Righting Our Understanding of Human Rights: A Tough Job

The issue of human rights is less prominent in international affairs today than it once was. Political leaders, even in democratic countries, increasingly tend to downgrade it, if not neglect it altogether.

This presents an especially striking contrast with the last quarter of the 20th century, during the Cold War and its immediate aftermath, when issues of human rights were often at the very center of events on the world stage. It was a time when names like Andrei Sakharov and Natan Sharansky, Nelson Mandela and Vaclav Havel, filled the headlines. Human rights were formally incorporated into U.S. foreign policy in this period, as the Carter administration established a new State Department Bureau of Human Rights and Humanitarian Affairs whose responsibilities included the annual submission to Congress of reports on the human rights performance of other countries around the world.

The most recent initiative in this sphere is the State Department’s plan, announced in July, to establish a new advisory body, the “Commission on Unalienable Rights.” So far, discussion of this plan has generated much more heat than light. The commission, according to an announcement in the Federal Register, is tasked with providing “fresh thinking” about where human rights discourse “has departed from our nation’s founding principles of natural law and natural rights.” Not surprisingly, it is opposed by many of the leaders of what is often referred to as the “human rights community.”

Members of this commission will likely be asked to read Aaron Rhodes’s new book, The Debasement of Human Rights: How Politics Sabotage the Ideal of Freedom. This volume makes a sometimes persuasive case for the need to rethink human rights, but it also underlines the enormous intellectual and political obstacles that will render this task so difficult.

Rhodes himself is a longtime activist who spent 14 years as executive director of the International Helsinki Federation for Human Rights, a coordinating body for national Helsinki Watch groups in Europe, Eurasia, and North America. These nongovernmental organizations sought to monitor and report upon governmental compliance with the human rights provisions of the 1975 Helsinki Accords. Rhodes’s own view of the subject clearly was shaped by his deep admiration for those of his colleagues who bravely raised the banner of human rights while living under communist regimes.

The author stresses the fact that the Soviet Bloc dissidents focused almost exclusively on “individual, civic, political rights” (which had also been emphasized in the Helsinki Accords). This approach was perhaps best explained by Sakharov, the famed Russian nuclear physicist, in 1979:

The human rights movement in the Soviet Union and the countries of Eastern Europe gives first priority to civil and political rights as a matter of principle, in contrast to the official state propaganda of these countries, which purposefully accentuates economic and social rights. . . . I am convinced that under contemporary conditions it is precisely civil and political rights—the right to freedom of conscience and the dissemination of information, the right to choose one’s country of residence and to live wherever one chooses within that country, freedom of religion, the right to strike, the right to form associations, and the absence of forced labor—which are the guarantees of individual liberty and give life to the social and economic rights of man.

The Original Human Rights Sin

The placement of economic and social rights on an equal plane with civil and political rights is, according to Rhodes, the original sin of the international human rights movement and the source of its subsequent corruption. He argues that the inclusion of economic and social rights in the Universal Declaration of Human Rights (approved by the United Nations General Assembly in 1948) served to conflate this new class of rights with the “freedom rights” historically considered to be natural and unalienable, and thereby called into question the philosophical foundations of human rights as such.

The Universal Declaration contains a Preamble and 30 Articles. The first 21 of these lay out in fairly traditional language basic civil and political rights, but beginning with Article 22, a quite different category of rights is introduced. Article 22 states:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Subsequent articles include a set of rights that seek to guarantee people many of the services and benefits provided by modern industrial welfare states, including the right not only to an “adequate” standard of living but even to “periodic holidays with pay.”

Rhodes plausibly contends that these are “not simply different kinds of human rights; they are demonstrably not human rights at all, for they are based on different principles.” Such rights can be granted only by the governments of societies that have achieved a certain degree of modernization. Thus it is hard to see how “rights” of this sort can be regarded as individual or universal, much less as natural or unalienable like those described in the U.S. Declaration of Independence.

Yet the international community, especially within the United Nations system, has steadily expanded the claims of social and economic rights at the expense of political and civil rights through such innovations as the “right to development.” Moreover, in the Vienna Declaration adopted by the World Conference on Human Rights in 1993, the UN proclaimed, “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”

So the priority that the 1948 Universal Declaration arguably still grants to political and civil rights—after all, they are listed first and are allotted a far greater number of articles—has been steadily eroded. Countries that suppress the political rights of their citizens can take refuge in the claim that the way they govern is demanded by the need to fulfill their obligation to deliver economic and social rights.

A Tough Recovery Project

It is very difficult to discern, however, what can be done to restore a more traditional and pristine notion of human rights. In the first place, the United Nations offers extremely unpromising terrain for achieving this goal. It is not just, as Rhodes stresses, that communist and other dictatorial countries have played a key role in building UN doctrine on these matters; it is also that developing countries (organized at the UN as the “Group of 77”) are strongly motivated to prioritize economic and social rights to justify their demands for increased development assistance and other economic benefits.

