Human rights and the legitimacy of the international order

Legal Theory

Volumn 14, Issue 1, 2008, Pages 39-70

  Buchanan, Allen ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77950782226     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325208080038     Document Type: Article

References (47)

1. Buchanan Allen, Recognitional Legitimacy and the State System, 28 Phil. & Pub. Aff. 46-78 (1999).
2. Saying that all human beings have human rights does not commit one to the view that human rights are natural rights in the traditional sense, where this means preinstitutional moral rights that human beings have regardless of the social conditions under which they exist and hence that are timeless. The claim is that human rights are universal in a less robust sense: they apply to all existing human beings (and to all human beings in the foreseeable future), barring deep changes in the kinds of social relations and institutions human beings now live within, the existence of the state, etc. See Charles R. Beitz, What Human Rights Mean, 132 Daedelus 36-46 (2003).
3. Charles Beitz, among others, makes this point. He states that a “justifying theory” of human rights is needed. I argue that this is an incomplete diagnosis of the problem. I show below that the response to the “justification deficit” must in significant part be institutional. Beitz, Saying that all human beings have human rights does not commit one to the view that human rights are natural rights in the traditional sense, where this means preinstitutional moral rights that human beings have regardless of the social conditions under which they exist and hence that are timeless note 2, at 37.
4. Charles Beitz rightly emphasizes that what I call the modern conception'the conception embodied in the actual law and politics of human rights'should be the focus of attempts to provide philosophical accounts of human rights and that philosophers should not begin their analyses by assuming that the proper conception of human rights is the idea of natural human rights familiar in liberal political philosophy. See Charles R. Beitz, Human Rights as a Common Concern, 95 Am. Pol. Sci. Rev. 269-287 (2001), at 276-277 Charles R. Beitz, Human Rights and the Law of Peoples, in The Ethics of Assistance: Morality and the Distant Needy 196-198 (Deen K. Chaterjee ed., 2004).
5. Joshua Cohen, Minimalism about Human Rights: The Most We Can Hope For? 12 J. Pol. Phil. 190-213 (2004).
6. David B. Wong, Rights and Community in Confucianism, in Confucian Ethics: A Comparative Study of Self, Autonomy and Community (Kwong-loi Shun & David B. Wong ed., 2004).
7. To take only one example, irrespective of whether the idea of human rights is found in “Chinese (or Asian) culture,” the prodemocracy activists who were gunned down in Tiananmen Square did not hesitate to frame their demands in the language of human rights.
8. For example, consider the International Covenant on Civil and Political Rights (ICCPR) Preamble: “Recognizing that these rights derive from the inherent dignity of the human person”; the International Covenant on Economic, Social and Cultural Rights (ICESCR) Preamble: “Recognizing that these rights derive from the inherent dignity of the human person”; the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Preamble: “Noting that the Charter of the United Nations Reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women,” Carter & Trimble, To take only one example, irrespective of whether the idea of human rights is found in “Chinese note 8.
9. James Nickel, Making Sense of Human Rights (2nd ed. 2007).
10. Glendon, Making Sense of Human Rights note 8, at 56-58.
11. See Allen Buchanan, Assessing the Communitarian Critique of Liberalism, 99 Ethics 852-882 (1989).
12. Articles 8-11 of the Universal Declaration of Human Rights establish that victims of rights violations should have access to effective remedies; that individuals have a right to be protected from “arbitrary arrest, detention of exile”; that persons charged with a crime have the right to a fair hearing; and that persons will be presumed innocent and shall not be subject to ex post facto laws. See Carter & Trimble, Assessing the Communitarian Critique of Liberalism note 8, at 382.
13. Nickel, Articles 8-11 of the Universal Declaration of Human Rights establish that victims of rights violations should have access to effective remedies; that individuals have a right to be protected from “arbitrary arrest, detention of exile”; that persons charged with a crime have the right to a fair hearing; and that persons will be presumed innocent and shall not be subject to ex post facto laws note 10, at 163-166, also emphasizes that human rights have become less individualistic or more community-friendly.
14. International Covenant on Civil and Political Rights, Part I, Article 1, in Carter & Trimble, Articles 8-11 of the Universal Declaration of Human Rights establish that victims of rights violations should have access to effective remedies; that individuals have a right to be protected from “arbitrary arrest, detention of exile”; that persons charged with a crime have the right to a fair hearing; and that persons will be presumed innocent and shall not be subject to ex post facto laws note 10 note 8, at 411.
