HUMAN RIGHTS ARE the vocabulary of justice for our globalizing world. They frame our moral conceptions of obligations to friends and strangers, they shape our political judgments about the nature and exercise of economic and political power, and they help us distinguish legal acts from arbitrary violence and coercion. Human rights frame the moral, shape the political, and distinguish the legal in places as local and diverse as the family, the school, the workplace, the community, the nation, and the State. But their true significance lies in their status as international legal entitlements that call for radical revision of the ways in which international law organizes global politics into an international legal order.
What it means to speak of human rights in this way is the subject of this book. I offer a legal theory of human rights in international law that defines their nature and purpose in terms of their capacity to monitor the structure and operation of the international legal order. On this account, human rights require the international legal order to attend to pathologies of its own making. They monitor the distribution and exercise of sovereign power to which international law extends legal validity. They impose obligations on sovereign and other legal actors to exercise the authority they receive from international law in ways that respect the rights of all. They mobilize critical judgment on international law’s participation in the perpetuation of global economic inequality. They generate international legal duties on all of us to improve the social and economic conditions of impoverished people around the world.
This way of speaking of international human rights law is a marked departure from traditional accounts of its nature and purpose. Dominant moral accounts of the field stipulate that its overarching mission is to protect essential and universal features of what it means to be a human being from the exercise of sovereign power. In addition to protecting essential features of our common humanity, however, international human rights law protects rights that attach to certain individuals and not others, rights that create positive in addition to negative obligations, and rights that obligate us to attend to the needs of strangers both at home and abroad. Minority rights, indigenous rights, and, more broadly, the right of self-determination typically vest in some communities and not others for reasons that appear to be steeped in contingencies of history and geography. Labor rights, social and economic rights, and the right to development impose positive obligations on others to secure their realization, make more sense in some national economies than others, and engage with legal norms addressing colonization and economic globalization in ways that moral accounts fail to grasp.
This book seeks to make sense of the rich variety of rights and instruments that make up the field of international human rights law in ways that moral accounts cannot. It ascribes a richer mission to the field by placing the legitimacy of the international legal order under its watch. It comprehends human rights in international law as legal sites of moral and political contestation over fundamental questions that relate to the structure and operation of international law, but it does so in distinctively legal terms. The legal existence of international human rights is the product not of moral insight but of the enactment of the various instruments that place them on the international register, and their critical force rests in their capacity to attend to some of the adverse effects of how we organize global politics into an international legal order.
This role is not divorced from the demands of morality. Determining why certain consequences merit criticism and others merit praise inevitably invites moral judgment—and moral disagreement. But, unlike most moral conceptions, the legal role of human rights, on the account offered here, is internal to the structure and operation of international law. Even though, in moral theory, they may be formal expressions of what we owe each other in ethical recognition of universal features of what it means to be a human being, human rights play a different normative role in international law. They express—imperfectly—what is required of the international legal order to enable it to acquire a measure of normative legitimacy.
Readers familiar with these questions will recognize important affinities with scholarship that emphasizes the role that human rights play in global politics. Unlike most moral approaches, which focus on universal features of our common humanity, political conceptions define the nature of human rights in terms of their function in global political discourse. Human rights, according to political conceptions, are reasons that social, political, and legal actors rely on in international arenas to advocate interfering in the internal affairs of a State and to provide assistance to States to promote their protection. Like political conceptions, this book links the nature of international human rights to the function they perform in the broader international arena.
Unlike political conceptions, however, the account offered here distinguishes between global politics and international law. Human rights monitor the legitimacy of political claims and actions to which the broader international legal order otherwise extends international legal validity. Thus, while human rights act as political reasons for international intervention and assistance in the practice of global politics, their international legal significance rests on their role as criteria for determining which of the countless claims and acts of power that constitute global politics can assume a mantle of international legal legitimacy.
Devoted to the protection and promotion of human rights deemed to possess international legal significance, international human rights law comprises a variety of sources and instruments, including the United Nations Universal Declaration of Human Rights, various international and regional treaties, principles of customary international law, and general principles of international law. Adopted and proclaimed by the General Assembly of the United Nations in 1948, the Universal Declaration, as its title suggests, is universal in tone and aspiration, declaring that “all members of the human family,” by virtue of their equal worth and dignity, share certain fundamental human rights.1 These include rights to property, life, liberty and security of the person; equal protection of the law; freedom of thought, opinion, expression, religion, assembly, and association; rights to social security, education, work, and an adequate standard of living; and rights of cultural membership and political participation. Although the Universal Declaration technically is not legally binding on States, its adoption marked the formal genesis of a profound structural transformation of the international legal order. What was previously a legal system almost exclusively devoted to providing legal form to relations between and among sovereign States, international law began to lay claim to the power to regulate relations between States and individuals and groups.
