Rights are Indivisible!

This post is the first of two on rights. Bentham was no friend of natural rights, and up until recently rights have had small play in Australian political discourse. Hugh Collins, in Political Ideology in Australia: The Distinctiveness of a Benthamite Society¹ discusses the uneasy place a rights discourse has had in Australia when it has been invoked.

In my view much rights discussion is confused, or at least, I find it confusing. The next post will discuss this at some length, but this post is a teaser. The main feature of this post is an interview between BBC radio’s Owen Bennett-Jones and Navi Pillay, the UN High Commissioner for Human Rights, on The Interview, aired 12 December 2008.

Some questions emerge from the interview.  Do rights only emerge as ‘demands of the population’ and/or as the written UN Declaration of Human Rights? Which part of the population makes the demands worth paying attention to? The majority? A minority? A committee? An elected government? Or maybe just one person? If one person, the king or the cobbler? Where is the cut-off line?

Remember there is a lot at stake here, because as Pillay says, rights are ‘absolute, universal, indivisible, interrelated’.

Who in the population gets to utter words of such profundity? Which population too? If President Mugabe declares some right or other does that instantly and irrevocably bind the rest of the world? What if Mr. Jones of 25 Democracy St, Albuquerque should declare some human right in relation to some dispute he is having? Who is bound? Or a child declares a right to eternal lollies? Fair enough!

And what on earth is ‘indivisible’ doing in there? And what ever did happen to that pesky right to bear arms?

I am not against a rights discourse, but in my view rights should be seen as human inventions written down as a kind of social agreement about where legislation, or government, or others, should or should not travel. Mystifying them to give them weight in my view merely reduces their credibility. When someone comes to me declaring that their opinion is actually an absolute and universal truth I begin to get suspicious, be it in an argument over who gets the last tea-bag or anything else.

The alternative is that there is a group of all-wise people (probably academics and lawyers) who can be consulted for their wisdom, and who are entirely impartial in their translation of esoteric truths to which they alone have access – no, wait, there was something about  ‘demands of the population’…

I prefer the idea of a society built on negotiation and compromise rather than one built on the tyranny of someone’s or some group’s opinions, elevated to absolute truth. To me that sounds like scary middle-ages stuff. Each system – democratic compromise and rights-as-truth – presents its own dangers. Each in its own way is a potential vehicle for majoritarianism, and for ‘minoritarianism’.

I have heard people on the radio and elsewhere give long disquisitions about what is and what is not a right in certain situations. Where did they get this amazing knowledge? I have been studying very hard at uni for at least ten years and I have never seen the book that lets me in on this secret. Maybe the Baillieu Library forgot to buy it. Maybe it is not in a book, but requires deep spiritual searching. There is no Meditation for Rights 101 at Melbourne University. Could it actually just be mere opinion these disquisitors are expressing? When I begin to listen to them with this in mind their earnest promulgations become laughable.

Sad to say, Navi Pillay, presumably the best the UN can produce on the subject, did little to dispel my doubts.

And here is the interview, beginning at 10 minutes and 16 seconds, when the topic of rights was introduced:

