When Secretary of State Mike Pompeo announced the formation of a Commission on Unalienable Rights in July 2019, many activists and pundits reacted sharply and negatively. When the State Department released the commission’s draft report on July 16, 2020, they repeated similar criticisms.
Many simply denounced the commission’s mandate, denied the worth of its analyses, and rejected its purposes as partisan. Several condemned it because it did not take their desired political positions. Others added the more substantial complaints that the commission establishes a “hierarchy” of rights and draws a distinction between “civil and political rights,” such as freedom of speech and equality before the law, and “economic and social rights.”
The Center for American Progress (CAP) organized a convoluted and murky statement that reads in part:
Freedom of religion is equally and inextricably linked with all the other interconnected rights that enable humans to live in dignity. Without the rights to peaceful assembly, freedom of speech, freedom from violence and freedom from discrimination in access to basic needs, education, employment, or health, and the right to participate in all social practices, freedom of religion would be hollow. Human rights are mutually reinforcing; none is subordinate to another, nor should anyone be denied these rights because of who they are or whom they love.
It also refers to a “misguided attempt to create a hierarchy of rights” and “endorsing its own culturally contingent hierarchy of rights.”
Most responses to and criticisms of the report, like the CAP’s, are political critiques that do not really engage its substantive issues. It is as though there were no real questions that need to be addressed as to what human rights actually are, or what should count as a human right. The criticisms elide and avoid the question of what does it mean to say that something is a human right. This is a doubly dangerous move when the notion of human rights is under analytical, theoretical, and vicious political assault, both at home and abroad.
Battles over Rights
The notion of rights is perhaps the most confused concept in our political vocabulary, despite stiff competition. Human rights are the most common way to address normative issues politically, and they are central to modern theories of ethics, politics, and law. However, the varied types of rights—including but not limited to human rights, inherent rights, natural rights, civil rights, moral rights, subjective rights, and legal rights—are often conflated when, in fact, each can refer to distinct entities that may have few direct connections.[i] Within each of these categories, there are further subdivisions. For instance, Wesley Hohfeld developed a complex fourfold distinction of rights as privileges or liberties, claims, powers, and immunities.[ii] The word rights, especially in the United States, often loses any specific content and becomes merely a general term implying approval or disapproval, commendation or criticism, of a political stance. For instance, I might say, “You have no right to speak to me like that,” meaning that you are wrong to do so, without implying that you have no legal right to insult me. Someone who says, “Everyone has a right to decent housing,” might mean that this is a consequence of some specific inherent human right, or that a proper interpretation of the law requires the government to provide it. But they very often mean nothing more than that people should have decent housing, that it would be just and fair for the rest of us to try to make sure such housing is available.
Within current political battles, opponents usually try to claim that their own position is based on rights. As L.W. Sumner points out, “It is the agility of rights, their talent for turning up on both sides of an issue, which is simultaneously their most impressive and their most troubling feature. Clearly, interest groups which agree on little else agree that rights are indispensable weapons in political debate.”[iii] In Ronald Dworkin’s terms, rights are “trumps,” and as in a bridge game, one side having high cards—such as fairness, justice, equity, tradition, morality, or propriety—does not help if the opponent has trumps.[iv] These cards will not work politically; instead, political operatives need a trump to beat an antagonist’s trump. In this situation, rights are potent rhetorical weapons: “If one interest group has built its case on an alleged right none of its competitors can afford not to follow suit… They will tend to proliferate and to escalate.”[v] Such proliferation and escalation is apparent throughout the world and in the United States, where the list of purported human rights keeps expanding.
As a result, despite widespread emphasis on rights, there is little clarity about what we mean or should mean when discussing issues related to human rights. This situation worsens when citizens claim that most politically desired outcomes are necessarily rights.
If any notion of human rights is to be preserved, we must distinguish between politically desirable outcomes and human rights. Otherwise, rights will lose their special cachet, intrinsic importance, and ability to trump or rightfully override other more mundane, even if important, policy choices. If governments do not make this distinction, human rights will necessarily dissolve into our usual policy fights. If everything properly desired is a human right, the notion of human rights has eroded and disappeared. A right becomes simply a desired political outcome.
