Taking Account of Violations: Rethinking Equality and Human Rights

Abstract

What should commitment to the norm of equality mean in human rights discourse? The focus of this article is on the relation between the intrinsically individualistic character of human rights—the fact that they apply to all individuals equally—and the other equalities that human rights discourse, in its broadest sense, has found it necessary to endorse. It is shown how, in order to take fuller account of specific aspects of human-rights-violating behavior that arise in the world as it is, a commitment to the norm of equality in human rights discourse should explicitly mean a commitment to three distinct, competing but interacting principles of equality. It is also shown how, because of the different balances they give to these principles, some influential liberal theories of nondomestic justice fail to properly capture the importance of this interaction to the human rights project at large. To that end, I explore two competing approaches to rights: that favored by some cosmopolitan-liberals and that proposed by John Rawls.

Acknowledgments

Caroline Walsh (PhD, Queen's University Belfast) is a Research Consultant. Her research interests lie in contemporary theories of justice. Her previous publications include articles in Contemporary Political Theory, the European Journal of Political Theory, and Human Rights Review.

I am grateful to the Irish Research Council for the Humanities and Social Sciences (IRCHSS) for providing funding that made research for this article possible as part of a Postdoctoral Fellowship. I wish to acknowledge the insightful comments received on this article from John Baker.

Notes

1. Clearly the identification of human-rights-violating behavior presupposes a specific conception of rights since we cannot establish what counts as a violation of such norms without first specifying their content. On the question of content, see Abdullahi An-Na’im (1992b), whose compelling suggestion is that we should forge a working conception from currently existing international human rights standards (An-Na’im, 1992b: 432), that is, the content of the core documents of the international human rights regime. For An-Na’im, such a conception provides a useful normative starting point to intercultural dialogue and intracultural discourse aimed ultimately at truly universalizing these norms by consolidating cross-cultural agreement on them. He allows for the possibility that during these dialogical processes some of that existing content may undergo revision.

2. We see that, within these theories, the question of content links to the question of equality in as much as their treatments of equality help to determine their accounts of the substance of such rights. But the substantive point is that the theories’ failure to take adequate account of certain dimensions of rights-violating behavior can be traced to, and so originates with, the nature of these treatments.

3. States’ capacities to deliver on human rights obligations are obviously affected by many other factors such as levels of economic development and political stability.

4. This is not, of course, to imply that within these weak states there is always already in place either the political will to deliver on these obligations or sufficient local justificatory support for human rights.

5. The case against this kind of unjustified intervention can feasibly also be made on the grounds of individual human rights without recourse to ideas about equality among states. This is because, judged by the standards of the intervening power, interventions that are supposed to be based on protecting the human rights of individuals in the intervened-in society can in fact involve violating the human rights of those very individuals.

6. Clearly this “positive” aspect has a negative counterpart, in so far as sustained respect for the integrity of states boundaries can leave unchecked gross violations of human rights. On this view, it is ironic that obligations to protect human rights should fall to states since (1) states tend to be the primary violators of these rights and (2) increasingly powerful nonstate actors also count among this number. To some extent, international law has a mechanism to respond to this tension between what is officially implied and what is actually achieved in terms of the protection of human rights, since under the UN Charter system there is some scope to authorize interventionist action (see James Pattison 2008).

7. My reason for not focussing on a third account (i.e., one that privileges equality among groups) is that exploration of the two chosen approaches is itself sufficient to affirm the need for group-based equality in human rights discourse.

8. The integration of East Asian countries into the global economy illustrates this ambiguity: contrast Yash Ghai (1999) and Kevin Tan (1999).

9. See for example, Ana Gonzalez-Pelaez (2005) and Thomas Cottier et al. (2005). Though widely accepted, the claim that such a correlation exists does still attract criticism. The contrary (neoliberal) view is that the trade-related changes required of developing countries to secure their integration into the global economy deliver increased growth that improves their rights-fulfilling capacities; see Julie Harrelson-Stephens and Rhonda Callaway (2003). Yet growth cannot tackle the underfulfilment of rights associated with poverty on its own, and experiences of growth may actually be accompanied by increased inequality (Tsikata and Kerr 2000: 7–8). Moreover, the rate at which poorer countries integrate into the global economy is a key factor in determining their fate. An “excessively fast” integration—that is, one that does not permit states to develop “relatively quickly behind protective barriers, before they [have] liberalised their trade”—can tend to leave poorer states worse off (Held 2005a: 12). And yet, on the whole, the influential international financial institutions are disinclined to slow integration. For a comparison of both positions, see David Held and Anthony McGrew (2002).

10. Obviously it cannot be taken for granted that within these poorer states there always already exists the political will to deliver on these obligations.

11. In addition to internal discourse, this kind of reinterpretation can also be influenced by cross-cultural dialogue that entails learning from the other (An-Na’im 1992a: 22). On this cultural interpretivist view of widening compliance with international human rights standards, it is presupposed that “every culture will have its distinctive ways of formulating and supporting human rights” (Schwartz 1990: 382, emphasis added).

12. The notion of “prior” claims here refers to claims resultant from indigenous peoples’ prior possession of the given land and its resources.

13. On the link between trade and human rights in respect of poverty and gender relations, see Marzia Fontana et al. (1998) and Nilifer Çağatay (2001). Trade liberalization can have more positive outcomes, but these are more likely to take place when liberalization is supported by “safety net” measures for the most vulnerable, for instance, poverty reduction programmes and protections for infant industries (Held 2005b: 166).