctions and the use of force are not threatened as long as they remain nonaggressive and avoid international crimes. But criticism and encouragement are freely dispensed.


Does Rawls's View Apply to a Subset of Human Rights?

Someone who finds my criticisms of Rawls's conception of human rights persuasive might propose the following strategy for a compromise. "Let's keep something like the broad UDHR list for domestic purposes and for international persuasion and encouragement by governments and international organizations, but let's have a more minimal list of "basic human rights" like Rawls's that can justify international actions involving coercion and force." The second would be a proper subset of the first. The larger list would avoid the deficits in liberty, democracy, and equality described earlier.

It will be useful to elaborate this two-tiered view in more detail. It postulates two sets of human rights. One set, the upper tier, is of higher priority, enjoys nearly-universal acceptance, and can justify international action using coercion and force. The other set, the lower tier, consists of full-fledged human rights, but ones that are of slightly lower priority, are perhaps more controversial in some parts of the world, and that cannot justify international interventions involving coercion and force. Between the two sets there is a fairly sharp boundary rather than a continuous slope. Rawlsian minimalism denies the lower tier the status of human rights; but the compromise view now under discussion grants them that status while recognizing their lower priority.

I find this compromise view far superior to Rawlsian minimalism, but think that it turns out to be hard to defend. First, it wrongly suggests that the severity of a human rights violation mainly depends on the priority of the human rights involved. There is no doubt that priority is a fundamental factor; this is why killings are much more likely than unjustified appropriations of private property, say, to justify international action using coercion or force. But there are a number of other important factors as well. As Rawls recognizes, these include the scale of the violations. Justified international action using substantial coercion or force requires not just a single killing but a pattern of killings. Also important are: (1) the time of the violation (distant past, recent past, present); (2) whether the violations are intentional and malicious or negligent and systemic; and (3) whether the country has sincerely repudiated the violations and attempted to stop and remedy them.

Second, it seems unlikely that the line between the lower and upper tiers is a sharp one, and that massive violations of rights in the lower tier could never justify intervention using diplomatic and economic sanctions. A very large, intentional, malicious, unrepudiated, and unremedied violation of a lower-tier right could justify coercive or forceful international action to end that violation. Rawls's own example of South African apartheid, cited by Walzer, can serve as an example (Walzer 1997, 115). Rights against racial discrimination, subordination, and segregation do not appear on Rawls's list of (basic) human rights, and hence Rawls would not have classified South Africa under apartheid as an outlaw state. Yet the United Nations led a successful campaign using severe diplomatic and economic sanctions to induce South Africa to abandon apartheid. If that campaign was permissible, as I think it was, then lower tier rights can sometimes justify coercive intervention.

Finally, I find implausible the idea that we can sort human rights into the higher and lower tiers. As I suggest in the chapters that follow, human rights are very interconnected (another, slightly misleading, way of putting this is to say that human rights are "indivisible"). They support each other in numerous ways. Respecting and protecting one right often makes others more secure, and large violations of one make others insecure. For example, due process rights not only protect individuals against unfair procedures, imprisonment, and execution; they also protect the integrity of the criminal justice system, prevent those in power from using phony trials to imprison their political opponents, and generally make individuals and groups more secure in the enjoyment of their liberties. While some rights, such as those against murder, torture, and starvation are more closely and obviously connected to having a minimally good life than rights such as freedom of speech and voting in periodic elections, the interconnectedness of rights means that rights against murder, torture, and starvation share their great priority or weight with other rights, more institutional in character, that support them.






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