Who is responsible for upholding human rights essay

Written May 2010 (first year) - Human Rights Theory Essay - 1500 Words

Who has primary responsibility to uphold, protect, and respect human rights? Individuals, governments, or other entities? Why/why not?

In this essay I will show that states have primary responsibility to uphold, protect and respect human rights. I consider that individuals have unlimited interests, finite resources, and varied capabilities, and that this produces an inherent tension which requires systematic facilitation to avoid a state of war. I say that this is the reason we have states, to provide the facilitation and seek to satisfy citizens' interests. I argue that human rights are a high priority subset of individual interests. I show that these special interests, human rights, are subject to the same pressures of finite resources and varied capabilities as other interests, and furthermore are too important not to be secured, so individuals must not bear primary responsibility for human rights duties. I consider that a worldwide body could bear primary responsibility for human rights, but reject this notion on account of it the inefficiencies and difficulties with transferring the necessary knowledge, resources, and legal powers from states. I settle on the notion that states are the bodies most appropriate to take primary responsibility for human rights. I consider the problem of rogue and weak states who do not uphold this primary responsibility. I contend that states have a secondary responsibility to pressure states that fail to protect their citizen's human rights. I evaluate two problems of states exerting this pressure on rogue and weak states - violating state sovereignty and worsening human rights violations, and endorse Luban's (Luban: 1980) perspective that extreme pressure is justified only when a state violates its citizens most basic human rights in a systematic and sustained way, in which case the state is actually illegitimate and has forfeited sovereignty rights. When citizens' most basic rights are not met, intervention that may worsen their situation in the short term can be justified by the prospect of long term improvement. Finally I conclude that this notion of states taking primary responsibility for the human rights of their own citizens and secondary responsibility for human rights worldwide is likely to provide a powerful incentive for rogue and weak states to protect those most basic of human rights.

Individuals have interests, some of which are unique and some of which apply to all. An interest that might apply to all is the ability to earn an income or to use preventative health care; a unique interest could be a desire to read all of Shakespeare's plays. But interests are unlimited, and resources are finite. The capability of an individual to satisfy their own interests also varies greatly; some are stronger or smarter than others for example. Without a systematic method of distributing resources and maintaining law and order, few citizens’ interests would be met. Something like Hobbes state of nature would result - all citizens would be in a state of war, or anticipation of war, at all times. To prevent this, we have states. States are organizing bodies that try to address the problem of infinite interests and limited resources, in a way that satisfies their citizens' interests.

A subset of an individual’s interests is those fundamental interests known as human rights. Human rights are high priority justified claims to objects of rights that all humans are entitled to, equally and universally. Human rights are necessary for a life of minimal decency, which includes a range of civil and political rights such as the right to participate in government and economic, social and cultural rights like enough food to eat and basic healthcare.

If every individual has human rights, perhaps every individual should be responsible to uphold and protect them? But individuals would still need an organizing body to facilitate these interests, for the same reasons I argued individuals needs states. And I think there is a more important reason why individuals should not bear the duties of human rights - human rights exist to protect human beings, who are not always capable of meeting their own interests. Human rights are too important, too necessary, to risk them not being secured. To saddle individuals, who may not be able to meet their own basic needs, with responsibility for serving everyone else's interests generates too great a risk they will not be met.

Perhaps it is plausible that the duties of human rights could fall on a worldwide organizing body to address the subset of individuals’ interests that we call human rights. There is something initially attractive about this idea. If all humans have the same interests in the objects of human rights, it could be sensible that a universal body address these needs equally. But there are major flaws with this concept. In short, it would be too difficult to make such an enterprise work. Upholding and protecting human rights requires legal systems and resources, and a specialized understanding of each community’s needs. If a worldwide body was responsible for human right, states would need to transfer some of their knowledge, resources, and some scope of their own legal system. This notion seems problematic and inefficient to orchestrate, at best, and at worst (and most likely) ineffective.

