Representatives of the human rights movement claim that the contemporary canon of human
rights forms a indivisible and interdependent system of norms so that it is improper for
governments to pick and choose among human rights those which they will honor while
interpreting other human rights as optional, dispensable, non-obligatory, or even as
"unreal." But the notion of the indivisibility of human rights has come under
attack in recent years by some Asian governments which have claimed that the contemporary
canon of human rights represents "Western values" which are in many respects
inconsistent with "Asian values." At the same time, some Western governments, in
particular the United States of America, have failed to ratify several of the covenants
dealing with economic, social, and cultural rights, claiming that the rights represented
in these instruments are merely "aspirational."
The contemporary canon of human rights refers to the entire set of internationally
recognized human rights declarations and conventions, beginning with the Universal
Declaration of Human Rights (1948) and including all of the subsequently drafted and
enacted international human rights instruments, such as the Convention on the
Elimination of All Forms of Discrimination Against Women, the Declaration on the
Right to Development, the UN Convention on the Rights of the Child and several
dozens of other international documents which identify and codify human rights norms.
Given that each of these documents contain several dozen articles, many of which describe
several, complex rights, all together there are probably well over one hundred things that
can be identified as "human rights" based on the canon. Can all of these really
be human rights? Aren’t some of them really just hopes or aspirations rather than
"real" human rights? Can all of these different rights really form an
interdependent and indivisible system?
It is possible to answer critics of the doctrine of the indivisibility of human rights,
but in order to do so one needs to understand what human rights are, how they function
in ethical and political discourse, and how particular rights are related to one
another. To begin with we need a serviceable definition of what a right is. Rights
are normally classified in several ways: there are moral rights as well as legal
rights, core and derivative rights, negative and positive rights,
as well types of rights such as civil, judicial, political, economic, cultural, and
social rights. But all of the rights classified in these various ways do have
something in common, and this is the fact that they are all rights. But what is a right?
To call something a right is clearly to give it a special moral status, but what does
having this status entail? I offer the following basic definition of a right:
An agent A has a right R to a particular good G if and only if
the possession of R by A provides the basis of a justified claim that society has a duty
to protect A’s enjoyment of the good G. (1)
The particular goods G referred to here can range over many different sorts of things:
e.g., interests, liberties, and powers, or access to the necessary means of satisfying
one’s interests or exercising one’s liberties or powers. The sorts of claims
derived from rights R can be either moral claims or legal claims or both, but in either
case, they are claims that call forth duties from other members of society directed
towards the right-holder. The corresponding duties of society can be ascribed to various
different agents, e.g., governments, individuals, or in some cases, non-governmental
organizations such as private agencies or corporations. What is important about rights is
that they give their holders a basis for claiming that other agents within society have
certain duties which they are bound to fulfill with respect to their, (i.e., the
right-holder’s) enjoyment of certain goods. Rights, in short, ground of duties of
others which benefit the right-holder.
Having provided this general definition of what a right is, we can now attempt to say
what human rights are. Human rights are rights which belong to all people, at all
times, in all situations, and in all societies. They normally come into existence as moral
rights, that is, as ethical claims that a certain personal good be always and
everywhere protected by society, but they can and often do evolve into legal rights
which are recognized within international or domestic national laws. While this definition
provides a formal characterization of what we generally mean when we call something a
human right – it is a kind of right that belongs to persons qua persons,
– it does not really give us much guidance in understanding why human rights are
needed, how they arose, and how they function in order to guarantee the enjoyment of
certain goods for everyone.
Moreover, it appears that some things which are called "human rights" really
do not apply to everyone. For instance, we have women’s rights, children’s
rights, worker’s refugee rights, rights of indigenous peoples, and other categories
of so-called special rights. But, how can there be special human rights which apply to
only some sorts of persons when human rights are rights which are supposed to belong to
all persons?
Historically speaking, human rights are normative responses to experiences of
oppression. To be oppressed is to be subject to the unjust or cruel exercise of
authority or power, particularly, when those who exercise that power or authority are so
dominant that the people who are oppressed cannot effectively protect their own basic
interests through the exercise of liberties or powers at their command. Oppressed people
are vulnerable in particular ways because they are subject to domination by forces
beyond their control. Seeing human rights as normative, i.e., ethical and/or legal
responses, to systems of oppression and domination provides the key to understanding how
human rights function in political discourse and how they hang together to form a unity.
