Lost In Translation: The Human Rights Ideal and International Human Rights Law
1 Saladin Meckled-García and Başak Çali When political theorists write about human rights they mean a special kind of moral claim (Hart 1967:55; Raz 1986:181ff; Feinberg 1973, 1980, 1994, 2003; Gewirth 1992:13–14; Nickel 1987:173). At the same time, lawyers, referring to human rights or International Human Rights, mean the various provisions of international human rights law, IHRL from now on (Cassese 1990; Buergenthal 1997; Alston 1999; Ratner and Abrams 2001; Gearty 2004). The assumption, however, seems to be that both traditions are, in the final analysis, aiming at the same thing: one group elaborating the normative foundations of rights principles, whilst the other works in the positive, or practical, enforcement of those principles. In what follows, we aim to show that this view of the relationship between foundations and law is simplistic and superficial. This simplification has important consequences for the future study and practice of human rights, and for interpreting human rights law. ‘Human right’ is an ambiguous term. If critiques, defences and investigations into the notion of human rights are to be intellectually rigorous and fruitful, then it is essential to disentangle divergences in the way the term is understood. This chapter aims to question the assumption that there is a simple division of labour between the foundational, or theoretical perspective, and the legal one, with the subject matter—‘human rights’—being fundamentally the same. We survey ways in which principles informing international law actually shape the nature of the human rights upheld within it. Features of this version of human rights are not obviously reconcilable with a theoretical and moral understanding of those rights. Yet, moral and political theorists seem oblivious to this. Instead they have concentrated on disputes over which rights should appear on the legal list (Jones 1994:117ff; Griffin 2000, 2001; Tasioulas 2002), with little or no attention paid to what being on the list actually means—even for uncontroversial rights claims—in terms of how those rights are held. Theorists have also worked with a common assumption that human rights and general individual moral rights claims amount in principle to the same thing (neither Steiner 1997, nor Griffin 2000, entertain a distinction, whilst others merely distinguish more general from less general rights, Hart 1967; Jones 1994:86–7). If there is significant divergence between the legal understanding of human rights, and what they imply, and the moral theory of general rights, then these disciplines may be dealing in different subject matters (consider the claim that human rights documents imply duties on ‘both individuals and governments’, Nickel 1987:3). IHRL is not, however, a value-free medium, but contributes its own features and internal constraints to the subject matter it governs. 1 Focusing on the key principles of IHRL and contrasting them with the principles of moral theory will raise important questions about human rights for both theorists and lawyers. Thus, it should be made clear at the outset that this chapter is not hostile to international human rights law, or law generally, or to moral theory. Rather, we want to question some basic assumptions that theorists and lawyers alike seem to work with, and to indicate some avenues of investigation. Our aims are not purely theoretical. Many human rights oriented measures, campaigns, and social policies, tend to focus on law. They see practical legal measures as effective, and more importantly, accept the legal definition of the rights they seek to champion. 2 Even non-legal disciplines determine and define the ends in question, by letting law define the contours of the rights (e.g. Landman 2002:895; Alston 2000; NORAD 2001:10; Otto-Sano and Lindholt 2000). Human rights law is also increasingly being used to provide standards for critically evaluating domestic law and other areas of international law (Skogly 2001; Marceau 2002). 3 Because legal bodies have the authority to define and determine the limits and extent of legal human rights, human rights themselves are often understood in terms of the legal provisions—law, and legal judgement, is taken to be definitive on their limits and extent. We call that phenomenon ‘legalization’. In the first section we outline the two perspectives on human rights that we want to contrast. The second section compares these two perspectives using the following questions: (1) Who can infringe a right? (2) Whose rights can be infringed? (3) When can they be infringed? (4) Where can they be infringed? (5) How are human rights provisions applied and interpreted? The third section defends a key premise of the chapter (that there are two distinct accounts of human rights: legal and moral) from three positions in legal and rights theory. The point of tracing differences between human rights law and theoretical foundations is to explore whether the notions of human rights depicted in these spheres are consistent. However, the differences we are interested in are those which run much deeper than could be accounted for by either mistakes or superficial contingencies. Nor do we want to focus on divergences between what the ideals prescribe and what law as such can deliver. Simply by its nature as law, what human rights law can achieve is of course limited (which makes our project different from, say, Douzinas 2000). Our comparison is of principles operating in the two spheres. We do not suggest that either normative human rights theory or international human rights law (IHRL) represent homogenous, univocal, doctrines. There is no single consensus on the justification of human