For the past seventy five years, the eighteenth century concept of human (fundamental) rights has become so germane, so relevant, that it is heretical to deny its existence. Unfortunately, it is a concept so convoluted, historically and logically, and so politically charged, that it seems impossible to agree on an effective definition and slightly more impossible, in the current politico-juridical context to develop effective guarantee mechanisms. It is a concept much discussed and espoused but as in the related case of international law and the equality of states, little understood and less respected.
In large part, both problems stem from a common cause, the modern liberal tendency to lump unrelated concepts together regardless of their differences and inconsistencies merely because they have positive connotations; e.g., the concepts of democracy, pluralism and liberty, logically antithetical but almost always politically conjoined as though they were inseparable Siamese twins. That is clearly the case with human rights which have interpersonal, domestic, supranational and international dimensions, as well as two huge conceptual predicates, one negative, the traditional “shall-nots” and one positive, the newer “shall” series of obligations, and further, different subjects, in one case, the shall-nots, the state, and in the newer generations of rights, the state, individuals, organizations, animals, the planet, etc.
The concept of a right versus that of a privilege or grant from a higher authority irreparably confuses the issue. The two terms, in cultural, social, ethical and legal senses, should not be mere synonyms. Based on social contract theory rights are those elements of sovereignty retained by individuals and thus inherent rather than granted, elements over which government has no jurisdiction and into which it cannot intrude, ever, under any circumstances. Rights are never granted, constitutionally or otherwise, only (eventually) recognized. Privileges are those elements of sovereignty which the individual has purportedly surrendered to the collective, be it the people, the nation or the state, some attributes of which have been returned in some form, albeit conditionally with the related conditions frequently being not only reasonable but essential for social functionality. Rights involve the social contract theory espoused by John Locke and privileges/grants that espoused by Thomas Hobbes. However, because the term “right” is much more positively charged it is used in the context of “human rights” where the more proper term, the reality, involves only privileges/grants. That is especially true of those concepts denominated rights which are merely aspirational, i.e., in most cases, the “positive” social, cultural and economic rights and the newer generations of rights such as those to a healthy environment, peace, animal rights, etc.
As there are no concepts denominated human or fundamental rights which are not in some way subject to conditions or exceptions the starting point in developing workable concepts is the recognition of the fact that human and fundamental rights, as logical concepts based on the social contract, probably do not yet exist. That is an empirical observation unrelated to the argument made by David Hume criticizing the scientific predicates and postulates for the concept of fundamental rights and natural law espoused by philosophers such as John Locke lack on the basis that “self-evidence” lacks any demonstrable scientific basis or justification.
What we have and what we should seek to expand, promote and protect, are fundamental privileges and fundamental political aspirations and if we recognize that fact, we can begin to mold the definitions necessary to permit effective enforcement. The use of nominative fictions to differentiate identical concepts based on whether in a given context we want to support or oppose a given action are useful for rhetorical purposes but extremely damaging from an effective normative perspective.
Examination of two of the most emotional charged “rights” is illustrative, i.e., the concepts of “freedom from slavery” and the “right to life”. The deprivation of liberty permitted to governments in the context of imprisonment or conscription is illogically differentiated from similar situations frowned upon by the law, which are denominated slavery. The same is true of abortion, the death penalty or the deprivation of life in war or by police action which eliminate life but are differentiated from the myriad classifications of homicide. By merely giving a term a negative or a positive charge we change actions with identical consequences into different legal concepts. That is a reality the change of which is unlikely and perhaps even impractical. However, by denominating the subjects and objects of such actions as rights rather than privileges, especially in the modern context of human “rights” as “universal, indivisible, interdependent and interrelated” (see Part I, paragraph 5 of the Vienna Declaration and Program of Action adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria), we obfuscate them, render them incomprehensible, and create an environment unlikely to evolve into a practical juridical system, especially given the reticence on an international level to prioritize them.