Taken as a whole, the canon of human rights provides a set of specific protections
against various known forms of oppression and domination. Since they are rights, they aim
to call forth duties on the part of other agents within society to protect and defend the
important interests, liberties or powers of those who are being oppressed. Social
cooperation is required in such cases precisely because since people are oppressed and
vulnerable they normally lack the ability or power to fully or effectively protect and
defend their own interests. Together, these norms function to protect human dignity, that
is, the condition of not being oppressed and therefore being free from the
effects of external forms of power and authority which effectively prevent or inhibit the
full realization of one’s basic interests as a person. Human rights exist precisely
in order to protect vulnerable individuals and groups from systems of domination and
oppression, and this is their true function.
Each successive "generation" of human rights has arisen historically as a set
of normative responses to policies, practices, and institutional systems which were felt
to be oppressive by some group or other. One of the oldest of all human rights, the right
of habeus corpus arose in thirteenth century England because a group of English
noblemen felt oppressed by the practices of the King in dealing with their fellows:
basically the King was "disappearing" them. Most of the rights of the
Enlightenment, such as freedom of religion, arose because of the phenomenon of religious
persecution and wars resulting from it were felt to be oppressive by many religious
groups. The right against slavery, which, one must recall was only legitimated in the mid
to late eighteenth century, arose as a moral rebellion against this oppressive
institution. And so on for all of the later rights in the "second" and
"third" generations which are essentially responses to the forms of economic and
political oppression and exploitation associated with the rise of industrial capitalism
and colonialism. Trade union rights, for instance, are human rights because they provide
some safeguards against the total domination of workers by their employers and empower
workers to protect their own interests against these often much more powerful forces
through collective bargaining. The most important "third" generation right, the
right to national self-determination, is quite clearly a response to colonialism and
imperialism and is designed to ensure that such systems of political and economic
domination and exploitation of one people by another do not recur. Even some of the newest
human rights, like the right to development, or the right to live in an unpolluted
environment, are attempts to establish ethical and legal norms which will protect people
against new threats to their well-being created by systems of power upon whose actions
their fates depend but which they cannot control.
Human rights, generally speaking, function to restrain the powerful in order to protect
the vital interests of the vulnerable. Thus, to claim that something is a human right is
to implicitly claim that everyone, everywhere, and at all times, is in principle
vulnerable to a certain abusive forms of authority or power and that society ought to protect
the actually vulnerable among us against such threats whenever, wherever, and
against whomever they arise. That is to say, when people actually require protection
against such abusive forms of authority and power, they ought to be able to claim it and
have that claim honored by other members of society. This is the reason why we have
so-called "special rights:" these are human rights which have been identified a
especially necessary for the protection of members of vulnerable groups against the
specific sorts of abusive practices of the powers which have historically oppressed them.
In order to appreciate how something can be both a "special right" and also a
"human right" which belongs to all persons qua persons, it is useful to
revisit John Rawls’ notion of the original position. I will assume that you are
familiar with this ethical thought experiment.(2) Assuming
that persons in the original position do not know anything about their particular
individual identities as persons, were such "bare persons" to agree upon
fundamental principles of law it would be reasonable to expect that they would eventually
come to agree that other members of society should have duties to protect the most
vulnerable members of society against abusive uses of political, economic and other forms
of power. The reason they would agree on this high-level principle is because they would
reason that if it turns out, once the veils have been lifted, that they are
themselves a member of a vulnerable group, they would have voted that other members of
society not cooperate in helping to secure and protect their most basic interests
when they are not in a position to help themselves, and this would not have been in their
best interest. On the other hand, if it turns out that they are not a member of a
vulnerable group, and they voted to accept the social responsibilities associated with
protecting those who are vulnerable, they will have agreed to encumber themselves with
duties which they might otherwise have avoided. Given that most reasonable people,
if asked to make such a choice under conditions in which they were unaware of their
particular identities, would prefer the risk of being burdened with some unwanted
social responsibilities over the risk of being left vulnerable to having their most basic
interests as human beings violated by the abuse of power, they would choose to the former
rather than the latter risk and would adopt some basic rules and laws designed to protect
the oppressed and vulnerable.
