In the numerous descriptions and lists of human rights, which human rights come first?
This isn’t a new debate. Philosophers have argued this for centuries; most agree that the human right to life is fundamental, but in 1980 Henry Shue made a persuasive argument that there is a subset of “basic rights” including the right to minimal subsistence. By subsistence rights, Shue was referring to a minimum level of well-being, now more commonly referred to as economic rights.
Shue claimed that subsistence rights are on a par with the human right to physical security, which remains a provocative assertion. Far earlier than Shue, John Stuart Mill had assigned priority to a person’s right to control his or her body and mind. Mill articulated this to include freedoms of speech, assembly, and action (so long as actions do not cause harm to others). Georg Wilhelm Friedrich Hegel also had strong views on human rights and the relationship to free will, and what freedoms a person must have to be considered as a “free” human being. Hegel’s priority list of freedoms included the ability to own property, to make promises to other persons, to live with whomever one chose, to get protection from laws, to be able to enter into contracts, and to have a voice in government.
Moving away from prioritization and taxonomy, leading modern thinkers such as Martha Nussbaum focused not on which human rights were most important and how they should be grouped, but on what human rights were supposed to do: “When we speak of human rights, do we mean, primarily, a right to be treated in certain ways? A right to certain level of achieved well-being? A right to certain resources with which one may pursue one’s life plan? A right to certain opportunities and capacities with which one may, in turn, make choices regarding one’s life plan?”
Nussbaum’s questions move us helpfully toward viewing human rights from a development lens. Her way of framing human rights also runs counter to the prevailing trend in government discourse on human rights, which is to view them as specific legal obligations and constraints that apply to governments, and to then deconstruct such rights into just two main categories: (1) civil and political rights, and (2) economic, social, and cultural rights. Most legal and treaty incarnations of human rights follow in this classification.
The current Administration made some very promising moves early on, raising expectations that in foreign policy and foreign aid the US Government would “elevate” human rights. The word was repeated again and again, but the elevation has been elusive. And for anyone who thinks about human rights in an international development context, the hopeful turning point never really happened. At best, we have stayed with the legalistic view of human rights as defined in treaties, conventions, or laws. The expectation that a shift to a development based conception of human rights, in which all human rights and freedoms are valued as a unified whole, has yet to materialize.
Obviously such changes come slowly. For progress to really occur the world’s largest bilateral foreign assistance agency, USAID, would have to overturn a long-established position. On September 26, 1984 USAID articulated Human Rights Policy Determination #12. This Policy Determination of over thirty years ago provided guidance on a much older piece of legislation, the Foreign Affairs Act of 1961. That Act, still in force, stated that a principal goal of U.S. foreign policy is to call for the increased observance of internationally recognized human rights by all countries. Under Section 101(a)(3) of the FAA, USAID is instructed to emphasize the encouragement of development processes in which individual civil and economic rights are respected and enhanced. Section 116(e) goes on to provide for a positive approach to human rights by encouraging the increased promotion of civil and political rights.
USAID took a policy position then by emphasizing a sub-set of just two types of human rights. First, there’s the right to be free from governmental violations of the integrity of the person. These include violations such as killing, torture, cruel, inhuman or degrading treatment or punishment, arbitrary arrest or imprisonment, abduction and clandestine detention. Second, there’s the right to enjoy civil and political liberties, including freedom of speech, press, religion, and assembly, the right of citizens to participate in governing themselves, the right to travel freely within and outside one’s country, and the right of citizens to associate together with others in political, economic, and religious activities.
If we remain with these typologies, distilling USAID’s focus on these two categories begs the question of USAID’s position on economic, social, and cultural rights, and throws us back into the arena of conceptualizing and sub-dividing human rights using the language of laws and treaties instead of looking for human rights as a unified concept under “development”.
The problem is not a small one. Almost every major treaty embraces at least some economic, social, and cultural rights, yet the US has a record of giving lower priority to these human rights in favor of emphasizing civil and political rights. For example:
- The Universal Declaration on Human Rights recognizes a number of economic, social and cultural rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) is the primary international legal source of economic, social and cultural rights.
- The Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women recognizes and protects many of the economic, social and cultural rights recognized in the ICESCR in relation to children and women.
- The Convention on the Elimination of All Forms of Racial Discrimination prohibits discrimination on the basis of racial or ethnic origin in relation to a number of economic, social and cultural rights.
- The Convention on the Rights of Persons with Disabilities also prohibits all discrimination on the basis of the disability including refusal of the reasonable accommodation relating to full enjoyment of economic, social and cultural rights.
While much of the world moves towards a unified view of the inter-relatedness of all human rights, American administrations have regularly taken the position that economic, social, and cultural rights are merely “aspirational,” i.e. unenforceable and best viewed as a policy matter.
So long as we remain tethered to the notion of human rights only as laws and treaties, progress will be minimal. Framing human rights developmentally is not running away from political realities. As argued by John Hammock: “Human development does not shy away from the understanding that development is a political process, that technical outputs take place within a political and social context, and that the economic and social wellbeing of all persons can and most likely will challenge the existing status quo. The ability of each person in a community to live with dignity and to flourish requires a government that actively enables and protects this freedom. It also requires an economic system that values not just material and financial output, but the wellbeing of all its members.”
Hammock is referring to the Human Development Approach, which has its roots in human rights thinking – not human rights laws. While USAID, and others active in funding and implementing international development need not formally adopt the totality of the Human Development Approach, the challenge remains as to how we approach our position on human rights. Adopting a development-based view of human rights aligns well with the full spectrum of the international development mission, while staying with a legal and treaty interpretation ties us up in Gordian knots that ultimately render human rights concepts as unwieldy and difficult to employ in development policies and programs.
Human rights are about human freedoms, and as Amartya Sen so eloquently argues, development is best conceived as freedom. We can strengthen our development effectiveness by harnessing human rights thinking from a development perspective, instead of falling prey to legalistic taxonomies.
This is a choice whose time is now long overdue.