Tore Lindholm
The Oslo Coalition on Freedom of Religion or Belief,
Norwegian Centre for Human Rights, Faculty of Law, University of Oslo
A. Introduction
This chapter
- provides elementary conceptual underpinnings of human rights norms, as codified in international law (sections B, C, and D),
- addresses, in a preliminary manner, public grounding of human rights (section E), including public grounding across religious and belief divides (section F), and
- surveys, in a bird’s-eye view, some current scholarly studies on human rights (section G).
The two terms “human rights” and “international human rights” (hereinafter abbreviated “IHRs”) are in this chapter used interchangeably, without thereby implying that human beings did not, somehow, have legitimate claims to human rights protection before the rise of the international system of legally codified human rights.
Section B introduces basic notions we shall need in order better to understand human rights norms. Section C spells out the concept of a right. Section D outlines core human rights goods included for protection in the so-called “International Bill of Human Rights” (IBHR). Section E explains the public foundations of international human rights (IHRs), as conceived after World War II. (Please note that by “underpinnings” I do not claim to provide profound grounds of human rights. I only claim to provide some conceptual clarification required to appreciate modern human rights.) Section F begins a discussion of what it might take for people everywhere in our world to be able to espouse human rights from their own convictional heartland, hence across religious and cultural divides. Finally, Section G provides a short “guided tour” through some scholarly research on the recent rise and entrenchment of IHRs as an emergent universal lingua franca, a moral language made widely accessible after 1945 by the instruments of international and domestic human rights law.
What are human rights? Here is a short answer: Human rights are publicly recognized entitlements that in our world (to the extent they are observed) help safeguard human beings everywhere against certain, more or less severe societal or natural threats and perils.
These entitlements exist “by right,” i.e. as valid norms in international as well as much domestic law, and also in enlightened morality. Examples: the equal moral status of every human being; the right not to be tortured; the right to a fair trial when charged with a crime; the right to enjoy freedom of religion or conviction; the right to engage in political activity; the right to education, to health care and to social security. Section D lists the diversity of goods that are to be protected by IHRs. This normative claim, made on behalf of universal human rights, does obviously not say that human rights are in fact universally respected, protected, and fulfilled. Human rights are in fact not universally implemented, far from it! Their realization, everywhere and for all, is a huge, perhaps a utopian challenge.
A main public embodiment of the modern conception of human rights are international human rights instruments: foremost, the Universal Declaration of Human Rights (UDHR adopted 1948) and, then, subsequent human rights declarations and treaties adopted at the global level by the United Nations and at regional levels by the Council of Europe (convention finalized 1950/in force 1953), by the Organization of American States (declaration 1948; convention 1969/1978), by the Organization of African Unity (convention 1981/1986), and by the Association of South East Asian Nations. The ASEAN Human Rights Declaration (AHRD) was adopted 2012.
The so-called “International Bill of Human Rights” (IBHR) includes UDHR and the two human rights covenants under the United Nations: The International Covenant on Economic and Social and Cultural Rights (ICESCR 1966/1976) and The International Covenant on Civil and Political Rights (ICCPR 1966/1976).
With respect to the exact normative status and scope of human right norms there are minor differences among the above-mentioned legal instruments. Still, they manifest a reasonably coherent notion of human rights. Elucidating this notion is the main task of this chapter.
B. Basic concepts and features of human rights
Human rights, as conceived in the UDHR and in subsequent international human rights instruments, have a number of basic features. These include (cp. Nickel 2007:9-10):
(a) IHRs are rights (big surprise?). That is to say: they are normative relationships between holders having specific entitlements to certain goods or benefits (examples: to be protected against torture, to enjoy free elementary education) and addressees having the correlative obligations to see to it that holders have secure access to the goods specified by the right. The scope of a right is the peculiar entitlement (a claim, freedom, power, or immunity, or some combination of these) that it confers on its holders. The weight of a right is its ranking when in competition with other normative interests, rights, or policies (conflicts often occur). The reach of a right indicates who are, and who are not, holders of that right. (More on the concept of a right in Section C.)
(b) IHRs are universal in reach in the sense that their holders include all human beings in our world: all human beings individually and (depending on which human right is at stake) also certain communities of humans in our world, such as families, or minority groups, or religious communities, or indigenous peoples, or peoples (i.e. the ensemble of citizens of a sovereign state). The obligation to safeguard human beings’ access to their human right goods lies first and foremost on governments of sovereign states, who are the primary addressees of international human rights. That human rights norms are universal in reach does not imply that all governments do in fact adhere to their human rights obligations (they do not), nor that IHRs are protected, equally well or at all, everywhere in the world, nor that IHRs are accepted as valid everywhere, or by all. Human rights are certainly not acceptable to fascist or racist regimes and are offensive to imperialist or colonialist governments. (See Section E.)
(c) IHRs are high priority norms. But they are not absolute. When competing with other important considerations of law, morality, and politics they often by right come first, but not always. Governments may, sometimes by right, make permissible derogations from human right obligations for the sake of protecting, say, national security. Even the non-derogable human right taboo against torture has in fact (albeit not by right) been violated by presumptive pro-human rights governments (cf. the cases of Abu Ghraib and Guantanamo). IHRs are complex and may need strong supporting justifications that apply all over the world and, also, that take into account diverse socio-cultural circumstances. (See discussions in Section E and Section F, arguing that legitimating rock bottom grounds of human rights need not be everywhere the same).
