Human Rights as Human Independence: A Philosophical and Legal Interpretation

Human Rights as Human Independence

Pennsylvania Studies in Human Rights

Bert B. Lockwood, Series Editor

A complete list of books in the series is available from the publisher.

Human Rights as Human Independence

A Philosophical and Legal Interpretation

Julio Montero

University of Pennsylvania Press

Philadelphia

Copyright © 2022 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

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University of Pennsylvania Press

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Hardcover ISBN 978-0-8122-5394-8

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To Rosa and Julio, my parents, for their unconditional love, care, and support.

Contents

List of Abbreviations

1. International Human Rights as an Interpretive Practice

2. Human Rights: Natural, Political, or Both?

3. Human Rights, Sovereign Authority, and the Natural Right to Independence

4. Independence and Human Rights Within the System of States

5. Personal Human Rights Duties

6. The Independence Account in Practice

Notes

Bibliography

Index

Acknowledgments

Abbreviations

CAT Convention Against Torture

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CERD International Convention on the Elimination of All Forms of Racial Discrimination

CESCR UN Committee on Economic, Social and Cultural Rights

CRC Convention on the Rights of the Child

DRD Declaration on the Right to Development

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

UDHR Universal Declaration of Human Rights

UN Charter Charter of the United Nations

Vienna Declaration Vienna Declaration and Program of Action

Chapter 1

International Human Rights as an Interpretive Practice

Why We Need a Theory

International human rights are a flourishing practice.¹ They occupy a privileged space in our normative repertoire and mobilize much of our moral and political concerns. Most states have incorporated them into their internal legislation. Furthermore, many national and international institutions work to promote their realization, and an increasing number of demands by individuals and groups is articulated through their human rights language. However, human rights are also an opaque notion. Since the adoption of the Universal Declaration of Human Rights in 1948, philosophers, courts, and policymakers have debated their exact nature and requirements. Among the most important issues have been the following:

• Can human rights be claimed against only states? Or can they also be asserted against nonstate actors, such as transnational corporations, terrorist cells, international organizations, and even individuals?

• Where does the authority of human rights come from? Does their normative force depend on international law and ultimately on the consent of states? Or do they have a moral status that must be honored even in the absence of international lawmaking?

• What does it mean that human rights derive from the intrinsic dignity of the human person and in what sense are they universal?

• What human rights do we have? Are all the rights proclaimed in international documents genuine human rights? Can we acquire new ones? When does a claimed right count as a human right?

• What obligations do human rights impose on global governance institutions and states acting across borders? What do international documents imply when they say that all nations must cooperate to bring about the universal realization of our rights?

• What must individual persons do to achieve the universal realization of human rights? What actions, if any, are they obligated to undertake when they live under national or international institutions that fail to satisfy the human rights of all their members?

These questions are not only relevant from a theoretical perspective. They are also crucial to the future of global politics, international relations, and international law. How we respond to them will have a direct impact on the life prospects of millions of people.

Some could think that all the answers for this and other similar questions can be extracted from legal documents. For many international lawyers, human rights are that specific family of claims upheld by courts, treaties, and international institutions. Their assumption is that human rights are not embodiments of prior moral principles but are contingent creations of international legal authorities.² From their perspective then, the truth about human rights lies in their positive manifestations. Of course, international documents are complex. They rely on a technical language that may be obscure to ordinary people, activists, and even philosophers. But international authorities know how to interpret and apply them to concrete scenarios. No theory is required to figure out what human rights imply.

This legalistic view has the obvious advantage that it both provides a relatively objective criterion to sort out our disputes about human rights and circumvents abstruse philosophical debates about moral values and principles. To figure out what human rights require, we must simply inspect the legal sources. Nevertheless, this account is unpalatable for three reasons at least.