This project gathered momentum when the U.N. Commission on Human Rights proceeded to draft two treaties that eventually came into force in 1976: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.2 Whereas the ICCPR commits States to respect the right to life, the right to vote, freedom of conscience, speech, religion, association, equal protection, and other civil and political freedoms, the ICESCR enshrines rights to food, education, health, and shelter, as well as a host of other social, economic, and cultural rights. These were followed by the adoption of additional, more specialized human rights treaties addressing specific categories of human rights, namely, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the Convention on Migrant Workers.3
Each of these treaties establishes a monitoring body charged with overseeing State compliance.4 These treaty bodies provide specific comments on State reports as well as general comments on the legal nature and scope of relevant treaty provisions and coordinate their responsibilities with each other and other institutions, such as the High Commissioner for Human Rights. Some, like the Human Rights Committee, possess the authority to hear complaints brought by individuals alleging that their rights have been violated.5 Some are empowered to hear complaints by one State that another State is in violation of its treaty obligations.6 Some, like the Committee against Torture, may, on their own initiative, initiate inquiries if they have received reliable information about serious human rights violations.7
Paralleling the international proliferation of human rights instruments and institutions are similar developments at the regional level, with the adoption of both general and specific human rights treaties in Europe, Africa, and the Americas, and the establishment of institutions responsible for treaty oversight, elaboration, and enforcement.8 Adding further to the complexity of the field is the domestic legal significance of international and regional human rights commitments. Judges around the world are borrowing relatively freely and with increasing regularity from international, regional, and foreign sources to assist in their interpretive tasks.9 The relation between the domestic and international legal spheres increasingly involves “not merely the transmittal of the international, but a process of translation from international to national” that possesses the capacity to “produce new meanings.”10
Despite the multiplicity of its constituent legal sources and instruments, the dominant approach to the normative foundations of international human rights law conceives of human rights as moral entitlements that all human beings possess by virtue of our common humanity. What constitutes a human right, according to this approach, is not determined by a positive legal instrument or institution. Human rights exist prior to and independent of positive international human rights law. Just because a legal order declares something to be a human right does not make it so. Conversely, the fact that a human right does not receive international legal protection does not mean that it is not a human right. The existence or nonexistence of a human right rests on abstract features of what it means to be human and the obligations to which these features give rise. The mission of the field is to secure international legal protection of universal features of what it means to be a human being.
Immanuel Kant wrote of a single, innate “right belonging to man by virtue of his humanity” from which all other rights flow.11 Kant’s conception of rights sweeps in much more of moral life than contemporary human rights law, but many contemporary moral accounts of human rights draw from the principle of universality on which it rests. James Griffin, for example, conceives of human rights as protections of “personhood” and argues that they “must be universal, because they are possessed by human agents simply in virtue of their normative agency.”12 John Tasioulas defines human rights as “moral entitlements possessed by all simply in virtue of their humanity.”13 Similarly, John Simmonds argues that “human rights are rights possessed by all human beings (at all times and in all places), simply in virtue of their humanity.”14 In a somewhat different—but equally universal—vein, human rights, according to Martha Nussbaum, protect “central human capabilities” that are fundamental to what it means to be truly human.15
On moral accounts such as these, human rights protect essential characteristics or features that all of us share despite the innumerable historical, geographical, cultural, communal, and other contingencies that shape our lives and our relations with others in unique ways. They give rise to specifiable duties that we all owe each other in ethical recognition of what it means to be human. Rights and obligations can also arise from the bonds of history, community, religion, culture, or nation. But if such rights relate simply to contingent features of human existence, they do not constitute human rights and do not merit a place on the international legal register. And if we owe each other duties for reasons other than our common humanity—say, because of friendship, kinship, or citizenship—then these duties do not correspond to human rights and should not be identified as such by international legal instruments.
