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Article Excerpt
In recent years, the language of human rights has become ubiquitous around the world, shaping such nascent transnational institutions as the International Criminal Court, and justifying international interventions to halt genocide. (1)
Yet there is wide-ranging disagreement among philosophers and jurists about the nature and scope of supposedly universal human rights. Some argue that human rights constitute the "core of a universal thin morality" (Michael Walzer), while others claim that they form "reasonable conditions of a world-political consensus" (Martha Nussbaum). Still others narrow the concept of human rights "to a minimum standard of well-ordered political institutions for all peoples" (2) (John Rawls), and caution that there needs to be a sharp distinction between this minimum standard and the much longer list of rights that the United Nations enumerated in its Universal Declaration of Human Rights(UDHR) of 1948.
Such disagreements inevitably raise doubts about what, precisely, should count as a human right. Walzer, for one, suggests that a comparison of the moral codes of various societies may produce a set of standards, a "thin" list of human rights, "to which all societies can be held--negative injunctions, most likely, rules against murder, deceit, torture, oppression, and tyranny." (3) But this way of proceeding would yield a relatively short list. "Among others," notes Charles Beitz, "rights requiring democratic political forms, religious toleration, legal equality for women, and free choice of partner would certainly be excluded." (4) For many of the world's moral systems, such as ancient Judaism, medieval Christianity, Confucianism, Buddhism, and Hinduism, Walzer's "negative injunctions against oppression and tyranny" would be consistent with great degrees of inequality among genders, classes, castes, and religious groups.
Certainly, the most provocative proponent of limiting human rights to "a minimum standard of well-ordered political institutions for all peoples" has been John Rawls. Rawls lists the right to life (i.e., to the means of subsistence and security); to liberty (i.e., to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to personal property; and to "formal equality as expressed by the rules of natural justice" (i.e., that similar cases be treated similarly) (5) as the basic human rights.
The rights to liberty of conscience and association are pared down in The Law of Peoples such as to accommodate "decent, hierarchical societies," which grant some liberty of conscience to other faiths but not equal liberty of conscience to minority religions that are not state sanctioned. Article 18 of the UDHR, by contrast, which guarantees "the right to freedom of thought, conscience, and religion" (including the right to change one's religion and "to manifest one's religion or belief in teaching, practice, worship, and observance"), is much more egalitarian, and uncompromising vis-a-vis existing state religions, than is Rawls's right to "nonegalitarian liberty of conscience."
Most significantly, unlike Article 21 of the UDHR, which guarantees everyone "the right to take part in the government of his country, directly or through freely chosen representatives," and which stipulates that "the will of the peoples shall be the basis of the authority of government," (6) the Rawlsian scheme has no basic human right to self-government.
Given that the UDHR is the closest document in our world to international public law, how can we explain this attempt on the part of many philosophers to restrict the content of human rights to a fraction of what is internationally agreed to--at least on paper?
I am not precluding the possibility that these documents themselves may be philosophically confused, produced as a consequence of political compromises - as was the UDHR, which was the subject of continuous negotiations between the United States and the Soviet Union. (7) Yet it is at least necessary to consider seriously the "discrepancies between the best philosophical account of human rights and the international law of human right." (8)
The UDHR and the succeeding era of international rights declarations reflect the moral learning experiences not only of Western humanity but of humanity at large. The World Wars were fought not only in the European continent but also in the colonies, in the Middle East, Africa, and Asia. The national liberation and anticolonization struggles of the post-World War II period inspired the principles of self-determination enshrined in these rights documents.
The UDHR's preamble states that the "peoples" of the United Nations Charter affirm their faith in "the dignity and worth of the human person and in the equal rights of men and women." (9) All persons, "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," are entitled to dignified treatment regardless of "the political, jurisdictional, or international status of the country or territory to which a person belongs." (10)
The UDHR was followed by the 1951 Convention on Refugees, (11) the 1966 International Covenant on Civil and Political Rights, (12) the International Covenant on Economic, Social and Cultural Rights of the same year, (13) and the Convention on the Elimination of All Forms of...
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