As the criticism aimed at the new State Department commission shows, there is unlikely to be much support even here in the United States for a return to an older conception of human rights. Rhodes asserts that human rights stem from “the philosophical tradition of natural law and natural rights” (two far from identical terms that he tends to use interchangeably and gives a single joint entry in the book’s index). “Detached from that tradition,” he adds, “the concept of human rights falls apart.” Yet while he briefly recounts this “tradition” (invoking in scattershot fashion Socrates, the Stoics, Cicero, John Locke, Aristotle, Immanuel Kant, and “the ethical foundation of monotheism”), he has surprisingly little to say about the actual content of natural law or natural rights.

Rhodes is on surer ground when he cites the Declaration of Independence as the culmination of the American Founders’ commitment to natural rights. Yet he himself acknowledges that in subsequent eras, the Jeffersonian language of the Declaration has often been rejected by leading American thinkers and statesmen. Many progressives, most notably Woodrow Wilson, explicitly attacked the idea of natural rights. Franklin D. Roosevelt, though less direct in his criticism, invoked the language of rights and of freedom on behalf of his economic policies. FDR’s famous enumeration of the “four freedoms,” for example, included “freedom from want” (and “freedom from fear”) along with freedom of speech and of worship. And the 1948 Universal Declaration, whose drafting committee was chaired by Eleanor Roosevelt, in effect elevated some of the ideals of FDR’s New Deal to the level of human rights. Today, Americans comprising a substantial portion of the U.S. political spectrum probably would accept the idea of treating services such as health care as human rights, even if they were convinced that this was a departure from the views of the Founders.

Apart from the difficulty of rolling back ways of thinking that have now become deeply ingrained in our society, it would be a formidable challenge to try to restore the original understanding of natural rights today. The notion of what is natural that prevailed in the 18th century has largely been abandoned by later thinkers, and even a great philosopher seeking to resuscitate it would be unlikely to persuade most of his contemporaries. Rhodes touches upon these deeper philosophical issues, but only in a rudimentary way. While he provides a useful critique of contemporary conceptions of human rights, he does not come close to offering an intellectual path to reestablishing the Founders’ view of natural rights.

Though I sympathize with a number of aspects of Rhodes’s analysis, there is one point on which I believe he goes badly astray. This is reflected in his book’s subtitle, which suggests that politics is the enemy of freedom. Now, it is surely true that the application of universal principles of human rights should not be politically biased, as it is so frequently within the UN system. At the same time, it strikes me as entirely wrongheaded to try to deny that the case on behalf of human rights is intensely political. There is a fundamental political difference between those regimes dedicated to protecting the civil and political rights of their citizens and those that are not.

Rhodes attacks former UN Secretary-General Boutros Boutros-Ghali for asserting in a speech to the 1993 Vienna conference that “only democracy . . . can truly guarantee human rights.” His critique of Boutros-Ghali on this point consists of citing the phenomenon of “illiberal democracy” first identified by Fareed Zakaria.[1] It is true, of course, as Zakaria and Rhodes contend, that many regimes with democratically elected governments have turned out to be poor guardians of human rights. But where can one find today a nondemocratic government that can be relied upon to defend individual rights? There is none.

At the present moment the future of civil and political rights around the world in the decades ahead is especially murky. But one thing is clear: Vindicating them will depend not on resolutions adopted at the United Nations, but on the fate of liberal democracy in the world’s most powerful countries.

[1] Fareed Zakaria, “The Rise of Illiberal Democracy,” Foreign Affairs (November/December 1997), 22-43.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on November 04, 2019 at 13:02:57 pm

The reason that the idea of natural human rights has been so grotesquely expanded is simply that it never had clear and definite meaning in the first place; in fact, it has never had any but emotional meaning. So, people call whatever they want a right and claim that they deserve it just because they are human. It was this idea that the stoics invented and Christians disseminated. However, it is long past time to recognize that all rights outside the family are social conventions. As Thomas Hobbes showed, there are no rights in a "state of nature," a condition without rules to moderate interactions between those who are not close kin. What originally gave liberty rights priority over welfare rights was simply that they were negative. A right to life as Locke understood it was simply a right not to be killed; it was not a right to be provided with a living. Similarly, a right to liberty was a right not to be enslaved; it was not a right to enslave others by taxing the products of their labor. Negative rights are preferable to most of us because, since they impose lighter obligations on other people, their enjoyment is less likely to be objectionable.

