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ABSTRACT
Humanist and political conceptions of human rights disagree about whether human rights are best conceived as either general or associative rights. According to humanist conceptions human rights are those (general) rights that human beings have in virtue of their humanity. According to political conceptions, human rights are those (associative) rights that individuals have against the state (or some such agent) in virtue of being subject to its authority. In this essay I defend the humanist claim against the view that human rights are best understood as associative rights. Political conceptions are correct in claiming that human rights practice does not merely try to identify those rights that human beings have in virtue of their humanity. Instead, the practice also tries ‘to secure universal and effective recognition and observance’ of these rights (UN Charter, UDHR, etc.). This means that the practice must also identify agents (such as states) who have duties to protect and to fulfill human rights. However, even if this allocation of duties is justified on the basis of special relationships this does not turn human rights into associative rights. I defend this claim in two steps. First, I offer a detailed analysis of Beitz’s and Macklem’s versions of the political approach in order to show how their respective conceptual strategies each run into internal difficulties. Second, I analyze the tripartite structure of human rights obligations to respect, to protect, and to fulfill rights, as it has been adopted in human rights practice. Disaggregating these obligations and analyzing their distinctive features helps explain why human rights are universal rights from within human rights practice itself.
Acknowledgments
I presented a previous version of this essay in a workshop on “C. Beitz’s The Idea of Human Rights. Ten Years After,” at the 2019 Annual Meeting on Ethics and Political Philosophy in Braga, Portugal. I would like to thank the workshop participants for their interesting questions and comments.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. This is the most general way of expressing the political view but some varieties of the political approach identify a particular form of political authority such as state authority as constitutive for human rights. E.g. for Charles Beitz, human rights are claims against the state in particular: “Human rights are the constitutive norms of a global practice whose aim is to protect individuals against threats to their most important interests arising from the acts and omissions of their governments (including failures to regulate the conduct of other agents)” (Beitz, Citation2009, p. 197). All that matters for the purposes of my argument is the view of human rights as associative rights, i.e. rights that are grounded on special relationships and therefore give rise to only special, not universal obligations.
2. E.g. Gilabert (Citation2011), Liao and Etinson (Citation2012), and Mayr (Citation2011).
3. In “Human Rights: A Critique of the Raz/Rawls Approach,” Waldron (Citation2018) draws a similar distinction, although he uses a different terminology, namely, “the human bearer approach” vs “the human concern approach.”
4. It is important to note that negative duties to respect can generate positive obligations. An example within human rights practice is the positive obligation of corporations to exercise due diligence by engaging in human rights impact assessments of their actions. See “Guiding Principles on Business and Human Rights” (United Nations, Citation2011). For examples of direct human rights duties imposed on private actors in international law see Ratner (Citation2001), esp. pp. 478–487; Knox (Citation2008). Another example of direct human rights duties imposed on private actors is the indictment in international courts of leaders of non-state armed guerilla groups who engage in human rights violations such as ethnic cleansing or crimes against humanity. For a good overview on this issue see Clapham (Citation2006), pp. 271–316.
5. The explicit link between human rights and human dignity can be found in a majority of human rights documents, most notably in the preambles of the UN Charter, the UDHR, the ICCPR and the ICSECR. Multiple references to human dignity are also present in the American Convention on Human Rights (1969), the Helsinki Final Act (1975), the African Charter of Human and People’s Rights (1986), the Vienna Declaration (1993), the Arab Charter on Human Rights (1994), etc. In addition, in 1986 the General Assembly passed a resolution indicating that new human rights instruments should ‘derive from the inherent dignity and worth of the human person’ (A/Res41/120, United Nations Citation1986). I offer an analysis of the practical significance of the claim that human rights derive from the inherent dignity of the human person within human rights practice in “Should we take the ‘Human’ out of Human Rights? Human Dignity in a Corporate World” (Lafont, Citation2016).
6. The distinction between obligations to respect, to protect and to fulfil human rights has become standard terminology within human rights practice. It is used to identify the distinct duties implicitly contained in the human rights conventions and treaties that states have ratified. The meaning of each of these obligations is briefly stated on the UN official website as follows: “By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights,” (United Nations, Citationn.d.). This terminology was first introduced in 1987 by Asbjørn Eide (Citation1987) in the context of his work as UN Special Rapporteur on the right to adequate food. However, the conceptualization of the multiple-obligations structure applicable to all human rights expressed in this tripartite division was originally proposed with a different wording by Henry Shue (Citation1980).
7. E.g. Tasioulas (Citation2009), pp. 945ff.; Griffin (Citation2010), pp. 751–52.
8. For a similar line of argument see Sangiovanni (Citation2018), p. 182.
9. For an example of this conceptual strategy see e.g., Besson (Citation2015), p. 253.
10. Many consequentialists, however, reject that view. For an overview on this question see e.g., Jeske (Citation2019).
11. This is true of any claim rights, not just the right to life. E.g. parents have an obligation to protect the right to food of their children from violations by third parties. But the third parties in question also have an obligation to respect children’s right to food (e.g., not to steal their food).
12. The nationality principle permits states to exercise criminal jurisdiction over any of its nationals accused of criminal offenses in other states (i.e. against nationals of other states). See Shaw (Citationn.d.), “International Law.”