Given that such bare persons have, through their general knowledge of human history,
some understanding of which particular groups are most vulnerable to such abuses, and
which types of abuses have been most prevalent, they might well decide to adopt sets of
"special rights" which identify specific social responsibilities owed toward
members of these vulnerable groups. These rights, however, would be "human
rights" in the sense that they would belong to persons qua persons, not to
women qua women, or refugees qua refugees, or workers qua workers and so forth. This is to
say, that such rights belong to them as persons and not on account of their
particular personal identities or statuses, though these particular identities and
statuses may be useful to determining which particular human rights are likely to be most
relevant to them given the kinds of vulnerabilities persons who are members of that group
typically have and the specific kinds of abuses of power or authority which have
historically been most prevalent with respect to members of that group. This is why it is
correct to say that "Women’s rights are human rights,"
"Children’s rights are human rights," "Workers rights are human
rights" and so forth.
But this level of discussion is still perhaps too theoretical. In order to discover why
we have this particular set of human rights in the contemporary canon we need to
look more closely at how our actual human rights came to exist. In an attempt to answer
this question, Johannes Morsink, has written an important paper in which he demonstrates
that many of the articles of the Universal Declaration of Human Rights, which is, after
all, the original document of the contemporary human rights canon, have their origins in
particular reflections concerning the crimes committed by the Nazi’s during the
Holocaust.(3) Morsink based this conclusion on notes and
minutes of the Commission on Human Rights Drafting Committee, which developed the UHDR at
the behest of the newly created United Nations Economic and Social Council. Among the most
important documents which this committee used was a War Crimes Report which detailed Nazi
practices. It was the description of these practices, and the shared moral revulsion
against them, that provided the inspiration, and indeed the "epistemic
justification," for the particular set of human rights that the drafting committee
ended up including in the text of the UDHR. As Morsink writes, "…the drafters of
the Declaration did not deduce the articles of the Declaration from any abstract moral
principles,"
On the contrary, the delegates went for the justification of each article back
to the experience of the war. Each human right has its own justification, one that is
discovered when that right is violated in some gross way. This link with experience
explains why so many delegates from so many different social, political, cultural, and
religious systems could nevertheless agree on a list of rights. They had witnessed the
same horrors and therefore were able and willing to proclaim the same rights.(4)
In order to see the deep truth of this analysis, consider one of Morsink’s
examples, the right identified in Article 15 of the UDHR which says,
"(1) Everyone has the right to a nationality. (2) No one shall be
arbitrarily deprived of his nationality nor denied the right to change his
nationality."
Why in the world do we have such a human right? What is so important about having a
nationality, anyway? Most all of us take this fact for granted and do not worry much about
losing our nationalities. Does having a nationality even qualify, then, as an important or
vital interest of human beings?
On November 8 1939, known as Kristallnacht, or the night of broken glass, the
Nazis launched their campaign to the exterminate the Jews of Europe. Many of the civil
rights of Jewish citizens of Germany had already been taken away from them by the
Nuremberg Law of 1935, but in November 1939 Jews were also stripped of their German
citizenship. By this one stroke, Hitler had made all Jews pariahs, made they prey to the
whims of any petty bureaucrat or thug, and deprived the Jews of Germany standing in German
courts to protest their treatment by legal means. When Adolf Eichmann took over the Bureau
of Jewish Affairs in October of 1940, one of his first tasks was "the withdrawal of
nationality and citizenship and the confiscation of property." (quoted by Morsink, p.
391). Since by then many German Jews had fled to seek refuge in other countries, and many
others were citizens of countries which the Nazi’s now occupied, the trick of the
revocation of citizenship also allowed the Reich to arrange for Jews living in occupied or
allied territories to be deported back to Germany as "stateless persons." Thus,
in deporting French Jews from occupied France, it was "arranged" that they
should become "stateless persons" once they crossed the border into Germany.
This was important for two reasons: "it made it impossible for any country to inquire
as to their fate, and it enabled that state in which they were resident to confiscate
their property" (Morsink p. 392). However, even with this policy, the Nazi’s did
not harm or deport Jews who held valid passports from foreign countries not occupied or
allied with Nazi Germany, for fear of retaliation against German nationals residing in
these nations. Thus, proof of citizenship – the having of a nationality – could
mean the difference between life and death for people who were victims of Nazi oppression.
As Morsink summarizes it, "To be without a nationality or without any citizenship is
to stand naked in the world of international affairs without protection against the
aggression of states – an unequal battle in which the individual is bound to lose. As
the Nazi practices show, the right to a nationality is not the luxury it may seem at first
glance." (Morsink, p. 393).
