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When are Human Rights real rights?
Jeremy Bentham, the ‘Father of Utilitarianism’, famously said that natural rights are ‘nonsense upon stilts’. He thought that ‘from real law come real rights; but from imaginary laws, from “law of nature,” come imaginary rights.’ By extension his criticisms also condemn human rights to the status of nonsense. Today it is generally accepted that human rights exist and should exist; however, even for those who believe in human rights, Bentham’s criticism may still have some force. It can be argued that if there are no real legal duties to correspond to rights, thus meaning that they are unenforceable in law, then they are not real rights at all. American jurist Wesley Newcomb Hohfield gave perhaps the best explanation of this. He divided ‘rights’ into four categories, in descending order: a claim right with which there is a correlative duty; a privilege (or ‘liberty’) where there is no duty on another to prevent the act, but also no duty on another to assist or allow it; a power with a correlative liability on another; and an immunity with a correlative disability. The underlying principle in Hohfield’s theory is that for someone to have a true right, there must be a correlative duty on another. This may be a duty to provide it for the other person or merely a duty to help in ensuring that that it is provided to them. If we accept this as true, then any human right which does not have a corresponding duty, is not a real right at all; just nonsense.
Before it can be assessed whether all human rights are real rights, it must be explained what a human right is and why they are so important. Many justifications of human rights can be espoused. For example, the antithesis of Bentham’s utilitarianism, Rawls’ veil of ignorance seems like an incredible way of thinking about human rights. He believed that there should be a basic standard of liberty for all people that should not be restricted; these basic liberties, along with social goods, should be distributed equally among society, unless inequality would benefit the least well off; and there should be no inequality based on birth or wealth. Rawls wrote a thought experiment into his theory in an attempt to show that the principles he champions are those that ‘free and rational persons concerned to protect their own interests would accept in an initial position of equality as defining the terms of their association.’ He thought that in the ‘original position’, behind a ‘veil of ignorance’, where people were unaware of their age, gender, socio-economic status and general abilities, but aware that they are risk-averse, non-envious and lacking in altruism, they would agree to build a society based on these principles. He then extended this to the ‘international original position’, where people represented nations or peoples, but were unaware of which one. He thought that in trying to do the best they can for those they represent, these people would create rights to subsistence, security, personal property, and formal equality before the law, as well as freedoms from slavery, protections of ethnic groups against genocide, and some measure of liberty of conscience. This could be seen as the most moral, understandable and defensible concept of why we should have human rights. At some point we all don't know what our circumstances will lead us to, so he is right to base his theory on the principle that morally arbitrary factors (such as where and to whom we are born) should not determine our opportunities in life. His theory is also a very individualistic conception; unlike utilitarianism, it sees the worth in each person. However, it does have its pitfalls. Rawls doesn't give us a great list of what our basic liberties should be (why is democratic participation not protected, for example?), and his idea that we are fundamentally risk-averse, non-envious and lacking in altruism can clearly be disputed. In any case, Rawls’ theory can only ever used for an ex post facto rationalisation of human rights, although it gives us the thought that perhaps human rights are real rights if they are fair and just, in the sense that people would agree on them objectively.
Natural law is often cited as the proper foundation of human rights. St Thomas Aquinas’ condemnation of tyrannical regime and his development of the concept of objective rights influenced the right of resistance found in the Magna Carta. Then came Hobbes, who developed more subjective, individual rights, which were refined by Locke, and then Rousseau. What they all had in common was that they believed that we all inherently had rights that deserved protection. However, as Matthew Craven pointed out: ‘To assert that the rights expressed in the Universal Declaration were inspired solely by the philosophy of Hobbes or Locke is little more than mere speculation…’ In fact, the Declaration was created ‘not because… [States] had agreed on a philosophy, but because they had agreed, despite philosophical differences, on the formulation of a solution to a series of moral and political problems' (Mckeon). So despite the earliest concepts of human rights originating in natural law, ‘it took a system of positive law to provide a definite and systematic statement of the actual rights which people possessed' (Haule).
Therefore, the definition to be used for this essay should be that used in the Universal Declaration of Human Rights, because this is where international human rights were first properly established, upon the agreement of all states in the United Nations General Assembly. Article 2 of the Declaration states that:
‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.’