States are experts in the concerns of their citizens and the infrastructure, resources and means of production available to them. States already have legal and political systems; they already operate in a role of redistribution and consideration of the needs of their citizens. So it is very plausible that states could and should bear the duties to uphold and protect their citizen's human rights. States have the necessary frameworks and the necessary powers, so they are the most likely bodies to succeed. This idea is not incompatible with a single state that comprising the whole world, but it is not a practical or necessary notion. For the foreseeable future, existing states should bear primary responsibility for upholding their citizens’ human rights.

So states have primary responsibility for their citizens’ human rights, but what of the states that do not fulfil their responsibilities? A state may simply be too weak to do so - lacking in resources, expertise, or effectiveness in governing. There are also rogue states, which practice blatantly unjust policies, and choose not to respect and uphold human rights. (O’Neill: 2001, p182)

We need an expanded understanding of state's responsibilities regarding human rights. States have primary responsibility to uphold their own citizens’ human rights, but also have secondary responsibility for the human rights of all the world's citizens. In practice, states must exert pressure on weak and rogue states that violate their citizens’ human rights. States may operate in alliance with other states (like the United Nations) to coordinate this, but membership of a coalition is not a necessary condition for states to bear this duty. Any and all states bear secondary responsibility to uphold the human rights of all the world's citizens. (Luban: 1980)

There are two problems with this secondary duty states have to global human rights. The first problem is that some types of pressure a state may exert will violate state sovereignty. The modern idea of state sovereignty is that other states cannot and should not intervene with the operation of a state. This idea is essential for a state to function, so there is a paradox here. A weak or rogue state that does not uphold human rights may lose its’ ability to function at all as a state, if other states violate its’ sovereignty. The second problem is that some types of pressure, like economic sanctions or military intervention, can cause more human rights violations within a rogue or weak state than were already occurring. (Luban: 1980)

Not all human rights violations are of equal severity, nor are all violations systematic and sustained. Responsible states must assess the stringency of violations and how likely they are to continue, in choosing the appropriate level of pressure to exert on rogue and weak states. Luban argues that the most aggressive types of pressure should only be exerted on the worst of human rights violating states. These are states that violate the most basic of their citizens’ rights, in a systematic and prolonged way. The most basic rights are rights that must be satisfied for any other rights to be enjoyed, like security and minimal subsistence. (Luban: 1980)

Luban's idea provides counterargument to both problems of state pressure on weak and rogue states. Those states that do not protect and uphold the most basic rights of their citizens are actually illegitimate; they are not fulfilling their reason for being. States exist as organizing bodies to meet their citizens’ interests and they have primary responsibility for the human rights of their citizens; the worst weak and rogue states are not upholding these duties. This failure means the states have forfeited sovereign rights to non intervention, so there other states may justly intervene. And when the most basic of human rights are being violated in a systematic and prolonged way, a foreseeable short term increase in violations because of external intervention is justified by the likely long term benefits for the citizens. (Luban:1980)

When states fulfil their secondary responsibility to pressure rogue and weak states on human rights issues, those rogue and weak states have good incentives to comply. If they are assured that sustained and prolonged violations of their citizens’ most basic rights will result in aggressive pressure from other states, they have very strong incentive to avoid these most egregious of human rights violations.

In this essay I have argued that states have primary responsibility to uphold, protect and respect human rights. I have illustrated that they are the most likely body to succeed in doing so, and that doing so involves both a primary responsibility to their own citizens and a secondary responsibility to global human rights. I have considered Luban’s (Luban:1980) idea that the worst human rights violating states are illegitimate and used this to provide counterarguments to problems raised by states pressuring rogue and weak states to fulfil their human rights responsibilities. Furthermore, I have shown that this method is likely to result in rogue and weak states being compelled to minimize the most harmful of human rights violations.

References
Hobbes, T. 1651. 'Leviathan', Excerpt reproduced in Life Death Morality Study Guide. Monash University, 2010.
Luban, D., (1980) 'Just War and Human Rights', Philosophy and Public Affairs, v9, n2, p. 160-181.
Oneill, O. (2001) 'Agents of Justice', Metaphilosophy, v32, n1/2, p. 180-195

Group Rights for Cultural Minorities Essay

Written November 2010 (first year) - Human Rights Theory Essay - 1500 Words


Is the granting of group rights to cultural minorities defensible? Why/why not?