(d) IHRs have a claim to normative validity as legal and as moral public standards irrespective of whether they are, or are not, recognized, enacted by, or adhered to by particular governments; they exist as valid norms, we may say, in international law, in domestic legal systems, and in enlightened public moralities. − The human rights obligations on individual citizens are largely indirect and mainly moral: the duty to stay informed, and to be co-responsible, for what governments do or fail to do in protecting human rights, to the extent practically feasible (see (g) below).
(e) IHRs are very important domestic standards of legitimate evaluation, support, and criticism of government actions or government inaction, and they provide grounds for public initiatives and political action within states, by citizens, media, NGOs, religious bodies, labor unions, and other groups within the country, with or without help from abroad.
(f) IHRs are also international standards of legitimate evaluation, praise, support, assistance, criticism, or condemnation across state borders, by foreign governments, by foreign citizens, and by transnational NGOs. Whether IHRs, in some extreme cases, also legitimate international coercive intervention across state borders, undertaken to restrain severe human rights violations by a government, is hotly disputed (the debate about “R2P” – “responsibility to protect” [i.e. across state borders]; see discussion of the tensions between supra-national human rights protection and respect for state sovereignty in Section E). ASEAN is perhaps an exception here: AHRD is explicitly construed so as not to trigger legitimate transnational criticism of, or intervention against, human rights neglects by single ASEAN member states.
(g) IHRs are “political” rather than “individual” in the sense that their primary addressees are governments, government agencies, and government agents rather than individual human beings. But insurgent armed groups and transnational corporations also have human rights obligations. And of course, citizens — in particular citizens of democratic states — are morally co-responsible for the human rights behavior of their government and its agents, including police, military, and immigration authorities, and for how their own government behaves internationally, alone or in alliance with other governments, when confronted with severe human rights violations across state borders (but see (f)).
(h) IHR norms are numerous and specific and down-to-earth (compare Section D). They are not, as sometimes said, abstract and airy. Being part of evolving international and domestic law they tend, over time, to become more specific and more down-to-earth, as international and domestic human rights jurisprudence is developing (cp. “dynamic judicial interpretation of human rights”).
(i) IHRs set minimum standards for decent conditions for human living — defining a minimum threshold of mandatory governmental protections below which no human being in our world should, if not willingly, be made to sink, whether by avoidable government action or by avoidable government negligence. So, IHRs are not high-flown utopian aspirations. But, alas, they are frequently violated or neglected by governments and sometimes, maybe arbitrarily, seen as politically intrusive or as culturally foreign standards.
– – – – –
Note the distinction between the view that IHRs set minimum standards for decent conditions for human living in our world and the “ultra-minimalist international politics view” of IHRs (by philosopher John Rawls and others) that reduces them to include only such rights that, if these are not gravely neglected by a given state, then that state is immune against legitimate intervention from abroad. — “Ultra-minimalists” tend to disregard the additional international functions of human rights beyond regulating legitimate intervention across state borders (see (f)) and to disregard salient and predominantly domestic functions of IHRs (see (e) and Section D).
C. What is a right?
Below you find an abstract scheme depicting “a right” as a species of normative relation (after Gewirth 1982:1-3, slightly modified). Please note that the normative relationship modeled below is initially that of any kind of right, and not, specifically, of a human right as different from other rights. Nevertheless, we may use this model when discussing questions about the specifics of human rights such as: in what senses human rights are universal or are not universal, who are holders and who addressees of human rights; who get the benefits and who hold the burdens of human rights; what are the normative weight and functions of human rights; how to distinguish moral human rights from legal human rights, and how to distinguish mere acceptance of human rights from justification of human rights; what are the criteria for the existence of human rights (ranging from accepted demands via justified moral entitlements to justiciable and legally enforceable entitlements); what are the social, or monetary, or moral costs of human rights etc.
A five-elements model of a right (whether it is, or it is not, a human right):
elements of the concept of right explanations, some distinctions, and some alternative terms
(1) H the holder of right (also labeled: bearer, possessor)
(2) is entitled to the type of right: claim or freedom or authority or immunity
(3) G the good (alternatively labeled: advantage or a benefit)
(4) against A the addressee (the holder of the correlative duty/burden)
(5) in virtue of S the source (its legal source, or its moral/political ground or
broad de facto acceptance of and compliance with the right)
Elements (1) to (4) are the conceptual components of a right (of any right, by our definition).
Element (5) indicates that a right needs grounds: be it a law, a contract, or a promise.
Considering element (1) we should stress that human rights norms are peculiar among rights by being universal with respect to their holders, i.e. every human being in our world is included as an intended holder, allowance made for subcategory-differentiated human rights (for instance human rights of “children”), group human rights (rights of “minorities” and of “indigenous peoples”), human rights of communities (for instance of “families”), and human rights of peoples (= the ensemble of citizens of a sovereign state).
Element (2) indicates four types of entitlement also exemplified by human rights: not all human rights are claims. Also freedoms, powers, and immunities (or combinations of these) can be found among legally codified human rights. Think of cases!
Element (3) indicates that a right is always a right to some good, or benefit, or advantage. Section D below lists the most important human rights goods that are included for protection according to the IBHR. Considering this list, we might ask whether all governments of sovereign states in our world, who are the primary addressees of IHRs, are likely to be able and willing to effectively protect these goods for every human being under their respective jurisdictions, and whether or not judicial implementation is, without exception, the optimal mode for protecting the human rights of every human being.
