The question of whether human rights are truly universal is especially thought provoking.
In relation to the protection of human rights, one could consider the relevance of natural law as described by the academic Chris Brown,as a set of moral standards, which he argues ‘must underlie all genuinely universal approaches to human rights.’
Such a concept of natural law is perceived by Finnis to be:
‘a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realised, and which are in one way or another used by everyone who considers what to do [and]–
‘based on the existence of a set of basic methodological requirements of practical reasonableness which distinguish sound from unsound practical thinking, and which, when brought to bear provide the criteria [which enable us] to formulate (iii) a set of general moral standards’ (Brown 1997, p.44).
Such a criterion for ascertaining rights leaves unexplained what exactly constitutes requirements of ‘practical reasonableness’; would the cultural views of certain ethnocentric or nationalistic groups that certain ethnic minorities should be stripped of their citizenship so as to ensure the cultural and racial homogenization of a State be considered sound practical thinking?
Dworkin perceives ‘rights’ as ‘trumps’- ‘cards which automatically win tricks- that is, as considerations overriding all other considerations’ (Brown p,47) including what is perceived by political agents of the state to be the common good.
A conceptual tension thus arises between ‘rights absolutists’, and utilitarian thinkers of the Benthamite tradition who reject the notion of natural rights and advocate for the protection of the common good. On the one hand, utilitarians may be faulted for giving less importance to the ‘fact that individuals are distinct from one another and have their own project.’ ( Brown p, 48) whereas ‘rights theorists take this distinction too seriously.’ (Brown p.48). As Brown argues:
If rights are thought of as trumps, as absolutes to be defended in all circumstances, then it very likely that some of these circumstances will involve the violation of an obvious public interest.
However, if rights are thought of as less than absolute, as simply one set of considerations to take into account when deciding on the rightness or otherwise of action, then the protective power of rights simply withers away.’ ( Brown p.48)
This conceptual tension between ‘rights absolutists’ and utilitarian views underpins the current controversy surrounding the separation of children from their parents at the Mexican border. The zero tolerance policy of the Trump administration on the arrest and detention of illegal immigrant crossing the Southern border into the United States has manifested itself through the criminal prosecutions of illegal immigrants for Federal crimes rather than through ‘civil deportation’ prior to the Trump policy, ‘which generally did not break up families’. Melania Trump, herself, has spoken out against her husband’s zero – tolerance policy, describing it as ‘cruel’ and ‘immoral’ in light of reports that reveal that children separated from their parents at the border were being ‘held in cages at a warehouse in Texas.’ (The Guardian, 2018). The claim by advocacy groups that the children separated at the Mexico border have a right to remain with their parents is contested by the Department of Homeland Security which arguably prioritizes the securitization of the United States from what is perceived to be threats to the common good of its citizens.
It may be intuitively appealing to argue that rights such as the right to life, liberty and security of person, as enshrined in Art 3 of the Universal Declaration of Human Rights 1948 are absolute in nature and may never be compromised on the grounds that the right of a human being to live exists ‘by ‘virtue of their common humanity.’ (Chris Brown) .
The need for such an absolutist view of the existence of human rights may possibly be given further credence by the empirical evidence of atrocities committed during events such as the holocaust and the desire of nation states and individuals to avoid similar horrific events.
I recently read Elie Wiesel’s book, Night, in which he recounts the horrors of his mother and sister being thrown into the crematoria, furnaces operated by other human beings, the Nazis.
Additionally, recent claims of ethnic cleansing of the Rohingya people by the military in Myanmar and other reported events of human rights abuse such as the use of chemical weapons in countries like Syria continue to evoke the question of whether there exists a set of moral standards such as the respect for human life, which as Chris Brown discusses , is not limited to a particular race , creed or jurisdiction.
It is arguable that far from being discernible, moral standards that afford respect for human life are at times disregarded by political states and organisations which subscribe to a very different conception of political morality.
Costas Douzinas’ words ring true when he asserts what he describes as a paradox that ‘not all humans have humanity in a human rights world’ (The Guardian, 2009).
This paradox existed at the Nuremberg Rally with the passage of a ‘new law for the protection of German Blood and German Honour’ together with the law of the Reich ‘stripping Jews of German citizenship.’ (Rees 2017, p.87); It continues to exist with the rejection of citizenship status of the Rohingya people by the Myanmar government, and what has been described by the UN High Commissioner for Human rights, Zeid Ra’ad al-Hussein, as the ethnic cleansing and possibly genocide of the Rohingya. ( The Guardian 2018)
The argument posited by the academic James Griffin that the idea of human rights is an essentially a contestable concept resonates with the political realities of nations states’ use of violence and torture against their own citizens in places like Syria and North Korea.
