The international significance of human rights

Journal of Ethics

Volumn 4, Issue 1-2, 2000, Pages 45-69

  Pogge, Thomas ^a  

^a Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

Cosmopolitanism; Cultural diversity; Democratic governance; Foreign lending; Global institutions; Human rights; International law; Justice; Nationalism; Universal declaration; Universalism

Indexed keywords

EID: 0007075048     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1023/a:1009852018252     Document Type: Article

References (46)

1. This second component of equality is compatible with the view that the weight agents ought to give to the human rights of others varies with their relation to them - that agents have stronger moral reasons to secure human rights in their own country, for example, than abroad - so long as this is not seen as being due to a difference in the moral significance of these rights, impersonally considered. (I can believe that the flourishing of all children is equally important and also that I should show greater concern for the flourishing of my own children than for that of other children.)
2. These six central elements are discussed in greater detail in the first two sections of my essay, "How Should Human Rights be Conceived?," Jahrbuch für Recht und Ethik 3 (1995), pp. 103-120. If we can agree that these are indeed elements of the concept of human rights, then each human right will have these six features. The converse, however, does not hold, as alternative conceptions of human rights go beyond the shared core in two ways: (a) by further specifying the concept of human rights through additional elements and (b) by selectively postulating a list of particular human rights (cf. second paragraph above).
3. 1: "A human right, then, will be a right whose beneficiaries are all humans and whose obligors are all humans in a position to effect the right" - David Luban: "Just War and Human Rights" in Charles Beitz et al. (eds.), International Ethics (Princeton: Princeton University Press, 1985), p. 209.
4. The first of these possibilities is exemplified in Robert Nozick, Anarchy, State and Utopia (New York: Basic Books 1974)
5. 1 would lead to views like theirs but phrased in terms of human rights.
6. I use the symbol "§" throughout to refer to articles of the Universal Declaration of Human Rights, which was adopted and proclaimed by the General Assembly of the United Nations on December 10, 1948, as resolution 217A(III). By drawing on the Universal Declaration for examples and illustrations, I am not implying that all the rights it lists are human rights or that its list is complete. Rather, I am using these rights as evidence for how the concept of human rights has been understood in the post-W.W.II era, on the assumption that any plausible understanding of human rights must be critically developed out of this established and customary notion.
7. The right to equal pay for equal work (§23.2) would seem to be doubly limited in scope. No duty to help maintain such equality within some country is imposed upon foreigners. And the principle needs to be satisfied only within each state, not internationally: Equal work may be more highly rewarded in Switzerland than in Bangladesh.
8. This distinction will not be clear-cut as some human rights may have components that differ in scope. The human right not to be subjected to torture (§5), for example, is presumably meant to give each government negative duties not to use torture as well as positive duties to prevent torture. The negative duties are most plausibly construed as general: A government must not order or authorize the torture of any human being at all. But the positive duties are most often construed as being limited in scope: A government must prevent torture on territory it can effectively control, but not elsewhere.
9. Thus, for example, Jürgen Habermas, "The concept of human rights is not of moral origin, but . . . by nature juridical." Human rights "belong, through their structure, to a scheme of positive and coercive law which supports justiciable subjective right claims. Hence it belongs to the meaning of human rights that they demand for themselves the status of constitutional rights." Jurgen Habermas, "Kants Idee des Ewigen Friedens - aus dem historischen Abstand von 200 Jahren," Kritische Justiz 28 (1995), pp. 293-319. The quotes are from p. 310 and p. 312, italics are in the original, the translation is mine. Though Robert Alexy explicitly refers to human rights as moral rights, he holds an otherwise similar position which equates the institutionalization of human rights with their transformation into positive law.
10. See Robert Alexy, "Die Institutionalisierung der Menschenrechte im demokratischen Verfassungsstaat" in Stefan Gosepath and Georg Lohmann (eds.), Die Philosophie der Menschenrechte (Frankfurt: Suhrkamp, 1997), pp. 244-264.
11. 1. Some human rights - such as the human right not to be subjected to arbitrary arrest (§9) - are meant to protect every human being regardless of location or citizenship. Such human rights would not be fully juridified through a constitutional right that prohibits merely the government's arbitrary arrest of its own citizens or residents but not that of foreigners. The juridification component of my human right not to be subjected to arbitrary arrest would then give a weighty moral duty to every citizen of every state to help ensure that his or her state affords me (and, of course, every other human being) a legal right not to be arbitrarily arrested by its government.
12. This problem could not arise, if human rights had effective legal (constitutional) rights as their sole objects. I am assuming here that, for at least some human rights, this is not the case.
13. As the examples indicate, my notion of secure access involves a knowledge condition: A person has secure access to the object of some human right only when she is not prevented by social obstacles from acquiring the knowledge and know-how necessary to secure this object for herself.
