The differences in the philosophical basis for human rights, discussed in Part 1 of this short series, lead to different approaches to the type of rights recognised. Three differences stand out: firstly, the contingent nature of some rights, making them subject to regional cultural or religious traditions and practices and thus not universal; secondly, the different levels of importance attached to duties as well as rights; and thirdly, particularly in the case of the African Charter (as we have already seen) a strong emphasis on collective or communal as well as individual rights.
These different approaches lead in turn to different specific rights and duties, usually of particular relevance to their own parts of the world. For example, the African Charter pledges in its preamble to achieve the total liberation of Africa, the peoples of which are said to be still struggling for their dignity and genuine independence, and undertakes to eliminate colonialism, neo-colonialism, apartheid and zionism and to dismantle aggressive foreign military bases. It asserts the rights of African nations freely to dispose of their wealth and natural resources. It says the values of African civilisation should be reflected in the concept of human and peoples’ rights.
Although the Islamic Declaration affirms many of the standard human rights common to other declarations, such as the right to life, liberty and safety, free expression of opinion, access to due process and justice and not to be subjected to torture, it also in its preamble expresses support for the struggle of the Palestinian people, who are said to be presently under foreign occupation, and the determination to empower them to attain their inalienable rights, including the right to self-determination, and to establish their sovereign state with Al Quds Al Sharif (Jerusalem) as its capital, while safeguarding its historic and Islamic character and the holy places therein.
The European Convention on Human Rights (ECHR) states that fundamental freedoms which are the foundation of justice and peace in the world are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend. The ASEAN declaration mentions the rights of migrant workers, child labour and people with HIV/AIDS; three rights are devoted to development.
Duties
A significant difference is the emphasis given to duties as well as rights. Duties are given very little explicit expression in the Universal Declaration. Only in Article 29 (out of 30) do we find the general statement that “Everyone has duties to the community in which alone the full and free development of his personality is possible”. Some of the rights in the UDHR, such as free elementary education, imply that someone has a duty to provide them, which we are left to assume means the state.
Duties are much more prominent in the American Declaration (i.e. the nations of the Americas) and make a condition for rights. Immediately after its initial declaration on freedom and equality it adds: ‘‘The fulfilment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty. Duties of a juridical nature presuppose others of a moral nature which support them in principle and constitute their basis”.
The American Declaration goes on to list ten specific duties (compared with 28 rights), including duties to society, the duty to serve the community and the nation, including military service, the duty to acquire at least an elementary education, and the duties to vote, obey the law, pay taxes and work.
The African Charter similarly says that “the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone” and lists eight specific duties (compared with 26 rights), including contributing to the defence of the country, preserving and strengthening positive African cultural values and contributing to the promotion and achievement of African unity.
The ASEAN Declaration states that: “The enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives”.
The Islamic Declaration attempts to be clear about the duty of states in relation to the rights of their people within the context of local conditions -a delicate balance. It says: ”It is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms while keeping in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.’
Judging by the contents of all these declarations and in spite of all these differences there is a small number of very important human rights that are recognised universally. These are: the right to life, to freedom from torture, cruel punishment and slavery, to justice, equality before the law, a decent standard of living, family life, property and education.
Overcoming abuses
As I argued in Part 1, the main obstacles to human rights are the adherence of states to the concepts of state sovereignty and cultural relativism, and the reluctance of others to challenge them on these issues. States are very touchy about what they see as interference in their internal affairs. They also warn that the diplomatic and trade ties of countries like the UK will be damaged if we persist in criticising.
How can we overcome these obstacles? The European Union, which considers itself a beacon in the area of human rights, has tried to use its status as a so-called normative power alongside its clout as a trading bloc by including clauses requiring human rights refor in its trade treaties with other nations. But academic studies have found that this approach has backfired. According to one study (Langan, 2009), the breakdown of the World Trade Organisation Cancun talks in 2003 and the multilateral stalemate in the Doha Development Round were attributable to developing countries’ contestation of the intrusive nature of attempts to get them to introduce rights-related domestic reforms. There are other examples. It is unwillingness to recognise, or to overlook, this unfortunate reality that is the principal weakness of the cosmopolitan approach of idealists like Simon Caney discussed in Part 1.