Distinguishing between obligations that correspond to human rights and those that reflect special bonds of solidarity echoes a distinction more formally drawn by H.L.A. Hart between general and special rights. For Hart, general rights are “rights which all men capable of choice have,” whereas special rights are “rights that arise out of special transactions between individuals or out of some special relationship in which they stand to each other.”16 Although Hart did not specifically equate general rights with human rights, he believed that some rights are general in nature because they vest in men “qua men and not only if they are members of some society or stand in some special relation to each other.”17 Special rights, in contrast, arise from particular relationships that we have with others, whether voluntarily, as in contract, or by virtue of belonging to a particular social or political community. General rights impose obligations on “everyone,” whereas special rights impose obligations only on “parties to the special transaction or relationship.”18
Moral accounts treat human rights as general rights.19 They arise from the fact of humanity, they can be claimed by all, and they impose obligations on all. Human rights are not special rights. They do not reflect special bonds that exist among members of particular communities, they do not vest in some people and not others, and they do not require us to be partial to some at the expense of others. To speak of an entitlement as a human right must mean something other than what justice requires in the context of contingent relationships in which we find ourselves. It must be an entitlement grounded in a universal feature of what it means to be human, regardless of the diverse circumstances that define our places in the world.
With the International Covenant on Economic, Social, and Cultural Rights and other international and regional instruments, international human rights law includes what are often referred to as second- and third-generation rights.20 Second-generation social and economic rights guarantee individuals access to a set of basic social resources, such as food, housing, an adequate standard of living, healthcare, and education.21 It conceives of these rights as imposing obligations on States to take measures to secure their protection.22 But social and economic rights and the obligations that accompany them fit awkwardly into moral conceptions of human rights. Basic needs, such as food and shelter, are essential features of what it means to be human. To take from someone something essential to one’s existence is a human rights violation. It is a matter of deep controversy, however, whether the set of duties that we owe each other directly in moral recognition of our common humanity includes positive obligations to assist others in need. While moral accounts easily generate negative obligations of noninterference, they do not easily generate universal and specifiable obligations of assistance. What positive obligations accompany the right to food, for example, and who bears these obligations?
International human rights instruments also extend protection to labor rights and what is referred to as a third-generation right to development. These rights, too, can be understood in terms that are consistent with moral accounts of human rights as protecting universal interests. Labor rights are often said to be specific entitlements that attach to workers by virtue of a more general right to freedom of association that vests in all of us. The right to development speaks to the universal aspiration that all individuals are free to develop, flourish, and live their lives to the fullest. But these rights also typically impose positive obligations on others to secure their realization, make more sense in some national economies than others, and protect some individuals and not others, and they are tied to the international legality of processes of economic and social globalization in ways that moral accounts fail to grasp.
This has led some moral theorists to claim that second- and third-generation rights that entail positive obligations are not human rights at all. While such positive obligations can be specified in law, their specification is conditional on political and legal institutions and not on a pre-institutional conception of the obligations we owe each other by virtue of being human. In the name of social justice, a political community may opt to entrench domestic rights protecting the welfare of its members by imposing positive obligations on State actors and institutions to provide, say, food to those in need—and on individuals to contribute to the cost of such a benefit. In the absence of such allocation of obligations, however, we cannot identify inaction that would violate one’s right to food. Nor can we identify which actors might be required to fulfill a right to food. A human right, such as a right to life, may entail positive obligations to secure its protection, but such secondary obligations flow from a primary obligation that attaches to all of us not to infringe this right.23
This is not to say that moral theorists have not addressed this challenge. Griffin argues that human rights provide “at least the minimum provision of resources and capabilities” necessary to be a human agent. He does so by drawing a distinction between general and particular obligations. For Griffin, we all bear obligations to assist others in distress, but who bears these obligations in particular instances—and what they amount to—rest on a host of contingencies such as which person or institution is in the best position and best able to act. They are also shaped by competing considerations that arise from deep commitments that form our moral identities, such as commitments to one’s own family and community.24 Tasioulas has suggested that human rights enjoy a “temporally constrained form of universality,” which permits features of the social world that we inhabit to play a role in determining their existence.25 Tasioulas also takes issue with the requirement that correlative duties must be universal in nature. In his view, the existence of a human right is conditional only on it being grounded in an interest we all share as humans “significant enough to generate duties on the part of others,” such as freedom from poverty.26 But meeting this challenge—whether by distinguishing between general and particular obligations, conceptualizing universal claims in temporal terms, or accepting the contingency of duties—requires relaxing the properties of universality on which moral conceptions of human rights typically rest their case.
