Human rights, international human rights, and sovereign political authority: a draft model for understanding contemporary human rights

Abstract

Over the past few years, two main approaches have been suggested for analyzing human rights: the natural rights model and the political approach. This essay argues that neither of these accounts offers an accurate understanding of contemporary human rights and introduces an alternative model to think about them that combines elements of both views: the two-tier model. The first layer of the model reconstructs the concept of human rights as a moral category. This moral category articulates conditions that any agent wielding sovereign political authority must fulfill in order to treat human beings with the respect and concern they deserve, and postulates five abstract rights that may lead to alternative lists of concrete human rights in different social and historical settings. In contrast, the second layer of the two-tier model aims to illuminate the practice of international human rights. Although, upon this view, international human rights are grounded on the notion depicted by the first layer of the model, they constitute a historical practice that cannot be completely reduced to any prior idea. As a result of this, current human rights practice may include elements that were not already present in the concept of human rights. Thus, human rights turn out to be at the same time natural and political, conceptual and historical, moral and positive, domestic and global.

• international community
• natural rights model
• political model
• equal concern and respect
• international cooperation

ACKNOWLEDGEMENTS

For their comments on earlier versions of this article, I would thank Osvaldo Guariglia, Saladin Meckled-García, Pablo Gilabert, Eduardo Rivera López, Cristina Lafont, Chiara Cordelli, Ian Walling, Facundo García Valverde, Fran García Gibson, Guillermo Lariguet, Ezequiel Monti, Nahuel Maisley, Marina Velazco, and Paula Arturo, and two anonymous referees for Ethics and Global Politics.

Notes

1. Alan Gewirth, Human Rights. Essays on Justification and Application (Chicago: The University of Chicago Press, 1982); James Griffin, On Human Rights (Oxford: Oxford University Press, 2008); Martha Nussbaum, ‘Capabilities and Human Rights’, in Global Justice and Transnational Politics. Essays on the Moral and Political Challenges of Globalization, ed. Pablo De Grieff and Ciaran Cronin (Cambridge, MA: The MIT Press, 2002): 117–50; John Tasioulas, ‘Human Rights, Universality and the Values of Personhood: Rectifying Griffin's Steps’, European Journal of Philosophy 10 (2002): 79–100; Amartya Sen, ‘Elements for a Theory of Human Rights’, Philosophy and Public Affairs 32, no. 4 (2004): 315–56; Pablo Gilabert, ‘Humanist and Political Perspectives on Human Rights’, Political Theory 39, no. 4 (2011): 438–67.

2. Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009); John Rawls, The Law of Peoples with the ‘Idea of Public Reason Revisited’ (Cambridge, MA: Harvard University Press, 1999); Joseph Raz, ‘Human Rights Without Foundations’, http://www.ucl.ac.uk/laws/jurisprudence/docs/2008/08_coll_raz.pdf, (accessed October 6, 2014); Andrea Sangiovanni, ‘Justice and the Priority of Politics to Morality’, Journal of Political Philosophy 16, no. 2 (2008): 137–64; Joshua Cohen, ‘Minimalism about Human Rights: The Most We Can Hope For?’ Journal of Political Philosophy 12, no. 2 (2004): 190–213.

3. An exception to this may be Raz, who admits that human rights standards may regulate the behavior of non-state actors, such as international agents and individuals, provided their infringement also constitutes a reason for action against the offending state in the international arena. See Raz, ‘Human Rights without Foundations’, 10.

4. See note 1.

5. See Allen Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), 119; Raz, ‘Human Rights without Foundations’, 3; Gilabert, ‘Humanist and Political Perspectives’, 440; Laura Valentini, ‘Human Rights, Freedom and Political Authority’, Political Theory 40, no. 5 (2012): 575; Beitz, The Idea of Human Rights, 49; Sangiovanni, ‘Justice and the Priority of Politics’, 16–7; Tasioulas, ‘Human Rights, Universality and the Values of Personhood’, 82. It may be worth mentioning that some advocates of the natural rights model distinguish between basic human rights and derivate human rights. Basic human rights, such as freedom of expression, stem from moral values such as autonomy, normative agency or personhood alone. Other human rights, such as freedom of the press, derive instead from basic human rights under specific social or institutional circumstances. See, for example, Griffin, On Human Rights, 49–50.