Considering element (4) we should stress that the primary addressees of IHRs include every sovereign state in our world. But, as already indicated, individual human beings, particularly as citizens of a democratic states, share in a moral responsibility for the human right commissions and omissions of their government.
Element (5) indicates the normative grounds of a right, or its basis: be it its legal source, or its moral ground, or its political legitimation. − Adding also factual compliance with some (alleged) right as a potential source of its validity suggests that de facto social practices or customs can be, or can over time become, the ground of a valid right (cp. “customary law”, “customary morality”).
D. A list of 40 human rights goods included for protection in IBHR
This section provides a list of the human right goods, or benefits, included for worldwide legal and political protection according to the International Bill of Human Rights (IBHR), and supplemented by other international human rights instruments and by the Convention on the Prevention and Punishment of the Crime of Genocide. Each item is indicated summarily. The idea of this list is taken from Donnelly 2013:27. – The IBHR source of each human rights good is indicated in brackets, by document and article number, as follows: D = Universal Declaration of Human Rights (initially a legally nonbinding General Assembly Resolution adopted by the General Assembly of the United Nations 10 December 1948); E = International Covenant on Economic, Social, and Cultural Rights (legally binding, ratified as of June 2009 by 164 states); C = International Covenant on Civil and Political Rights (legally binding, ratified by 168 states).
Note: The list below of human rights goods gives, though only in a very rough manner, an inventory of what humans in virtue of their human rights are entitled to from their governments. It does of course not suffice to provide readers with a full and precise understanding of human rights law and human rights practice: To that end one must inter alia study the practice of international and domestic courts adjudicating a great variety of human rights cases. Judges’ choice and interpretation of legal sources, and judges’ selection and description of what are the relevant facts of a given case, can always be questioned, and sometimes for good reasons! Moreover, one must also study the practice of human rights NGOs and human rights defenders. There is, conceivably, more to human rights protection than judicial implementation. − An Exercise: Taking a cue from Beitz 2009:111, we may say that human rights protect urgent individual or group interests against certain predictable dangers (“standard threats”) to which people are vulnerable under typical circumstances of modern life. For each human rights good listed below you are invited to specify more or less standard perils or threats to which people are vulnerable in our world today and, hence, may need the respective human rights protection!
(1) Equal recognition, exercise, and enjoyment of rights; without discrimination (D2; E2, E3; C2, C3, C26)
(2) Life (D3, C6)
(3) Liberty and security of person (D3, C9)
(4) Protection against slavery (D4, C8)
(5) Recognition as a person before the law (D6, C16)
(6) Equal protection of the law (D7, C14, C26)
(7) Access to legal remedies for rights violations (D8, C2)
(8) Protection against arbitrary arrest and detention (D9, C9)
(9) Hearing before an independent and impartial judiciary (D10, C14)
(10) Presumption of innocence (D11, C14)
(11) Protection against ex post facto laws (D11, C15)
(12) Protection of privacy, family, and home (D12, C17)
(13) Freedom of movement and residence within own territorial state (D13, C12)
(14) Freedom to seek asylum from persecution (D14)
(15) Citizenship (D15)
(16) Marry and found a family (D16, C23, E10)
(17) Own property (D17)
(18) Freedom of thought, conscience, and religion/basic conviction (D18, C18)
(19) Freedom of opinion, expression, and the press (D19, C19)
(20) Freedom of assembly and association (D20, C21, C22)
(21) Democratic participation as a vehicle of popular self-government (D21, C25)
(22) Social security (D22, E9)
(23) Work under decent conditions (D23, E6, E7)
(24) Free trade unions (D23, E8, C22)
(25) Rest and leisure (D24, E7)
(26) Adequate levels of food, clothing, and housing (D25, E11)
(27) Adequate levels of health care and social services (D25, E12)
(28) Education (D26, E13, E14)
(29) Participation in one’s society’s cultural life (D27, E15)
(30) A social and international order that facilitates the realization of human rights (D28)
(31) Self-determination for peoples including populations of “territories”; cp. (15) and (21) (E1, C1)
(32) Humane treatment when detained or imprisoned (C10)
(33) Protection against debtor’s prison (C11)
(34) Protection against arbitrary expulsion of aliens (C13)
(35) Protection of minority culture, language, and religion (C27)
(36) Special protections for children (D25, E10, C24; reinforced by the Convention on the Rights of the Child (CRC) adopted 1989/in force 1990, ratified by 196 states)
(37) Protection against advocacy of racial or religious hatred (C20; reinforced by the Convention on the Elimination of All Forms of Racial Discrimination (CERD) 1965/1969, ratified by 177 states).
(38) Special protection for women (D25, generalized and reinforced by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979/1981, ratified by 189 states)
(39) Protection against torture and cruel and inhuman punishment (D5, C7; reinforced by the Convention Against Torture (CAT) 1984/1987, ratified by 158 states)
To the human rights goods listed above, all of which are covered by the IBHR, we should add:
(40) Protection against genocide (established by the Convention on the Prevention and Punishment of the Crime of Genocide, (1948/1951, ratified by 147 states).
E. The public foundations of international human rights
The historical roots of modern human rights are many and diverse. However, we shall not address origins, but the public foundations of modern, internationally codified human rights.
The authoritative decision to create international human rights as part of the new world order, not least as an antidote against the man-made horrors of World War II, was taken with the solemn adoption of the Charter of the United Nations, by the 50 nations strong Conference on International Organization, in San Francisco April-June 1945.