I would support Griffins’ argument that we need a substantive account of rights. The problem with advocating for a substantive account of rights as identified by Griffin is that it is not entirely clear which rights can be derived from , what is described by Griffin as, the relevant sense of human standing or human nature’.
For instance, would a restriction on the freedom to comment on particular issues such as another person’s race or religion in one’s society constitute a breach of human rights on the basis that such a restriction impedes human expression, an essential aspect of human existence?
Laura Valentine presents a persuasive argument for a political view of human rights, one which I would consider a necessary addition rather than an alternative to the natural law view.
Universal Human rights from such a perspective ‘relate to both dignity and politics: since they belong to human beings qua humans, and human lives are led in political communities, they set a standard that each society’s political morality has to endorse to enable its members to lead lives of dignity’. (Valentini 2012, p.188)
The inescapable reality that many individuals are victims of imprisonment, torture and brutal killings at the hands of a State and other paramilitary organisations in places like Sudan and Syria underpin the assertion that such States fail miserably in upholding standards of decency associated with respect for human dignity, and therefore lack the moral and political legitimacy that characterizes a Sovereign State.
As Raz (2010,p.328) asserts ‘[s]overeignty does not justify state actions,but it protects states from external interference. Violation of human rights disables this response, which is available to states regarding other misdeeds’. (Valentini 2012, p.182).
On this view ‘whenever a State violates human rights …it no longer enjoys immunity from external intervention, be it military intervention or some ‘softer’ form of intervention such as diplomatic or economic sanctions.'(Valentini 2012, p.182). The reality, however, is quite the opposite.
The world stands by passively, immune to the spectacle of bloodied corpses of young children,victims of barrel bombs used by Syian and the Russian military …while the UN , ironically, pleaded for a truce to halt to one of the fiercest air assaults of the seven-year civil war and prevent a “massacre’ in Eastern Ghouta, in what has been described by the UN Secretary General as ‘a hell on earth,.’ ( The Guardian 2018)
The writer Stan Cohen discusses the issue of state denial in their involvement of torture and killings of political dissidents and innocent citizens . Such State officials may in fact point to the laws of their state to justify the ill treatment of their people, thereby denying any breach of human rights and accountability.
Victoria Brittain writing for The Guardian notes that Cohen explains the reasons for the altruism of those who risked their lives to protect the Jews from the Nazis during the Holocaust: “The helpers had, spontaneously, a sense of self as part of a common humanity, which he (Cohen) calls “inclusivity”.”
Griffin, J. (2001), First Steps in an Account of Human Rights. European Journal of Philosophy, 9: pp. 306–327.
Laura Valentini InWhatSenseareHumanRightsPolitical? A PreliminaryExploration POLITICAL STUDIES:2012VOL60, 180–194.
Wiesel, Elie,Wiesel, Marion. (2006) Night /New York : Hill and Wang
‘Everyday Atrocities’, The Guardian, 7 April 2001. Online: https://www.theguardian.com/books/2001/apr/07/society.politics
‘What are Human Rights’, The Guardian, 18 March 2009, Online: https://www.theguardian.com/commentisfree/libertycentral/2009/mar/18/human-rights-asylum.
Rees, L. (2017) The Holocaust, A New History, UK, Penguin Random House.
‘World’s awkward silence over Rohingya genocide warnings’, The Guardian, 3 January 2018. Online: https://www.theguardian.com/world/2018/jan/03/worlds-awkward-silence-over-rohingya-genocide-warnings.
‘Melania Trump speaks out against child separations at border: ‘Hate to see it’, The Guardian, 18 June 2018. Online: https://www.theguardian.com/us-news/2018/jun/17/us-immigration-family-separations-beto-orourke-texas
‘Bombs continue to pound eastern Ghouta as UN pleads for ceasefire’, The Guardian, 22 February 2018. Online: https://www.theguardian.com/world/2018/feb/22/bombs-continue-pound-eastern-ghouta-un-pleads-syria-ceasefire.
Raz, J. (2010) ‘Human Rights without Foundations’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law. Oxford: Oxford University Press, pp. 321–38.
A law lecturer and academic by profession, I share my perspectives on issues ranging from the Protection of International Human Rights and its relationship with International Relations to principles of Domestic and International Criminal Law, Criminology and Equity and Trusts. I graduated with an LLB, PGCL (Equity and Trusts) , PGDL (Criminal Justice), LLM (Criminology) from the University of London and an MA (Distinction) in Human Rights and Global Ethics with the University of Leicester's Politics and International Relations department.
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