Human rights occupy an ambivalent place in contemporary political life – they are both objects of unbridled enthusiasm and increasing suspicion. Enthusiasm is evident in the way the language of human rights frames one vanguard political demand after another; debates around climate change, extreme poverty, and LGBTQ rights, are genuine drivers of moral progress. Other uses of the language of human rights are farcical – including the declaration by a Chinese government official in 2006 that the people of China have a “human right” to host the Olympic Games.
Often, growing scepticism about human rights is interpreted as a “populist backlash”. Recall the threat by then US presidential candidate Donald Trump to bring back “a hell of a lot worse than waterboarding” for suspected terrorists, or Brazilian President Jair Bolsonaro’s dismissal of human rights as “manure for rascals” – “rascals” designating indigenous people, the criminally accused, and members of the LBGTQ community.
One diagnosis of this populist backlash is that human rights have become an elite discourse from which ordinary people across the world are increasingly disconnected. Although there is an element of truth to this hypothesis, the reality is more complicated. Many who are sceptical of human rights claims condemn them as perversions of the true meaning of human rights. This type of criticism is often presented as an attack on human rights mounted from within – in the name of human rights themselves, which such critics argue have drifted from their true or original purpose.
A recent illustration of this phenomenon is the US Department of State’s creation of a Commission on Unalienable Rights, chaired by the eminent legal scholar, Mary Ann Glendon. The Commission’s aim is to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights”. Similarly, in a speech delivered at Davos, Bolsonaro asserted that his government would uphold “true human rights”, among which he numbered “the right to life and private property”.
Revulsion at the policies of leaders like Trump and Bolsonaro may tempt us to interpret this sort of “internal” criticism as a cynical ploy, one that thinly veils a racist, sexist, and homophobic agenda. But even if this interpretation is correct, it doesn’t follow that there is no truth in the idea our human rights culture has gone off the rails. After all, human rights law, and the culture it belongs to, are human constructs; nothing immunises them from the errors of overreach.
How, then, does human rights discourse overreach? Mostly in two ways. The first is substantive overreach. This relates to what we take to be human rights. There is a persistent tendency to present more and more political demands as human rights, but on very dubious grounds. We can see this if we proceed from the idea that real human rights involve counterpart obligations on others.
Obligations – such as the obligation not to torture or enslave others – impose practical demands on us. Failure to meet these demands is wrongful. In order to be genuine obligations, however, the demands have to be feasible. There can be no obligation to do the impossible, such as to give everyone a Rodeo Drive lifestyle, or to do that which would involve an excessive burden, such as to sacrifice your spare kidney for a stranger in dire need of a transplant. Moreover, obligations are stringent demands that have to be complied with except in emergency situations. They are not regularly overridden by competing concerns.
A lot of human rights talk overlooks the need for human rights to involve genuine obligations. Instead, all sorts of goods are presented as human rights entitlements simply because conferring them would be beneficial to all humans. Although resort to the language of human rights gives these assertions extra rhetorical force, the strategy neglects the vital difference between what benefits another, and what is owed to them. There are many ways I can benefit you – by giving you my money, my spare kidney, my friendship – without you having a right to these things. Nor is this tendency confined to over-enthusiastic human rights advocates. It is also present in powerful institutional settings.
One telling illustration of this phenomenon is the United Nations’ General Comment 14 on the human right to health. This imposes onerous demands for health care, which would strain the resources of even the most advanced societies. In doing so, it blurs the dividing line between a genuine right, and a laudable aspiration.
The UN special rapporteur on extreme poverty, Philip Alston, has rightly argued that stemming the populist backlash against talk of human rights should involve granting more prominence to socioeconomic rights, such as those to health and work, which ordinary citizens can more readily identify with – and see themselves as having a stake in. But this requires distinguishing our interests in health and work, which generate a wish list of items whose demands are potentially insatiable, from our rights to health and work, whose associated obligations must be feasible.
Is it any wonder that people become cynical about human rights claims when those claims proliferate to cover whatever interests we happen to have? This expansionist tendency, which is replicated across many human rights, eliminates any realistic possibility of fulfilling all of them. As a result, human rights have to be endlessly compromised and traded-off against each other. They are no longer sources of obligations which can only be overridden in extremis. What the bloated human rights discourse gives with the one hand, it takes away with the other, to the satisfaction of pretty much no one.
The second form of overreach relates not to what counts as a human right, but to who gets to decide what counts. Even if we accept that all humans have a given right, it’s too easy to conclude that this right ought to be enshrined in law and enforced by courts. On reflection, at least two kinds of obstacles can stand in the way of any such conclusion.
The first kind of obstacle is practical. It is an open question whether establishing a human right in law will advance its fulfilment. Perhaps judges systematically ignore the law (as they did in the USSR) or lack the necessary expertise for effective human rights adjudication. But even if they are willing and able to uphold rights, empowering judges to do so can be counter-productive.
The right to health, for example, is a constitutional right in Brazil and Colombia. Although this empowers some litigants to assert their human rights in court, their success in accessing scarce health resources often comes at the expense of citizens with more urgent needs who are too poor, or insufficiently informed, to go to court. This outcome is hardly consonant with human rights.
Another set of obstacles is more principled in nature. Even if, as the economist Amartya Sen has proposed, we all have a right to a say in decisions that strongly affect our interests, there seems little basis for allowing children to sue their parents for failing to consult them about school moves or emigration. Similarly, we might regard certain forms of personal betrayal as human rights violations, yet resist the idea that it is the law’s business to condemn or punish them. Some human rights belong to a private sphere into which the law should not intrude. And even if we think that the law should properly give effect to a human right, a question arises as to which state organ – the legislature, the judiciary, or some other – should play the lead role in determining its content.
A key theme of the recent Reith lectures, delivered by former UK Supreme Court justice Jonathan Sumption, is the increasing shift of decision-making power on human rights matters from legislatures to courts. This shift is worrying on a number of fronts. Most obviously, judges lack the legitimacy, as law-makers, that ordinarily comes from democratic election. Somewhat over-dramatically, Sumption describes judges as usurping democratic law-making powers in a way that is “conceptually no different” from what happens in fascist, communist or Islamist states.
But there is perhaps a deeper worry. How can a vital social commitment to human rights be sustained if decisions about them are increasingly transferred from the sphere of democratic contestation to that of legal experts? Denying citizens their say in human rights decisions risks fostering indifference, alienation or resentment that fuels a populist backlash. In the words of the great American judge, Learned Hand: “liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it”
The legal status of abortion is an instructive example. In the United States, where it has been decided by the Supreme Court, there is ongoing discord and rancour which finds no parallel in countries, such as the United Kingdom, where a legislative compromise has been struck.
Faced with criticisms about overreach, human rights lawyers and activists are often tempted to adopt a highly defensive posture, casting themselves as guardians of human rights against hostile forces. But this is a risky, and potentially self-deceiving, strategy. Human rights are fundamental moral and political principles, and law has a vital role to play in securing them. But we may need to learn that, as with other good things, less is sometimes more.
John Tasioulas is the Yeoh Professor of Politics, Philosophy, and Law at King’s College London. He is the author of Minimum Core Obligations: Human Rights in the Here and Now and tweets @JTasioulas.