Princeton Library Lecture

 November 18, 2014

Human Rights and Social Justice

I am honored to have been invited to speak today in the Princeton Public Library's NEH-funded 2014-2015 "Spotlight on the Humanities" series. The theme for this year’s lecture series is Justice, Ethics and Public Life. As it happens, this year’s campus-wide theme for TCNJ, where I teach philosophy, is also “Justice.”  I am currently teaching a freshman seminar on social justice and social entrepreneurship. In the spring I will be leading an interdisciplinary faculty-student research seminar on this same theme. So this is my “justice year.”

Last month I took my freshman students on a field trip to Philadelphia where we spent several hours at the National Constitution Center before repairing to a local restaurant to eat lunch and discuss what we had learned. I had given them an assignment before the trip, which was to compare the individual rights recognized in the Bill of Rights (and the subsequent amendments) with those recognized in the Universal Declaration of Human Rights and in the constitution and bill of rights of one other nation. The discussion was lively and the students had many observations to share about rights found in other constitutions but not in ours, and also rights found in our constitution but not in others. Google has made it easy to carry out this kind of comparative constitutionalism by partnering with the University of Texas at Austin and several others to create the website: ConstituteProject.org. 

In our discussion I drew attention to the famous and often imitated Preamble to the U.S. Constitution which reads: “We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Fine sounding ideals, but the devil is, as they say, in the details. In particular, what does Establishing Justice involve? How can we determine whether or not we have succeeded in establishing it?

Philosophers from Plato to Rawls have been theorizing about this question and they have as you might expect produced a rich literature on the topic. It is far too expansive a literature for me to attempt to summarize it here, so I will simply cut to the chase and offer my own definition of a Just Society:

A just society is one in which all members of the community have reasonably secure enjoyment of all of their human rights.

The tag line “All human rights for all.” was the slogan of the 50^th anniversary of the UDHR in 1998 (and is also the title of a recent book on the subject of human rights by Manfred Nowak). In the nearly seven decades since the end of the Second World War no philosophical idea has had a more profound impact on international relations and world politics than the idea of human rights. The idea of human rights, and the accompanying canon of international declarations, treaties, and conventions, which now number more that eighty, is the closest thing we presently have to a to a global standard for social justice.

It is a global standard for social justice in at least two senses. First the contemporary human rights canon articulates a set of universal normative standards that are to be used as a benchmark to assess many of the most important aspects of social justice. It is, in the words of the UDHR, a “common standard of achievement for all peoples and all nations….” Human rights are commonly understood as being those rights which are inherent to the human being. The concept of human rights acknowledges that every single human being is entitled to enjoy his or her human rights without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Human rights are inalienable, in that no one can have his or her human rights taken away; although they can be limited in specific situations (for example, the right to liberty can be restricted if a person is found guilty of a crime by a court of law). Human rights are held to be indivisible, interrelated and interdependent. The interdependence of human rights is the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect respect for several other rights. The contemporary human rights framework provides a template against which one can assess how well different societies do in protecting core social values such as the liberty, equality, security, and dignity of the human person. 

Secondly, the shared belief in human rights is the basis of a global ethical consensus among liberal states, which is shared to a certain extent also among illiberal, authoritarian states, about the requirements of a just world order. This consensus is thin and frayed on certain issues, while in others it is fairly robust; it is, to borrow a term coined by John Rawls, an “over-lapping consensus,” since not all states agree on the relative validity and importance of all of the things that are claimed to be human rights. This should not be surprising since the term “human rights” now signifies a rather large number of distinct ethical and legal norms concerning a large number of social justice issues.