rights, and by normative theory, we mean a general method of justification and some basic parameters for what theories take to be justifying when they propose foundations for moral rights. Normative rights theory covers, then, different and conflicting approaches to supplying theoretical foundations. For our purposes here, we merely need to identify some common features, strategies, and aims, to motivate the contrast with law. That too is not a discipline which speaks with one voice. Thus, we have kept to what we take to be substantive principles, or norms, of human rights law, which, while open to dispute, could not be given up without much controversy. The theoretical foundations for rights we discuss here are what we shall call the normative rights model (NRM). This has only two distinct features. First, it describes all forms of argument that use considerations about the fundamental well-being, or interests, of persons to posit special duties of action on others, sometimes expressed as independent principles of action. It therefore contrasts with positivist views which claim that such rights, or some subset of rights, only truly exist as legal, or institutional artefacts (Bedau 2000; James 2003; Geuss 2001:146; O’Neill 1996:132, 2000:105, 2001:184; Meckled-García 2004). On that view rights cannot serve to criticize and characterize law, but are themselves explained and specified by it. Second, it is supposed to contrast with moral theories which identify duties on others arising from considerations of justice or obligation specifically towards fellow citizens based in reciprocity or cooperation (Hart 1967; Rawls 1971:4, 1999:78). There are some injustices that fellow citizens can visit on each other which they cannot visit on non-citizens. The NRM must explain those duties owed to human persons as such, irrespective of citizenship ties (Gewirth 1982:3; Jones 1994:81; Donnelly 2003:10; Hart 1967:64). NRM identifies features or aspects of our humanity which contribute to our well-being, and which are vulnerable to the actions of others. These are often referred to as ‘interests’ and their importance is used to justify duties others have towards us. The approach can be monistic, outlining interests that must be secure if the single value at the heart of human well-being is to be secure also, such as autonomy or agency (Raz 1986:203; Gewirth 1982:41–78; Griffin 2000:4). More pluralistic versions of NRM might not integrate all human interests into one theory of value, but rather identify a plurality of interests that humans have (Shue 1996; Raz 1986:180; Marmor 1997). 4 Thus, we may believe that human suffering and early curtailment of life are both dis-values to be prevented, without identifying a single value, such as autonomy, at the heart of being human which gives suffering and curtailment of life-length special import. Similarly, essential interests in personal security and personal expression can be seen as needing the protection of rights without necessarily serving a specified further end, such as autonomy. Either way, NRM seeks to justify special non-negotiable duties on agents, which are not created by positive institutions such as law. Everything about the duties NRM identifies must itself be explained by the moral foundations of the theory: the value of securing the interests in question plus practical considerations about agency. This includes questions of responsibility, or who the duties are to fall on. My right to personal security is based, for example, on the value of my interest in not being aggressed. It identifies a duty falling on any agent capable of undermining my personal security. No principled difference is made between individuals or collectives, who have the power to undermine my secure status. One person is capable of attacking me, as is my state. Both, therefore, are responsible for my security to the extent they can affect it. It follows, of course, that agent duties depend on what the agent is capable of (Nickel 1993:81). A state can respect, protect, and promote, whilst a single individual can respect my interest in personal security, but at most contribute towards institutions which protect and promote it. 5 Both have (complex) duties corresponding to my rights simply because their actions can affect my key interests in significant ways, even if the content of their duties reflects what these agents are capable of. The features explained by NRM, then, include who the rights apply to (who the right holder is), who they impose duties upon (the duty bearer), the content of the duties, and what constitutes adequate securing (in line with these respective duties), and the source of interpretation in settling issues of conflict of interests and rights. It is these features that will be shown to diverge substantively from human rights law. To show that this is the case, we will take each apparent divergence and try to bring to bear moral considerations relating to the human rights ideal which might justify the apparent divergence. By human rights law we mean something quite precise: a form of public international law creating rights for individuals and duties for states, as well as domestic and international remedies for violation of rights and failure of duties. International treaties and customs that deal with human rights have a different character to those that deal with war crimes, crimes against humanity and genocide. We do not consider the latter to be part of the body of human rights law proper, although they all come under the broad category of humanitarian concern. Their subject matter is often, and in our view wrongly, elided with human rights law, simply because both are concerned with the protection of people against abuses. 