First, in some cases international law may be incomplete, vague, or extremely abstract. Is the right to equality before the law as proclaimed in the Universal Declaration a right to same-sex marriage? Is the right to a legal identity a right to choose our own legal gender? Does the headscarf ban in public places violate the right to religious freedom? Does freedom of association entail that we can create authoritarian political parties? Do influential nations violate the human rights of the global poor when they impose exploitative trade regulations on weaker nations? Human rights doctrine provides no clear or uncontroversial response to these questions. Even if some of these issues have already been addressed by international authorities, someone had to deal with them for the first time.³

Second, experts disagree not only about the exact implications of international documents but also about the genuine sources of human rights norms. For sure, many agree that they are a purely positive construction. But others contend that human rights law seeks to institutionalize moral claims that predate the documents and have authority over them. This is how John Tasioulas, a prominent human rights theorist, makes the point: A supposed right does not automatically become a genuine demand of human rights morality merely by being set down in an official instrument, however impressive or widely adhered to, any more than a judicial decision constitutes a requirement of justice simply because it is issued by a body designated as a Court of Justice.⁴

I take this remark to imply that the legalistic view is not a common platform to overcome our discrepancies. It is just one of many competing theoretical accounts about the nature and sources of human rights. Actually, this approach appears to fail on its own terms. For current doctrine presents human rights as inalienable entitlements that derive from our intrinsic dignity, which the documents recognize rather than create ex nihilo. As a result, even if we tie the truth about human rights to the doctrine, we cannot simply assume that they are exhausted by their legal manifestations precisely because of what the doctrine says.

Finally, international human rights are an evolving practice. They are not a fossilized or static corpus but remain subject to criticism, revision, and transformation. The framers of human rights doctrine may have made mistakes or undue concessions in their attempt to gain the support of most nations in the politically complex aftermath of World War II. They may have ignored some important entitlements or they may have included too many, by conflating proper claim-rights and purely aspirational goals.⁵ And it is also plausible to think that the doctrine could be altered to address unforeseen threats to human well-being, such as terrorism, massive global poverty, or climate change. In this sense, human rights doctrine is open-ended: we can argue in support of human rights that were not previously identified or against others that are already operative. Yet, if we accept that international human rights are open to improvement, then we require some theoretical guidance to understand what changes need to be made. Even if international law could fully inform us about what human rights are, it cannot by itself tell us how they ought to be.⁶ For all these reasons, we need a theory of human rights. And as we shall shortly see, that theory must be normative and philosophical rather than purely legal, historical, or sociological.

Practice-Dependence

What virtues must a philosophical theory of human rights have? When can we rely on it to interpret, revise, or reform them? What method can we use to construct a suitable account of an ongoing social practice embedded in concrete legal and political institutions? One option is to proceed through abstract philosophical speculation. We can derive human rights from our preferred moral principles or our preferred philosophical conception of the human person.⁷ Indeed, this is the method that philosophers most often use. But this approach has an important limitation: when a theory of human rights is directly extracted from pure moral considerations, we have no reason to see it as an attempt to make sense of the object we call human rights in contemporary discourse. This is why I propose that we apply some kind of bottom-up technique that takes the reality of the practice as a starting point for theoretical reflection.

Is there any reasonable philosophical method that fulfills this requirement? In the past decades, various authors put forward a promising approach, which is known in the literature as the practice-dependent method.⁸ Their main tenet is that, to understand the nature of international human rights and other comparable social practices, we must grasp the function the practice plays in present political life. In the words of Andrea Sangiovanni, one of its main advocates, The functional role that human rights are intended to play within given social and political contexts is taken to be definitive of the very idea of a human right. To construct a conception of human rights, we must pay closer attention both to the way in which demands for human rights emerge from within actual political and social institutions, here and now, and, equally importantly, the way in which they shape the relations among those affected.⁹

Similarly, in his influential book The Idea of Human Rights, Charles Beitz asserts, We might frame our understanding of the idea of a human right by identifying the roles this idea plays within a discursive practice. We attend to the practical inferences that would be drawn by competent participants in the practice from what they regard as valid claims of human rights. An inventory of these inferences generates a view of the discursive functions of human rights and this informs an account of the meaning of the concept.¹⁰

Three core ideas animate the practice-dependent approach as a general methodology, namely:

• The nature of a social practice, such as international human rights, is determined by the functional role the practice plays in present moral and political interactions.

• That functional role must be gleaned from the observable facts of the practice as we now encounter it, which includes the intentions and shared assumptions of its participants.

• That function of the practice conditions its content, scope, and normative implications and shapes our theoretical accounts of it.

