The Right to Have Rights: From Human
Rights to Citizens’ Rights and Back
We become aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerge who had lost and could not regain these rights because of the new global political situation … The right that corresponds to this loss and that was never even mentioned among the human rights cannot be expressed in the categories of the eighteenth-century because they presume that rights spring immediately from the ‘nature’ of man … Man of the twentieth century has become just as emancipated from nature as eighteenth century man was from history … This new situation in which ‘humanity’ has in effect assumed the role formerly ascribed to nature or history, would mean in this context that the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. It is by no means certain whether this is possible. For, contrary to the best-intentioned humanitarian attempts to obtain new declarations of human rights from international organizations, it should be understood that this idea transcends the present sphere of international law which still operates in terms of reciprocal agreements and treaties between sovereign states; and for the time being a sphere that is above the nations does not exist. Furthermore, this dilemma would by no means be eliminated by the establishment of a ‘world government’. Such a world government is indeed within the realm of possibility, but one may suspect that in reality it might differ considerably from the version promoted by idealistic-minded organizations.1
(INTERNATIONAL)2 HUMAN RIGHTS3 theory is en vogue. It has been the case for quite some years in Germany,4 and is now also the case in Anglo-American circles.5 The main accounts put forward in the last 15 years are organised across a (self-imposed) divide between so-called ethical or traditional accounts of human rights6 and political or functional accounts of human rights.7 Recent attempts have been made to bridge this divide through moral-political accounts of human rights,8 or, more recently in the field of legal theory, through a moral-legal approach to human rights.9 Despite their differences, which will become clear in the course of this essay, the latter proposals share a republican conception of politics and hence of international human rights. In that context, they draw their original inspiration from Hannah Arendt’s 1949 idea of ‘the right to have rights’,10 and usually flag a reference to her argument about the relationship between (universal) human rights and (particular) democratic membership.11
In this essay, I should like to take a closer look at this argument. It is important indeed at the outset of, and as groundwork to, a republican account of international human rights,12 to assess more precisely how human rights and democratic membership—or, as I understand it here, democratic citizenship—relate.13 This is essential to the understanding of the nature and legitimacy of international human rights, both aspects being connected.14 If democracy and human rights are mutually dependent sources of legitimacy in the domestic context, it is important to wonder how they relate once decoupled by the internationalisation of human rights and potentially re-coupled, both across governance levels and at the same supranational governance level,15 and whence international human rights draw their legitimacy. And this in turn implies assessing how Arendt’s famous argument as regards their connection can still be of relevance more than 50 years after she first articulated her challenge to international human rights, and especially after half a century of steady development of international and regional law and institutions, on the one hand, and of entrenchment of international and regional human rights guarantees and adjudication, on the other.
Of course, there may be good reasons for not digging deeper than the usual passing reference to Arendt’s argument one finds in most recent discussions in human rights theory. Some may indeed object to the obsolete nature of Arendt’s arguments pertaining to international human rights, and reduce her contribution to an historical curiosity or a relic of modernity. Fears of anachronism expressed before using a 1949 argument in 2011 may, however, be placated by the legendary indeterminacy of Arendt’s political theory. Furthermore, from a theoretical perspective, the limitations of Arendt’s moral philosophy are well known; she was not a foundationalist thinker, and was clearly not interested in the philosophical justification of human rights. As a result, her argument leaves it to the moral philosopher to reconstruct a complete account of the nature of human rights. Neither are her views about the law and its relationship to morality sufficiently clear to draw conclusive arguments about the relationship between moral and legal rights. In any case, the present essay is not a contribution to a detailed exegesis of Arendt’s ideas about international law16 and human rights in particular,17 and hence to the growing field of ‘Arendtology’ in those contexts. It develops a self-standing and contemporary argument for the moral-political nature of human rights, using Arendt’s original intuition as a starting point.