6. Griffin, On Human Rights, 33–5; Nussbaum, ‘Capabilities and Human Rights’, 129–31; Gewirth, Human Rights, 55–8.

7. Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity Press, 2002), 57; Beitz, The Idea of Human Rights, 57; Cohen, ‘Minimalism about Human Rights’, 196; Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 2003), 23; Valentini, ‘Human Rights, Freedom and Political Authority’, 576; James Nickel, Making Sense of Human Rights (Oxford: Blackwell Publishing, 2007), 36.

8. See, for example, Andrew Clapham, Human Rights Obligations of Non-Sate Actors (Oxford: Oxford University Press, 2006).

9. UDHR, Preamble.

10. Nickel, Making Sense, 39.

11. Nickel, Ibid., 62; Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2001), 56; Buchanan, Justice, Legitimacy and Self-Determination, 127; Cohen, ‘Minimalism about Human Rights’, 210.

12. Rawls, The Law of Peoples, 79–80; Raz, ‘Human Rights without Foundations’, 9, footnote 14; Sangiovanni, ‘Justice and the Priority of Politics’, 18–9; Beitz, The Idea of Human Rights, 31–40.

13. Beitz, Ibid., 137.

14. Nickel, Making Sense; Laura Valentini, ‘In What Sense Are Human Rights Political? A Preliminary Exploration’, Political Studies 60, no. 1 (2012): 183.

15. See Sangiovanni, ‘Justice and the Priority of Politics’, 17; Beitz, The Idea of Human Rights, 57; Raz, ‘Human Rights without Foundations’, 40.

16. Beitz, Ibid., 140; Sangiovanni, Ibid., 19; Raz, Ibid., 12.

17. Lafont, Global Governance and Human Rights (Amsterdam: Van Gorcum, 2012), 19; John Tasioulas, ‘Are Human Rights Essentially Triggers for Intervention?’, Philosophy Compass 4/6 (2009): 945.

18. As already noted, an exception to this may be Raz, who claims that human rights may also be held by international organizations. See Raz, ‘Human Rights without Foundations’, 9–10.

19. Lafont, Global Governance, 27; Beitz, The Idea of Human Rights, 124.

20. Sigrun Skogly and Mark Gibney, ‘Transnational Human Rights Obligations’, Human Rights Quarterly 24 (2002): 781–94; Mark Gibney, Katerina Tomasevski and Jens Vedsted-Hansen, ‘Transnational State Responsibility for Human Rights’, Harvard Human Rights Law Journal 12 (1999): 268–83; Cassese, International Law (Oxford: Oxford University Press, 2005), 384–93; Andrew Clapham, Human Rights Obligations of Non-State Actors, 137–93; Salomon, Global Responsibilities. World Poverty and the Development of International Law (Oxford: Oxford University Press, 2007), 180–95; Lafont, Ibid., 39–43. See more on the global scope of human rights norms under current international law in the next section.

21. In support of this thesis, it is worth mentioning that in its Preamble, the UN Charter speaks of reaffirming faith in fundamental human rights. This strongly suggests that the framers did not intend to create a completely new practice, but rather to institutionalize a prior category that they assumed as pre-existent and, to a certain extent, already operative. On this point, see Carl Wellman, The Moral Dimensions of Human Rights (Oxford: Oxford University Press, 2011), 54–5; Cristian Barry and Nicholas Southwood, ‘What Is Special about Human Rights’, Ethics and International Affairs 25, no. 3 (2011): 1–15.