This challenge is compounded when a human right is said to impose duties on individuals and collectivities in political communities other than where the bearers of rights are located. If A has a right to x, then B has a duty not to interfere with A’s enjoyment of right x. A’s right to x, however, does not typically obligate B to give x to A, especially if A and B are citizens of different States. Again, this is not to say that moral theorists have not addressed this challenge. Griffin, for example, writes that “if poor central governments are unable to shoulder the burden” of poverty within their midst, “then perhaps the time has come for us to consider whether the burden should not also be placed on a group of wealthy nations.”27 But the fact remains: moral conceptions of human rights grounded in universality struggle with rights that impose positive obligations on States to provide benefits to their own citizens and on citizens to contribute to their cost. They struggle even more with rights whose external dimensions mandate international redistributive measures to address global poverty.28
Moral accounts of human rights cast in universal terms also struggle with international human rights that extend legal protection to certain individuals and groups but not others. Several States have entered into bilateral treaties protecting the rights of minorities living outside of the State in which they share a historical affiliation.29 Some multilateral treaties also extend rights protection to various minority communities.30 Minority rights are sometimes portrayed as protecting religious, cultural, and linguistic affiliations that are essential features of what it means to be a human being. Although worded in universal terms, numerous international civil and political rights also can be and have been interpreted to protect the interests of specific religious, ethnic, and cultural communities.31
In addition, recent developments at the regional and international levels signal a renewed commitment to rights that protect indigenous territories, cultures, and forms of governance from assimilative forces emanating from States in which indigenous peoples are located.32 Indigenous rights can be understood as specific instantiations of more general rights that inhere in all of us, such as the right of self-determination, but which are tailored to the unique circumstances of indigenous peoples.33 The right of self-determination is often said to vest in all individuals and in all peoples and, to this extent, possesses universal value. But minority rights, indigenous rights, and, more generally, the right of self-determination typically vest in some individuals and communities and not in others, for reasons that have less to do with universal norms and more to do with contingencies of history and geography that form the backdrop of the international legal order. Moreover, minority rights, indigenous rights, and the right of self-determination possess the capacity to divide people into different communities, create insiders and outsiders, pit ethnicity against ethnicity, and threaten the universal aspirations that inform dominant moral conceptions of the field.
The commitment to universalism in moral accounts also sheds light on the practice of privileging certain human rights at the expense of others. Since the inception of contemporary international human rights law, many State and non-State actors have tended to privilege interests that underlie international civil and political rights at the expense of second- and third-generation rights, notwithstanding assertions of a principle of indivisibility that holds all human rights to be interdependent and of equal value.34 Governments are more likely to entrench civil and political rights than social and economic rights in their constitutions and less likely to agree to individual redress measures at the international level.35 The prominence that civil and political rights enjoy in international human rights law is in no small measure due to the fact that most of the field’s foundational instruments and institutions came into existence in the wake of wartime atrocities and were consciously designed to protect interests associated with civil and political freedom from the raw exercise of collective State power.
But this prominence is also a function of the influence of universalism in normative debates about the nature of this field of law. If human rights correspond to only those duties that we owe each other directly in moral recognition of what it means to be human, then second- and third-generation rights, like civil and political rights, may well obligate individuals to not interfere with the liberty or autonomy of others. But whether they impose positive obligations to assist others in need, especially others who belong to different political communities or other communities of value, is a matter of deep controversy from the perspective of a universal account. As a result, human rights that require positive State action to secure their protection, especially those that impose duties on individuals and collectivities in political communities other than where the bearers of rights are located, fit awkwardly within the universal picture.
Critics often charge that universal accounts of human rights fail to grasp that at least some moral standards are relative to specific cultural and historical contexts and that there are no universal means of judging the merits of culturally specific ways of life. Cultural relativists argue that universalism masks the imposition of culturally specific beliefs on communities that possess different inner logics,36 whereas universalists charge that relativists authorize violations of human rights in the name of cultural difference. Debates between universalism and relativism have long dominated moral inquiries into the nature of international human rights law.37 And so they should—assuming, as they do, that the mission of the field is to protect universal features of what it means to be a human being.
The significance of these debates turns precisely on the validity of this assumption. If the nature of the field is not what the standard account valorizes or what relativists criticize, then its traditional supporters and detractors are locked in a disagreement—one that does not appear to be resolvable in either the near or distant future—that has little to do with the actual object of their attention. An account of the normative architecture of the field should not conflate fact and norm by equating legal validity with moral legitimacy, but nor should it lose sight of the object that it seeks to describe. If human rights in international law are not those that moral theory generates, then moral accounts of human rights are not normative accounts of international human rights law. In the words of two critics, moral theorists “have concentrated on disputes over which rights should appear on the legal list, with little or no attention paid to what being on the list actually means.”38 The drawback is not simply a loose grasp of the law. The true cost is a shrinking of the field’s capacity to engage fundamental normative questions relating to the structure and operation of the international legal order.