With respect to establishing international human rights that decision was deeply ambiguous: Resistance by the Great Powers (US, USSR, Great Britain, France) restrained others, including several smaller states, from having human rights spelled out in the text of the UN Charter itself. Detailed elaboration of international human right norms was postponed and left to a rather unwieldy 18-members United Nations Commission on Human Rights (UNCHR), established Summer 1946. UNCHR’s task was preparing an international bill of rights and proposing means for its implementation. UNCHR worked on drafting of what, in the end, became the Universal Declaration of Human Rights (UDHR) adopted by forty-eight votes to none by the UN General Assembly, with eight states abstaining, 10. December 1948.
Obstacles were overwhelming against success in devising a universally acceptable legal system of international human rights norms, not to mention against setting up effective means for international implementation of legally binding human rights. The three main obstacles to success in drafting a binding declaration of universal human rights were:
(1) The Great Powers all had “human rights corpses in their closets:” racial segregation in the US; neglect of civil and political rights and subjugation of minorities in the USSR and its sphere of influence; imperialist exploitation and withholding of rights of colonial peoples in Africa and Asia by Great Britain and France, and similarly for the smaller colonialists Netherlands, Belgium, and Portugal.
(2) The vast discrepancies of culture, creed, political systems, and economic development between different peoples in the world, and the legitimate resistance against homogenization of the entire post-war world in the image of certain hegemonic states.
(3) The stark tension between, on the one hand, authorizing supranational implementation of universal human rights worldwide and, on the other hand, respecting existing state sovereignty and states’ immunity against legitimate intervention from abroad.
The successful drafting of UDHR by UNCHR was due to exceptional international circumstances during 1947-1948 before the Cold War started, as well as to excellent work by Commission members, including Eleanor Roosevelt (US, unanimously elected chairman), Peng Chun Chang (China, vice-chair), Charles Malik (Lebanon, rapporteur), Rene Cassin (France), Carlos Romulo (Philippines), Hansa Mehta (India), Hernán Santa Cruz (Chile).
Against heavy odds, the above three major obstacles against acknowledging universal human rights were overcome:
(re 1:) UNCHR had by1948 postponed to the future its proposals for legally binding measures of international implementation of human rights. What later became the two UN human rights covenants (ICRSCR and ICCPR) were presented for international adoption only in 1966, and the proposal (by UNHRC member Herbert Evatt, Australia) for a World Court of Human Rights is still a dream for the future (or is it a nightmare?). Hence, the Great Powers would not risk direct international interference against their respective “horror cabinets” of human rights violations.
Subjugation of colonial peoples in Africa and Asia could not for political reasons yet be addressed head-on in the UDHR: European colonial imperialist states, weakened by World War II, were at the time struggling to regain their lost sway. But colonized peoples in Asia and Africa gained a strategic foothold in the UDHR whose Preamble committed “all peoples and all nations to … by progressive measures to secure … universal and effective recognition and observance [of human rights], both among the peoples of Member states themselves and among people of territories under their jurisdiction” (emphasis added). — Colonized peoples were soon to make effective use of their claim to enjoy human rights and fundamental freedoms on par with their colonial “master peoples.” (See Section D items (31) and (21); see also the discussion of the 1955 Bandung Conference, with references, in Section G; and consult the groundbreaking common Article 1 of ICCPR and ICESCR; cp. Jensen 2016).
(re 2:) Vast discrepancies of culture, creed, political system, and economic development between different peoples in the world were not underestimated by the UNCHR. The Commission designed the human rights norms of the draft UDHR to have a “protecting-a-decent-minimum” and “down-to-earth” character and framed it so as to safeguard people everywhere against serious perils and threats to their important interests (cp. Section B (h) and Section D). We may detect for each human right good listed in Section D the kinds of abuse or peril or threat to be protected against. Human rights norms were devised so as to call for differential implementation measures responding to different circumstances, and yet to require measures sufficiently potent to provide real protection in most cases. And IHR norms were framed so as not to trigger reasonable opposition against undue cultural homogenization. (cp. “Universality Under Siege”, Glendon 2001:221-233)
(re 3:) The UN Charter contains stark tensions or built-in conflicting regulations with respect to supranational implementation of IHRs. Article 2(7) says:
Nothing in the present Charter shall authorize the United Nations to interfere in matter which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter …
But, perhaps to the contrary, Articles 55 and 56 say:
Article 55: … the United Nations shall promote: … (c) universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. (Article 56): All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.
So, the UNCHR worked out a draft declaration text designed to strike a somewhat ambiguous balance between state sovereignty and international responsibility for human rights protection, as indicated by UDHR Article 28:
Everyone is entitled to a social and international order in which the rights and freedoms set forth on this Declaration can be fully realized.
However, one feature of the UDHR could not be a matter of compromise: a clear decision was needed about the basic value foundation of human rights. Representatives from some Christian countries wanted the second period of UDHR’s foundational Article 1 to read (emphasis added to indicate the proposed terms that were later rejected):
They [all human beings] are endowed by nature, and/or by their creator, with reason and conscience . .
Peng Chun Chang (China) protested against Westerners’ attempt to impose their metaphysics and theology on others, and he was heard (Alfredsson et als. 1999:143-44,155-57; Morsink 1999:285-87; Glendon 2001:144-47). Searching for a suitably universalist answer to the question of foundations, UNCHR took recourse to the text of the recently adopted UN Charter whose Preamble had already introduced, for the first time ever in international law, a commitment “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (emphasis added). So, God and Nature as understood, say, in the tradition from Thomas Aquinas, were released from having an explicit foundational role in a text designed to invite the espousal of people coming from all major normative traditions and adhering to very different, and more or less competing, religious and non-religious basic convictions.