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Max Hocutt
on November 05, 2019 at 13:16:47 pm

In a state of nature, there may well be no means of *enforcing* or *asserting* one's rights. That is not to say that such rights (i.e., moral claims that have corresponding moral duties) are non-existent, artificial, or "conventional." A sound moral philosophy will always regard murder as a moral wrong, regardless of whether there exists a state capable of enforcing that ethical norm. One could, for instance, compare a failed state like Somalia to a state of nature, insofar as much of the country is lawless and ungoverned. That, however, does not excuse the attrocities committed by terrorist groups who exploit that power vaccuum, at least not from a moral perspective. If the right to, say, life does not follow merely from law or convention--if it is not, therefore, artificial--it can only be natural.

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on November 05, 2019 at 16:24:38 pm

Rights inflation devalues rights just as monetary inflation devalues currency. And there appears to be a sort of Gresham's law at work in the currency of rights as well.

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Image of QET
on November 06, 2019 at 06:20:32 am

Dear Arthur, an unprotected "right" is worthless, and an unpracticed "morality" is worse. So, what is the meaning of saying that they exist or are natural?

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Max Hocutt
on November 07, 2019 at 18:09:27 pm

May I say that the "meaning of saying that they exist ..." is to provide solidarity and the strength that solidarity provides to persons who believe that certain acts are intrinsically evil and must never be done.

I have noticed - but even hesitate to type the words, so antique as they seem to be- that the classical virtues as defined by Josef Pieper among others have power to encourage persons in desperate situations to endure and to survive with dignity and honor intact, difficult to believe as that may seem to many today. Such examples exist in testimonies of life in Russian gulags, other similar places. Even more valuable but perhaps even more elusive are the theological virtues of faith, hope, and "caritas".

Many young persons have found that, absent these concepts that ascribe possibility of beauty and goodness to human beings, life does not seem worth living at all. Moral squalor is ugly in the end, although it can be "dressed up" for a while.

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on November 08, 2019 at 15:26:40 pm

I have no expertise in this topic.

That said, I've always assumed that "human rights" ultimately rests upon compassion--the common propensity for people to project themselves into other people's circumstances. Thus, the scope of "human rights" large depends upon the kinds of circumstances that a viewer would regard as sufficiently bad to justify intervention. As society grows richer--as people grow less accustomed to and tolerant of various kinds of suffering--the scope of human rights would expand.

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on November 15, 2019 at 20:26:54 pm

I do not see how anything can be a "right" if it imposes any positive obligation upon another. That creates a master / slave relationship. If I can demand your money or your service(s) as my right, then are you not enslaved to me in that arena?

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on November 17, 2019 at 11:26:28 am

It doesn't matter what the US thinks about human rights. The US has been an forlorn isolated "no" since the 80s. The outside world has left it behind. Russia now leads human rights thinking, since they dominate the US on every comprehensive measure (see for yourself, https://www.ohchr.org/EN/Issues/Indicators/Pages/HRIndicatorsIndex.aspx) Having curbed US aggression with superior missile technology, enforcing the law of non-derogable human rights at gunpoint, as it were, Russia announced that it would divert resources from weapons development back to economic rights.

Poor old Rhodes is confused about the justification of human rights. Had he picked up the UDHR, which US human rights scholars seldom think to do, he would see that natural law has nothing to do with human rights. The preamble justifies them on the purely pragmatic grounds that humans have recourse to rebellion, so you'd better give them their rights. Ask the gilets jaunes in NATO satellite France.

The Federal Register tries an old trick, coining eccentric jargon to avoid terms of art, in this case "inalienable rights." It's one more feckless attempt to end-run the black letter law of human rights, which no one here seems comfortable with. Treaty bodies and charter bodies will continue to make fools of US delegations because their casuistry trip and pratfalls on the Vienna Convention on the Law of Treaties. This commission is evidently an attempt to divert attention from imminent humiliation at the Universal Periodic Review. As you know, the US quit the Council in one of its periodic fits of pique, but despite having given up any residual influence on the body, the US is still required to undergo review. They'll probably straighten you out on that silly notion that democracy is on some lofty different plane than human rights. They'll explain, patiently, again, that democracy is ICCPR Article 25. That's another standard that you simply do not measure up to. (Face it, your democracy's a laughingstock worldwide - https://wikileaks.org/dnc-emails/ ; https://wikileaks.org/podesta-emails/)

The civilized world just laughs at the US statist fixation on its constitution and its Founders. Your constitution's obsolete - no country's used it as a model for a century now - and anyway it's revoked for rule by secret decree with the PATRIOT Act. Look at the OHCHR maps. The US is the bottom of the barrel for human rights. No one needs US apparatchiks to restore or vindicate anything. You have no role. Whatever is done in the USA is done by NGOs, NGOs you don't control.

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Uggabugga Rights

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