International Rights: The Walk and the Talk

​We now live in an increasingly dangerous world. This blog looks at why International and national declarations of rights are not living up to their original promise of providing a principled basis for peace. Is it simply that governments don’t walk the walk. And/or is there something lacking in the talk itself?

 Background
 
In the aftermath of the Second World War declarations of rights were promulgated both internationally and in national constitutions as part of the answer to stop future wars. The UN’s Universal Declaration of Fundamental Human Rights (1948) and the European Council’s European Convention on Human Rights (1950/53) are the best-known international examples. Germany’s new 1949 post war constitution enshrined ‘dignity’ as an inviolable value and incorporated a list of over 140 rights and related provisions in its basic law ranging from individual to social rights and including both legal and political rights.
 
Such declarations of rights stood for ‘never again’ – as a bulwark against the reassertion of Nazi values, against the resurgence of past divisions between nations, as aspirations for a better world and as values on which all could agree across cultures, group and ethnic identities and nations. The drafting committee of the UN Declaration included representatives from both China and the Soviet Union.
 
Today the world seems as divided and dangerous as it did in the 1930s. Russia has invaded Ukraine; China ignores international court rulings on the South China Sea and asserts an aggressive policy elsewhere. The Israeli/ Hamas conflict could easily spill over into the region as a whole. A ruling by the ICC is likely to have little effect. The power distribution in international organisations is challenged, and together with normative differences between members make fully international rulemaking almost impossible. The problem could lie in the walk. Governments simply ignore declarations of rights and don’t walk the walk. The problem could lie in the talk. Too much hope was placed on rights talk while overlooking its limitations. The limitations could lie in each.
 
THE RATIONALE
 
The reasoning behind declarations of rights appeared both simple and attractive. Rights appeal to universal values which it is claimed everybody shares and holds in common simply by being human. They do not rest on politics but on sources outside politics including, not only what it is to be human, but also widely observed principles underpinning concepts of the rule of law. They could be broad ranging in their compass, yet as ‘ought’ statements they are seen by many as not simply abstract statements of principle but include an obligation to act in order to implement them. 
 
On paper such declarations have been a great success. The language of human rights has become a universal language. Statements of rights are included in most if not all national constitutions. They provide a language for private citizens and private advocacy groups as well as for governments and the law. The commonality of the language of rights means that they can transcend the limitations of talk in politics that reflects different political traditions, party roles, and the restricted reference points of state, national and subnational political debate. 
 
Nevertheless, when we look around us today, declarations of rights do not have appeared to have reduced the fundamental sources of tension in the world. The gap between declarations and reality feeds the unfortunate perception of the UN as a talking shop – the world’s greatest producer of platitudes rather than the world’s proven site for effective international action. The question returns. Is the ineffectiveness of rights simply a question that governments act hypocritically or are there aspects of the walk and the talk that suggest limitations in the original hopes placed on rights. 
 
THE WALK
 
Rights are widely held to involve an obligation to act and thus they seem to set out a straightforward invitation to walk the walk. In practice the walk is not straightforward. Some governments will simply ignore the path set out. But for governments that do intend to walk the walk there are still problems.
 
Camouflage
 
The first reservation that can be made about declarations of rights is that they can serve simply as camouflage for regimes with a very different character and with no intention of walking the walk. For example, the constitution of the People’s Republic of China asserts among a list of rights in chapter II that citizens shall have equality before the law, the right to vote, freedom of speech and religion and that their personal dignity is inviolable. The reality is somewhat different. An authoritarian regime that holds its domestic declarations of right in contempt is hardly likely to observe them in international affairs.
 
Instrumental uses
 
The second reservation that can be made about the walk is that rights that are widely accepted in themselves can be used by governments or those in authority to advance political objectives where the same acceptance is not present. For example, in the EU the EU’s Charter of fundamental rights is linked to the political objective of ‘ever closer union’ where there are many different views about what shape that might take. Moreover, appeals to the EUs Charter of rights are routinely used to underpin new regulatory proposals for action at the EU level. Such appeals may well be justified but the regulations themselves are often going to be the subject of debate. What this means is that rights that may be held in common at the level of principle quickly become controversial when put into practice. There is no easy glide path between the talk and the walk. Moreover, the more that rights are used for political purposes the more that rights take on the character of becoming instruments of government rather than standing for government under the law.
 
