Africa International Human Rights, The Best we Can Hope For
Where is the Consensus?
Human rights are hard to define; much less to agree upon. Michael Ignatieff generally suggests that Human Rights are a ‘language of moral empowerment’. Other views might suggest that they are standards by which a state must run its affairs in order to be considered legitimate. Others still may suggest that they are simply generally agreed upon principles with no physical connection with humans except through agreement. One will find Human Rights based on Kantian principles of natural law and Aristotelian views on the requirements of being human. Some non-western opinions will reject the idea of most rights while some will suggest that Human Rights have little bearing on their society. Also not to be forgotten are certain feminist critiques of Human Rights, and the possibilities of ‘rights’ as a political ‘power wielding’ tool and hardly pertaining to humans at all.
This disagreement creates an impasse; many would like to see Human Rights based in a strong inclusionary and internationally legitimate footing, regardless of separate doctrines for its patchy legitimacy. This however is not the case; the differing doctrines which support human rights make them impossible to collectively define; this undermines all rights including, most importantly ‘fundamental’ rights. This lack of collective legitimacy weakens Human Rights as a non doctrinal empowering movement.
This reality of disagreement begs for resolution; if rights are to be respected how can we prevent the question of their origin from being ‘swept under the carpet’. What is the best we can hope for in terms of agreement given the current landscape of disagreement? Should the pluralism that seems to block our way prevent us from accepting a broad list of rights? Or should we leave our justifications of Human Rights at the door when discussing their universality? These questions must be explored below using some of the more compelling theories of human rights at the present. The study will go on to briefly weigh these theories against each other and conclude that a minimalist conception of human rights is the most fitting for the current international human rights landscape.
The Minimum or the Maximum
Self Consciously Minimalist
Michael Ignatieff suggests that a minimal list of rights gives us our best chance of allowing rights to work how they should. He takes the position that Human Rights have become incredibly powerful and are now open to intellectual attack due to their ‘unthinkably imperialist’stance. He suggests that we have subjected the non western community to an improper view of Human Rights, that we run the risk of trading away the legitimacy of Human Rights, and thus we must form a minimalist outlook on rights.
Ignatieff traces a path from 1945 towards the present, suggesting a return to natural law when viewing issues such as human rights. The shift has lead to a change from nominal declarations of agreement on doctrines of rights towards the more invasive and difficult task of enforcement. A state now stands to forfeit –albeit temporarily- its sovereignty given its inability or unwillingness to ensure certain ‘fundamental’ rights for its citizens.
Given the possibility of external enforcement of rights through intervention, Ignatieff states three general criteria to be met before an intervention might be legitimate. While these are not sensational a fourth point raised is more so; the de facto consideration of whether this intervention will satisfy any ‘vital interests’ of the intervening state. Interventions are long and expensive; states will rarely be motivated to commit to a long term intervention simply on the principle of Human Rights. This has created a patchy application of the Human Rights enforcement. This, naturally will be quickly connected with imperialism, whether through legitimate local reasoning or through local state propaganda to fight the intervention. This has created the view that the west, being the primary enforcers of Human Rights, has embarked on a mission of enforcement on the basis of cultural imperialism.
Another point made for a minimal conception of Human Rights is the discussion on cultural relativism. Ignatieff discusses the problems with a broad view of Human Rights causing us to ‘trade away legitimacy’ with other conflicting views . Asian values are taken into account here as he suggests that if we allow for, for instance, Lee Kuan Yew’s communal values instead of individual rights, the legitimacy of rights disappears. As simple as it sounds, consensus needs to be consensus. An extreme scale of cultural pluralism exists; universal approval for a broad list of rights is simply not possible. An attempt to trade concessions in order to find some sort of patchy agreement on a hyphenated list of rights strips an already thin list of rights of the last of its legitimacy.
Thus a minimal list of rights is the only way to secure a legitimate amount of consensus; intervention in a Human Rights crisis can be justified in the sense that there is broad enough consensus when ‘protecting an essential exercise of human agency’. There is, however, little more than this which is likely to be agreed widely enough with any amount of legitimacy.
Cultural Pluralism not a Restriction
Charles Beitz takes a more open stance regarding different legitimizing doctrines of international Human Rights. He suggests that: pluralism does not have to lead to the lack of a common base for legitimacy, that rights as the lowest common denominator will lead to an overly short list, and suggests three main qualifiers for the entry of a doctrine into the International Human Rights discourse.