Recognition of “the inherent dignity … of all members of the human family …” (quoted from the Preamble of UDHR) has become indissociable from the public practice of IHRs. This foundation of modern human rights is restated in each of the identical Preambles to the two UN Covenants of 1966/1976, ICCPR and ICESCR (emphasis added):
The State Parties to the present Covenant . . .
Recognizing that the [equal and inalienable right of all members of the human family] derive from the inherent dignity of the human person . . .
Agree upon the following Articles . . .
Alas, the notion of inherent human dignity is not entirely unambiguous, nor is it obvious how to derive human rights from human dignity. But, the globally entrenched commitment to equal inherent human dignity has, nevertheless, provided IHRs with an ecumenical significance as an acknowledged public basis for their claim to universal acceptability.
Perhaps more stable foundations are needed? Clearly, inherent human dignity is a notion of equal moral rank. Earlier ideas of dignity-based rank have always differentiated between higher socially rank and lower socially rank (as in: emperor/king/nobleman/ freeholder/serf). The revolutionary feature codified with IHRs in international law is uncompromising equality of moral rank, among all humans. “All human beings have equal inherent dignity:” women as well as men, saints as well as sinners, orthodox as well as heretics. Admittedly, Stoic and other philosophers did make equal human dignity a metaphysical principle, but never with the legally binding implications of equal basic rank ascribed to all humans in society (Cancik 2002; Waldron 2009; Waldron 2017).
Now, accepting that all human beings have inherent equal dignity we may still ask: Does it follow that all humans have human rights, from the beginning of human history? Did cro magnon women and men have human rights? Did medieval peasants? If we review the 40 human rights goods to which all human beings in our world are entitled, we instantly see that it makes little sense to attribute, say, a right to free trade unions (24) to cro magnon men and women, or a right to social security (22) to medieval peasants. Why? What did not obtain for cro magnon people, nor for medieval peasants, are what we may call modern societal circumstances facilitating human rights: inter alia a world-encompassing market system, communicational globalization, an international society of sovereign states, and the fact that an overwhelming majority of sovereign states maintain international human rights law serving to limit state sovereignty even within each state’s own jurisdiction, for the sake of individual human beings themselves (Donnelly 2013:32-35, Buchanan 2013:23). (For linking the rise of sovereign states with the emergence of human rights, see Reus-Smit 2013.)
One often heard objection to human rights is precisely that they cannot possibly have universal reach since neither cro magnon people nor medieval peasants could, due to factually prevailing circumstance, have held meaningful claims to human rights protection. A reply is that the normative proposition of universal reach for human rights is a practical and not necessarily a metaphysical proposition: Their universality does not pertain to all human beings from the beginning to the end of human history. This practical universality of human rights pertains to feasible interpersonal and inter-institutional action and inaction − to commissions and omissions by persons and institutions in our world − a world in which human rights are reasonably acknowledged as normatively binding and, after 1945, are codified in legally binding, yet not unchangeable, international law.
Another objection to the idea of universal human rights is that they cannot have solid justification across the deep divides of creeds and cultures, since different religions and worldviews in our world are often incompatible, at the level of their fundamental principles. Such incompatibility of foundations cannot be denied! But reasonable legitimacy of the same practical universal human rights may nevertheless be feasible, even when such legitimacy has to be based, in part, on differing, competing, and perhaps mutually incompatible grounds.
F. Legitimating IHRs across the divides of conflicting creeds, cultures, and doctrines: The case for inclusive human solidarity grounded in inherent equal dignity.
The modern system of IHR protection comes with a “built-in” justification: heed for the inherent equal dignity of each and every human being in our world. This moral grounding of IHRs may for many practical purposes suffice. And it does have the great advantage of relieving us, whenever our commitment to human rights is at stake, from the arduous task of justifying human rights from our basic philosophical or religious or ideological convictions. Here we may distinguish two intellectual challenges: (i) Why should we at all embrace the principle of equal dignity? (ii) What are the relevant world-wide conditions — the “circumstances of human rights” — that, once a world-wide commitment to equal human dignity is granted, call for world-wide high-priority protection of everyone’s dignity and freedom by way of universal rights, with the primary obligation of protection assigned to sovereign states?
This chapter cannot adequately spell out the societal circumstances of modern human rights (Beitz 2009:109) nor analyze the notion of human dignity (Waldron 2009; Waldron 2017). But we cannot avoid asking: what does human dignity, given emergence of the circumstances of human rights, require by way of universal rights protection? We have seen that IHRs adopt the moderate standard of safeguarding a minimum threshold of conditions for decent human living, below which no human being in our world should be made (if not willingly) to sink, whether by avoidable government action nor by avoidable government negligence (see Section B(i)). Protecting equal human dignity for all does not require protecting everyone’s happiness, does not require providing all with luxury, nor guarantee successful living to all! Conditions for minimally decent, or dignified, human living for all might include, to begin with, everyone’s entitlement to have a life, to lead one’s own life, to be safe against severely cruel or degrading treatment, and to be safe against severely unfair treatment (cp. Nickel 2007:62; also see “Note” before the list of 40 human rights goods in Section D). Securing such life conditions for all humans is not a controversial aspiration. But can the grounds for securing such life conditions for all be shared across religious divides?