14. This is not to deny that some human rights are difficult or impossible to fulfill without corresponding legal or even constitutional protections. This is clearly true, for example, of a human right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted by the constitution or by law (§8). It is also hard to imagine a society under modern conditions whose members are secure in their property or have secure access to freedom of expression even while no legal right thereto exists. I assume below that secure access to the objects of civil and political human rights generally requires corresponding legal protections.
15. This criticism has been voiced, for instance, by Singapore's patriarch Lee Kuan Yew and by Mary Ann Glendon: Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991).
16. My reading of §28 emphasizes its statement that all human beings have a claim that any institutional order imposed upon them be one in which their postulated rights and freedoms can be fully realized. §28 would seem to make the additional statement that human beings have a claim that such an order be newly established in any (state-of-nature or "failed state") contexts in which no institutional order exists.
17. 4, a person may actually be assaulted even while his human right to physical security (§3) is fulfilled, and another's like right may be unfulfilled even while she suffers no actual attack. The task of specifying, for the object of each particular human right, acceptable probabilities for threats from various sources belongs to the second, substantive component of a conception of human rights.
18. Relative, because we are making a comparative judgment: about how much better or worse human rights are fulfilled in this institutional order than they would be fulfilled in its feasible alternatives.
19. One may think here of the, still common, official tolerance for domestic violence against women.
20. This differential weighing is deeply rooted in our moral thinking and shows itself, for instance, in our attitudes toward the criminal law and the penal system. The point can be illuminated most economically, perhaps, by distinguishing, in a preliminary way, six ways in which a social order may affect the goods and ills of its participants. The following illustration uses six different scenarios, arranged in order of their intuitive moral significance, in which, due to prevailing social institutions, certain innocent persons are avoidably deprived of some vital nutrients V (the vitamins contained in fresh fruit, say): First-class shortfalls are officially mandated, paradigmatically by the law (legal restrictions prevent certain persons from buying foodstuffs containing V). Second-class shortfalls arise from legally authorized conduct of private subjects (sellers of foodstuffs containing V lawfully refuse to sell to certain persons). Third-class shortfalls are foreseeably engendered through the uncoordinated conduct of subjects under rules that do not specifically mention them (certain persons, suffering severe poverty within an ill-conceived economic order, cannot afford to buy foodstuffs containing V). Fourth-class shortfalls arise from private conduct that is legally prohibited but generally tolerated (sellers of foodstuffs containing V illegally refuse to sell to certain persons, but enforcement is lax and penalties are mild). Fifth-class shortfalls arise from natural factors whose effects social rules avoidably leave unmitigated (certain persons are unable to metabolize V due to a treatable genetic defect but are not receiving the treatment that would correct their handicap). Sixth-class shortfalls, finally, arise from self-caused factors whose effects social rules avoidably leave unmitigated (certain persons are unable to metabolize V due to a treatable self-caused disease - brought on, perhaps, by their maintaining a long-term smoking habit in full knowledge of the medical dangers associated therewith - and are not receiving the treatment that would correct their ailment). Behind the moral significance we attach to these distinctions lies the idea that our social institutions and their political and legal organs should not merely serve justice, but also symbolize it. The point is important, because it undermines the plausibility of consequentialist (e.g., utilitarian) and hypothetical-contract (e.g., Rawlsian) conceptions of justice which assess social institutions from the standpoint of prudent prospective participants, who, of course, have no reason to care about this distinction among sources of threats.
21. My critique of such recipient-oriented conceptions of justice is presented in "Three Problems with Contractarian-Consequentialist Ways of Assessing Social Institutions," Social Philosophy and Policy 12 (1995), pp. 241-266, esp. Section 5 [and in "Gleiche Freiheit für alle?" in Otfried Höffe (ed.), Rawls' "Theorie der Gerechtigkeit" (Berlin: Akademie Verlag, 1997)].
22. This understanding of human rights is laid out more extensively in my "How Should Human Rights Be Conceived?," Jahrbuch für Recht undEthik 3 (1995), pp. 103-120. That earlier essay applied the idea only to the case of national institutional schemes, while the present one applies it mainly to our global institutional order.
23. On the stronger reading of §28 (cf. footnote 14), we would have such responsibilities to establish a global institutional order that fulfills human rights even if no such order existed at present. It is doubtful, however, whether these responsibilities could, in such a context, be considered to be negative ones. Immanuel Kant suggests that they may be: "A human being (or a people) in a mere state of nature robs me of this assurance and injures me through this very state in which he coexists with me - not actively (facto), but through the lawlessness of his state (statu iniusto) through which I am under permanent threat from him - and I may compel him either to enter with me into a common juridical state or to retreat from my vicinity" [Immanuel Kant, "Zum ewigen Frieden" (1795), in Preußische Akademieausgabe, Vol. VIII (Berlin: de Gruyter, 1923), 349n (my translation)].