A recent book on human rights [1]has a section titled “Selected Human Rights” including chapters devoted to the following topics: the right to equality and nondiscrimination, the right to life, the right to an adequate standard of living, the right to health, the right to education, the right to work, the right to social security, prohibition of slavery and forced labor, prohibition of torture, right to judicial protection, right to privacy, rights to freedom of expression, assembly, and association, freedom of religion, right to political participation, right to property, and the right to national self-determination.  There are also chapters on the human rights of especially vulnerable groups: children, persons with disabilities, people living with HIV/AIDs, ethnic minorities, LGBT people, indigenous peoples, refugees, and detainees. Even this list does not convey fully the breadth of the contemporary human framework, because unlike some older philosophical theories of justice, the idea of human rights is not a relic in the museum of ideas – it is a dynamic, evolving, and contested ethic-legal paradigm, one that has practical applications by which contemporary forms of injustice can be judged.

The contemporary human rights paradigm has several important roles in moral and political discourse. As Philip Alston noted in a recent Op-Ed in the Washington Post:

….rights language provides a context and a framework, invokes states’ legal obligations, underscores that certain values are nonnegotiable, brings a degree of normative certainty, and makes use of the agreed interpretations of rights that have emerged from decades of reflection, discussion and adjudication. Most important, rights language recognizes the dignity and agency of all individuals and is intentionally empowering.

The primary aim of human rights discourse is to open up domestic policy issues within particular countries to scrutiny by other countries and their citizens, and to assess them by means of common international standards.

Let me illustrate this function by means of a recent example here in the USA – the shooting of Michael Brown in Ferguson Missouri in August. Despite the huge amount of new coverage this tragic event had in the American media, few Americans are probably aware of the way in which it was viewed by citizens in other nations and by domestic human rights NGOs.

Amnesty International issued a report on this incident, On the Streets of America: Human Rights Abuses in Ferguson (October 2014) which called into question the constitutionality of the Missouri statute concerning the use of lethal force by police officers. It also pointed out that the Missouri statute is not consistent with international standards concerning the use of deadly force set out under the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. According to these standards: 

International standards provide that law enforcement officers should only use force as a last resort and that the amount of force must be proportionate to the threat encountered and designed to minimize damage and injury.  Officers may use firearms as a last resort – when strictly necessary to protect themselves or others against the imminent threat of death or serious injury. The intentional lethal use of firearms is justified only when “strictly unavoidable in order to protect life.” (p. 2)

The law in the state of Missouri, however, states that:

 ….a law enforcement officer carrying out an arrest or attempting to prevent an escape from custody is justified in using deadly force only when specifically authorized; or when he or she reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony; or is attempting to escape by use of a deadly weapon; or may otherwise endanger life or inflict serious physical injury unless arrested without delay.

The Missouri stature clearly does not restrict the use of deadly force to cases in which it is strictly unavoidable in order to protect life, but allows it to be used when an officer “reasonably believes” it is necessary to effect an arrest, which is contrary to the international standard which says that “a fleeing thief who poses no immediate danger must not be killed even if that means the thief will escape.”

Some people might react to this criticism, by saying “So what?” America is a sovereign nation that makes its own laws, and we do not have to be held accountable to international legal standards in this or any other matter. But the Amnesty report also cites a decision by the US Supreme Court in which a state law similar to Missouri’s was struck down as unconstitutional: 

The US Supreme Court in Tennessee v. Garner held that Tennessee’s use of deadly force statute was unconstitutional, noting that “Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so ... A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.”

 The Amnesty report provides a powerful critique of the current law in Missouri, and concludes by recommending that the US Department of Justice: “Review and revise guidelines to law enforcement agencies on the policing of protests to ensure that there is compliance at all times with international human rights obligations and with international standards on policing…” (21). This example reveals what was so disturbing about this incident in the minds of many Americans, namely that the fatal shooting of an unarmed black teenagers by police should be illegal. It is not a matter of “white privilege” that the police do not often shoot unarmed white teenagers; rather it is a case of the violation of the human right to equal treatment under law of African-Americans that they frequently are unjustly killed in this way. The case highlights the unequal protection of the law, and also the need for legal reform.