As Felisa Tibbitts, Director of Human Rights Education Associates, said: ‘a human right is an entitlement, something you have without deserving or earning it. It is yours because you are a human being' (Amnesty International UK). The rationale behind enshrining and protecting our human rights should be seen as grounded in the notions of human dignity, equality and freedom, no matter which specific train of philosophic thought you follow. Everyone deserves to be treated equally; to be treated with respect; and to have their welfare protected by the states that rule over them. By offering protection to everyone without discrimination, human rights protect minorities; this is something that Bentham’s theory of utilitarianism would not do because it is unavoidably majoritarian.
Using this conception of human rights as our basis, we can now address the specific issue of whether economic, social and cultural rights are or should be legitimate human rights. Economic, social and cultural rights warrant discussion here, because whether they are real rights with corresponding duties or not, they are much less respected than civil and political rights. Should that be the case?
The Universal Declaration of Human Rights contained both civil and political rights and economic, social and cultural rights together in one document. It wasn't until 1966 that these types of rights became officially separated in international law, when the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were created. Civil and political rights are still generally accepted to be legitimate human rights that must be respected. These are rights that protect people’s freedom from interference and repression from the state, ensuring their ability to participate in the civil and political life of the state on an equal basis to all other people. It is the claim that economic, social and cultural rights are legitimate human rights that has caused the most controversy and disagreement. This is ‘despite the clear intention [of the drafters] not to imply any notion of relative value by the act of separating the Covenants…’ (Craven), as is illustrated by the Preamble to General Assembly Resolution 543 (IV) 1952, affirming its Resolution 421 E (V), which stated that ‘the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent’ and that ‘when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man.’
Maurice Cranston was perhaps the biggest critic of economic, social and cultural rights. He stated of the ICESCR that ‘the rights it names are not universal human rights at all’. His definition of a human right is that it can be ‘readily secured by legislation’; it is ‘a genuinely universal moral right; and it is of ‘paramount importance’. According to him, this test excludes economic, social and cultural rights. There are many problems with Cranston’s reasoning. Firstly, he argued that a fundamental difference between the two categories of rights is that civil and political rights are easily secured, while economic, social and cultural rights are not. If ease of securement were a prerequisite for something being a real right, then not all civil and political rights would qualify. Indeed, some economic, social and cultural rights are more easily securable than some civil and political rights. For example, ensuring that every person who is charged with a criminal offence is ‘tried without undue delay’, as required by Article 14(2)(c) ICCPR, could prove a task of considerable difficulty in many States, especially those with weaker economies or with a large backlog of trials, as fair and effective criminal justice systems need large amounts of planning, personnel and financing. This is much more burdensome than, say, simply allowing people to form and join trade unions, a right set out in Article 8 of the ICESCR.
Cranston attempts to further distinguish between civil and political rights an economic, social and cultural rights by asserting that the latter do not have the ‘paramount importance’ that defines the first because they ‘give pleasure’, but do not ‘relieve distress’. He equates respecting economic, social and cultural rights with giving Christmas presents to the children of his neighbours, and with fun fairs and holiday camps. Cranston is unfortunately indulging in a straw man fallacy here since no one is saying that socio-economic rights are there purely to give pleasure. These rights are not as trivial as he would have us believe by using this ridiculous analogy; they are considerably more important. Cranston’s underlying notion that all human rights must be of ‘paramount importance’ itself cannot be disputed because if human rights were not of great significance and priority they would not be able to compete with other prevailing principles such as national security, individual and national sovereignty, and national and global prosperity. Cranston uses this notion to attack the right to holiday pay, saying that it, along with all other economic, social and cultural rights, is not universal. Of course, holiday pay is not directly relevant to the unemployed, for example, but if one day our society has got to a point where everyone were employed, then perhaps holiday pay would be of paramount importance to everyone because no one can be expected to work 365 days of the year. Even now almost everyone (in theory at least) has the potential or opportunity to get a job. We shouldn't reinforce the inequality of access to these sorts of rights by not having states guarantee these rights in a uniform, universal manner along with civil and political rights. Not all rights are important to everyone at the same time in the sense that they want to exercise that right, but this doesn't mean that they aren’t all of fundamental importance - people living in poverty may not be worried about what they can publish in a newspaper because they only want access to food, but both involve civil and political rights. Therefore Cranston’s distinction is not valid.
In addition to these inconsistencies in his reasoning, the main problem with Cranston’s test for what is a real human right is that he has constructed his theory to fit his worldview and his view of the state, which is undoubtedly conservative. Someone with a different ideology would likely construct a human rights theory to include a much wider range of rights, including economic, social and cultural rights.
