University of Transnational Business Law

Human Rights and Globalization

by James Nickel

Human rights are international norms that regulate how countries treat their citizens and residents.  The Universal Declaration of Human Rights (hereinafter "UDHR"; United Nations 1948) set the pattern for the contemporary conception of human rights (Glendon 2001; Lauren 1998; Morsink 1999).  Formulated in response to the massive violations of rights that occurred during World War II, the UDHR sets out a long list of specific human rights that governments and peoples should respect and protect.  The UDHR was followed by numerous human rights treaties that made human rights part of international law.  Today, almost all countries participate in the international human rights system. Every member of the United Nations has ratified at least one of the six major human rights treaties, and 80 percent of states have ratified at least four (Bayefsky 2001).

The growth of international human rights law means that human rights now have great relevance to practicing lawyers.  Indeed, international human rights systems sometimes provide legal remedies when they are unavailable at the national level.  For a lawyer authoring or interpreting constitutional norms, globalization may mean that constitutional norms are limited and guided by international human rights as set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1950) and as interpreted by the European Court of Human Rights.

Human rights draw on historic ideas of justice and natural rights, but they are applications of those and other ideas in service of the project of preventing governments from doing terrible things to their people and thereby promoting international peace and security.  They limit national sovereignty by making how a state treats its residents a matter of international scrutiny and concern.

Human rights comprise at least seven families including security rights that protect people against murder, massacre, torture, and rape; liberty rights that protect freedoms in areas such as belief, expression, association, assembly, and movement; political rights that protect the liberty to participate in politics by communicating, assembling, protesting, voting, and serving in public office; due process rights that protect against abuses of the legal system such as imprisonment without trial, secret trials, and excessive punishments; equality rights that guarantee equal citizenship, equality before the law, and nondiscrimination;welfare rights (or "economic and social rights") that require provision of education to all children and protections against severe poverty and starvation; and minority and group rights that protect minorities against discrimination, genocide, and forced expulsion.

Human rights are often alleged to be universal, to have very high priority, and to exist independently of legal enactment.  These strong claims have often provoked strong challenges and equally strong defenses.  There is now a substantial literature in philosophy, political science, and law dealing with human rights (see theBibliography below).
Contents
[hide]

   1 Human Rights and Globalization
   2 Human Rights as Rights
   3 The Existence of Human Rights
   4 Challenges to Universality
   5 Bibliography and References
       5.1 Documents and Treaties
       5.2 Human Rights Organizations (Governmental and Nongovernmental)
       5.3 Websites Devoted to Human Rights

Human Rights and Globalization

Globalization is the process, long underway, whereby the world's peoples are brought into closer contact through travel, migration, war, conquest, political alliances, trade, investment, communications technologies, and international organizations. Human rights are implicated in globalization in at least three ways.  First, and most importantly, human rights are a major dimension of normative globalization.  How governments everywhere should behave towards their residents is prescribed in general terms by human rights.  For example, human rights require countries to permit religious proselytization on behalf of nonlocal religions even if most local voters are hotly opposed. What politicians or voters get to decide within the local political process is limited.  Second, human rights proponents rely on global communications systems to acquire and distribute information about human rights conditions and crises.  Third, human rights advocates rely on economic globalization, the fact that nearly all countries are involved in world trade and investment, to use economic incentives to nudge countries in the direction of compliance with human rights norms.

Worries about the impact of normative globalization on national political autonomy often motivate challenges to the universality of human rights.  Concerns about protecting cultural diversity and about protecting national autonomy are combined to cast doubt on the legitimacy of international human rights norms.  See #Challenges_to_Universality below.
Human Rights as Rights

Human rights are rights, although human rights documents also include prohibitions such as "No one shall be subjected to torture or to inhuman or degrading treatment or punishment" (European Convention, Article 3),requirements such as "Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him (American Convention on Human Rights, Article 7.4); and general normative principles such as "All human beings are born free and equal in dignity and rights..." (UDHR, Article 1).

Rights are mandatory norms with rightholders, addressees, and scopes.  Rights have rightholders--persons or agencies that have the rights, operate them, and have access to their benefits.  Rights also have addressees, persons or agencies whose conduct is directed by the right when it becomes operative.  And rights havescopes that identify what the rightholder is entitled to under the right.  For example, Edmundo (the rightholder), has a human right to a fair trial (the scope), against the government of Portugal (the addressee).  Rights are mandatory in the sense that they impose duties on their addresses.  Edmundo's right imposes a duty on the government of Portugal to provide Edmundo with a fair trial if he is charged with a crime.  A fully constructed right requires some general idea of which normative burdens are imposed by the right and who is required to bear them (Nickel 1987).
The Existence of Human Rights

How can human rights exist?  The most straightforward way is as norms of national and international law created by enactment, judicial decisions, and customs.  Human rights norms exist internationally because of treaties that have turned them into international law. For example, the human right not to be held in slavery or servitude in Article 4 of the European Convention and in Article 8 of International Covenant on Civil and Political Rights (United Nations 1966) exists because these treaties enact it at the international level. At the national level, human rights norms exist because they have become part of a country's law. For example, the right against slavery exists in the United States because the Thirteenth Amendment to the United States Constitution prohibits slavery and servitude. When rights are embedded in international law we speak of them as human rights; but when they are enacted in national law we more frequently describe them as civil or constitutional rights.