Some rights more important than others
Other philosophers have suggested an alternative approach. It will be an unwelcome and even unacceptable one to some because all the arguments I am about to refer to involve one way or another accepting the dropping of the principle that human rights are indivisible and that we have to insist on all of them -specifically, all those included in the UDHR. They also implicitly involve shifting the basis of human rights from the Western tradition which grounds them on mankind’s unique possession of reason to the principle of basic human needs and vulnerabilities (discussed in Part 1). This approach is consistent with Caney’s scheme for creating a logical structure for human rights without specifying the content.
The potential advantage of this approach is that it could be used to prioritise rights that would be less obviously Western in nature, and less dependent on Western philosophical tradition, and thus harder for other countries to reject. Its whole point would be that it undeniably addresses the needs and vulnerabilities of all human beings, everywhere. As the philosopher Thomas Nagel wrote in 2010: ‘The normative force of the most basic human rights against violence, enslavement and coercion, and of the most basic humanitarian duties of rescue from immediate danger, depends only on our capacity to put ourselves in other people’s shoes’. The English philosopher John Gray (a native of South Shields, by the way), writing in 2015, said:
“Humans are like other animals in having a definite nature, which shapes their experiences whether they like it or not. No one benefits from being tortured or persecuted on account of their religion or sexuality. Being chronically poor is rarely, if ever, a positive experience. Being at risk of violent death is bad for human beings whatever their culture. Such truisms could be multiplied….Using these universal values, it may be possible to define a minimum standard of civilised life that every society should meet; but this minimum won’t be the liberal values of the present time turned into universal principles.”
An English philosopher of the previous generation, Sir Stuart Hampshire, wrote: “It is not only possible, but, on present evidence, probable that most conceptions of the good, and most ways of life, which are typical of commercial, liberal, industrialised societies will often seem altogether hateful to substantial minorities within these societies and even more hateful to most of the populations within traditional societies … As a liberal by philosophical conviction, I think I ought to expect to be hated, and to be found superficial and contemptible, by a large part of mankind.”
Utopia postponed
The venerable German philosopher Jürgen Habermas, now aged 96, appears to be arguing for a limited, realistic approach to human rights, though only as a first step until the full list of rights can be achieved. He wrote in 2012: ‘The tension between idea and reality which was imported into reality itself as soon as human rights were translated into positive law…confronts us today with the challenge to think and act realistically without betraying the utopian impulse’.
Charles Beitz, a philosopher at Princeton, argued in similar vein in 2009 that we have to find a way of combining human rights with other values that people hold dear, a way of tolerating other people’s right to follow their traditions and govern themselves: As he put it, one of the challenges facing a theory of human rights is ‘to illuminate the ways we might bring them into some reasonable relationship with other values with which they might conflict”; those values he specifies as toleration, cultural identity and self-government.
A decent hierarchical society
How this toleration might be achieved was suggested by the American philosopher John Rawls in 1993. He set out ideas for establishing what he called “the limits of toleration in a reasonable society of peoples.” He would accept what he calls a “decent hierarchical society” today while working for Utopia later. “A decent hierarchical society would be one which is characterised by non-aggression, affirmation of some human rights, citizens capable of bearing some duties and commitment to a ‘common good idea of justice”: Rawls wrote:“By showing how the social world may realize the features of a realistic Utopia, political philosophy provides a long-ter goal of political endeavour, and in working toward it gives meaning to what we can do today.”
There are no easy answers to the tensions between human rights, their indivisibility, cultural difference and national sovereignty. Some people will insist on pursuing the full list of human rights as set out in the UDHR, without compromise. Others will look at the terrible violations that continue to occur 77 years after the Universal Declaration was signed and conclude that a new approach is needed. Pursuing the most important rights first on a basis least likely to provoke opposition -let’s say the rights to life, freedom from torture, cruelty and enslavement; access to a fair system of justice; family life; education; and a decent standard of living, which are all included in all the declarations discussed – with the rest to be progressively realised later as the political climate allows, is one possible approach.
In Part 3 I will consider the current debate in the UK on whether we should leave the European Convention on Human Rights.