A number of important points can be drawn from this example, which is only one of many
illustrations of how the rights proclaimed in the UDHR arose. The first general point is
that we recognize our human rights through reflection on historical experiences of
oppression. The second and related point, is that this reflection allows us to understand
that particular oppressive practices and acts, or what might be called "techniques of
repression," are often parts of a system of oppression. And the third
important point is that just as techniques of repression can form a system in which
different particular techniques support and reinforce one other to form a system of
oppression, so too different human rights are responses to particular techniques of
repression and function as parts of system of ethical and legal norms which is designed to
thwart systems of oppression. Human rights, in order words, must be interdependent to some
degree or other since if they were not, tyrants and oppressors could simply employ a
different technique of repression to maintain their systems of oppression.
For instance, had there been a human right against depriving people of their
nationalities, the Nazi’s might have found another way to accomplish their purpose,
say, by simply declaring that Jews were not to be regarded as "equal" citizens.
But this technique would have run afoul of another later-proclaimed human right, namely
the right identified in UDHR Article 7 which says, "All are equal before the law and
are entitled without any discrimination to equal protection of the law." But if this
right already existed, they might have tried to simply declared all unwanted categories of
persons to be "slaves." But this would have run afoul of the right in Article 4,
and so forth. So, in summary, there appear to be two kinds of reasons why something gets
put into the list of "human rights:" First, it is itself a response to a
particular technique of repression in which people are denied a basic liberty, interest,
or power. And Second, because it has often been found to support and facilitate other
techniques of repression which function within systems of oppression which have been used
abusively in known historical cases in order to maintain the control of one group of
persons over another.
Understanding the particular historical origins and functions of our existing human
rights norms goes a long way toward helping us understand why the human rights contained
in the contemporary canon are interdependent and indivisible. Human rights form of system
of norms which functions to protect human dignity by thwarting systems of oppression.
Though they have individual and particular justifications in themselves, they form a unity
because the techniques of repression which they are designed to combat also form a unity
as parts systems of oppression. This is why human rights supporters oppose efforts by
governments to declare that certain rights are non-binding, or optional, or even
"unreal" or to declare that certain categories of human right "don’t
apply" to their societies: They understand that allowing this kind of exceptionalism
and selectivity to go unchallenged is tantamount to allowing oppression to proceed by
other means. This account also explains, at least in part, why the system of human rights
is "open-ended" and is expanding: As oppressors invent new techniques of
repression, so the human rights movement needs to invent new norms which will effectively
thwart these new techniques of repression.
The human rights system represents, then, a kind of implicit theory of human
oppression. It is justified experientially by its links to known, historically given,
forms of oppression, and it is justified pragmatically by its serving as a tool for
combating newer instances or variants of these known forms of oppression. While the
particular values that human rights norms are designed to protect are discovered
through historical reflection on particular instances of oppression the rights themselves
are always framed in a general way so as to cover both known past instances as well as
possible future instance of the same type of oppression or variations on those kinds of
techniques of repression. This is what enables them to function as protective shields
– they draw out and distill the particular lessons of history into a system of norms
which will, if properly implemented, prevent known types of human oppression. Moreover,
while a particular human right, such as the right not to be held in slavery, may have a
particular historical and cultural origin, its field of application is not thereby
restricted to its original historical context. The norm prohibiting slavery applies with
full force wherever and whenever the institution and practice of slavery occurs since in
each of these cases it is an instance of a known form of oppression.
Human rights norms can in this respect be likened to hypotheses in science:
while a scientific hypothesis concerning the properties of a certain thing may be first
discovered by reflection on a particular set of observations about the behavior of a
particular thing, it applies, insofar as it is empirically validated, to everything of
that kind, both those that have been observed and those that have not yet been observed.
Of course, empirical validation normally requires that the hypothesis be tested against
newly observed cases. The same is true of the normative hypotheses that comprise
the system of human rights: they have been and are being tested against new historical
experience. In some cases, this new experience leads us to believe that the particular
norms we have devised are adequate descriptions of the phenomena of oppression we are
experiencing. In other cases, new experience may lead us to revise our received norms, and
in still other cases we may be led to create or construct new norms to deal with new kinds
of oppression. So the human rights system is an evolving or dynamic system of
safeguards which does (and should) respond to our growing understanding of particular
techniques of repression and of different systems of oppression.(5)
This account of human rights, although, only briefly sketched here, provides the best
explanation I know of for the claim that the canon of human rights represents an
interdependent and indivisible system of norms. In terms of this theory, defenders of
"exceptionalism" and other divisibility claims must show that a particular
alleged human right does not address a known form of oppression or something that can
function as part of a system of oppression. Failing this, they are reduced to making
apologies for continuing tyranny, domination, and oppression, which are, after all, what
most of the exceptionalist counterclaims really are.
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