While Beitz does not take cultural imperialism lightly he still holds to the possibility of culture specific doctrines of Human Rights. He worries about only allowing liberal ideas into the public discourse concerning rights. There is hardly a place to stand given the loss of one’s philosophical or theoretical base. He comes to the conclusion that ‘ideological and cultural pluralism need not … limit the scope of a plausible doctrine of international human rights’.
Rights as only legitimate through the lowest international common denominator – an easy conclusion to slide to – may strip away important issues currently at play in the international human rights scene. Not all rights can be neutral; Beitz gives some examples of this in the form of Asian values, Women’s rights and female genital mutilation. He suggests that these are brought from and to a culturally specific situation, without an ideological standpoint they would be hard to present. He stresses the idea that we must deal with ideological and cultural pluralism but within a set of standards.
Beitz neatly summarizes his three standards which will ‘guide the structures and conduct of a global political life insofar as these bear on the conditions of life for individuals in their societies’. The doctrine of Human Rights must constrain, describe goals, and create grounds to criticize.
A given doctrine must constrain the domestic constitutions of a state, and those of international organizations; secondly, the doctrine must create a set of goals for the social development of all societies to the degree in which they may be affected by international policies. Lastly, the grounds to criticize would be established in relation to the international sphere so that, in the case of non compliance, there would be options to pressure states towards positive change.
Beitz takes the stance that there are many differing views which, if constrained to a limited view of Human Rights, will not lead to a non partisan regime. The promulgation of International Human Rights should be seen as more of a road than a destination. In this sense, all opinions may come to the table given they essentially respect each other and fulfill certain standards of conduct.
Decent Societies and Public Reason
John Rawls also deals with Human Rights and their position in society. However he does not place too much emphasis on the basis of their doctrinal legitimacy. His liberal view deals more with the toleration of non liberal societies; he lays down what would define a decent society that would not necessitate intervention, the roles of human rights, and talks about human rights in outlaw states.
When dealing with the toleration of non liberal societies, Rawls defines five types of societies. For the purpose of this study we will not deal with all of his examples, however some warrant discussion here. A decent society, that is, a society which does not warrant intervention will need to satisfy two criteria to be named so. These criteria are: they must be non-aggressive, and they must secure a minimum amount of human rights for their citizens. These criteria essentially allow for religious and ideological doctrines to enter into discourse within the international human rights sphere. That is given with the hope of nudging the decent society, using respect and example, toward the ideal of liberal democracy. This is relevant to this study in that it allows for reasons for human rights which have not been stripped of their religious or ideological justifications to be discussed and respected.
Outlaw states are also one of Rawls’s classifications of a non-liberal society. An outlaw state is one that continually violates the rights of the law of peoples. Since according to Rawls, human rights which are respected by liberal and decent societies are ‘intrinsic’, and have a ‘moral effect’ which extends and binds all societies, a society which does not respect them is open to intervention.
Rawls suggests that there are three functions of human rights in his law of peoples, all of which limit themselves to the internal autonomy of a state. The first is to fulfill decency in legal order, to create standards for a state which, when fulfilled will exclude a state from intervention, and lastly to limit the allowance of pluralism. With these in mind we can see that Rawls sees the reality of religion and ideology in the public discourse; however he strives to use political and not moral or religious reasoning for intervention in a state.
Joshua Cohen purports a theory very similar to Rawls’s Public Reason in his theory of justificatory minimalism. He takes a stance against Ignatieff’s in that we can hope for more than a minimalist view of Human Rights. He denies that a wider view of Human Rights needs to be inherently intolerant given the value of toleration as a principle of discourse. He suggests that disagreement is not necessarily a bad thing and that given the basis that his view of global public reason provides, this disagreement will lead to a group of independently plausible theories in support of the same doctrine. He sees human rights as fulfilling a practical role of guidelines for the treatment of individuals and guidelines for the treatment which individuals can demand. In short there will be ‘a conception of justice and human rights that seems independently plausible as a common standard of achievement with global reach.’
The Best we can Hope For?