This use of human rights has been highlighted in the writings of moral and legal philosophers such as H.L.A Hart and Amartya Sen. Hart saw human rights as the “parents of law” in the sense, that human rights concerns have often provided the motivation for specific legislation or legislative reform. Examples of this are not hard to come by: think of the women’s suffrage movement of the 19^th century, the civil rights movement of the 20^th century, and the contemporary LGBT rights movement: each of these social movements has invoked the idea of universal human rights as the basis for criticizing existing law, and for pointing the direction for new and more just legislation.

But as Sen notes, “The effectiveness of the human rights perspective does not rest on seeing it invariably in terms of putative proposals for legislation” (The Idea of Justice, 365). The means of advancing human rights need not always take the form of making new law; as ethical claims, human rights norms can also be fruitfully employed as means of moral persuasion by means of advocacy and informed public discussion, involving what Sen calls “open impartiality.” Sen explain this concept by invoking Adam Smith’s idea of an “Impartial Spectator” who advises that we should view our own moral sentiments and intuitions as they might be seen by a moral observer who is at “certain distance from us” and so does not share our same cultural biases, prejudices and customs. It is necessary to strive to gain this impartial perspective in order to be open to possibilities that would otherwise elude our imaginations. Just as Aristotle, brilliant as he was, could not free himself from the ancient Greek cultural norm that women and slaves were naturally inferior persons, so we must guard against cultural parochialism in assessing our own moral beliefs.  Human rights norms provide a way for us to do this.

Allow me to illustrate this aspect of human rights by means of some examples. As many of you may know, every year since 1977 the U.S. Department of State has compiled and published reports on the human rights conditions found in virtually every nation. The most recent report, covering 200 countries and territories for the year 2013 (which can be found here), documents the killings of civilians in Syria, unsafe working conditions in garment factories in Bangladesh, use of excessive force by Egyptian security forces, and laws curbing freedom of expression in Russia, China, and Vietnam, among many other human rights concerns. As someone who has been reading these reports for approximately 30 years, I can attest to the fact that they are well-researched, detailed, and often accurate in their assessment of the human rights conditions in many countries. However, there is one country that these reports do not cover, namely the United States.

A number of other countries that have objected to the United States government compiling an annual critique of their own governments’ human rights records have begun publishing critiques of the US government’s record on human rights. The Peoples Republic of China, for example, issued a stinging critique of the state of human rights in the USA in March 2014.  It begins with the following: 

The State Department of the United States, which posed as “the world judge of human rights,” made arbitrary attacks and irresponsible remarks on the human rights situation in almost 200 countries and regions again in its just-released Country Reports on Human Rights Practices for 2013. However, the U.S. carefully concealed and avoided mentioning its own human rights problems. In fact, there were still serious human rights problems in the U.S in 2013, with the situation in many fields even deteriorating.

The Chinese report goes on to describe abuses such as mass killings, (Sandy Hook), government surveillance (PRISM), solitary confinement, high unemployment, child labor, homelessness, racial discrimination, torture, indefinite detention (Guantanamo), and violations of the human rights of people in other nations (irregular renditions and drone strikes). It should be obvious that the Chinese report is intended as propaganda, but nevertheless, many of the concerns it raises can also be found in the reports of more impartial critics.

In order to get to a position of “open impartiality” on the human rights problems and issues in this country one has to look to other sources. Let me briefly discuss the topics of the most recent Human Rights Watch report and on human rights in the USA and the section on the USA in the Amnesty International Annual Report

The Human Rights Watch report (January 2014) mentions the following human rights issues and concerns in the USA:

·       Extensive government surveillance and infringement of privacy rights
·       Harsh sentencing guidelines and high rates of incarceration.
·       Continued use of the death penalty.
·       Racial disparities in the criminal justice system.
·       Rape and sexual abuse in US prisons.
·       The criminalization of poverty and homelessness.
·       Sentencing juvenile offenders to life in prison w/o the possibility of parole.
·       Abusive conditions in immigrant detention centers
·       Child labor on American farms
·       High levels of sexual violence against women and girls.
·       Indefinite detention of detainees at Guantanamo.
·       Continued secrecy concerning the CIA’s post-9/11 interrogation practices.
·       Lack of judicial oversight for President Obama’s policy of targeted killings abroad, and
·       Harsh prosecutions of whistle-blowers such as Chelsea Manning and Edward Snowden.

