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ABSTRACT: This paper defends the claim that the contemporary canon of human rights forms an indivisible and interdependent system of norms against both "Western" and "Asian" critics who have asserted exceptionalist or selectivist counterclaims. After providing a formal definition of human rights, I argue that the set of particular human rights that comprises the contemporary canon represents an ethical-legal paradigm which functions as an implicit theory of human oppression. On this view, human rights originate as normative responses to particular historical experiences of oppression. Since historically known experiences of oppression have resulted from practices that function as parts of systems of domination, normative responses to these practices have sought to disarm and dismantle such systems by depriving potential oppressors of the techniques which enable them to maintain their domination. Therefore, human rights norms form a systematic and interdependent whole because only as parts of a system can they function as effective means for combatting oppression and domination.
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.
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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.
(1) This definition of rights incorporates elements of definitions proposed by Joseph Raz, Joel Feinberg and Henry Shue. See Morton E. Winston (ed.). The Philosophy of Human Rights. (Belmont CA: Wadsworth Publishing Co., 1989).
(2) The idea for this thought experiment was first suggested by John Rawls in his A Theory of Justice. (Cambridge MA: Harvard University Press, 1971).
(3) Johannes Morsink. "World War II and the Universal Declaration." Human Rights Quarterly. Volume 15, Number 2 (May 1993): 357-405.
(4) Ibid., p. 399.
(5) However, this analogy with scientific hypotheses breaks down in an important way: While the goals of scientific theorizing are to describe, predict, and explain the behavior of things, the main goal of human rights theorizing is to prevent oppression. While it is certainly the case that part of what is involved in preventing oppression is understanding its known forms, his history, and its causes, this is not sufficient. We also need to know what is effective in preventing oppression and in dismantling existing systems of oppression. In this respect, the human rights theory is more like an experimental medical treatment: It is designed to prevent or cure disease or disability, not only to understand it. Thus both medical research and human rights research have particular normative goals under which they are conducted. In fact, from a certain point of view, human rights work is really a kind of applied public health work, since most human rights violations are indeed dangerous to one’s health! The main differences have to do with the causes and etiology of these threats to human survival, well-being, and flourishing. While most of the diseases which afflict humankind are spread unintentionally and by natural processes, human rights violations are committed, for the most part, intentionally by particular conscious human agents and are spread culturally by these same agents. Tyrants and oppressors must also learn the tricks of their trade, so to speak, and the same history books that can teach us how to thwart oppression, can also teach them how to do it. Just as techniques of repression can be more or less effective means for members of one group to assert its power or control over others, so also different ethical and legal norms, or different kinds of social institutions and practices, can be more or less effective means of thwarting or removing oppression. So just like medical treatments for diseases, human rights norms are justified, in the end, by whether or not they "work" to achieve the goal for which they were created, namely the goal of ridding the world of oppression.