International human rights instruments indicate, albeit indirectly, a catalogue of threats and perils that may be curbed by effective protection of human rights (cp. Section D). But leaving aside for now the list of particular human rights goods, we shall now discuss why we in the first place might be committed, also on religious grounds, to the universalist, and radically inclusive, moral principle that all human beings have inherent equal dignity.
My aim here is to raise the question of plural legitimation of human rights, that is: to discuss whether universal human rights may not only admit of, but require, a plurality of different deeper justifications such that some justificatory foundations may differ from, may compete with, and may even be incompatible with others foundations. Moreover, adherents of each such deeper justification, even when one’s own foundational doctrine contradicts the doctrine of other traditions, may realize that reasonably argued support of human rights, coming from competing and rivaling doctrines, are part of an authentic legitimation of human rights. Why? And how? An integral part of what one embraces, based on one’s own heartland doctrine, is the human right to freedom of religion or belief/basic conviction (see human rights good (18) in Section D). It would amount to a denial of my solidarity with, and my respect for, the dignity and freedom of other persons of rivaling faiths to flout their reasoned embrace of human rights grounded in their basic conviction or creed.
A logical feature of a plural legitimation is simple enough, but rarely understood: The same conclusion can be derived by impeccable deductive logic from sets of premises that differ and are mutually incompatible. — A trivial example: The true conclusion “All whales have lungs” may be derived from the set of premises “All mammals have lungs” and “All whales are mammals.” But the same true conclusion “All whales have lungs” may also be derived for the following set of premises that is incompatible with the first set: “All fishes have lungs” and “All whales are fishes.” — I am not playing a philosophical trick! I am just exemplifying a plain feature of deductive logic: the same conclusion may in some cases be derived by valid deductive arguments from incompatible sets of premises.
Now moving to the issue of justifying the system of IHR norms from differing and perhaps incompatible deeper sources I shall, tentatively, discuss some possible religious justifications, the cases of an Islamic, respectively of a Christian and Judaic, scriptural grounding for embracing IHRs. For the sake of argument I take for granted that Muslims, Christians, and Jews today recognize that the “circumstances of human rights” (as indicated all to briefly in the last part of Section E) prevail in the contemporary world, and that, given the circumstances of human rights, a commitment to human rights follows from the acceptance of the principle of equal human dignity: it follows from the conjunction of “all humans beings have inherent dignity” and “safeguarding the dignity of all human beings in our world requires protection of their human rights”. But can we find Islamic, Christian, and Judaic scriptural grounds for espousing the principle of inherent human dignity?
My guide to the Qur’an is Mohammed Hashim Kamali (2001). Kamali marshals several proofs. The main proof is Surah 17, Ayat 70, which in his English interpretation runs:
And surely We have bestowed dignity (“karame”) on the children of Adam, and We carry them in the land and the sea, and We have given them of good things, and We have made them to excel by an appropriate excellence over most of those whom We have created.
Among Kamali’s other Qur’anic proofs of the dignity of humans is Surah 2, Ayat 30:
And when your Lord said to the angels, I am going to place in the earth a khalif, they said: What! wilt Thou place in it such as shall make mischief in it and shed blood, and we celebrate Thy praise and extol Thy holiness? He said: Surely I know what you do not know.
Just one comment to these scriptural quotations (they could easily by multiplied): The “karame” attributed to humans is inclusive of all human beings and not restricted to Muslims, or to men, or to the pious among Muslim men.
We do not find in the Bible of Jews and Christians a term for dignity as close as “karame.” But many Biblical texts can be used, and are in fact used, as evidence in support of the doctrine of inherent human dignity, once interpreters seek for such support. The most often quoted passage is Genesis 1:27 (the climax of the Biblical creation story):
So God created man in his own image, in the image of God he created him; male and female he created them.
There are many other Biblical sources for espousing inclusive human dignity, dignity again not restricted to Christians/Jews, or to men, or to the pious.
As far as I know, both Jews, Christians, and Muslims have for many centuries often failed to take seriously the practical implications of the doctrine of equal human dignity, a doctrine for which there is, I suggest, ample support in their sacred scriptures.
But I now hasten to add: interpreting religious scriptures, properly and competently, is a task we have better leave to authoritative experts belonging to the specific faith tradition in question. – Jews, Christians, and Muslims are liable to, and they do in fact rely on very different grounds for embracing universal human rights. And recourse to inherent human dignity is not their sole option (Banchoff et al. 2011; Runzo et als. 2003). Lena Larsen’s chapter in this volume is a case in point.
Be that as it may: The built-in normative foundation of IHRs: the principle of equal inherent human dignity can, I have tried to argue, be supported from different, competing, and even mutually incompatible foundations, as perhaps exemplified by the scriptures of Judaism, Christianity, and Islam. In my view, such support is feasible, has for some generations been mounting and its acceptance appears today to be widening. Moreover, there are reasonable approaches to embracing equal human dignity from other religious grounds, as well as from various non-religious philosophical and secularist principles, such as Kantian, or utilitarian, or existentialist philosophies, or from secular humanism.
I am not denying there are also weighty counterarguments against my recourse to plural legitimation of universal human rights (Lindholm 2006).