In concrete terms then, practice-dependent authors think that human rights theorists must produce a model that assembles most of the empirical components of international human rights into an intelligible function. Further reflection on what such a function calls for and what rules best promote its realization will inform us about the real implications of human rights standards.¹¹ To illustrate the idea, imagine that after investigating the practice we concluded that the present role of human rights is to regulate how governments may treat their own residents. This would imply that human rights cannot be asserted against nonstate actors such as transnational corporations or global governance institutions, irrespective of our views on global justice or morality in general.¹²

Naturally, practice-dependent scholars admit that participants might lack a clear sense of what they do together or might be confused about the exact nature of their joint enterprise. As a result, in order to grasp the practice’s function, theorists may need to abstract from the particulars and rearticulate them as components of a single unified whole. To the extent that the theory provides a coherent account of the observable facts, we can consider it successful even if it fails to express the conscientious intentions of its members or if they openly reject our interpretation.¹³ Nevertheless, theorists can never introduce external elements into the activity. Interpretation of social practices is like piecing together a puzzle whose sole pieces are external social facts.

As the preceding remarks suggest, practice-dependence understands social interpretation as a primarily descriptive or sociological enterprise. Theorists may certainly invoke their moral commitments to figure out what may motivate the affirmation of participants, assess the practice from a moral viewpoint, and decide whether it is worth pursuing.¹⁴ Yet this method explicitly rules out the possibility that interpreters reconstruct the practice’s function in view of their own convictions.¹⁵ The nature of the activity must ultimately be extracted from an appraisal of the conducts of the community of participants, and the theorist is just an observer seeking to understand what these people are trying to accomplish together.

This technique seems adequate at first to produce a theory of international human rights. To the extent that it takes the practice as the source material for theorization, it conjures the risk of theoretical arbitrariness and prevents subjective contamination of the activity. In this respect, practice-dependence builds on the plausible assumption that social interpretation and moral assessment are distinct operations. While both are important, they must be kept strictly apart and carried out successively. As Charles Beitz explains,

We inspect the practice of human rights because we are interested in the way participants in this practice understand the practical inferences to be drawn from assertions about human rights. We want to understand how these objects called human rights operate in the normative discourse of global political life. Whether we should accept claims about human rights as sources of reasons for action for us is a further question. But we cannot think clearly about this further question without first understanding the practice in which these claims are made and responded to.¹⁶

In spite of its initial appeal, practice-dependence is nonetheless vulnerable to three important objections.¹⁷ According to the first, this view is fatally incomplete. Human rights are a complex activity that combines several components, many of which are in reciprocal tension or contradict each other. That is precisely why experts and informed participants maintain such persistent discrepancies about their implications. Some think, for instance, that the humanistic references in the doctrine must be granted interpretive priority, while others contend instead that we should focus on their actual implementation patterns or our effective use of human rights language in ordinary political discourse. As a result, practice-dependent theorists may be unable to single out a function that presents human rights as serving some coherent overall aim. To do so, they would need concrete additional guidelines to hierarchize their conflicting aspects and determine their relative importance. But except for mentioning very general standards such as consistency, coherence, and simplicity, practice-dependent authors provide no criteria that may assist in this task.¹⁸

The second objection maintains that, even if we could somehow overcome the first obstacle, practice-dependence may still lead to indeterminacy.¹⁹ To see why, suppose that we inspected the facts about international human rights and identified two or more rival interpretations of them. If such interpretations reasonably matched existing empirical data, we would have no reason to prefer one interpretation over the others. They would all be equally valid in principle. The problem now is not that we cannot propose any systematic function for the activity; it is rather that we are unable to adjudicate among several functions that could make sense of it. Needless to say, this constitutes a serious drawback for a method that is meant to help us sort out disagreements and offer us an orientation as to how the practice must be continued.

Finally, the third objection claims that practice-dependence blocks substantive moral improvement, consecrates the status quo, and lacks critical capacity. It is true that this method allows theorists to reform the present rules of the practice in view of its functional role. However, they are not authorized to exclude or downplay any salient aspects of it in order to increase its moral value, all things considered. The nature, content, and normative reach of human rights should be mostly shaped by contingent historical facts about what participants in the practice do in their name, even if this seriously obstructs their capacity to advance justice.²⁰ For the same reason, if we were unable to subsume all the relevant facts that make up the practice under a genuinely valuable function, we would be forced to conclude that the activity is morally irrelevant. According to this method, moral evaluation is mainly a take-it-or-leave-it decision that provides no significant room for a value-driven critical revision; instead, it admits some normative fine-tuning at best.