24. There are stateless persons, persons with multiple nationalities and those who are citizens of one country but reside in or are visiting another. We have Antarctica, continental shelves, disputed areas and areas that are contracted out (such as Guantanamo Bay and Hong Kong, though the latter case is also a beautiful illustration of the continuity condition). And groups are sometimes recognized as the legitimate government even though they do not control a preponderant share of the means of coercion within the relevant territory (Pol Pot's Khmer Rouge in the 1980's or Bertrand Aristide in the 1990's).
25. The great importance of this "international resource privilege" is extensively discussed in my lecture "On International Redistribution" (Stanford University, April 16, 1999).
26. This council would work only in the interest of democratic constitutions. Its determinations would have consequences not only for a government's ability to borrow abroad, but also for its domestic and international standing. A government that has been officially declared illegitimate would be handicapped in myriad ways (trade, diplomacy, investments, etc.) - a fact that would contribute to the deterrent effect of the proposed institution and hence to its tendency to reduce the frequency of coup attempts and civil wars.
27. I want to thank Ronald Dworkin for seeing this difficulty and for articulating it forcefully.
28. An existing alternative proposal would allow each country to authorize military interventions against itself for the event that a future government significantly violates democratic principles (Farer) or human rights (Hoffmann) [see Tom J. Farer, "The United States as Guarantor of Democracy in the Caribbean Basin: Is There a Legal Way?," Human Rights Quarterly 10 (1988), pp. 157-176]
29. "A Paradigm of Legitimate Intervention" in Lori Fisler Damrosch (ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations Press, 1993), pp. 316-347
30. [Stanley Hoffmann, "Delusions of World Order," New York Review of Books 39 (1992), pp. 37-43]. Proposals of this kind have two drawbacks: Military interventions will, sometimes at least, be bloody, and decisions about intervention will generally be co-determined by extraneous (e.g., strategic) interests of the potential intervening states. Without rejecting (or supporting) such proposals, I have here suggested a less radical and less risky modification which shows more clearly I believe (though I could not present all its details and all significant objections against it) that our current world order could, with some good will on the part of the rich countries, be modified so that it would exert a significant force toward democratization.
31. 1.3 billion persons, that is 22 percent of the world's population, live below the international povertyline, which means that their daily income has less purchasing power than one Dollar had in the US in 1985, less purchasing power than $1.53 has in the US today. As a consequence of such severe poverty, 841 million persons (14 percent of humankind) are today malnourished, 880 million (15 percent) are without access to health services, one billion (17 percent) are without adequate shelter, 1.3 billion (22 percent) are without access to safe drinking water, two billion (33 percent) are without electricity and 2.6 billion (43 percent) are without access to sanitation [UNDP: Human Development Report 1998 (New York: Oxford University Press, 1998), p. 49].
32. As a further consequence of such severe poverty, a quarter of all children between 5 and 14, 250 million in all, are compelled to work, often under cruel conditions in mines, quarries and factories as well as in agriculture, construction, prostitution, textile and carpet production: "At least 120 million children between the ages of 5 and 14 work full time. The number is 250 million, or more than twice as many, if we include those for whom work is a secondary activity" (International Labor Organization: http://www.ilo.org/public/english/270asie/feature/child.htm).
33. About one third of all deaths, some 50,000 daily, are due to poverty-related causes such as measles, pneumonia and diarrhea, which could easily be prevented through adequate nutrition and safe drinking water or be cured through cheap rehydration packs and antibiotics [United Nations Children's Fund: The State of the World's Children 1998 (New York: Oxford University Press 1998)].
34. Thomas W. Pogge, "A Global Resources Dividend" in David A. Crocker and Toby Linden (eds.), Ethics of Consumption: The Good Life, Justice, and Global Stewardship (Lanham: Rowman & Littlefield, 1998). This essay discusses the details of the proposals, reasons for and against, as well as an important alternative to it: the so-called Tobin Tax.
35. There are various studies showing how development aid often benefits those capable of reciprocation, i.e., the "elites" in the politically more important developing countries. In addition, such aid is often focused on expensive high-visibility projects in which firms of the donor country can profitably participate. For more on this theme and for relevant references, see the cover story "Why Aid is an Empty Promise," The Economist, May 7, 1994, pp. 13-14 and 21-24.
36. An analogous point plays a major role in debates about the significance of genetic visa-vis environmental factors: Factors that are quite unimportant for explaining the observed variation of a trait (e.g., height, IQ, cancer) in some population may be very important for explaining this trait's overall level (frequency) in the same population. Suppose that, in some province, the observed variation in female adult height (54-60 inches) is almost entirely due to hereditary factors. It is still quite possible that the height differentials among these woman are minor compared to how much taller they all would be (67-74 inches) if it had not been the case that, when they were growing up, food was scarce and boys were preferred over girls in its distribution. Or suppose that we can predict quite accurately, on the basis of genetic information, who will get cancer and who will not. It is still quite possible that, in a healthy environment, cancer would hardly occur at all.