6 However, the similarities stop there. Human rights provisions are those which give entitlements to individual persons, individually or in some cases collectively, to make legal claims before public authorities and where the legal support for these claims is said to respect these individuals’ entitlements as human persons (Feinberg 1980, 2003). IHRL is constituted by that set of international instruments and institutions which explicitly determine the human rights of persons. It includes the international and regional human rights obligations of states, either stemming from international treaties or customary international law. 7 What is significant about this area of law is that it gives specific entitlements to individuals as such, against states, and provides for civil type remedies when a mechanism exists to adjudicate claims. We exclude from our analysis constitutional law, domestic civil, criminal and public law. These bodies of law represent either mechanisms of ‘implementation’ for international human rights law provisions, or the rights they provide are limited to citizens of the state in question rather than proffered to persons as such. Beginning with the obvious, the most important divergence for our discussion is in terms of responsibility. In IHRL, only the state can violate the rights of individuals, whether directly, or indirectly, and no individual as such can be held responsible for human rights violations. Direct and indirect state violations together exhaust the ways that human rights can be violated. This contrasts, at least prima facie, with NRM, which does not offer an obvious basis for limiting the capacity to violate rights to one type of agent. Human rights law has the features of civil and public law, it regulates relations between individuals and states and offers civil remedies. If private persons or entities infringe the enjoyment of rights of an individual, it is nevertheless the state who commits a violation. This is only if it blatantly fails to protect the individual by legislative, judicial or administrative means, fails to investigate her claim, or fails to bring the perpetrators to justice. 8 These violations cannot be traced back to natural persons or non-state institutions in international human rights law, nor can they be traced to the specific public institution that is involved in the violation. Put simply, in the reasoning of IHRL, only states— whatever their nature, composition or efficacy—can violate human rights. Consider, for example, the reasoning in the well-known UK v. Osman case before the European Court of Human Rights, which involved the killing of Mr Osman and wounding of his son by his son’s teacher. The Court held that the failure of the state to effectively investigate the complaints of Osman’s family prior to the attack justifies looking at whether there was a violation of the right to life. The person who committed the attack, however, is simply a criminal, not a human rights violator per se. The reason for a case to be made of a violation of human rights is the negligence of police officers to adequately protect the right to life when there is an immediate and pressing danger. If such a link of negligence, by omission to protect, to investigate, to bring to justice, to provide effective remedies (Mowbray 2004) cannot be established, the issue will not fall under the scope of human rights law. 9 This was indeed the outcome in the Osman case. There is no obvious basis in NRM for holding the state alone accountable (directly or indirectly) for violations. On a prima facie reading of NRM, what is described here as a criminal act on the part of Osman’s killer is also a violation of Osman’s human right. For, according to NRM, any agent capable of undermining a person’s interest in life and security, has a standing duty to avoid doing so. A killer violates this duty, and thereby violates the right in question. This same reasoning also means a corporate body, even with enough power to influence and affect governments, does not carry human rights responsibilities for its actions, enforceable through IHLR. The Alien Torts Claims Act, a piece of United States domestic tort law, may be seen as a departure from this understanding, as it permits civil remedy if a private person, individual or multinational company, violates ‘the law of nations’. 10 No distinction is made between a public and a private agent but only if Victims demonstrate that the abuses belong to a narrow set of extreme crimes, such as genocide, crimes against humanity, extrajudicial killing, torture, and slavery. The private agent has to either actively commit or knowingly aid or abet these crimes to be charged for damages. This piece of law does not adjudicate on human rights as such, but on the most serious international crimes and the involvement of any agent in them. 11 The responsibility of private actors depends on the severity of the crime and degree of involvement. The threshold for responsibility for a non-state actor is criminal involvement rather than a public duty. The Act in its current form can hardly, then, be held up as support for the presence of a principle of non-state actor responsibility in international human rights law. This ‘statist’ feature of IHRL has some paradoxical consequences. If state agents from one state aid, abet, or perpetrate abuses on foreign territory, they will not be held responsible for human rights violations, unless it can be proven that the agents have effective control of the territory or they have effective jurisdiction over individuals through acquiescence of the state in control of that territory. 