OBJ: Well, let me ask you about human rights. I would like to ask you whether they exist?
NP: Human rights exist. It was all written up 6 years ago in the universal declaration of human rights.
OBJ: 60 years ago.
NP: 60 years ago. And the principles written then are true today. All of us embrace those human rights principles – the right to life, the right to dignity, the right to social and economic rights. What is absent is a vigorous implementation of those rights. There are huge gaps in implementation. That’s where I come in as High Commissioner.
OBJ: I’d like to go back though before the implementation of this document, because there it is, as you say, 60 years ago the universal declaration of human rights…. Now I was surprised to read only 48 countries actually voted for it and yet people such as yourself say it has universal application.
NP: It is a founding document of the United Nations. It’s now international law that every member of the United Nations by virtue of membership undertakes obligations to observe the founding documents.
OBJ: And yet it is in some ways out of date isn’t it?
NP: It’s been fleshed out in many significant ways. Economic and social rights, we have a convention. Civil and political rights, we have a convention. And numerous – like the Convention on the rights of the child, the Convention against discrimination of women, and more recently on the Convention on disabilities – so it’s been fleshed out in many other documents.
OBJ: But what I’m getting at is that you would see it as, I think, as a permanent statement of human rights, and it isn’t, because human rights change, they’re not permanent. For instance, sexuality is not in that document – the right to your own sexuality. And yet now, if someone was writing that document, they would definitely include it. So what does that tell you about human rights and how universal and permanent they are?
NP: Well it tells me the original document the universal declaration sets out the universal norms to which we all subscribe.  Subsequent developments have im…, have met – gone along with evolving time – evolving, not even new rights, the realisation of the rights …
OBJ: Well that’s the crucial point, you’ve put your finger on it, not new rights. But they are new rights aren’t they?
NP: No, they were always demands of the population.  They were not, in that point in time – see the right to sexual orientation at that point in time was not spelt out in the universal declaration but has been, and is being, in subsequent documentation.
OBJ: Yes, but prehistoric man would not have missed the right to a fair trial, there were no lawyers, there were no judges.
NP: Yeah, well I’m not referring to a prehistoric document. I’m referring…
OBJ: No, no, but you’ve missed my point that these things change, I mean, you know, they’re not as absolute as I suspect you would like to argue they are.
NP: The rights set out in the universal declaration are absolute, universal, indivisible, interrelated. I agree with you, there are huge gaps. There are many countries who resist rights that they think are western devised, Western oriented.  Well, these are all different, divergent points of view.
OBJ: Yes, but they may be right. Take China for example.  Do you think a Chinese person has the same rights as an American person, human rights?
NP: A Chinese person is entitled to the same rights as other persons in the United States or anywhere in the world.
OBJ: But they are different societies and they have different moral values. So why shouldn’t a Chinese person be able to say look, you know, we think that old people have the right not to be put in old people’s homes, we take that seriously, you don’t do that in the West, in the West you have democracy we don’t. I mean they’re different.
NP: You have to take into account local context, cultural concerns.  In Africa, for instance, there are very concerned with community rights, not only individual rights.  But elderly people have a right to dignity, and even the Chinese will agree with that.
OBJ: The Chinese certainly would; it’s a question of whether the West does. What I’m trying to get at is I’m not convinced there is a universal – I mean, for instance, if a Chinese person says, well quite as most do, we are quite happy with one-party rule, it’s working fine.
NP: Yeah, that’s at the implemental, implementation level, the interpretation of how they are going to apply that, that norm.  A different country may interpret it differently in terms of their context.  My job is to ensure human rights are respected in the way countries interpret these norms.

Pillay seems to be reaching for the idea of dignity as the common denominator of rights. If so, rights are not the only way to ensure dignity. In any case, what is the dignity of a rape victim who cannot have an abortion because the foetus has a right to life? What is the dignity of a girl ostracised from her community because she has not been circumcised? What is the dignity of the victim of handgun use in a society with the right to bear arms? Where is the dignity in a society where competing claims for rights tears it apart – where negotiation and compromise are crushed under the demands of absolute right, absolute truth? These are hard issues, but rights, as currently endorsed, make them easy. The child lives, the girl is not circumcised, the person is shot, and the civil war continues. C’est la vie, ce sont les droits.

There are many paths to dignity, and I suspect that a claim for absolute priority of one’s own opinion on a matter is a less fruitful foundation for a society than a polity trained to compromise. Rights are exactly not about compromise.

In the meantime, the rights doctrine allows the UN to make judgments upon actions within states on the basis of expressing a universal truth. Without the claim to universal truth, comments made and actions taken under a rights doctrine would need to gain legitimacy by some other means, such as democratic agreement – means not available to the United Nations. Rights, in other words, are a system for the manufacture of power and authority.

1. Australia, the Daedalus Symposium, edited by S. R. Graubard. North Ryde, N.S.W.: Angus & Robertson, 1985. [↩]