Some theorists follow Bentham in holding that enforceable legal rights are the only real rights (Bentham 1962, Waldron 1988).  They deny that moral duties and powers alone can constitute real rights.

Others suggest that enactment in human law is not the only way for human rights to exist. If human rights exist only because of enactment, their availability is contingent on domestic and international political developments.  Perhaps human rights have roots that are deeper and less subject to human decisions than legal enactment. One version of this idea is that people are born with rights, that human rights are somehow innate or inherent in human beings. One way that a normative status could be inherent in humans is by being God-given. On this view, God is the supreme lawmaker and enacted some basic human rights.

Another way of explaining the existence of human rights is to say that they exist in true or justified moralities. On this account, to say that there is a human right against torture is just to say that there are strong reasons for believing that it is always, or almost always, wrong to engage in torture. This approach would view human rights declarations and treaties as attempting to formulate a justified political morality, not merely trying to identify a preexisting moral consensus.  This approach requires commitment to the objectivity of moral and practical reasons. It holds that even if there is little present agreement on political morality, rational agreement is available to humans if they will commit themselves to open-minded and serious moral and political inquiry. If moral reasons exist independently of human construction, they can when combined with premises about current institutions, problems, and resources generate moral norms different from those currently accepted or enacted. The UDHR seems to proceed on exactly this assumption. One problem with this view is that existence as good reasons seems a rather thin form of existence for human rights. But perhaps we can view this thinness as a practical rather than a theoretical problem, as something to be remedied by the formulation and enactment of legal norms. The best form of existence for human rights would combine robust legal existence with the sort of moral existence that comes from being supported by strong moral and practical reasons.
Challenges to Universality

The authors of the UDHR were under no illusion that universal assent to human rights already existed. The horrors of the holocaust, with its genocidal attempt to destroy European Jewry, were too much in view to permit any such illusion. But with the optimism that often accompanies idealism, the advocates of international human rights hoped that substantial agreement on standards of government behavior could be found or created among the members of the United Nations. They expected these standards to express the hopes of millions of people around the world who yearned for freedom and a better life.  They also believed that promoting compliance with these standards was a way to reduce the likelihood of war.  The achievements of the human rights movement in the decades that have followed have shown both that these optimistic beliefs were not entirely without foundation and how difficult it is to create genuine international agreement about how governments should behave.

Globalization encourages people from different countries to do things jointly or in each other's view, and thus promotes the development of shared standards.  But our planet has great cultural and religious diversity, making it hard to find and gain acceptance for common standards. As noted earlier, the universal appropriateness of international human rights norms is often challenged.

How can different countries and cultures have the same problems and values?  Human rights treaties presuppose that countries around the world face similar problems and injustices and share values that diagnose some of those problems as severe enough to demand remedy.  For example, they presuppose that unfair criminal trials are a serious problem in all countries, and expect all peoples to view incarceration without a fair trial as an injustice to be avoided and remedied.  Jack Donnelly has suggested that the reasons why the world's countries face similar problems is that they all use similar sorts of political and legal institutions including centralized political power; a legal system including legislators, courts, and prisons; police and armed forces; large bureaucracies; media of mass communication; money and banking; a mixture of public and private property; and tax systems (Donnelly 1993).  These institutions, used all around the world, give countries shared problems and lead to the adoption of similar remedies for those problems.  If all countries use the same basic institutions, and if these institutions pose some distinctive threats to values that most peoples share, then human rights will often float free of cultural differences. Donnelly holds that human rights are socially-learned remedies for the built-in dangers of widely-used institutions (Donnelly 2003, 46.  See also 92).

The idea that humans share some fundamental values is commonsensical, as is the idea that there is lots of variation in specific cultural values.  People value their lives, and the security and access to resources that make life possible.  People do not want to be slaves; they want their lives to reflect their own perspectives, cultures, plans, and ideals.  And people resent and resist severely cruel and unfair treatment.  These are the sorts of values that support human rights, that allow people to identify problems as so severe that they require international action.  Beyond this, human rights protect cultures and religions by promoting security, tolerance, nondiscrimination, and minority rights.

