The Danger of Over-Inclusive Human Rights
What do refugees, a child sent home for leopard print hair, and residents displaced due to gentrification have in common? One way or another, their situation is framed in terms of human rights – which may turn out to be a risky development.
What are human rights? Consult different introductory textbooks on human rights and you will find contrasting answers. Donnelly, for example, holds that they are “universal rights”. Clapham states that they are about “each of us living in dignity”. According to O’Byrne, they are “inalienable and indivisible rights held by us all”, and “are the basic standards of equity and justice without which people cannot live in dignity and are all around us”. Haan: human rights are “invoked to provide the ability to demand and enjoy a minimally restrictive yet optimal quality of life with freedom from interference with legitimate behavior, equal justice before law, and an opportunity to fulfill basic cultural, economic and social needs”.
Different understandings of human rights thus exist – and authors go to different lengths in trying to define them. As Dembour outlines, four so-called ‘schools of thought’ can be discerned in relation to human rights scholarship. In this respect, natural scholars are dominant: they believe that human rights are given, i.e. minimal entitlements originating from an immanent source – e.g. Nature, God, Reason, Humanity, etc. Deliberative scholars see human rights as agreed upon, i.e. as procedural principles: they do not independently exist as immanent idea, but as principles of politics and law. Protest scholars see human rights as fought for: they consider them to constitute a language of protest against unacceptable situations causing the suffering of others. Discourse scholars believe that human rights are merely talked about: they do not have an essential immanence but exist because they are continuously discussed. Each of these schools likewise has a distinct conception of (international) human rights law: for natural scholars human rights law is progress, for deliberative scholars human rights come to life through the rule of law, for protest scholars human rights law eventually betrays the true human rights idea, and discourse scholars question the implications of the reference to human rights in law.
Alternative understandings of human rights may be problematic in some respects. Thus, whilst one (deliberative) scholar may limit him/herself to procedural principles of due process when referring to human rights, another (natural or protest) scholar may include a much more extensive set of rights and entitlements in the same notion. In turn, discourse scholars may wonder what the actual effect is of discussing human rights in contemporary debates. Consequently, the risk is that discussants of human rights use the same language but talk past each other.
This does not necessarily constitute an insurmountable obstacle as long as we are aware that different persons may mean different things when referring to human rights. An example is the way judicial bodies approach human rights. The European Court of Human Rights largely focuses on certain entitlements, e.g. the ‘right’ to a fair trial (Art. 6 ECHR) and the legality of detention (Art. 5 ECHR), not on other entitlements, e.g. the ‘right’ to food, the ‘right’ to water, or the ‘right’ not to be discriminated against (see Dembour, p. 131ff). Whilst the right to a fair trial and to legal detention are incredibly important, it nevertheless is an inconvenient truth that the Court’s case law hardly extends to certain other issues that are arguably at least equally important and arguably also fall within the broader category of human rights. As such, it is important to understand that the Court has a certain conception of human rights and does not necessarily protect any interest that is claimed to fall within the concept’s purview. As Dembour aptly identifies (on p. 138), “a gap exists between the sense we intuitively attribute to the expression ‘human rights violation’ and the meaning the term receives once human rights have been judicially institutionalized”.
What are human rights used for?
Not only judicial bodies, but also other institutions and society at large have different understandings of what human rights could and should be used for. As Clapham aptly states, “[t]hese days it is usually not long before a problem is expressed as a human rights issue”. In scholarly research, for example, human rights are used as a central concept to study topics as broad as world poverty, health, environmental developments, competition law, Guantánamo Bay, sexual autonomy, drug use, policing, fair trade coffee, migration, same-sex sexualities, cultural heritage, animal rights, due process safeguards, trade policymaking, women’s education in Muslim societies, information technology and human trafficking. The human rights promise is felt at large and has a cross-disciplinary appeal.
A quick look on any media outlet confirms this wide attraction to the human rights concept and shows that it stretches far beyond the academic debate. Indeed, search for “human rights” and you will find a plethora of news on a variety of topics at any given moment. On the evening of Monday 7 September 2015, for example, a search on Google’s news feed included the following results:
o Refugee crisis: “Without human rights we are lost”
o Mother of child sent home for leopard print hair says her HUMAN RIGHTS have been breached
o Anifah denies Malaysia’s human rights record on downward spiral
o Court Rejects Attempt to Give Chimps Human Rights as Unborn Babies Still Have No Right to Live
o Dispatches: You’re Not the Victim Here, Mr. Habré
o Is Gentrification a Human Rights Violation?
o Human Rights Group Calls for Legalization of Prostitution
o Domestic Violence Tops List of Human Rights Abuse, says Elizabeth Broderick
What these stories have in common is that they are, one way or the other, discursively linked to human rights and the abuse thereof. Indeed, human rights have permeated the way we talk about a myriad of situations, have as such gained significance in public debate, and are part of the solutions that we envisage for an array of social, political and cultural questions. In other words, human rights allegedly are both the conceptual framework for, and the solution to, a range of issues that we concern ourselves with.
When and why should we (not) use human rights?
It is questionable whether the use of human rights for such a variety of topics is something to applaud or disapprove. On the one hand, it can be taken as a positive step in the development of humanity. Human rights are as such acknowledged as playing a positive role in protecting a broad spectrum of aspects of our lives. Moreover, framing issues as issues of human rights – i.e. ‘human rights talk’ – may force certain actors to change their allegedly harmful behaviour in order not to be deemed human rights violators.
On the other hand, framing an increasing number of problematic issues as problems of human rights may also have contrary effects. Indeed, what does the catchphrase ‘human rights’ mean when it no longer pertains to anything more than exactly that – a catchphrase? What if the catalogue of human rights becomes so broad that it is not clear anymore what belongs to it and what does not? Whilst expanding the human rights catalogue is commendable in some respects, it also leads to a high degree of ambiguity. As Posner puts it, people have “as many as 400 international human rights”, including “pretty much anything you might think is worth protecting”. This provides little guidance to governments since they have limited budgets to spend and therefore cannot protect all rights equally well – they have to make decisions. Having an extensive set of human rights thus provides governments with a large degree of discretion whilst obscuring possibilities for public accountability: when a government only upholds some of the many human rights, it is difficult to judge whether it complies with the treaties as best it can. Moreover, having an extensive human rights catalogue also means that states can pick and choose from these rights to justify certain policies: for example, Posner outlines how China justifies its priority to economic growth over political liberalisation with reference to the ‘right to development’.
Human rights as empty vessel?
As such, ‘human rights’ means different things for different persons, can be used selectively in accordance with a state’s own interests, and various rights are not equally scrutinised by judicial monitoring bodies. These conceptual and practical difficulties are likely to be aggravated by framing more and more issues as issues of human rights, and by continuously expanding the catalogue of ‘freedoms’ that human rights pertains to. We should consequently wonder whether framing issues like ‘gentrification’ and ‘being sent home for leopard print hair’ as issues of human rights is helpful, or whether it rather obscures the human rights notion. Indeed, such an expansion drift simultaneously runs the risk of turning the notion of human rights into little more than an empty vessel – having a significant size but carrying little substance.
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