The news is full of reports of human rights violations: in Crimea and the Donbas since the 2014 Russian invasions, as well as in dozens of countries around the world with a variety of political systems. But compared to the vogue for human rights in the 1970s, enthusiasm seems to have waned.
Even then, it was not a novelty. Human rights can be traced to Roman law and Stoic philosophy, with their continuation in medieval law. Central was the concept of natural law as superior to the law of the state, and thus capable of protecting the individual from government authority (H. Lauterpacht, “International Law and Human Rights,” 1968, pp. 84-85). English common law, and the writings of John Locke and other Enlightenment philosophers, further developed human rights theory.
Among the “self-evident” truths listed in our Declaration of Independence was “that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” (Any barroom philosopher will tell you that saying something is “self-evident” is a pretty lame argument. But that’s the best the Fathers could do.) In 1791, 10 Amendments to our Constitution enumerated fundamental civil rights. Meanwhile in France, the August 1789 Declaration of the Rights of Man and of Citizens spoke of “sacred,” “natural” and “unalienable” rights, the first of which was that men were born free and equal in their rights.
In the U.N. Charter of 1945, the peoples of the United Nations announced their intention “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.” In 1946, the U.N. created a Commission on Human Rights. Two years later, the Universal Declaration of Human Rights was promulgated. In 1966, two international Covenants – one on Civil and Political Rights and one on Economic, Social and Cultural Rights – were completed. These documents contain limitations such as the rights and freedoms of others, public order, health, safety and morality.
Taken together, the Universal Declaration and the two covenants cover some 35 different rights. They have been supplemented by agreements on specific subjects, such as genocide (1948), refugees (1951), stateless persons (1954), women (1951 and 1979), slavery (1956), racial discrimination (1965), torture (1984) and children (1989). International criminal tribunals have prosecuted human rights violations in the former Yugoslavia (1993) and Rwanda (1994) (“The World is Watching: A Survey of Human-Rights Law,” The Economist, December 5, 1998, pp. 1-16). The European Union adopted a Charter of Fundamental Rights in 2000. In 2002, an International Criminal Court was established.
Meeting in Helsinki in 1975, the Conference on Security and Cooperation in Europe adopted accords of which “Basket Three,” outlining human rights, became a rallying point for Soviet dissidents. U.S. President Jimmy Carter (in office 1977-1981) made human rights a cornerstone of his foreign policy. Non-governmental organizations defending human rights were led by Amnesty International, founded in Britain in 1961. In Ukraine, the Helsinki Monitoring Group in Kyiv was particularly active, supported by diaspora organizations like Americans for Human Rights in Ukraine and Smoloskyp.
But the cause of human rights has run up against several problems. First, some have asked whether human rights are universal or culturally conditioned. We can all agree on the rights to life and liberty, and perhaps to property. But is the right of a transgendered person to use the bathroom of his or her choice likely to be recognized in, say, Saudi Arabia or Iran?
Second, are there socio-economic as well as civil and political rights? This has been a point of debate between capitalist and socialist countries.
Third, human rights have multiplied. “As various new rights are proclaimed or proposed,” writes Harvard law professor Mary Ann Glendon, “the catalog of individual liberties expands without much consideration of the ends to which they are oriented, their relationship to one another, to corresponding responsibilities, or to the general welfare” (Glendon, “Rights Talk: The Impoverishment of Political Discourse,” 1991, p. xi). Are there “Ukrainian American rights”?
The discovery, or invention, of new rights may lead us to confuse derivative or secondary rights with fundamental ones. A 2001 research report by the Oslo-based human rights organization Forum 18 stated that “the right to freedom of thought, conscience and religion is the foundation of Western human rights ideology.” Oddly enough, in this area of scholarly research, political pressure by governments and NGOs, and action by international organizations had been relatively limited (Johannes Osttveit, “Comment: Freedom of religion – a forgotten human right?” Forum 18, October 16, 2003).
At the same time, human rights have been separated from corresponding responsibilities (Glendon p. x; Franz Wieacker, “Foundations of European Legal Culture,” The American Journal of Comparative Law, Vol. 38, No. 1, pp. 21-22). Moreover, what happens when rights conflict, for example, freedom of religion and the right to “reproductive health”? (See Marguerite A. Peeters, “The Globalization of the Western Cultural Revolution,” especially Chap. 4, “The Rights Revolution,” 2007.)
Most seriously, the very existence of human rights has been questioned. Philosopher Alasdair MacIntyre has argued that every attempt to provide good reasons for believing that “human rights” exist has failed, and that in fact “there are no such rights, and belief in them is one with belief in witches and in unicorns” (“After Virtue: A Study in Moral Theory,” 1981, 2nd ed. 1984, pp. 68-70).
But the outrages in Crimea, the Donbas and elsewhere are real enough. Is the law of human rights of any use against them? I think it is, for three reasons. First, a legal structure promotes rational discourse in an area all too often dominated by shrill emotionalism. Second, a legal approach tends to depoliticize a discussion easily hijacked by political opportunists. And third, the very existence and recognition of legal principles, even if unenforceable, tends to seep into public consciousness, creating standards that eventually mature into customary law and thus promote human welfare.