A Hierarchy of Rights?
One criticism of the commission is that it implies a hierarchy of rights, although its report does not use the word. However, the United Nations’ Universal Declaration of Human Rights (UDHR) has already placed differential limits on rights. There are some rights from which no derogation is permitted (i.e., governments cannot suspend them, even in a national emergency). These include freedom from arbitrary deprivation of life; protection against torture or cruel, inhuman, or degrading punishment or treatment; freedom from slavery; and the right to recognition as a person in law (which, if denied, would obviate all other rights).
According to the UDHR, governments can derogate from some other rights, but only during an emergency that could threaten the life of a country. These include freedom from arbitrary arrest or detention; the right to equal protection; the right in criminal proceedings to a fair and public hearing; the right to be presumed innocent; protection of personal and family privacy and integrity; the right to internal movement and choice of residence; freedom to leave and return to one’s country; liberty of opinion, expression, assembly, and association; the right to form and join trade unions; and the right to participate in government, access public employment without discrimination, and vote. We have seen some of these rights, such as the right to internal movement and the right of assembly, derogated under state governors and local governments’ emergency powers during the pandemic. Many governors and mayors may have exceeded their powers, but few dispute that occasionally such powers may be valid.
All of the rights above have been given legal force in a binding treaty, the International Covenant on Civil and Political Rights (ICCPR). We can argue whether non-derogation and derogation can be described as a “hierarchy” of rights, but this is simply an argument about what word to use. The reality is that in the international system some rights have a status that others do not and are subject to fewer limits.
The Status of Economic and Social Rights
There has been a concomitant debate about whether economic and social rights, such as rights to welfare or housing or education, should properly be regarded as fundamental human rights. Most observers now say they should be, but if we accept this then, given the range of rights, this still does not answer the question of what types of rights they might be.
We have seen that there are already differential rights under the ICCPR. If we now turn to the other principal binding treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR), we find entitlements to food, clothing, housing, medical care, social security, basic education, and freedom to engage and benefit from cultural, scientific, literary, and artistic expression. Note that this set of rights is now enshrined in a different treaty from those discussed earlier.
The duties of governments with respect to these rights is laid out in Article 2 of the ICESCR, which states that:
1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
Note the phrases “to take steps,” “to the maximum of available resources,” a “view to achieving progressively.” This stress on working progressively toward these rights is very different from the absolute un-derogability and limited derogability of some of the rights in the ICCPR. One is an absolute command and limit; the other is something to be progressed toward. If we deny this difference, states that torture people might say they hope to achieve a goal of not torturing their subjects sometime in the future.
There may be legitimate reasons why a particular government would not be able to fulfill economic and social rights at a given historical juncture, which is why the ICESCR stresses that it be done “to the maximum of available resources.” Even a well-meaning government may not be able to guarantee income, housing, health care, or even food. Many poor countries simply do not have the resources to do so. Consequently, if we treat economic guarantees as human rights, we would need to accept that these rights cannot and need not be met immediately. They would be things to be aimed for rather than immediately guaranteed.
The distinction between these two sets of rights must be maintained. Several countries attempt to use the non-immediate character of economic, social, and cultural rights to reduce all rights to long term goals that governments should pursue, rather than stringent limits to which they should adhere. The jailing and beating of peaceful opponents are then put off into the long-term future on the grounds that rights are goals.
Of course, someone who is starving wants food more than elections. But this should not be made too general. Even when people are poor, needy, and hungry, they may and do care very much about political freedom. Hungry people throughout the world cry out for relief from repressive governments, and also believe that less repression would bring better economic and social conditions. Where political rights are upheld, economic rights are more likely to be met.