Arendt’s argument about the right to have rights can best be read from her essay ‘The Decline of the Nation-State and the End of the Rights of Man’, published in 1951 in The Origins of Totalitarianism.18 Her argument was primarily based on a theoretical critique of the eighteenth-century idea of the ‘Rights of Man’, according to which human beings have rights based on their human nature or reason alone. She draws a further argument against the classical idea of human rights from her sociological and political observations: the development of nationalism and statelessness in the first half of the twentieth century, and the atrocities of the Second World War have demonstrated that no rights can be guaranteed when one is deprived of membership in a political community. As a result, there can only be one human right stricto sensu that human beings have by virtue of their humanity, and that is the ‘right to have rights’ in a given political community and hence to become a member of that community. All other rights can be guaranteed only within a given political community, and more specifically in Arendt’s account, the domestic political community.19 From that first conclusion, Arendt quickly moved to her famous aporia, however.20 That aporia resides in the inherent limitations of the Nation State and nationalism, on the one hand, and the necessary exclusions triggered by political membership, on the other, hence her legendary distrust of national sovereignty. The domestic political community becomes the solution to its own problems, in other words, but also as a result the reason for its failure to succeed where it has just failed. Faithful to her republicanism of fear,21 Arendt did not consider any alternatives plausible. She disregards the idea of a World State as potentially dangerous and hence as undesirable. Later on, in a more optimistic move, however, she placed her (dimmed) hopes in an embryonic international community; this is best exemplified in her critical report on the Eichmann trial, and her discussion of the need and possibility to develop international criminal law and to establish the jurisdiction of international criminal tribunals to try those who have become hostes humani generis.22
From a contemporary perspective, one may quibble with Arendt’s aporia and disagree in particular with her grim views about the inherent limitations of domestic politics and the absolute nature of sovereignty, on the one hand, and the underdeveloped political nature of international law and the international community, on the other.23 However, her groundbreaking analysis of the problem raised by the idea of universal human rights retains its original force more than 50 years after its first statement. Expressed at the dawn of the modern international human rights system, her argument even has the potential to lead us well beyond the intrinsic limitations of that system and provide an interesting reference in view of the development of democratic structures beyond the State.
More specifically, Arendt’s idea of a ‘right to have rights’ remains still extraordinarily actual in three related respects: first, its ability to straddle the universal and the particular by putting universal human rights and particular political membership in a mutual equilibrium and tension; secondly, its sense of the hybrid nature of human rights that Arendt situates between politics and morality, thus laying the ground for a republican notion of legality distinct from positivity24; and, lastly, her intuition about membership in a modern international community, where all of us are both insiders and outsiders at the same time depending on the political level in consideration. At the same time and despite the strength of those realisations encapsulated in one single idea, three fundamental questions remain open in Arendt’s resolutely non-foundationalist account of the right to have rights: the idea of human rights, and whether they are ‘rights’ or not and what makes them ‘human’ rights by contrast to other rights such as contractual rights for instance; the nature of those rights, and whether they are moral or legal rights; and, lastly, the level of legalisation of those rights, and who are their right-holders and duty-bearers.
Interestingly, those three questions are still at the core of most contemporary discussions of human rights.25 I shall take all three questions in turn in the following sections of this essay. I shall first argue for a moral-political account of human rights and emphasise the inherently legal nature of human rights (section II.), and then explain the relationship between international and domestic guarantees of human rights (III.).
One of the first questions one should ask about human rights pertains to their nature.26 It is also the prima facie paradox raised by the idea of a ‘right to have rights’. One way to dissolve the paradox is indeed to look more closely at the nature of human rights and to understand, as some authors do, the former as a moral right and the latter as legal rights.27 As I shall argue, this understanding does not do full justice to Arendt’s fundamental intuition, nor, more specifically, to the intrinsic legality of human rights or to the interaction between international and domestic human rights law.
In this section, I start by arguing that human rights may be understood as moral propositions, and more specifically as universal moral rights that ground moral duties. When the fundamental interests that found human rights are legally recognised, I go on to explain how human rights ought also to be described as legal rights, and how those legal rights relate to the universal moral rights they recognise, modulate or create. Even though those two dimensions of human rights are addressed separately and one after the other for the sake of the exposition, they cannot be dissociated, as will transpire in the course of the argument.
Human rights are a sub-set of universal moral rights (i) that protect fundamental and general human interests (ii) against the intervention, or in some cases nonintervention of (national, regional or international) public institutions (iii). Those three elements will be discussed in turn.