The thesis of this section has been: What is required for reasonable espousal of human rights across religious, cultural, and ideological divides is legitimation by way of a plurality of justifications: If I respect the inherent dignity and freedom of the other person and the other person’s freedom of religion or belief, then I must be open to interpret, assess, and if valid, accept the other person’s internally sound arguments for human rights as contributing to their legitimacy, even when such arguments are based in their sincerely held doctrines I do not find true. Such reasoning bridging convictional divides does, however, require an open mind and a capacity for sincere hypothetical reasoning from “alien premises.” Each person must be convinced of the other person’s sincerity and also be willing and able to run through the other person’s reasoning, from premises to conclusions. − This bears some similarity to Rawls’ idea of arguing, from what one conjectures to be other people’s comprehensive doctrines, that they can still, “despite what they might think,” endorse “public reason” and partake in “civic friendship.” (Rawls 1999:155-156) The point of legitimating human rights by way of a plurality of justifications is, to the contrary, for each party to begin with mutual solidarity across doctrinal divides, and then engage in reasoning from alien premises searching for agreement on human dignity and reasoned support of human rights. − In such dialogues across tenacious doctrinal divides a shared acknowledgement that societal circumstances of human rights apply in our world may probably be crucial (cp. Section E)
G. Guided tour of current theoretical work on IHRs
This section is a very short presentation of some current research on international human rights arising after 1945. Scholarly debate about human rights issues in the last 20 to 30 years is intense, heated, and, at times, very interesting.
Methodologically, traditional human rights historiography focuses on the drafting processes and on the debates between politicians, diplomats, and experts in international organs about new human rights instruments. Two exceptionally interesting examples are: Waltz 2001 and Waltz 2004 on contributions of small states, respectively of Muslim states, in creating UDHR and the IHR covenants.
A prominent but methodologically traditional historian of human rights providing readers with much valuable information is Lauren 2011. His mode of writing human rights history is teleological: He intimates throughout that the so-called “pioneers” of human rights had a vision of what was to come: namely the post-1945 world of international human rights.
The path-breaking critic of the traditional approach to doing historiography of human rights is Moyn 2010, who has set a new paradigm for writing historiographical studies of human rights. Drawing heavily on national and international political developments and on ideological debates outside the narrower bounds of human rights experts, he claims that IHRs remained politically insignificant until the late 1960s and then became a prominent public concern only in the 1970s. Moyn’s is very much a US perspective, even when addressing matters outside the US. Moyn has produced several good historical studies and a wealth of articles and papers on modern human rights politics. He is strongly supported and supplemented by the German scholar Eckel whose Eckel 2014 is a tremendously informative, and more balanced, view of the rise of international human rights from 1945 to 2013.
Moyn’s and Eckel’s appraisals of the relative insignificance of the 1950s and the 1960s are disputed by other historians, most prominently by Burke 2006/Burke 2010 and Jensen 2016. The latters describe the hard and in the end successful struggles of colonized peoples in Asia and Africa, culminating in the Bandung Conference 1955 (Konferensi Asia-Afrika), and the tenacious and brutal resistance of colonial powers against colonized peoples’ struggle for independence, significantly crowned with the inclusion of common Article 1 in ICCPR and ICESCR (see Section D item 31, and the concluding remark of (re 1) in Section E) and the rise of 76 new independent states between 1945 and 1970. An independently conceived political approach to post-1945 decolonization and the emergence of rights is Reus-Smit 2011/Reus-Smit 2013:151-192.
Dissatisfaction with the so-called traditional view that “human beings have human rights in virtue of their humanity” have given rise to other competing conceptions, most prominent among them the so-called ultra-minimalist international politics view of human rights, due to John Rawls (see “Note” at end of Section B). The most instructive development of this approach to human rights is Beitz 2009. Briefly, Beitz explains: human rights norms protect urgent individual interests against certain predictable dangers (“standard threats”) to which people are vulnerable under typical circumstances of modern life. When a responsible state fails in protecting such interests the case becomes a matter of international concern and may call for some “international human rights”-based action by other states. (Beitz is in my view somewhat one-sidedly mistaken; see Section B point (e) and closing “Note.”) But as developed by Beitz this view of what human rights amount to, is no longer clearly minimalist. Human rights-based international action can on his view be many different things, among which coercive interventions against violating states is but one. This approach opens a discussion of under what conditions international human right-protective intervention is legitimate. The debate on “R2P” (responsibility to protect) in the UN and the problem of legitimacy of human rights-protective intervention across borders is competently spelled out and discussed in Cohen 2012 (ch 3:159-222). She doesn’t come up with a final answer . . .
The normative, political as well as moral, significance of the idea of human dignity is widely debated. A competent philological study is Cancik 2002. A fine in-depth philosophical study is Waldron 2017.
A good philosophical introduction to IHRs is Nickel 2007. Recent papers on philosophical foundations of human rights are collected in Cruft/Liao/Renzo 2015. Scholarly books on the creation and the main features of UDHR are Alfredsson/Eide 1999, Morsink 1999, and Glendon 2001. Hopefully soon to appear, is an English translation of Roth 2016 on Peng Chun Chang’s important role in authoring the UDHR. A weighty study of the global genealogy of human rights, across humankind’s cultural divides and focusing on the “sacredness of the person,” is Joas 2013. − Scholarly study of IHRs is an expansive industry!