While inspirational in their aspirational eloquence, all of the post World War II international conventions on human rights are unfortunately conceptually illogical and impractical. As a result, they are unreliable mechanisms for attaining their announced goals, raising human hopes only to dash them in cold realities. If their aspirations are ever to be approached, then their beautiful emotive and hyperbolic language needs to be replaced by logical, clear and concise concepts and practical realities announced and specified rather than merely winked at and understood.
Perhaps the easiest place to start is organizational and semantic; a realization that in order to be rendered effective, different concepts need to be segregated and given their own unique names. Where would we be in medical science if all diseases were merely called “illness” and all medications merely called “medicine”? In addition, practicality requires that systemic prioritization be recognized, something rejected for political convenience at the dawn of the post-World War II era.
Some initial suggestions:
• Differentiation between rights and privileges, with recognition of the probability that in no current state is any right recognized, thus making the current legal setting one that involves human privileges, the conditions that limit them and the enforceable obligations of states to honor them when applicable conditions have been met.
• Effective enforcement mechanisms for human privileges must be established, realistically recognizing acceptable but strictly defined specific defenses for violations, and punishing unexcused violations in a manner eliminating all aspects of impunity.
• Categorizing human privileges into four broad categories
o Restrictions on governmental activity traditionally recognized as resulting in fundamental rights such as those reflected in the United States Bill of Rights (the “government shall nots”);
o Restrictions on actions by individuals in their relationships with other individuals (the individual shall nots);
o Obligations to act involved in the newer economic, social, cultural, environmental and non-belligerence “guarantees” requiring governmental actions of some kind; and
o Obligations to act involved in the newest economic, social, cultural, environmental and non-belligerence “guarantees” requiring individual or commercial actions of some kind.
The categories should in turn be internally prioritized, not on the basis of their importance to the individuals who ought to eventually be deemed their subjects, but on the realistic basis of how attainable they are. Thus, the order in which they are listed above coincides with their currently anticipated attainability. Prioritization within each such category based initially on attainability would also seem essential, as, in fact, it is likely that within each category there will be concepts more attainable than others in higher priority categories, that being especially true in the second and fourth categories involving actions by persons operating outside the color of law.
Finally, concepts should be allocated on a non exclusive basis among the juridical frameworks through which enforcement may be anticipated. These include: tort law (relationships among individuals), penal law (the state versus the individual), constitutional law (the individual versus the state or intrastate institutions versus other intrastate institutions), supranational law and international law, especially as it involves ius cogens. In the latter case, the traditional view that only states have actionable causes under international law, which is currently undergoing evolution to grant subject status to some international organizations and under limited circumstances to individuals, need to be reconciled with concepts of sovereignty and a determination made as to the status of individuals, groups, animals, the planet, etc. with respect to participation in enforcement.
These suggestions do not imply that aspirational concepts should be abandoned merely because their attainment is currently impossible or impractical, knowing where we would like to go is essential to eventually getting there, but it does express the opinion that until consistent enforcement becomes practical, false hopes that more often than not avoid and delay real and practical solutions must be eliminated and efforts concentrated on finding and implementing realistic immediate solutions must be accelerated.
© Guillermo Calvo Mahé and Diana Marcela Cardenas Garcia; Manizales, 2018; all rights reserved. Please feel free to share with appropriate attribution.
Guillermo Calvo Mahé (a sometime poet) is a writer, political commentator and academic currently residing in the Republic of Colombia although he has primarily lived in the United States of America (of which he is a citizen). Until recently he chaired the political science, government and international relations programs at the Universidad Autónoma de Manizales. He has academic degrees in political science (the Citadel), law (St. John’s University), international legal studies (New York University) and translation studies (the University of Florida’s Center for Latin American Studies). He can be contacted at firstname.lastname@example.org and much of his writing is available through his blog at http://www.guillermocalvo.com. Diana Marcela Cardenas Garcia is a Colombian social communicator and journalist who collaborates with Dr. Calvo on diverse civic, social and political projects.