In recent years, political accounts of international human rights have garnered attention in international political theory. Unlike most moral approaches, which focus on universal features of our common humanity, political conceptions define the nature of human rights in terms of their function in global political discourse. Human rights, according to political conceptions, do not necessarily correlate to the requirements of moral theory. They represent reasons that social, political, and legal actors rely on in international arenas to advocate interfering in the internal affairs of a State and to provide assistance to States to promote their protection.39
Charles Beitz, for example, argues that justifications of human rights, as well as questions relating to their content and the obligations they impose on others, presuppose a concept of human rights that specifies the properties that make human rights what they are. Such a concept will not justify their protection nor determine their content or their ensuing obligations, but it will provide some purchase and help to frame debate on these questions. Beitz offers a concept of human rights derived from the practice of human rights in global politics. Global human rights practice, for Beitz, is a social practice where participants invoke or rely on human rights as reasons for certain kinds of actions in certain circumstances.
What this practice reveals is that human rights protect urgent individual interests against certain predictable dangers associated with the exercise of sovereign power. States have a primary obligation to protect urgent interests of individuals over whom they exercise sovereign power, but external actors, such as other States and international institutions, have secondary obligations to secure protection when a State fails to live up to its responsibility.40 “To say something is a human right,” in Beitz’s view, “is to say that social institutions that fail to protect the right are defective—they fall short of meeting conditions that anyone would reasonably expect them to satisfy—and that international efforts to aid or promote reform are legitimate and in some cases may be morally required.”41
Political conceptions of human rights that focus on practice require attributing significance to the intentions of political actors producing and reproducing the practice at hand. A political conception gives credence to the intent of participants in the practice of human rights because it identifies the nature of human rights by reference to the actions of those involved in the practices that exemplify their discursive role in global politics. Ascribing meaning to such actions requires determinations of the intentions, aims, and objectives of those who engage in them. A political conception, in other words, attributes relevance to the intent of participants in the practice of human rights because the meaning of an action cannot be gleaned without a grasp of the intent behind it. The nature of the human rights that comprise the field, according to this perspective, rests in no small measure on what political actors intend to accomplish when they engage in the practice of human rights.
Beitz reveals his reliance on the intent of participants in his critique of conceptions of human rights that rely on the natural law tradition to specify their nature. Beitz notes correctly that those responsible for the creation of contemporary international human rights instruments and institutions explicitly ruled out natural law as a single conceptual framework for comprehending their international legal status.42 The drafters of the Universal Declaration, for instance, comprehended human rights as public principles that participants in the global practice of human rights rely on to criticize the exercise of sovereign power, not as legal entitlements that individuals possess by virtue of their human nature. While the global practice of human rights manifested a natural law perspective in some quarters, it also manifested different perspectives in other quarters, and the framers of the Universal Declaration, Beitz observes, conceived of this practice as manifesting a “public doctrine open to a variety of justifications.”43
As Beitz’s account of the formation of the Universal Declaration reveals, a focus on the original intent of those responsible for promulgating international human rights instruments assists in distinguishing political conceptions of human rights from moral accounts that seek to locate their nature in essential properties of what it means to be human. But although reliance on originalism might bolster the plausibility of political accounts in the eyes of those otherwise tempted by the allure of natural law, it exposes what such accounts must repress to acquire explanatory power. Divining the intent of those responsible for the enactment of a legal norm is a thoroughly interpretive enterprise that must specify a plausible method of discerning intent, distinguish actual intentions from stated intentions, identify which actors count as framers, assume that each actor was motivated by a single objective or assign weights to her multiple objectives, specify how much weight is to be given to their intentions in relation to the intentions of those whom they represent, and sift through countless, competing political motivations of a multiplicity of international actors.44
Putting aside challenges associated with relying on originalism in international law, if the goal is to specify the political role that human rights play in the international legal order as a descriptive matter, then it makes eminent sense to attend to how they motivate and justify the actions of political actors in the international arena. But relying on practice to identify the normative dimensions of human rights—that is, the role they should play in the international arena—risks conflating fact and norm and potentially drains human rights of their capacity to act as instruments of critique of existing practices. Determining the extent to which a human right should act in this way requires accounting for its normative purpose, and it makes little sense to locate such an account in existing practice.
Moral theorists generally do not confront this challenge to the extent they affirm that universalism grounds the normativity of human rights and hold existing practice to account to the extent that it fails to respect what human rights require as a matter of abstract morality.45 But, as we have seen, they face this problem in reverse: the legal regime they imagine in normative terms becomes the legal regime that, they insist, must exist in fact. If a political account seeks to offer a prescriptive as well as a descriptive explanation of human rights, however, it needs to explain why the particular discursive role a human right plays in motivating and justifying political action explains its normative value.46