12 Aiding or abetting assassination of foreign politicians, or for that matter the encouragement and material assistance given to a coup which involves the ‘disappearance’ of dissidents and torture, are not covered by current IHRL. In such cases IHRL does not address the ultimate chain of responsibility for perpetration and negligence which involves agents of more than one state. The responsibility only extends to citizens abroad through consent of the host state and territories under effective jurisdiction, most likely only as a consequence of military occupation. 13 According to NRM, this is at least prima facie inconsistent with the purpose of human rights, that is to describe duties that, adhered to, will respect fundamental human interests. Who the duties fall on depends on whose actions can have significant repercussions for these interests. If an individual’s life and security can be significantly affected by a state, then a state is one source of agency on which obligations will fall. If, and here is an important divergence with human rights law, another individual, group of individuals, or private body can affect a person’s fundamental interests, then the right will correspond to duties on their part too. Furthermore, there can be grades of responsibility and culpability which are not employed in human rights law. There are a number of answers which can be given to this quandary. Some, but very few, have attempted to justify the position of IHRL, using means available to moral theory (one notable exception, Pogge 2002:56). Others will point to the history of NRM to show that this is a vestige of a central concern to earlier theorists of rights which has been left unexamined (Jones 1994:77; Donnelly 2003:35). Others again may point to practical reasons for the divergence, and claim that it is not itself of great importance, or at least not of sufficient importance to question the depiction of human rights in human rights law (Donnelly 2003:33). All proposed justifications of this feature from the point of view of NRM face the same problem. No justification of duties from the point of view of the value or dis-value of behaviour can limit those duties in principle to the state. Other agents have the capacity to undertake the behaviour in question. Furthermore, the duties are limited to the particular state which has jurisdiction over the persons in question. The state is, indeed, everywhere and powerful, and such power is particularly dangerous. Yet all of these characteristics can be attributed to other agencies as well as other states impacting on persons not under their jurisdiction. The one special capacity possessed by states is their ability to determine the status of individuals, by, for example, withdrawing citizenship rights or by defining which rights citizens have. That is a very special, and very dangerous power, if no protections exist outside of those offered to citizens. So the state focus of human rights might be explained by the need to ensure protections against this specific form of power (Pogge 2002). Yet, as state-specific as this power might be, there will be agents, as in the case of multinational corporations, who can knowingly affect the wielding of this power in ways detrimental to fundamental human interests (Frey 1997). Similarly, armed groups and insurgency movements, vying for political power, can have such effects. This also does not explain the impact on persons of states other than the one currently with jurisdiction over them. This seems to conflict with a foundational moral theory which sees only the capacity to impact on key human interests as relevant to rights-based responsibility. The obvious reason for the state-centred nature of international human rights legal obligations is the states system. International relations are built around a dominant norm, with some significant but marginal exceptions: the international ‘state consent supernorm’ (Buchanan 2001:688). That norm, and the notion of state sovereignty (however conditional) operative in the current states system is a recurrent principle shaping international human rights law in many ways. Whether that norm, and its accompanying notion of sovereignty, is justified or not is not important for our purposes, so long as we note that it is not a norm inherent to human rights ideals and principles themselves, whilst it shapes IHRL. An interesting observation is that whilst many commentators have claimed that human rights provisions alter state sovereignty, here and below we see in fact that the norms of state sovereignty alter and shape human rights provisions. By the reasoning behind NRM, no distinctions should be made in respect of the content of the rights held by individuals, against whatever body they hold them. The sole condition for receiving protection is being human, and the consequence of satisfying that condition is equal treatment in terms of human rights. IHRL requires that a state respects the human rights of those individuals under its jurisdiction. However, it does not require that the full set of rights described in IHRL is extended to all persons under its jurisdiction on an equal basis. Some ICCPR rights, IACHR and ACHR rights, such as taking part in the conduct of public affairs, voting, standing for election to public office, accessing public services, are only fully extended to citizens. 14 Article 2(3) of the ICESCR leaves it up to developing countries to determine the extent to which they will guarantee economic rights to non-nationals. Article 16 of the ECHR enables states to impose restrictions on the political activity of aliens.
Lost in translation
The human rights ideal and international human
rights law
Two perspectives
Which differences count?
The normative rights model
International human rights law
Divergences of law and ideal
Who can infringe a right?
Whose rights can be infringed?