37. This point is frequently overlooked - by John Rawls, for example, when he attributes the human rights problems in the typical developing country exclusively to local factors: "The problem is commonly the nature of the public political culture and the religious and philosophical traditions that underlie its institutions. The great social evils in poorer societies are likely to be oppressive government and corrupt elites" [John Rawls, "The Law of Peoples" in Stephen Shute/Susan Hurley (eds.), On Human Rights (New York: Basic Books, 1993), p. 77].
38. This superficial explanation is not so much false as incomplete. As soon as one asks (as Rawls does not), why so many developing countries ("LDC's") have oppressive governments and corrupt elites, one will unavoidably hit upon global factors - such as the ones discussed in my two examples: Local elites can afford to be oppressive and corrupt, because, with foreign loans and military aid, they can stay in power even without popular support. And they are so often oppressive and corrupt, because it is, in light of the prevailing extreme international inequalities, far more lucrative for them to cater to the interests of foreign governments and firms rather than those of their impoverished compatriots. Examples abound: There are plenty of LDC governments that came to power and/or stay in power only thanks to foreign support. And there are plenty of LDC politicians and bureaucrats who, induced or even bribed by foreigners, work against the interests of their people: for the development of a tourist-friendly sex industry (whose forced exploitation of children and women they tolerate and profit from), for the importation of unneeded, obsolete, or overpriced products at public expense, for the permission to import hazardous products, wastes, or productive facilities, against laws protecting employees or the environment, etc. It is perfectly unrealistic to believe that the corruption and oppression in the LDC's, which Rawls rightly deplores, can be abolished without a significant reduction in international inequality.
39. This is so no matter which of the available substantive accounts of human rights one might endorse.
40. For a different argument, which attacks the same conviction by appeal to the inherently regrettable incentives it provides, see my "Loopholes in Moralities," Journal of Philosophy 89 (1992), pp. 79-98.
41. Participants in an institutional order will be differentially responsible for its moral quality: Influential and privileged participants should be willing to contribute more to the maintenance of a just, or the reform of an unjust social order. Moreover, we must here distinguish responsibility from guilt and blame. That we share a negative responsibility for an injustice means that we contribute to it causally and that we can and should act differently. It does not follow from this that we are also guilty or blameworthy on account of our conduct. For there might be applicable excuses such as, for instance, factual or moral error or ignorance.
42. Being negative, this duty is of considerably greater weight than any positive duty we may have to seek to improve the conditions of those upon whom such an order is imposed by others without our collaboration.
43. A global order could give such encouragement through centrally determined economic (trade, loans, GRD payments) and diplomatic privileges and penalties. Stronger sanctions, like embargoes and military interventions, should probably be triggered only in cases of extreme oppression. Some of the governments that profess allegiance solely to social, economic and cultural human rights maintain that (legal) civil and political rights are currently unnecessary in their country: unhelpful, or even counterproductive (distracting and expensive). But most of these governments would, I believe, concede that more extensive civil and political rights would often be helpful elsewhere or at other times. The Chinese government, for example, would certainly maintain that instituting more extensive civil and political rights in China today would not work to the benefit of the Chinese poor, for whom the Party and the government are already doing all they can. But the same government might acknowledge, if only unofficially, that there are other regions today - Africa, perhaps, or Latin America, Eastern Europe, the former Soviet Union, Indonesia - where more extensive civil and political rights would help the poor and ethnic minorities to fend for themselves. Even more privately, it would probably also have to concede that the Chinese famine of 1958-1961, whose staggering death toll of nearly 30 million has become widely known only recently, could not have occurred in a country with independent mass media and a competitive political system. Compare an analogous domestic case.
44. A decent police officer, who cares deeply about the suffering caused by crime, may see no good reason why she and her fellow officers at her station should not just do everything they can to nail a suspect they know to be guilty, without regard to procedural niceties. But would she also advocate a civil order in which the police in general can operate without procedural encumbrances? She must surely understand that not all officers would always use their greater powers in a decent, fair and judicious fashion, and also that some persons with criminal intentions would then have much greater incentives to try to join the police force. This example shows that one may consistently believe of certain safeguards that their observance should be strongly encouraged by social institutions and that they are unnecessary or even counterproductive in this or that particular case.
45. As when we were told by Ernest Lefèvre, former US President Ronald Reagan's candidate for Assistant Secretary of State for Human Rights, that torture is an accepted part of Argentinean culture or still are told by other Westerners that child prostitution is essential to the Thai way of life.
46. Mutual toleration with regard to this question is at least possible. This is not to say that we ought to tolerate the national institutions of other countries no matter how unjust they may be.