Constructive Interpretation

The method of constructive interpretation was developed by Ronald Dworkin in Law’s Empire and other works to think about what he calls interpretive practices.²¹ At the most fundamental level, a practice is interpretive when most of its participants regard it as valuable but disagree about its exact requirements. More specifically, interpretive practices are characterized by three main features:

• Participants think that the practice has value: it serves some interest or principle that constitutes its main normative aim.²²

• Participants think that such aim is more general and abstract than the practice’s rules and may be stated independently of them.

• Participants think that the specific rules that make up the practice are sensitive to its aim and may be legitimately varied to better promote it.²³

To exemplify the idea, Dworkin imagines a remote society whose members follow certain rules, which they call rules of courtesy. In essence, those rules demand that people take off their hats to nobility or social superiors, under the assumption that courtesy serves the general value of respect. For a while, people accept the practice as given, and they mechanically fulfill its requirements. But one day some members protest that respect could be better served by an alternative set of attitudes. They claim, for instance, that respect has no real value when it is directed only at higher classes and that courtesy requires more impersonal forms of recognition among fellow citizens. At this point, the practice has turned interpretive: if participants want to settle their disagreements about how to pursue courtesy, they must interpret it; in other words, they must figure out what specific sort of respect courtesy embodies and what this specific form of respect calls for.²⁴

In its classical formulation, the interpretive process involves three successive stages. In the first, pre-interpretive, stage, interpreters fix the boundaries of the practice by tentatively identifying the conducts, rules, and attitudes that belong to it.²⁵ It is true that both participants and interpreters may have disagreements even at this early phase. While social interpretation requires some consensus about the contours of the activity, it does not require unanimity. The pre-interpretive stage is simply aimed at consolidating a common platform for further discussion and making sure that interpreters are not speaking at cross-purposes. When, to the contrary, disagreements about the boundaries of the practice are insurmountable, the interpretive attitude cannot flourish. In such cases, we may have to conclude that there is no real communal practice altogether, but just a set of regularities and overlapping conducts.

In the second, properly interpretive, stage, interpreters must propose an aim for the practice. More specifically, they must come up with a hypothesis about the core values it seeks to preserve, promote, or instantiate.²⁶ Importantly, in Dworkin’s account, that hypothesis cannot merely tell us what participants think about the practice. This is because there is simply no common meaning for interpreters to report. As we saw, when a practice becomes interpretive its members disagree about its very nature, and if interpreters want to fairly adjudicate such disputes they cannot simply choose a subgroup as speaking in the name of the activity.²⁷ This would be a completely arbitrary move. Hence, interpreters will have no choice but to adopt the point of view of a participant and produce an argument as to why a practice of that kind may be worth pursuing or why they would join it.

Lastly, in the post-interpretive or reforming stage, theorists must work out a full-blown account of the practice’s requirements based on the aim they have proposed for it.²⁸ Interpreters of courtesy may conclude, for instance, that the specific form of respect that underpins courtesy demands only that we take off our hats to socially admirable individuals, such as soldiers, nurses, or civic heroes. Or they may conclude, instead, that the value of respect would be better served by more horizontal patterns of salutation among persons. As Dworkin explains, in this last phase interpretation folds back into the practice altering its shape.²⁹

Two complementary constraints regulate the interpretive process, according to Dworkin: fit and appeal. Fit implies that the interpretation we propose must be able to justify a reasonable portion of the practice’s most salient features.³⁰ Dworkin often refers to such features as paradigms, understood as a collection of facts that almost everyone would accept as part of the activity at the pre-interpretive level.³¹ If our account fails to meet this requirement, it would count as a piece of philosophical invention, not an interpretation of an ongoing institution. In turn, appeal means that when we find several alternative interpretations that reasonably fit the paradigms, we must prefer the one that increases the moral value of the practice or shows it in its best moral light. In Dworkin’s own words,

A participant interpreting a social practice . . . proposes value for the practice by describing some scheme of interests or goals or principles the practice can be taken to serve or express or exemplify. Very often, perhaps even typically, the raw behavioral data of the practice—what people do in what circumstances—will underdetermine the ascription of value: those data will be consistent, that is, with different and competing ascriptions. . . . If the raw data do not discriminate between competing interpretations, each interpreters’ choice must reflect his view of which interpretation proposes the most value for the practice—which one shows