Academic journal article Vanderbilt Journal of Transnational Law

"Human Rights, Responsibilities, and Democracy": Comment on Tasioulas and Moyn Papers

Academic journal article Vanderbilt Journal of Transnational Law

"Human Rights, Responsibilities, and Democracy": Comment on Tasioulas and Moyn Papers

Article excerpt

TABLE OF CONTENTS    I. MORALITY VS. LAW?       1316  II. RIGHTS VS. DEMOCRACY?   1323 III. CONCLUSION              1330 

The approach of this Article is different: unlike Tasioulas and Moyn's Articles, this Article is not skeptical about human rights law. The 2017 book, Evidence for Hope: Making Human Rights Work in the 21st Century, offered an evidence-based evaluation and defense of the legitimacy and effectiveness of international human rights law, institutions, and movements. (2) The book confronted a series of critiques that were unsubstantiated historically and empirically, including some arguments in the earlier work of Samuel Moyn. (3) But the content of that book will not be rehearsed here. These particular Articles offer a more nuanced and interesting critique of human rights law that in a few ways coincide with some of this author's own concerns and recommendations, as elaborated in this author's forthcoming book, The Hidden Face of Rights: Towards an Ethic of Responsibility. (4)

I. MORALITY VS. LAW?

Tasioulas wants to "sav[e] human rights from the way in which they have been distorted by human rights law that has transgressed its proper bounds." (5) In particular, he wants to save law by "bringing it into greater alignment with... human rights morality." (6) For Tasioulas, the role of human rights law is to "give effect to universal moral rights." (7) He argues that people have an intuitive sense of moral rights, and that these rights should not be confused with interests and values. (8) One way to distinguish moral rights from such interests and values that Tasioulas stresses here is that moral rights are associated with obligations--not just obligations of states but obligations for all. (9) These obligations are categorial: they cannot be ignored or denied or traded off. (10) But in Tasioulas's view, human rights law has strayed beyond the range of these rights involving obligations, and this in turn leads to human rights inflation. (11)

Not all good things in the world should be called human rights, and not all human rights should be judicialized. There are some important universal moral underpinnings to current international human rights law that should not be ignored. One of the main arguments in Evidence for Hope was that the origins of international human rights law were far more diverse than is often understood, deriving not only from the Global North, but importantly as well from countries and movements in the Global South. (12) Such diverse and widespread origins and support for international human rights law point to a deeper moral basis for the law shared by many cultures.

The comments here, however, will mainly address Tasioulas's belief that not all good things in the world should be turned into human rights law. (13) This author, in a forthcoming book, has made a related argument with regard to some issues, such as the environment. (14) Some progressive writers and activists are so focused on rights that they bend over backwards to frame all environmental issues as rights claims. For example, environmental activists have increasingly started to speak in terms of rights: the right to a clean environment, the rights of trees, the rights of rivers, or the rights of Mother Earth herself, as reflected in the Pachamama laws of Bolivia and Ecuador. (15) An environmental group has brought a lawsuit to give the Colorado River legal rights. (16) If it succeeds, that river will join a small handful of others, such as the Ganges, that have legal rights. (17) There is nothing wrong with the idea of rivers, trees, or even Mother Earth having rights, but it is even more important to stress the responsibilities of countries, corporations, states and municipalities, organizations, and individuals to protect them.

Climate change is one of the most pressing issues of our age, but it is not an issue where the framing in terms of human rights is particularly helpful. (18) Instead, it should be framed primarily in terms of forward-looking responsibilities of the kind discussed by Iris Marion Young in her book Responsibility for Justice. …

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