The role of the judiciary
 
At the national level the assertion of rights has helped to propel the law and the judiciary to a much greater role in settling disputes within democratic societies. International courts such as the European Court of Human Rights are also more prominent. For many this is an advantage. The judiciary brings its own considered logic to cases, very different from the short-term decision making of politics. At the same time there are concerns. The first is that this expanded role for the judiciary in relation to debates settled through politics has itself to be justified. There are questions as to how far it is in societal interests for the expansion of what can be termed the human rights ecosystem to edge out democratic politics. Distributional questions inseparable from the assertion of rights can be seen to belong to the traditional and proper concerns of democratic politics. Moreover, the drivers of the ecosystem can be seen to be linked by self interest in its promotion rather than by concern for the common good. 
 
Again, what this means is that we should recognise the gap between talk and the walk where a number of fundamental issues about practice are raised. The gap is not simply about governments that do not wish to observe rights. It is also about institutional roles that arise when governments and judiciaries do wish to observe them.
 
THE TALK
 
Underlying any questioning of the basis for rights talk are two fundamental theoretical questions. The first concerns the relationship between facts and values. The second refers to what is referred to as the tenets of ‘value pluralism’. In addition, there are other less theoretical concerns about the talk itself - notably their inherent dynamic to multiply. 
 
Facts and Values
 
Rights are generally seen as moral precepts, as ‘ought’ statements that logically carry with them an obligation to carry them out. The underlying issue is about the relationship between facts and values. Since David Hume in the 18th century the two kinds of statement have been recognised as distinct. Some theorists maintain this division in hard form. Others, however, maintain that the applicability of any norm must be judged by the factual circumstances of its application and what we know about the factual results of application. Such surrounding facts may modify or nullify any moral obligation to act. 
 
The debate takes place in one form within the discipline of the social sciences. Epistemic standards require the separation of empirical observations from normative judgements in an inquiry. At the same time many social scientists acknowledge that both kinds of judgement are involved in their analysis.
 
At a more practical level what the rejection of a hard distinction between facts and values means is that the applicability of any declaration of a right must be judged by the circumstances of its application and by the lessons of experience in its implementation. There is nothing automatic. Instead, there are likely to be many different views on applicability.
 
Pluralism
 
The second fundamental question over the automatic obligation to act associated with statement of rights arises in relation to the tenets of what is known as value ‘pluralism’. According to such tenets we can agree on a value at the level of a general principle but disagree about how to interpret it. For example, we can each agree that any human being should be treated with dignity. At the same time, we can disagree on what this means in terms of compensating an individual for being born in unlucky and deprived circumstances that destroy their dignity. Disagreement over the interpretation of a shared value is to be expected at the international level where different traditions and histories intersect.
 
Multiplication
 
The third area of weakness in rights talk concerns their tendency to multiply. The inherent dynamic of rights claims to multiply, driven both by their internal character and external actors can be seen by analogy with the use of benchmarks in international and domestic financial markets such as the FT100 or the S&P 500. Financial benchmarks are useful. They provide focal points for investors about classes of investment, bonds or equities, tech stocks or not, large cap or small cap, commodities or not, bitcoins or not. They point to what belongs to what and to what is like and what is not like. As financial markets offer more and more differentiated products to satisfy the different investment goals and risk appetites of investors benchmarks multiply too to serve their needs. Investors, both funds and individuals want them. Index providers have an incentive to create them in ever more tailored form.
 
Rights arguably contain the same internal and external dynamic. Individuals and groups want to assert rights in new areas to help reach their goals in life and the language of rights allows for such an expansion. In one sense this is a strength. New rights can be asserted to meet new situations. But it is also a weakness. New rights claims are often narrower in their focus, less likely to be generally agreed and applicable and become a source of division. 
 
ALTERNATIVES
 
The weaknesses in rights talk are not a reason to set assertions of rights aside either in national or international contexts. But they do suggest a much-reduced role for rights in grounding a consensus on international rulemaking. Various attempts can be made to underpin such a role. In national contexts for example, political and legal rights that address the constitutional rules themselves, such as the right to vote or to free association or to a fair trial, can be distinguished from and given priority over rights which are about social choices within the rules such as the right to employment. But the combination of fundamental challenges to the talk combined with fundamental issues involved in walking the walk suggest that their post war promise has been greatly exaggerated.