by Alli Hugi, University of Chicago Law School Class of 2018
Working with the International Human Rights Clinic, I’ve had the opportunity to discuss pressing human rights issues with people from Pakistan and Myanmar to Mexico and the United States. Some similarities connect these conversations. These range from shared guiding principles (in the end, everyone is trying to make the world better for their children) to explanations that distract from the real issues (across cultural borders, people are quick to blame society’s woes on the sins of the new generation).
These conversations have been interesting for many reasons but one has stood out: how they’ve revealed an important disagreement over what it means for something to be a “human right” and the proper approaches for guaranteeing a right.
As part of our clinic work, my peers and I discussed the United Nations guidance that militates against ever using mediation in domestic abuse cases with Pakistanis who stressed that such an approach was simply incompatible with their cultural norms, which emphasize community-based, mediated solutions. During interviews in Yangon, we talked about the importance of compensation for seized land to allow individuals to gain ground economically. Some locals, however, informed us that at least some people in Myanmar were likely to donate any money received to their local pagoda, rather than invest it in new property. While human rights standards counseled against mediation in the domestic violence context and favored monetary compensation for government land seizures, our colleagues did not view these as appropriate steps to take to guarantee the underlying rights.
The heated ongoing debate on healthcare in the US raises even more fundamental questions about what we mean by labeling something a “human right.” The debate is marked by fundamental disagreement over whether or not healthcare is a human right.
This debate demonstrates how, even within the US, it is incredibly hard to reach consensus on what we mean by a “human right” and, even then, what is the best approach to fulfilling that right.
And that probably should not come as a surprise. After all, human rights can be as fundamental as the prohibition of slavery and as contemporary as the right to internet access. They are referred to as universal and inviolable—and yet are widely and egregiously violated. And it often seems that other countries respond to these violations with little more than muted criticism. The shamefully lethargic response to the ongoing open-air slave trade in Libya has highlighted this very tension.
So why laud something as a “human right” if the global response to its violation is too often angry inaction? How is designating something a “human right” ultimately helpful or useful?
To answer this question, we have to think about what human rights add to the other categories of rights invoked in popular discourse. In particular, constitutional rights are codified principles considered central to the values of a given country. Civil and statutory rights (and, to some extent, constitutional rights as well) build on those foundations to enumerate specific legal rights that generate from broad principles.
One accepted way to understand the category of human rights is that it transcends these other types of rights—all cabined by national borders—and describes those rights innate to mankind regardless of nationality. Historically, however, the concept of natural rights, crafted by luminaries such as John Locke, has filled this philosophical niche. Natural rights too are a set of basic rights considered essential to us as human beings; rights which cannot be given to us or taken from us by governments. The Universal Declaration of Human Rights, which is seen as the foundational text of human rights, is often understood as a codification of such natural rights.
Critics of human rights as a category sometimes point to this conflation with natural rights to accuse human rights of redundancy. The obvious counterargument is that human rights took natural rights a step further: the codification of human rights into treaties and other international instruments makes these rights legally enforceable, rather than purely a tool for discourse.
But the project of human rights is about more than codifying natural rights. Recent UN guidance under the Universal Declaration of Human Rights states that all people have the right to internet access. Locke certainly wouldn’t accept that as one of his natural rights.
Defining human rights as legally enforceable natural rights is imperfect for another reason. Human rights are only enforceable once they have been incorporated into countries’ domestic legal systems. In other words, human rights are by nature not enforceable rights until they become constitutional, civil, or statutory rights. If we ground the definition of human rights in their enforceability, then they appear to provide nothing new; natural rights provide a philosophical framework for universal rights that can be translated into domestically enforceable ones. Does this render human rights a superfluous middleman category?
As a participant in the International Human Rights Clinic for the last two years, I do not think human rights are redundant or unhelpful. But I do think that we are not often explicit enough about why that is.
Human rights insert a specific—and worthy—set of values to the world of rights: an aspiration to comprehensiveness. They start with the basic entitlements enshrined in the concept of natural rights, and move beyond that. By not expecting immediate compliance with all rights, international human rights laws need not compromise on which rights to protect to the same extent as domestic legislation. Human rights can be dynamic and responsive to changes in the world—by adopting new rights that deal with the internet, cell phones, and climate change—without demanding that society immediately figure out how to absolutely protect those rights.
The category of human rights provides a blueprint for a better world—with some breathing room.
In other words, in a Venn diagram, human rights intend to fully encompass the other categories of rights (basic, immediately realized rights such as the prohibition on torture)—and then intentionally expand beyond that. They push the conversation. They aim to influence discourse and norms. They encourage debate over whether healthcare in the US is a right, as well as prompting conversations about ways to fully effectuate rights like the ones we had with people in Pakistan and Myanmar.
This difference is embodied in the principle of progressive realization, most notably invoked in the International Covenant on Economic, Social and Cultural Rights. Under progressive realization, a signatory to a treaty is obligated not to protect a right, but to take steps to protect it. The principle explicitly recognizes that some human rights cannot be fulfilled right now. Minimal progress is required, but a country will get an A for effort.
While most treaties do not explicitly recognize this principle, it is implicit in many discussions about some human rights. Why else let Saudi Arabia sign on to the Convention on the Elimination of All Forms of Discrimination Against Women when women in the country can do little without the permission of their male guardians? Or allow Nigeria, which has recently increased its use of torture, and the US for that matter, which has consistently refused recourse to victims of torture at the hands of the US government, to participate in the Convention Against Torture? And surely no country has provided all of its citizens with internet access.
I see these apparent hypocrisies as, at base, driven by a different understanding of what a “right” means in the human rights context. It is not that the member states of the UN do not realize these countries are abusing the human rights they commit to protect in these treaties. It is not that they do not care.
It is that the project of human rights is not merely about creating an enforceable floor for rights. It is about trying to look at what is right in the world, what is working, and saying that, in the future, it would be best for everyone to be able to live like that. Under this understanding, even when a country is failing to fully comply right now, welcoming that country into the project of human rights has value. It is an aspirational move grounded in the belief that the discourse surrounding human rights will move that country towards compliance, just as it has progressed the global conversation during the past century over what humans can and should expect in their future.