To start with, a human right exists qua moral right when an interest is a sufficient ground or reason to hold someone else (the duty-bearer) under a (categorical and exclusionary) duty to respect that interest vis-à-vis the right-holder.28 For a right to be recognised, a sufficient interest must be established and weighed against other interests and other considerations with which it might conflict in a particular social context.29 Rights are, on this account, intermediaries between interests and duties.30 Turning to the second element in the definition, human rights are moral rights of a special intensity, in that the interests protected are regarded as fundamental and general human interests that all human beings have by virtue of their humanity and not of a given status or circumstance. They include individual interests when these constitute part of a person’s well-being in an objective sense. The fundamental nature of the protected interests has to be determined by reference to the context and time rather than established once and for all.31
What makes it the case that a given individual interest is regarded as sufficiently fundamental or important to generate a duty, and that, in other words, the threshold of importance and point of passage from a general and fundamental interest to a human right is reached, may be found in the normative status of each individual qua equal member of the moral-political community.32 A person’s interests merit equal respect in virtue of her status as member of the community; those interests are recognised as socio-comparatively important by members of the community, and only then can they be recognised as human rights. This relationship to political equality bridges the sterile opposition between the individual and the group.33 The recognition of human rights is done mutually and not simply vertically, and as a result human rights are not externally promulgated as such but mutually granted by members of a given political community.34 However, human rights are not merely a consequence of individuals’ equal status, but also a way of actually earning that equal status and consolidating it. Without human rights, political equality would remain an abstract guarantee; through human rights, individuals become actors of their own equality and members of their political community.35 Human rights are power-mediators36: they both enable political equality and stem from it. Borrowing Arendt’s words, ‘we are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights’.37
In short, the proposed account of the nature of human rights follows a modified interest-based theory: it is modified by reference to considerations of equal moral-political status in a given community. Under a purely status-based or interest-based model, the manichean opposition between the individual and the group, and between his private and public autonomy would lead to unjustifiable conclusions.38 It is important to pause at this stage and clarify what is meant by political membership or inclusion into an organised political society. This will then enable me to clarify how it is neither a parochial nor an exclusive criterion, and can account for both the universality and the generality of human rights.
Political membership is a normative idea according to which a person’s interests are to be treated equally and taken into consideration in a given political group’s decision.39 Human rights protect those interests tied to membership and disrespect of which would be tantamount to treating them as outsiders. Of course, some human rights, such as civic and political rights, are more closely tied to actual membership, while others, such as the right to life, are closer to basic demands of humanity and hence to access to political membership. Even the latter rights, however, constrain what equal membership can mean if it is to be legitimate and the kind of interests it must protect. This is in line with the republican idea of the political community qua locus of rights.40 By submitting individuals to genocide, torture and other extreme forms of cruel treatment, a community excludes them and no longer treats them as equal members, thus violating the threshold of recognition of human rights: political equality.41
Of course, there can be many overlapping political communities (eg international organisations), and this argument is not limited to a national polity and to the State. Neither is the argument limited to citizens only, or at least to those citizens who are also nationals; membership ought to include to varying degrees all those normatively affected by the activities of political authorities and who are subject to the laws or decisions of the community. This includes asylum seekers, economic migrants, stateless persons and so on. As we shall see, human rights work as a political irritant and as mechanisms of gradual inclusion that lead to the extension of the political franchise, and in some cases of citizenship itself to new stakeholders in the community. Lastly, the argument does not imply that human rights apply only within national borders; if national political authorities affect the fundamental interests of other individuals outside national borders, those individuals deserve equal protection. This includes individuals and groups normatively affected by and subjected to law-making and decision-making abroad by military—and also by economic—interventions.