Jacques Maritain is often quoted for his comment, ‘Yes, we agree about the rights, but on condition that no one asks us why.”. This comment is perhaps even more fitting now than when it was first made; disagreement on many points continues within the international human rights community. Though we have seen that disagreement in itself may not be all bad, the need for at least some agreement on the basis of fundamental rights has prompted us to search for common ground. The problem remains that there is little to be found. Michael Ignatieff seems to have a compelling suggestion of how to deal with this; he suggests we give rights their legitimacy by what they can do for us. His suggestion to deal with rights from a minimalist and practical point of view gives at least a bit of hope for consensus on rights. While others have valid considerations for the most we can hope for, they still lack consensus, focus, and purport somewhat chauvinistic doctrines. This section will begin with a short fundamental critique of the theories expounded upon earlier then lead into suggestions for the most effective conception of rights.
Beitz suggests that ideological and religious pluralism should not mean that a minimalist conception of rights should be adopted; however the issue of intervention is left largely unresolved. Intervention to enforce human rights standards necessitates a high level of consensus before it could possibly be legitimate. Allowing religious and ideological arguments to be an official part of the legitimating circumstances of an intervention boldly allows for partisan agendas. This intervention, at the very least, would lose its legitimacy as it would quickly be dismissed as religious or ideological imperialism. A relatively short list created through a form of lowest common denominator deliberation would allow for those few important rights to hold strong legitimacy for the interventions a state might need to enact.
Rawls and Cohen also bring valid points to the discussion; while there are strong reasons to suggest that a form of public reason could have positive effects on the discussion of concept of human rights, this problem lays in the formulation of the principles put forward by both thinkers. If those with fundamentally different ideologies and religions sincerely wish discuss their ideas of what human rights might be they must do so within a liberal discursive doctrine. They must attempt to leave their ideological and religious reasons at the door and join the discussion on the terms of essentially the western secular liberal world. This cannot work; many rights essentially derive from a religion or ideological background. This imposition of liberal rules-of-the-game creates a discursive fiction within which rights are denied their true roots and are forced to manufacture new ones, which often will not fit.
What we are left with, given these considerations, is the best we can hope for: a minimalist conception of human rights. With a thinner conception on what true human rights are we can focus our efforts more efficiently, avoid abuse, and retain a level of recognition for rights.
While a broad conception of human rights is likely to bring awareness to issues of need and inequality, there are currently simply too many human rights treaties, declarations, positions and statements. Human rights have gone from a small thread of protection of citizens against the state, to what Ignatieff calls ‘humanism worshiping’. Rights which have become a doctrine of fundamental international importance have created a problem of enforcement. How can a state without the proper means ensure the right to food? Or how can a state with a fractioned and relatively powerless government protect its citizen’s right to vote? With a minimalist conception of rights, the actual enforcement of right would come down to a precious non negotiable few. This would not only increase credibility and recognition of rights, it would be a more attainable goal.
Secondly there are considerations regarding a broad conception of human rights regarding the sovereignty of internal politics. Naming and shaming in terms of a state’s human rights record can easily come to substitute or at least largely supplement actual political discourse. While we point fingers at states for black and white reasons of ‘rights’ infringements, there is less and less room for the discourse. For instance, our ‘agreed upon’ view of rights is being violated by your state and as such we will unequivocally blame you, this can take the place of actual political and intellectual critiques of a state’s behaviour.
Both of these examples – and others – lead to a strong tendency in the average person to chalk rights off as a political and culturally imperialistic tool of western states. The minimalist conception of rights allows for much less of this due to its focus on the rights which are widely believed to be essential.
In sum, a minimalist conception of human rights is one of many plausible theories to rights. While we have seen some examples of broadly conceived rights, liberal doctrines concerning rights, and some issues regarding commensurability of rights justifications, minimal sets of rights contain the least amount of problematic bedfellows. They allow for states to actually be able to guarantee a level of enforcement or assurance of rights, retain a states political sovereignty to a widely agreed upon threshold, and reinstall a level of certainty in the purpose and use of rights.
M. Ignatieff Human Rights as Politics and Idolatry (Princeton University Press 2001), p 72
C. Brown, Sovereignty, Rights and Justice: International Political Theory Today, (Polity, 2002) Ch. 7
A. Sen, East and West: The Reach of Reason, New York Review of Books, Vol. 47, no. 12 (2000)
The Universal declaration on Human Rights contains Fundamental Human Rights
C.R.Beitz Human Rights as a Common Concern, American Political Science Review, Vol. 95, No. 2 (June 2001)
J. Rawls, The Law of Peoples (Harvard University Press, 1999), p. 65
J. Cohen, ‘Minimalism About Human Rights: The Best We Can Hope For?,’ The Journal of Political Philosophy, 12, (2004), pp. 190-213