22. For similar, though not identical, lists of fundamental human rights, see Nickel, Making Sense, 62; Buchanan, Justice, Legitimacy and Self-Determination, 129; Donnelly, Universal Human Rights, 44–6.

23. Gilabert, ‘Humanist and Political Perspectives’, 443–7; Lafont, Global Governance, 31; Wellman, Moral Dimensions, 28.

24. Ronald Dworkin, Justice for Hedgehogs (New York: Harvard University Press, 2011), 335; Donnelly, Universal Human Rights, 38–47. The five abstract claims put forward by the two-tier model only express necessary or minimal conditions for treating individual human beings with the respect and concern they deserve. Specific political conceptions may demand additional requirements in order to speak of full respect, such as, for instance, implementing Rawls’ Difference Principle.

25. Gilabert, ‘Humanist and Political Perspectives’, 17–20; Donnelly, Universal Human Rights, 51–3.

26. The thesis that international human rights practice should not be reduced to a prior moral category has been forcefully defended by Allen Buchanan. In spite of this similarity, I am afraid that Buchanan would denounce the two-tier model as just another version of what he calls the ‘Mirroring View’. See Allen Buchanan, The Heart of Human Rights (Oxford: Oxford University Press, 2013), Introduction.

27. Cassese, International Law, 39; Salomon, Global Responsibilities, 13, 21; Allen Rosas, ‘State Sovereignty and Human Rights: Towards a Global Constitutional Project’, Political Studies XLIII (1995): 61–6; Lafont, Global Governance, 21–3.

28. The two-tier model does not maintain that all the rights contained in international human rights documents derive from these five fundamental claims. Although international human rights doctrine is to be regarded as a particular development of those abstract claims, the international community may have partially misinterpreted the content of these claims and current human rights doctrine may, thus, need revision.

29. Beitz, The Idea of Human Rights, 111; Donnelly, International Human Rights, 24.

30. UN, Universal Declaration of Human Rights, Arts 1, 55, 56; UN, International Covenant on Economic, Social and Cultural Rights, Art. 2 (1); UN, Convention of the Rights of the Child (1986), UN Doc A/44/49, Art. 4; United Nations Human Rights Committee, Sergio Euben López Burgos v. Uruguay, UN Doc. Supp. N. 40 (A/36/40) 1981; UN Committee Against Torture, Conclusions and Recommendations of the Committee against Torture: United States of America (2000), A 55/44, 175–80. For a comprehensive account of the legal grounds of this obligation, see Skogly and Gibney, ‘Transnational Human Rights Obligations’ and Gibney, Tomasevski and Vested-Hansen, ‘Transnational State Responsibility’.

31. UN, United Nations World Summit for Social Development and Beyond: Achieving Social Development for All in a Globalized World (2000), General Assembly Res A/RES/S-24/2 149b; Clapham, ‘Human Rights Obligations’, 137–57.

32. To discharge their human rights responsibilities, global governance institutions may consider setting-up mechanisms for assessing the human rights impact of their policies before they are implemented, monitoring the effects of their activities over the satisfaction of human rights and redressing any adverse effects that their programs may have.

33. UN, United Nations World Summit Outcome 2005 (2005), UN Doc A/60/L 1; Luke Glanville, ‘The Responsibility to Protect Beyond Borders’, Human Rights Law Review 12, no. 1 (2012): 15–30.

34. UN, International Covenant on Economic, Social and Cultural Rights, Articles 2, 22 and 23; UN, Declaration on the Right to Development (1986), General Assembly Res. A/RES/22004A (XXI) 993 UNTS 3.

35. UN, Vienna Declaration and Program of Action, I, 12; UN, United Nations Millennium Declaration, UN DOC A/55/2, III, 13; UN.

36. UN, United Nations Millennium Declaration, III, 20.

37. UN, Vienna Declaration, I, 14; Pogge, World Poverty and Human Rights, 64–70.

38. UN, Universal Declaration of Human Rights, Preamble.