 When members of minority cultures claim their cultural preservation is under threat, necessitating additional rights for their members, qua their group membership, to protect their culture, our initial reaction might receptive. We think that cultural participation and identity is an important individual right, so it plausibly follows that cultures struggling to maintain themselves have important claims to protections. But in this essay I dispute that culture should necessarily be protected, and I argue that where culture should be protected it can be done so by securing individual rights. Firstly I seek to challenge any intuition that changes to, or loss of cultural practices is necessarily bad. Secondly I consider some reasonable concerns we might have about threats to culture, and show that they are actually concerns about individual human rights violations. Thirdly I discuss more worrying types of claims some groups make, that their culture can only be protected by suspending individual legal rights of their members. I argue this is not tolerable. I contrast this to an example where the law is adapted to the needs of a religious group, to actually strengthen a human and moral right. Then I shift to a discussion of Indigenous groups who have a powerful group rights claim. I consider how this claim may be fulfilled in concert with human rights concerns, including some thoughts on how human rights risks of new sovereign Indigenous governments might be mitigated.

We should resist any prima facie intuition that threatened minority cultures necessarily should be protected, because change to or loss of culture is not intrinsically bad. There are some traditional cultural practices that are deeply rooted in sexism or that violently subordinate the human rights of their members (such as female circumcision – or, for that matter, male circumcision). If indefensibly problematic practices are lost, it is not intrinsically bad. Other, non problematic cultural practices will simply fall out of favour, as the views and needs of their members change. Cultures are fluid and evolve over time, responding to internal and external reform and stimuli (Donnelly 2006:86) which again, is not intrinsically bad. Even at a static point of time, there is frequently dispute within members of a culture about their beliefs and practices. In contemporary Islam, some women believe it’s an absolute requirement they wear the burqa, while others believe it is entirely optional to wear the radically less modest hajib. Indefensibly problematic practices and the very nature of culture as a non static entity show us that change and loss of culture does not intrinsically warrant protections.  

But we should be concerned if members of a minority culture want to engage in certain practices and mainstream society obstructs them doing so. If the mainstream community is hostile or discriminatory towards members of that group, if the group are prevented from congregating in public spaces or is harassed by members of the police, then these are threats we really should be worried by. These worries remind us that individual human rights of the group’s members, rights like freedom of association, freedom of religion, and freedom from discrimination are violated by this mainstream activity. Individual human rights impose very important duties for nation states to adequately protect them, and members whose individual rights are being violated on grounds of their group membership have very strong claims against the government. In Chandran Kukathas’ view, freedom of association is a right that governments need to particularly strengthen to ensure other human rights are fulfilled (Kukathas 1992), a plausible claim when you consider it is the most socially unpopular associations (like fundamentalist religious groups or racial hatred groups) who are likely to attract hostility and discrimination from majority community. We are reasonable to be concerned by some discriminatory threats to minority cultures, but these threats can be understood as violations of individual human rights.

Some groups insist that their individual members’ legally implemented rights must be suspended or waived to maintain their cultural practices, and this is usually not tolerable. They may wish that their children’s educational rights be suspended so they can work instead, or be home schooled without government approval of the curriculum and oversight of its delivery. They may wish to actually restrict their members’ right to leave their land, or force the members’ to participate in religious practices against their will. These types of requests cannot be tolerated because they clearly interfere with the autonomy and opportunity to live a minimally decent life that human rights protect. But liberal states are responsive to claims that flexibility and exceptions must be introduced to their law making to strengthen individual human rights protections, and we can see this in examples like motorbike helmet laws in the UK. Helmet laws are utilitarian policy to reduce the threat of injury to citizens, but religious Sikhs are required to wear a turban which cannot be worn with a helmet. The laws have been amended to exempt Sikhs from the helmet requirement. We might classify this a group right, in so far as any individual Sikh would lose the right to the exemption if he left the religion, but what is more relevant here is the way the exemption is being used to strengthen the individual right to freedom of religion without compromising other human rights. Removing protections such that individual rights will be infringed cannot usually be justified by any minority culture’s claim to preservation.   