15. James S. Anaya, Indigenous Peoples in International Law 42, 97-125 (1996).
16. Lubicon Lake Band v. Canada, Communication No. 167/1984 (1990), U.N. Doc. A/45/40, Supp. No. 40 (1990), at 1.
17. See, e.g., Anaya, Lubicon Lake Band v. Canada note 20 and Cindy Holder and Jeff Corntassel, Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights, 24 Hum. Rts. Q. 126-151 (2002).
18. Antonio Cassese, International Law 61 (2nd ed. 2005).
19. For an effort to sketch the outlines of a normative structure for international law that includes both human rights and rights of national minorities and indigenous peoples, see Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law pt. 3 (2003).
20. See, e.g., Nancy J. Hirschmann, The Subject of Liberty: Toward a Feminist Theory of Freedom 161-168 (2003); and Wendy Brown, States of Injury: Power and Freedom in Late Modernity (1995).
21. For an influential and illuminating view that recognizes the special needs of women but does not reject the conventional human rights as parochial, see Martha Nussbaum, Women and Human Development: The Capabilities Approach (2000).
22. Convention on the Elimination of All Forms of Discrimination Against Women, in Carter & Trimble, For an influential and illuminating view that recognizes the special needs of women but does not reject the conventional human rights as parochial note 8, at 432-443. The preamble to the declaration emphasizes that while the Charter of the United Nations and the Universal Declaration on Human Rights both affirm the equal rights of men and women, there remain inequities between men and women and special attention is needed to ensure that women do not suffer unduly the effects of poverty or the burdens of child rearing.
23. Convention on the Rights of the Child, in Carter & Trimble, Convention on the Elimination of All Forms of Discrimination Against Women note 8, at 455-463.
24. Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, available at http://www.unhchr.ch/html/menu3/b/m_mwctoc.htm.
25. Convention on the Rights of Persons with Disabilities, available at http://www.un.org/disabilities/convention/conventionfull.shtml.
26. Kristen Hessler, Resolving Interpretive Conflicts in International Human Rights Law, 13 J. Pol. Phil. 29-52 (2005).
27. John Rawls, The Law of Peoples (1999).
28. See Beitz, The Law of Peoples note 4, at 276-277. Beitz overgeneralizes when he says that “philosophers” confuse human rights with natural rights. For example, James Nickel exposed this confusion twenty years ago and went on to develop a conception of human rights that is very similar to the one that Beitz proposes in his 2003 article. Henry Shue, John Tasioulas, Martha Nussbaum, Amartya Sen, Allen Buchanan, and perhaps most other contemporary philosophical theorists of human rights reject the identification of human rights with natural rights, as the latter are understood by Beitz.
29. See, e.g., Glendon, The Law of Peoples note 4 note 8, at 68-70, 115-117 passim.
30. See Held David, Law of States, Law of Peoples: Three Models of Sovereignty, 8 Legal Theory 1-44 (2002), at 24 Amartya Sen, Equality of What? in I Tanner Lectures on Human Values (S. McMurrin ed., 1980); and Martha Nussbaum, Women and Human Development: The Capabilities Approach (2000), at 4, for very similar formulations of the idea of the fundamental equality of persons. On my view the fundamental equality assumption has an important implication for just institutions: we are all obligated to help ensure that all persons have access to institutions that protect their basic human rights, the latter being those rights that are especially important for having the opportunity to live a decent life. Buchanan, The Law of Peoples note 4 note 8 note 25, ch. 2.
31. See Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 5-34 (2nd ed. 1996).
32. See Thomas M. Scanlon, Human Rights As a Neutral Concern, in Human Rights and U.S. Foreign Policy: Principles and Applications 83-92 (Peter G. Brown & Douglas MacLean eds., 1979); Nickel, Basic Rights: Subsistence note 10, at 3, 59-67.
33. Some human rights, such as the right to freedom of expression, may also be understood as including immunities. This point is due to George Rainbolt. In some cases human rights can be said to entail determinate duties (e.g., the right against torture entails duties not to torture incumbent on all), but they can also ground the imposition of duties; how determinate the latter are will depend upon a complex set of factors, including existing institutional capacities. In an excellent essay entitled “The Moral Reality of Rights,” John Tasioulas persuasively argues that human rights ground the imposition of duties (because of the moral importance of the interests they protect) and that this is compatible with something being a human right even if at present there is no determinate assignment of duties. I agree with this part of Tasioulas's analysis, but instead of arguing from the moral importance of interests to human rights, I frame the MOV in such a way as to make explicit a premise that includes the idea of equal regard for persons, because I think that merely to refer to the moral importance of interests, as Tasioulias does, fails to emphasize that the interests in question are of such moral importance because the are the interests of person. John Tasioulas, The Moral Reality of Human Rights, in Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? 75-101 (Thomas Pogge ed., 2007).