This brings me to the third element in the definition: human rights are entitlements against public institutions (national, regional or international). They generate duties on the part of public authorities to protect not only equal individual interests, but also individuals’ political status qua equal political actors. Public institutions are necessary for collective endeavour and political self-determination, but may also endanger them. Human rights enable the functioning of those institutions in exchange for political equality and protection from abuse of political power. This is why one can say that human rights both are protected by public institutions and provide protection against them; they exist because of collective endeavour in order both to favour and constrain it.42 Of course, other individuals may individually violate the interests protected by human rights, and ought to be prevented from doing so by public institutions and in particular through legal means.43 This ought to be the case whether those individuals’ actions and omissions may be attributed to public authorities or not qua de jure or de facto organs. However, public institutions remain the primary addressees of human rights claims and the primary duty-bearers.44
In short, the proposed account is moral in the justification it provides for human rights, and political in the function with which it sees them vested: they are indeed regarded both as shields against the State and as guarantees of political inclusion. In terms of justification, its moral-political dimension differs not only from accounts based on a purely ethical justification of human rights, but also from accounts that seek a political form of minimalist justification of human rights.45 In other words, the proposed moral-political account of human rights can salvage the political role of human rights without diluting their moral justification.46
It follows from the moral-political nature of human rights that the law is an important dimension of their recognition and existence. It is time to understand exactly how this is the case, and to unpack the inherently legal dimension of human rights.
Just as moral rights are moral propositions and sources of moral duties, legal rights are legal propositions and sources of legal duties. They are moral interests recognised by the law as sufficiently important to generate moral duties.47 The same may be said of legal human rights: legal human rights are fundamental and general moral interests recognised by the law as sufficiently important to generate moral duties.
Generally speaking, moral rights can exist independently from legal rights, but legal rights recognise, modify or create moral rights by recognising moral interests as sufficiently important to generate moral duties.48 Of course, there may be ways of protecting moral interests or even independent moral rights legally without recognising them as legal ‘rights’. Conversely, some legal rights may not actually protect pre-existing moral rights or create moral rights, thus only bearing the name of ‘rights’ and generating legal duties at the most.49 The same cannot be said of human rights more specifically, however. True, universal moral interests and rights may be legally protected without being recognised as legal ‘rights’. But, as we shall see, human rights stricto sensu can only exist as moral rights qua legal rights. Conversely, one may imagine legal norms referred to as human rights that do not correspond to moral human rights. In such a case, the legal norms named ‘human rights’ would give rise only to legal duties and not to moral (rights-based) duties. Legal human rights, however, can be regarded as rights stricto sensu only when their corresponding duties are not only legal, but also moral.
Two additional remarks are in order on the relationship between moral and legal rights, and on the relationship between moral and legal human rights. The differences between rights and human rights, on the one hand, and between their respective moral and legal dimensions, on the other, can be quite important given the moral-political nature of human rights and what this implies in turn for their inherently moral and legal nature.
Not all moral rights are legally recognised as legal rights, on the one hand. There are many examples of moral rights which have not been recognised as legal rights. Neither should all moral rights be recognised and protected legally. Respect for them should be a matter of individual conscience in priority.
The same cannot be said about human rights, however. True, not all universal moral rights have been or are legally recognised as legal human rights. Some are even expressly recognised as universal moral rights by the law even though they are not made into legal rights or modulated by the law.50 A distinct question is whether they ought to be legalised and hence protected by law. Again, respect for universal moral rights ought to be voluntary in priority, and this independently from any institutional involvement. However, the universal moral rights that will become human rights create moral duties for institutions, and hence for the law as well, to recognise and protect human rights.51 Based on the moral-political account of human rights presented previously, the law provides the best and perhaps the only way of mutually recognising the comparative importance of those interests in a political community of equals.52 It enables the weighing of those interests against each other and the drawing of the political equality threshold or comparative line. In short, the law makes them human rights stricto sensu. As a result, in the moral-political account of human rights propounded here, the legal recognition of a fundamental human interest, in conditions of political equality, is part of the creation of a moral-political human right. In other words, while being independently justified morally and having a universal and general scope, human rights qua subset of universal moral rights are also of an inherently legal nature. To quote Jürgen Habermas, ‘they are conceptually oriented towards positive enactment by legislative bodies’.53 Thus, while legal rights stricto sensu are necessarily moral in nature (qua rights), human rights (qua rights) are not only necessarily moral but also legal, and they are as a result both moral and legal rights.
Neither, on the other hand, do legal rights necessarily always pre-exist as independent moral rights. Most do, and are legally recognised moral rights,54 but others are legally-created or legally specified moral rights.55