Discrepancies between the best philosophical account of human rights and the international law of human rights

Proceedings of the Aristotelean Society

Volumn 101, Issue 1, 2001, Pages 1-28

  Griffin, James ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34248079062     PISSN: 00667374     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.0066-7372.2003.00019.x     Document Type: Article

References (32)

1. An idea introduced by W. B. Gallie, in his 'Essentially Contested Concepts', Proceedings of the Aristotelian Society, 56 (1955-56)
2. Richard Tuck attributes the appearance of roughly our modern sense of a 'right' to the Glossators, in particular to their assimilation of ius and dominium: 'Already by the fourteenth century', he says, 'it was possible to argue that to have a right was to be the lord or dominus of one's relevant moral world, to possess a dominium, that is to say property.' See his Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979)
3. Richard Dagger, 'Rights', in Terrence Ball, James Farr, and Russell L. Hanson (eds.), Political Innovation and Conceptial Change (Cambridge: Cambridge University Press, 1989), pp. 298-301
4. Giovanni Pico della Mirandola (1463-94), On the Dignity of Man, transl. Charles Glenn Wallis (Indianapolis: Hackett Publishing, 1998), p. 3
5. Henry J. Steiner and Philip Alston, International Human Rights in Context (Oxford: Clarendon Press, 1996), p. 127, make this observation about the two United Nations documents, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, but it applies generally
6. See Ian Brownlie, Principles of Public International Law, 5th edn. (Oxford: Clarendon Press, 1998), pp. 582-583: Originating in the Algiers Declaration of 1978 a doctrine of the Rights of Peoples has appeared in the literature. A fairly typical prospectus of these rights would include the right to food, the right to a decent environment, the right to develop, and the right to peace.'
7. American Declaration of the Rights and Duties of Man, 1948, Art. V
8. International Covenant on Civil and Political Rights, Art. 17.1
9. This is repeated in the International Covenant on Civil and Political Rights, Art. 12.1 and the African Charter, Art. 12.1
10. See the American Declaration of the Rights and Duties of Man, Arts. XXIV-XXVI
11. the European Convention, Arts. 6-7
12. the American Convention, Arts. 3, 8-10
13. See e.g. Michael Akehurst, A Modern Introduction to International Law, 6th edn. (London: Allen and Unwin, 1987), p. 76, who in writing about the growth of the human rights doctrine observes: 'It was only after the United Nations Charter was signed in 1945 that any attempt was made to provide comprehensive protection for all individuals against all forms of injustice.'
14. For the history of e.g. the introduction of the Bill of Rights in the United States, see L. W. Levy, Origins of the Bill of Rights (New Haven: Yale University Press, 1999), esp. ch. 1
15. Is there another line that the drafters of these international documents might take? An interesting phrase crops up in many of the documents. They speak of promoting observance of 'human rights and fundamental freedoms'. See e.g. the Universal Declaration, Preamble, Art. 2
16. International Covenant on Economic, Social and Cultural Rights, Preamble, Art. 5.1
17. European Convention, Preamble (which links the two: 'fundamental freedoms' depend upon the observance of 'human rights' and so suggests that they are co-extensive); American Convention, Art. 1
18. African Convention, Preamble, Art. 1-2. Are 'fundamental freedoms' different from 'human rights'? There is, so far as I know, no explanation of the distinction between the two. Of course, some fundamental freedoms, such as liberty, are human rights if anything is. But if some 'fundamental freedoms' fall outside the class of 'human rights', then the drafters may not be using 'human rights' as broadly as I think they are. But the most plausible interpretation of what the drafters mean by 'fundamental freedoms', it seems to me, is that they are a sub-class of 'human rights'. This makes the phrase 'and fundamental freedoms' otoise, but I am inclined to accept that consequence. (An example of a human right that is not also a fundamental freedom would be a right to welfare.)
19. See the Preamble, para 1, of the Universal Declaration
20. See Oscar Schachter, 'Human Dignity as a Normative Concept', 77 American Journal of International Law, 848, (1983). 'We do not find an explicit definition of the expression "dignity of the human person" in international instruments or (as far as known) in national law. Its intrinsic meaning has been left to intuitive understanding, conditioned in large measure by cultural factors ...'
21. In tracing the emergence of a right to a healthy environment, I follow closely Carl Wellman's discussion in his paper 'Solidarity, the Individual and Human Rights', Sect. 3, Ts
22. See Michael Akehurst, A Modern Introduction to International Law, Ch. 3
23. Ian Brownlie, Principles of Public International Law, Ch. I, Sect. 2
24. H. J. Steiner and P. Alston, International Human Rights in Context, p. 27
25. This is the view of Michael Akehurst, A Modern Introduction to International Law, p. 42
26. See e.g. Maurice Cranston, 'Human Rights: Real and Supposed', in D. D. Raphael (ed.), Political Theory and the Rights of Man (London: Macmillan, 1967)
27. for a more conceptual doubt about welfare rights, see Carl Wellman, Welfare Rights (Totowa, New Jersey: Rowman and Allanheld, 1982), esp. p. 181
28. the International Covenant on Economic, Social and Cultural Rights, Art. 6.1
29. See the International Covenant on Economic, Social and Cultural Rights, Art. 7
30. the European Social Charter II.2
31. See the International Covenant on Economic, Social and Cultural Rights, Art. 7c
32. Ludwig Wittgenstein, Philosophical Investigations, sects. 64 ff