Rights Where a Government Refrains from Acting
Critics of economic rights often argue that genuine universal human rights must be capable of being fulfilled universally at all times, and economic rights often cannot meet such a standard since poverty-stricken countries can often legitimately assert that they have no near-term possibility of honestly meeting such rights claims. Defenders of economic rights rightfully counter that some political rights, such as regular elections or the provision of legal counsel, can also suffer from lack of resources. For example, Rwanda did not even have enough lawyers to defend those accused in its genocide: hence lack of resources limits the right to a “fair and public hearing under the ICCPR. Even a well-meaning government may lack the resources to make such guarantees real. Hence, if universal human rights are only those that all governments can meet at all times, then there are several political and civil rights that cannot be universal, either. They too might be things to be pursued “to the maximum of available resources,” with a “view to achieving progressively.”
The rights that governments can meet in almost every situation are usually not those in which they should do something but those in which they should not do something.[vi] If a government can exercise authority over its territory—that is, as long as it is a functioning government—then it can refrain from torturing, killing, or arbitrarily imprisoning citizens. These restrictions do not require an especially powerful or wealthy government, only a functioning one. They do not require resources, for they do not ask a government to do something, but not to do something. Therefore, they can be universal in the sense that any functioning government can meet them.
Hence, rights that are universal in this sense will usually lie in those areas of human life where governments should refrain from acting. This is not as peculiar as it might sound at first. It is in fact the structure of most early American constitutional rights. The very first words of the Bill of Rights are, “Congress shall make no law.” In fact, the basic structure of the first, second, third, fourth, fifth, seventh, eighth, ninth, and tenth amendments is to say what the government cannot do: “no law… not be infringed… no soldier… no person… no fact… not required…. not be construed… not delegated.” The third, fifth, eighth, and tenth amendments do not even use the term rights; they simply tell the government what not to do, which has the same effect.
I have not sought to state what is and is not a human right, but to show some of the variety and differences between what are called human rights. The ICCPR subjects rights to differential limiting conditions; some are non-derogable while others are not. The ICESCR presents its rights as necessary goals rather than limiting conditions. The rights that stem from government restraints can be enacted by almost any functioning government, whereas there may be legitimate reasons why a government cannot fulfill other economic or poltiical rights at a particular time.
The important thing is not to get distracted by words such as hierarchy or subordination, but to realize that there are many different types of things in the family of international human rights.
Far from being culturally contingent, the commission’s draft report echoes the US Bill of Rights, as it was intended to, since the commission’s advice to the Secretary of State was to be “grounded in our nation’s founding principles.” The report also echoes the differential treatment of human rights in the international covenants, since the advice to the Secretary was also to be “grounded in… the 1948 Universal Declaration of Human Rights.” It also helps that the chair of the commission is one of the world’s leading authorities on the UDHR.[vii]
Rather than treating the report as another salvo in our culture wars and subjecting it to America’s current culturally contingent proliferation of rights, we need to address the substantive issues it raises.
[i]. On confusion about the relation between “moral rights” or “subjective rights” and legal rights, see Paul Marshall, “Two Types of Rights,” Canadian Journal of Political Science XXV: 4, (December, 1992) pp. 661-676.
[ii] Wesley Hohfeld, W., Fundamental Legal Conceptions, W. Cook (ed.), (New Haven: Yale University Press, 1919). More recently David Little developed an overview of rights based on the foundational notion of self-defense. See “Reflecting on Self-Defense as a Human Right, A Canopy forum Thematic Series, Summer 2020, https://canopyforum.org/self-defense-and-human-rights/
[iii]. L.W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon Press, 1987), p.8.
[iv] See Ronald Dworkin, Taking Rights Seriously (Cambridge, MA; Harvard University Press, 1978),xi.
[v]. L.W. Sumner, op. cit, p.8.
[vi] See Paul Marshall, “On the Universality of Human Rights,” in Luis Lugo, ed., Sovereignty at the Crossroads? (Totowa: Rowman and Littlefield, 1996). This touches on themes well in Isaiah Berlin’s famous distinction of “positive” and “negative” liberties in his “Two Concepts of Liberty,” 118-172 of his Four Essays on Liberty (New York: Oxford University Press, 1969).
[vii] Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2002).