Academic journal article The George Washington International Law Review

Four Challenges Confronting a Moral Conception of Universal Human Rights

Academic journal article The George Washington International Law Review

Four Challenges Confronting a Moral Conception of Universal Human Rights

Article excerpt

INTRODUCTION

The Universal Declaration of Human Rights (UDHR), now sixtyseven years old, was an extraordinarily aspirational document at its inception and remains so to this day.1 Nevertheless, the significance of its promulgation can hardly be overstated. Procedurally, it spelled the end of the Westphalian legal order that left states virtually free to rule their people as they wished.2 Morally, it marked the birth of a global ideology of democratic equality that would soon overtake imperial and racial ideals that had endured for centuries. Many governments in 1948 still rationalized colonialism as a "civilizing mission," segregation as "separate racial development," or caste- and gender-based divisions of labor as the natural order of things. Seven decades later, almost all politicians claim to embrace the first principle of the UDHR, that every human being is born free and equal in dignity and rights,3 and this has left those hierarchical ideologies with few defenders and a limited future.

Of course, words are not deeds, and governments freely and frequently use human rights rhetoric to disguise their agendas rather than guide them. But even when deployed hypocritically, human rights rhetoric may have tremendous transformative power in the long run that is invisible at the moment; the 1975 Helsinki Agreement that helped inspire the Eastern European democracy movements a decade later is one consequential example.4 Few ideas have mattered more in recent history than the idea of universal human rights. Mahatma Gandhi, Martin Luther King, Jr., and Nelson Mandela were able to defeat the most powerful and entrenched forces against them on the strength of it.

The turn to human rights was an obvious and powerful reaction to Hitler's death camps and then to colonialism and apartheid, but human rights conventions reach well beyond such egregious crimes to positive economic rights, spousal responsibilities, and numerous aspects of everyday life.5 The International Covenant of Economic, Social and Cultural Rights (ICESCR) even asserts a human right to "the highest attainable standard of physical and mental health."6 But the global embrace of human rights has not extended to such maximalist rights, and even the conventions that include them hedge to an extraordinary extent.7 Some leading theorists have been moving in precisely the opposite direction, formulating minimalist accounts of human rights that focus on the kind of extreme violations that may warrant forcible international intervention. No one doubts that a state violates a human right when it actively subjugates people or destroys their lives, but many doubt that it violates a human right when it fails to halt undue neighborhood noise, as the European Court of Human Rights ruled in 2004.8 The ideas that inspired so many to resist oppression are ever more secure, but the scope and rationale of human rights remain very much in question.

This Essay explores the nature and parameters of the universal human rights idea, conceived in its traditional form as a species of justice rather than law. It discusses four moral claims conveyed by the assertion of a paradigmatic human right, the specificity and indeterminacy that characterize each claim, and some of the primary challenges they confront. Because these underlying claims generate far more uncertainty and skepticism than many of the human rights they support, some theorists favor pursuing a different understanding of universal human rights that makes sense without them.9 The more modest aim of this Essay is to help inform that proposal by presenting these claims and challenges as concisely and transparently as possible, rather than make a case for one side. My own assessment of these claims, challenges, and revisionist alternatives is the subject of a book-length treatment to follow.

I. MORAL, LEGAL, AND POLITICAL CONCEPTIONS OF HUMAN RIGHTS

Conceived as a species of justice rather than law, all paradigmatic human rights make at least four claims. …

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