34. Shue, Some human rights, such as the right to freedom of expression, may also be understood as including immunities note 36. For his discussion of “standard threats,” see id. at 29-34.
35. This is not to say that our beliefs about what undercuts the opportunity for a decent life are infallible or that what counts as a decent life is uncontestable or uncontested. Later I will suggest that such judgments can be distorted by parochialism or other forms of bias. But I will also show that properly designed institutions can reduce such distortions and offer legitimate venues for contestation.
36. See John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture (2000), at 169-183 for a discussion of the debilitating psychological effects of torture.
37. The International Covenant on Civil and Political Rights, Article 14 accords each individual a right to “a fair and public hearing by a competent and impartial tribunal established by law” but does not require trial by jury.
38. Universal Declaration of Human Rights, Article 17, in Carter & Trimble, The International Covenant on Civil and Political Rights note 8, at 383.
39. As James Nickel has noted, the protection of economic liberties, including the right to individual property'though in no way sufficient in itself'is often of great importance for the welfare of some of the world's worst off people. Nickel, This point is due to James Nickel note 10, at 123-125, 133-134.
40. Peter M. Haas defines an epistemic community as “a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area” in his introduction to a special issue of International Organization. See Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int'l Org. 1-35 (1992). See also Haas, Saving the Mediterranean: The Politics of International Environmental Cooperation (1990).
41. The United Nations Decade for Women, 1976-1985, involved a major shift in international thought regarding women. The new consensus was that development was not possible without the full participation of women. United Nations statistics dramatized the fact that women's rights are an important factor in the well-being of all people, seen, for example, in the connection between declines in infant mortality and the mother's level of education. The Programme for the Decade for Women, adopted by the Commission on the Status of Women (CSW), called for a number of studies in specific areas, for example, comparative studies on different aspects of civil and family law. This period of information-gathering regarding women is recognized for its important legal achievements, in particular the 1979 Convention on the Elimination of All Forms of Discrimination Against Women. The drafting of this convention took several years, the draft document was widely circulated for comment, and the responses were numerous. Today, this convention is monitored by the Committee on the Elimination of Discrimination Against Women (CEDAW). It is recognized that the most glaring omission in the work of the committee is the lack of information from NGOs. As Roberta Jacobson notes, “A spin-off effect of NGO participation could be government reports which are prepared more carefully and comprehensively since detailed information from other sources may be available to Committee members.” See Roberta Jacobson, The Discrimination Against Women Committee, in The United Nations and Human Rights: A Critical Appraisal 466 (Philip Alston ed., 1992). For more information on the campaign to promote and protect the rights of women, see United Nations Department of Public Information, United Nations and the Advancement of Women, 1945-1996 (1995).
42. In his comments on an earlier draft of this essay, John Tasioulas calls this an “executive function” of such institutions, but I think it is accurate to describe it as an epistemic function as well.
43. For a sophisticated and systematic analysis of the role of law generally in achieving normative coordination through specification under conditions of persisting reasonable disagreement, see Samantha Besson, The Morality of Conflict (2005).
44. Buchanan Allen, Political Liberalism and Social Epistemology, 32 Phil. & Pub. Aff. 95-130 (2004) and Social Moral Epistemology 19 Soc. Phil. & Pol. 126-152 (2002).
45. A prominent example of the purely discursive, noninstitutional approach to the problem of justification is the valuable work of James Griffin on human rights, culminating in Griffin, Human Rights: Completing the Incomplete Idea (forthcoming 2008).
46. Amartya Sen may be a partial exception to this generalization. In a recent essay on human rights he suggests that valid human-rights norms are those that survive discussion and contestation, but he does not consider the role of institutions in this regard, nor does he appreciate the relevance of social moral epistemology. Amartya Sen, Elements of a Theory of Human Rights, 32 Phil. & Pub. Aff. 315-356 (2004).
47. I am grateful to Stephen Ratner, Monica Hlavac, Russell Powell, and two anonymous reviewers for this journal for their helpful comments on earlier versions of this paper.