Craven is similarly critical of Cranston. He also rejects Cranston’s argument that because economic, social and cultural rights cannot be realised immediately because they demand the provision of resources, they are not real rights because rights must ‘be respected here and now’. First, he points out that some civil and political rights are also positive and require resources to implement them, while some economic, social and cultural rights are purely rights of non-interference. He also rejects the notion that rights are only real, in the sense that individuals can possess them, if they are able to claim or enforce that right with specific legal remedies. He responds: ‘when national law remedies are unavailable or inadequate, [an appeal to international human rights] is an appeal to the adjustment of national law and practice. The appeal is not necessarily vitiated by the absence of specific international remedies open to the individual.’International pressure could be enough to initiate change. By demoting economic, social and cultural rights to a standard below that of a ‘real’ human right, circumstances could only worsen, after all. We need to progress to a stage where there are adequate remedies.
Craven concludes by asserting that ‘there are no really convincing arguments … for denying economic, social and cultural rights the status of human rights’. He outlines two main justifications for economic, social and cultural rights. First, that they are ‘essential conditions for the full enjoyments of civil and political rights.’ This is undoubtedly correct - how could one feel truly free if one had no material security? As Roosevelt said, ‘true individual freedom cannot exist without economic security and independence. Necessitous men are not free men.’ The second - stronger and self-standing - justification is that they are ‘inherently valuable’ on their own because ‘they relate to fundamental elements of the individual’s physical nature’ (Craven). They help to ensure that people can enjoy freedom, equality and respect for their human dignity - the foundations of human rights.
I would go even further and suggest that many of the things that economic, social and cultural rights protect (such as education, health, housing and an adequate standard of living) are more important than some civil and political rights in some situations (think personal development). In fact, they are so important that they should always be protected from interference from politicians and the wavering public whim. It has been argued, though, that constitutionalising economic, social and cultural rights would do the exact opposite of strengthening democracies because they take away things for people to vote on, leaving important issues to unelected judges. However, protecting economic, social and cultural rights should not be seen as a threat to effective democracy. As Mantouvalou said, ‘For the best models of democracy the existence of at least a minimum of socio-economic provision is crucial.’ Without these protections the destitute would be unwilling or unable to participate in democracy - an individual without education would no doubt be less likely to vote, and one without a home would be unable, as a result of having no address to register. This is allowing the more well-off majority to exert undue power over these unprotected individuals, at the expense of not only their human dignity, but of benefit to society as a whole. One should not worry about leaving such issues to judges either. If it is their expertise that is doubted, then train them and give them access to experts, as is the case in other areas of law. If it is putting trust in a conservative judiciary that is the issue, then reform their appointment and training system; this would benefit all other areas of law too. As for questions of legitimacy, Mantouvalou puts it best: ‘the objection resting on institutional competence should not be seen as giving rise to ‘all or nothing’ solutions’. The separation of powers is not so strictly construed to disallow this. In fact, courts are already involved in many matters which have important resource implications, therefore putting economic, social and cultural rights outside the ambit of the courts would be arbitrary and undermine the indivisibility of all human rights.
Consequently, if we are really committed to the values promoted by these rights (and we should be), we must make them enforceable. It has been doubted if this is possible, but this doubt is unwarranted, perhaps even just an excuse. Cases like Grootboom and TAC, for example, show that even in the early stages, and even in an under-developed country as South Africa, these rights can be successfully protected and courts can work effectively with these rights, even if there are some problems with implementation. Implementation or enforcement can be successfully dealt with if the state really ‘puts its mind to it’ and comes up with a plan that works for it and is within its available resources. There is provision in Article 2 ICESCR for progressive realisation of these rights, after all. Just because it may take time to fully realise these rights, especially in under-developed states, does not mean that the process should be written off altogether; the end is too important to do that. As the Committee on Economic, Social and Cultural Rights stated, ‘realisation over time ... should not be misinterpreted as depriving the obligation of all meaningful content’, so there is a real and immediate duty. Indeed, the Committee also ‘specifically warned against the use of the requirement of “progressive realization” as an excuse for failing to take steps to implement the rights under the Covenant.’ The bottom line here is that economic, social and cultural rights are real rights with corresponding duties, and they should be treated at such.
So while there may be some rights whose correlative duty is not respected, that doesn't mean that they are not human rights, or that the international community should just give up on the cause of ensuring effective human rights for all. Even if those duties are not respected, the duties still exist, so even under Hohfield’s reasoning economic, social and cultural rights are indeed real rights, not nonsense. The solution should be that the persons in charge of carrying out those duties must ensure that they do so. More should be done in practice to ensure that things improve. Everybody is entitled to protection under them; the world just needs to progress to a point where this protection is properly and fully fulfilled.