References:
Gudmundur Alfredsson and Asbjørn Eide, eds, 1999: The Universal Declaration of Human Rights. A Common Standard of Achievement, The Hague, Martinus Nijhoff Publishers
Thomas Banchoff et al. eds. 2011: Religion and the Global Politics of Human Rights, Oxford, Oxford University Press
Charles R. Beitz 2009: The Idea of Human Rights, Oxford, Oxford University Press
Allen Buchanan 2013: The Heart of Human Rights, Oxford, Oxford University Press
Roland Burke 2010: Decolonization and the Evolution of International Human Rights, Philadelphia, University of Pennsylvania Press
Roland Burke 2006: “‘The Compelling Dialogue of Freedom’: Human Rights at the Bandung Conference,” HRQ 28: 947-965
Hubert Cancik 2002: “‘Dignity of Man’ and ‘Persona’ in Stoic Anthropology: some Remarks on Cicero, De officis I 105-107,” in David Kretzmer and Eckart Kein eds., The Concept of Human Dignity and Human Rights Discourse. The Hague, Kluwer Law International: 19-39
Jean L. Cohen 2012: Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism, New York, Cambridge University Press
Rowan Cruft et als., eds. 2015: Philosophical Foundations of Human Rights, Oxford, Oxford University Press
Jack Donnelly 2013: Universal Human Rights in Theory and Practice, Ithaca, Cornell University Press
Jan Eckel 2014: Die Ambivalenz des Guten: Menschenrechte in der internationalen Politik seit den 1940ern, Göttingen, Vandenhoeck&Riprecht, 936 pp (a short version (!) of the author’s Habilitation Thesis)
Jan Eckel 2010: “Human Rights and Decolonization: New Perspectives and Open Questions,” Humanity: Intern. J. of Human Rights, vol 1, Philadelphia, University of Pennsylvania Press: 111-135
Alan Gewirth1982: Human Rights. Essays on Justification and Application. Chicago, Univ. of Chicago Press
Mary Ann Glendon 2001: A World Made New. Eleanor Roosevelt and the Universal Declaration of Human Rights, New York, Random House
Steven L. B. Jensen 2016: The Making of International Human Rights: The 1960s, Decolonization and the Reconstruction of Global Values, Cambridge, Cambridge University Press
Hans Joas 2013: The Sacredness of the Person. A New Genealogy of Human Rights, Washington DC, Georgetown University Press
Mohammad H. Kamali 2001: The Dignity of Man: An Islamic Perspective (Kuala Lumpur: Ilmiah Publisher)
Paul Gordon Lauren 2011: The Evolution of International Human Rights: Visions Seen 3rd Edition, Philadelphia, University of Pennsylvania Press
Tore Lindholm 2006: “The Cross-Cultural Legitimacy of Universal Human Rights: Plural Justification across Normative Divides,” in F.Francisconi and M. Scheinin eds. Cultural Human Rights, Leiden, M. Nijhoff Publishers
Johannes Morsink 1999: The Universal Declaration of Human Rights. Origins, Drafting, and Intent, Philadelphia, University of Pennsylvania Press
Samuel Moyn 2010: The Last Utopia: Human Rights in History, Cambridge MA, Harvard Univer. Press
James Nickel 2007: Making Sense of Human Rights, 2nd Edition, Malden, MA, Blackwell Publishing
John Rawls 1999: The Law of Peoples with “the Idea of Public Reason Revisited,” Cambridge Mass., Harvard University Press
Christian Reus-Smit 2013: Individual Rights and the Making or the International System, Cambridge, Cambridge University Press
Christian Reus-Smit 2011: “Struggles for Individual rights and the Expansion of the International System,” International Organizations vol 65: 207-242
Hans Ingvar Roth 2016: När Konfucius kom till FN: Pen Chun Chang och FN:s förklaring om de mänskliga rättigheterna, Dialogos, Stockholm
Joseph Runzo et als., eds. 2003: Human Rights and Responsibilities in the World Religions, Oxford, Oneworld
Jeremy Waldron 2009: “Dignity, Rank and Rights,” The Berkeley Tanner Lectures on Human Values, Oxford, Oxford University Press
Jeremy Waldron 2017: One Another’s Equals: The Basis of Human Equality, Cambridge, MA, Harvard U. Press
Susan Waltz 2001: “Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights,” HRQ 23: 44-72
Susan Waltz 2004: “Universal Human Rights: The Contribution of Muslim States,” HRQ 26: 799-844
International human rights instruments:
The global human rights system of the United Nations: http://www.ohchr.org/EN/pages/home.aspx
The Inter-American system: http://www.oas.org/en/iachr/mandate/basic_documents.asp
European human rights instruments: http://www.echr.coe.int/pages/home.aspx?p=basictexts
African Charter of Human and Peoples’ Rights: http://www.achpr.org/instruments/achpr/
ASEAN declaration and intergovernmental commission on human rights: http://aichr.org/documents/
and: http://www.asean.org/wp-content/uploads/images/ASEAN_RTK_2014/6_AHRD_Booklet.pdf
Other sources: At University of Minnesota Human Rights Library one can find almost all international human rights instruments: http://hrlibrary.umn.edu/
One may find much informative materials on international human rights monitoring at the home page of the UN High Commissioner of Human Rights: www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx
The Core International Human Rights Instruments and their monitoring bodies as of 2017:
At the global level of the United Nations there are 9 core international human rights instruments. Each of these instruments has established a committee of experts to monitor implementation of the treaty provisions by its States parties. Some of the treaties are supplemented by optional protocols dealing with specific concerns whereas the Optional Protocol to the Convention against Torture establishes a committee of experts.