13. This is the important insight behind Arendt’s famous critique of human rights in The Origins of Totalitarianism (Arendt, Citation1951). Unless duties to protect and to fulfil human rights are allocated to actors who are willing and able to discharge them it is impossible to secure their universal respect and observance. To simply declare or recognize that all human beings have inalienable human rights in virtue of being human does nothing to secure such rights. Arendt highlights this important point as follows: “The Rights of Man, after all, had been defined as ‘inalienable’ because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect [emphasis added] them and no institution was willing to guarantee [emphasis added] them” (Arendt, Citation1951, p. 291). As she convincingly argues, this assumption was forever shattered with the emergence of millions of stateless persons after World War I: “the conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationship – except that they were still human. The world found nothing sacred in the abstract nakedness of being human. And in view of objective political conditions, it is hard to say how the concepts of man upon which human rights are based…could have helped to find a solution to the problem.” (Arendt, Citation1951, pp. 299–300). Indeed, what was needed was not a conceptual analysis of human rights but an international commitment “to secure their universal and effective recognition and observance.” (UN Charter, UDHR, etc.) Pace Arendt’s own skepticism, this is precisely the significance of the development of human rights practice after WWII, however limited and imperfect it might be.
14. As Luban puts it in “Human Rights, Pragmatism and Human Dignity,” “by legalizing international human rights the international community deputizes domestic courts and legislatures to help enforce them” (Luban, Citation2015, p. 265).
15. For a convincing critique of this line of argument see Hessler (Citation2012), “Political Legitimacy and Women’s Human Rights,” pp. 2–4.
16. See e.g., Gilabert (Citation2018), pp. 61–83.
17. Beitz explains the ‘second level’ as follows: “A government’s failure to carry out its first level responsibilities may be a reason for action for appropriately placed and capable ‘second level’ agents outside the state in three overlapping kinds of circumstances: (a) the international community may through its political institutions hold states accountable for carrying out the first level responsibilities listed above; (b) states and non-state agents with the means to act effectively have pro tanto reasons to assist an individual state to satisfy human rights standards in cases in which the state itself lacks the capacity to do so; and (c) states and non-state agents with the means to act effectively have pro tanto reasons to interfere in an individual state to protect human rights in cases in which the state fails through a lack of will to do so” (Beitz, Citation2009, pp. 108–109).
18. In terms of fidelity to actual practice, the UNHCR “has a specific mandate to contribute to the prevention and reduction of statelessness and to the protection of stateless people … protecting the stateless requires developing measures to guarantee enjoyment of the full range of human rights including the right to an effective nationality. The 1954 Convention relating to the Status of Stateless Persons sets out a framework for the protection of stateless persons which is complemented by international human rights law.” United Nations Citation2008.
19. The Guiding Principles were approved by the UN Human Rights Council in 2011, available at https://www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf.
20. The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights do not establish new elements of human rights law, but instead clarify extraterritorial obligations of States on the basis of existing international law. According to the Principles, parties may hold States accountable for violating human rights of people outside of their own territories, available at https://www.etoconsortium.org/nc/en/main-navigation/library/maastricht-principles/?tx_drblob_pi1%5BdownloadUid%5D=23.
21. I develop this argument in more detail in “Should we take the “Human” out of Human Rights? Human Dignity in a Corporate World,” (Lafont, Citation2016) esp. pp. 235–237.
22. For a discussion of specific examples see Lafont (Citation2016). For a similar line of argument see Cohen (Citation2017).
23. For a detailed argument along these lines see Lafont (Citation2016), “Should we take the “Human” out of Human Rights? Human Dignity in a Corporate World,” esp. pp. 250–252.
24. See Luban (Citation2015). The context of Luban’s argument is a commentary on some early work on human rights by A. Buchanan (Citation2015); its overall aim is to show that “without some connection between international legal human rights (ILHRs) and moral human rights, Buchanan’s pragmatist defense of ILHRs will not work. [E]ven on its own terms, a pragmatist and institutional argument cannot throw ILHRs’ theoretical connection with moral rights overboard, as excess baggage.” (Luban, Citation2015, p. 266) In my view, this argument applies to all varieties of the practical approach to human rights that reject the moral core of human rights practice. Luban’s own approach is an interesting exception to this trend.
25. Luban’s example is used in the following context: “If legal human rights are just another bit of positive law, then why should anyone invest time and money, let alone risk their lives, to mobilize around ILHRs? Why should state leaders (pretend to) feel ashamed about violating them, any more than they feel ashamed about violating technical regulations about the size and shape of cartons in international shipping?” (Luban, Citation2015, p. 268).
26. See McCrudden (Citation2008), “Human Dignity and Judicial Interpretation of Human Rights,” and (n.d.) “Jurisprudence of Dignity.”
27. I refer to human dignity because it is the concept that is used in human rights documents to express the humanist core of human rights practice. However, similar notions such as “common humanity”, “equal moral status” etc. could serve the same function in a theory of human rights. My critique targets human rights theories that purport to eliminate all such humanist notions and not just the notion of human dignity in particular.
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Cristina Lafont
Cristina Lafont is Harold H. and Virginia Anderson Professor of Philosophy at Northwestern University where she is Chair of the philosophy department and Director of the Program in Critical Theory. She is the author of Democracy without Shortcuts. A Participatory Conception of Deliberative Democracy (Oxford University Press, 2020); Global Governance and Human Rights (Spinoza Lecture Series, van Gorcum, 2012); Heidegger, Language, and World-disclosure (Cambridge University Press, 2000), The Linguistic Turn in Hermeneutic Philosophy (MIT Press, 1999), and co-editor of Critical Theory in Critical Times: Transforming the Global Political and Economic Order (Columbia University Press, 2017) and the Habermas Handbook (Columbia University Press, 2017). Some of her recent articles include ‘Neoliberal Globalization and the International Protection of Human Rights,’ Constellations 25/3 (2018), 315–328; ‘Should we take the “Human” out of Human Rights? Human Dignity in a Corporate World,’ Ethics & International Affairs, 30/2 (2016), 233–252; ‘Sovereignty and the International Protection of Human Rights,’ The Journal of Political Philosophy, 24/4 (2016), 427–445.