The most powerful group right claim is that made by Indigenous peoples. Indigenous peoples may claim that mainstream society discriminates against them and obstructs their practice in certain ways. They may also reasonably claim that systematic tensions exist between their traditional ways of living and western state structures, which makes those practices untenable. . But we have seen these concerns are not a prima facie successful case for group rights, because it is not always bad that some practices don’t persist, and claims against discrimination and obstruction are issues addressed by individual human rights.  So how is it that that Indigenous people have a powerful claim to group rights?  Some Indigenous cultures have claims to self government: they have claims to sovereignty and land rights as a matter of justice. In many cases, Indigenous sovereignty and land was seized by colonial occupiers who have subsequently imposed their rule, methods and belief systems. Aboriginal Australians had made their living off the land and were no longer able to, yet their religious beliefs and cultural practices were deeply connected to their methods of living off the land. For the next two hundred years they were exploited and discriminated against without legal recognition of their moral rights, and in many cases families were torn apart by the government removing children from the care of parents and communities. So returning sovereignty and land, granting self government, to Australian Indigenous people seems simply to be a matter of justice.

But we cannot assess this case for Indigenous justice independently of human rights concerns, both of the Indigenous peoples and the peoples of the existing sovereign. If granting self government would obviously result in significant human rights violations to Aboriginal Australians or other Australians, this would obstruct the case for self government. However I do not think this is so, and the burden of making a case for this is against those who disagree with me. However there is a concern with any new sovereign state, because we cannot have much insight into what future developments regarding human rights might occur. Once Australian Aboriginals have self government, the relationship between sovereign Australia and the sovereign indigenous state is similar to the relationship between any two sovereign states. One sovereign state’s practices might degenerate in areas like gender discrimination, prohibiting political participating in group decision making (I am highlighting the most probable areas to worsen in an Indigenous culture previously denied opportunity to engage in internal reforms) and the other sovereign state could take no coercive action against those violations. Yes, the other sovereign state and international community could criticize these behaviours, and attempt to persuade the government to change, but only the most egregious “intolerable” violations of basic rights, like genocide warrant coercive intervention from other sovereign states (Kymlicka 1996). 

I think we can make reasonable efforts to satisfy Indigenous rights to self government in concert with human rights concerns, and increase the chances that the future of an Indigenous sovereign state will be rights respecting. Firstly, In the case of Australian Aborigines, Indigenous leaders have long shown enthusiasm for establishing a sovereign-to-sovereign treaty with Australia. Creating this treaty is an opportunity for consultation and debate between the Australian government and Indigenous leaders, as well as the public and the broader international community. It is also a terrific opportunity to establish and maintain friendly relations with Australia which could promote future trade and tourism opportunities, powerful ways to facilitate ongoing respect for human rights in the new state. Secondly, we should not assume indigenous leaders are not concerned about human rights protection or resistant to the idea of international accountability (Kymlicka 1996). On the contrary, we should expect that human rights are an important concern of theirs, and that the international community is poised to assist them. The 2007 United Nations Declaration on the Rights of Indigenous Peoples has been developed over 20 years of consultation and reflects a wealth of collaboration between Indigenous communities and external parties, and should be taken as a strong encouragement that the international community and Indigenous sovereign states can assist each other.

In this essay I have shown that minority cultures need not necessarily be protected, and that when they should be protected this can be achieved by securing individual rights. I have done this by demonstrating that changes to culture is not intrinsically bad then assessing different types of claims that groups have made for protection. Finally, because Indigenous groups do have powerful claims to rights of self government I have examined their claim and proposed ways we could mitigate human rights concerns of a new Indigenous state.

References

Jack Donnelly, Universal human rights in theory and practice, 2nd Edition, (Cornell University Press, 2006).

Chandran Kukathas, “Are There Any Cultural Rights?” Political Theory, Vol. 20, No. 1, (February 1992), pp. 105-139.

Will Kymlicka, “The Good, the Bad and the Intolerable: Minority Group Rights,” Dissent, Summer, Vol. 43, No. 3 (1996), pp. 22-30.