Further, human rights standards as we find them in international treaties have a number of characteristics that allow them to accommodate diversity. Perhaps the most obvious and important is that they offer minimal standards in a limited number of areas. For example, the rights one has as a parent, teacher, or union member depend not on human rights but on the morality, laws, and customs of one's country. Second, the terms used in formulating human rights are often broad or abstract enough to allow some latitude to local interpretation. For example, article 9 of the International Covenant on Civil and Political Rights includes the provision: “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.” Here the word “arbitrary” allows considerable room for interpretation in judging arrests. Third, the possibility of overriding some human rights in emergency situations is explicitly allowed. The European Convention allows countries to derogate from their duties during “time of war or other public emergency threatening the life of the nation."  Fourth, countries so undeveloped or stressed that they are genuinely unable to comply with a human rights norm have a valid excuse.  A country that could only afford a rudimentary system of due process in criminal cases would not be in violation of the requirement of due process of law.  Finally, the human rights movement has supported diversity within a structure of basic principles by endorsing self-determination and nonintervention.
Bibliography and References

Bauer, J. and Bell, D., eds.  1999.  The East Asian Challenge for Human Rights.  Cambridge: Cambridge University Press.

Bayefsky, A.  2001.  The UN Human Rights Treaty System: Universality at the Crossroads.  Ardsley, NY: Transnational.

Bell, D. 2000.  East Meets West: Human Rights and Democracy in East Asia.  Princeton: Princeton University Press.

Bentham, J.  1962.  Works, ed. John Bowring.  New York: Russell & Russell, 3:159, 181, 220-224.

Donnelly, J.  2003.  Universal Human Rights in Theory and Practice.  Ithaca; London: Cornell University Press.  2nd ed.

Gewirth, A.  1982.  Human Rights: Essays on Justification and Applications.  Chicago: University of Chicago Press.

Glendon, M. 2001.  A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights.  New York: Random House.

Griffin, J.  2001a.  “Discrepancies between the Best Philosophical Account of Human Rights and the International Law of Human Rights.” Proceedings of the Aristotelian Society.

Henrard, K.  2000. Devising an Adequate System of Minority Protection (The Hague: Martinus Nijhoff).

Lauren, P.  1998.  The Evolution of International Human Rights.  Philadelphia: University of Pennsylvania Press.

Martin, R.  1993  A System of Rights.  Oxford: Clarendon Press.

Martin, R. and  Nickel, J.  1980. “Recent Work on the Concept of Rights.” American Philosophical Quarterly 17: 165-180.

Morsink, J.  1999.  Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press.

Nickel, J.  1987.  Making Sense of Human Rights.  Berkeley and Los Angeles: University of California Press, 1987.

________.  2005.  "Poverty and Rights," Philosophical Quarterly, forthcoming.

Pogge, T.  2002.  World Poverty and Human Rights.  Cambridge: Polity Press.

Preis, A. 1996. "Human Rights as Cultural Practice: An Anthropological Critique." Human Rights Quarterly,18:286-315.

Rawls, J.  1999.  The Law of Peoples. Cambridge, MA: Harvard University Press.

Sen, A. 2004.  "Elements of a Theory of Human Rights," Philosophy and Public Affairs 32: 315-356.

Shue, H. 1996.  Basic Rights.  Second Edition.  Princeton: Princeton University Press.

Steiner, H. and Alston, P. eds.  2000.  International Human Rights in Context.  Oxford: Oxford University Press.

Waldron, J. ed. 1988.  Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man.  London: Routledge.

Wellman, C.  1995.  Real Rights.  New York: Oxford University Press.

__________. 1999.  The Proliferation of Rights.  Boulder, CO: Westview Press.


Documents and Treaties

·         African Charter on Human and People's Rights (African Union 1981)

·         American Convention on Human Rights (OAS 1969)

·         American Declaration of the Rights and Duties of Man (OAS 1948)

·         Charter of the United Nations (1945)

·         Convention on the Elimination of All Forms of Discrimination Against Women (UN 1979)

·         Convention on the Rights of the Child (UN 1989)

·         European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1950)

·         Genocide Convention (UN 1948)

·         International Criminal Court (Rome Statute) (UN 2002)

·         International Covenant on Civil and Political Rights (UN 1966)

·         International Covenant on Economic, Social, and Cultural Rights (UN 1966)

·         International Convention on the Elimination of All Forms of Racial Discrimination (UN 1965)

·         Protocol of San Salvador

·         Rome Statute of the International Criminal Court (UN 1998)

·         Torture Convention (UN 1984)

·         Universal Declaration of Human Rights (UN 1948)

·         Vienna Declaration (UN 1993)
Human Rights Organizations (Governmental and Nongovernmental)

·         African Union

·         Amnesty International

·         Doctors without Borders

·         Human Rights Watch

·         International Commission of Jurists

·         International Red Cross

·         Organization of American States

·         United Nations
Websites Devoted to Human Rights

·         Human Rights Internet

·         University of Minnesota Human Rights Library

·         Derechos Human Rights