The Amnesty country report on the USA for 2013 expressed many of these same concerns, but added lack of accountability (impunity) for crimes under international law committed during the George W. Bush administration, and excessive use of force by police. Both reports also noted some positive developments, such as the abolition of the death penalty in Connecticut, New Jersey, and Maryland, and the US Supreme Court rulings striking down the Defense of Marriage Act and upholding the central provisions of the Affordable Care Act. 

Another window on how the human rights record of the United States is seen differently by people here in America and by “impartial spectators” applying the human rights framework can be had by reviewing Periodic Review Report of the USA under the human rights council, and the response to its report. Since 2006 when the old UN Human Rights Committee was replaced by the Human Rights Council, state members of that body have been obliged to submit periodic reports detailing their compliance with human rights standards. The USA underwent its first universal periodic review in 2010. Its second UPR is scheduled to be delivered to the UN HRC on January 19, 2015.

The 2010 report was written from the perspective of the first two years of the Obama administration, and unsurprisingly trumpeted some of the legislative accomplishments of that period. After some introductory remarks about how the USA was founded on the same ideals of human dignity and inalienable rights as those that form the foundation of the international human rights framework, the report goes on to detail how in the effort to “form a more perfect union” with liberty and justice for all, the government of the USA has enacted: the Lily Ledbetter Fair Pay act of 2009, the Matthew Sheppard and James Byrd Hate Crimes Prevention Act of 2009, the American Recovery and Reinvestment Act, and the Affordable Care Act. It also highlights the president’s executive order ending unlawful interrogation methods and his intention to close secret CIA detention facilities and Guantanamo. The report ends by noting that “Delivering on human rights has never been easy, but it is work we will continue to undertake with determination, for human rights will always undergird our national identity and define our national aspirations.”

At the same time the State department was preparing its report, the UN HRC was also accepting comments and recommendations from domestic human rights NGOs. These comments were compiled into a report published by US Human Rights Network and a summary of these comments was published by UN GA on 10 October 2010. This shadow report by the USHRN gives a rather different picture of the state of human rights in the USA. Here are a few highlights: Amnesty International noted pointedly that the United States had not ratified a large number of international human rights treaties nor ensured their implementation into domestic law including CEDAW, CRC, ICESCR, OPCAT, the International Convention for the Protection of All Persons from Enforced Disappearance, the Rome Statute of the International court, the American Convention on Human Rights, and the Vienna Convention on the Law of Treaties.

The USHRN noted that the US lacks an independent human rights commission to monitor compliance with human rights standards or an effective mechanism designed to ensure a coordinated approach towards the implementation of human rights at the federal, state and, local level. The United States is the only developed Western nation that does not have a national human rights institution. Over 100 countries have them, but not the USA.

American Bar Association (ABA) noted that current US prohibitions of torture lack sufficient status in law, are unclear, and their implementation lacks transparency. In ratifying CAT and the ICCPR, the US attached reservations stating that it “considers itself bound by the obligation … to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as [that] term … means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments” to the US Constitution, which have sometimes been interpreted so broadly as to permit practices such as water boarding which have been consistently regarded as torture under international law.

PEN recommended restoring full privacy protections by ending dragnet and warrantless surveillance. Other recommendations concerned topics such as: Indigenous Peoples, Immigrants and Asylum seekers, Equal Access to Health Care and Education, inadequate housing, unsafe working conditions, and counter-terrorism policies and practices. 

Taking these submissions together with the official US PRR, the Working Group led by France, Japan, and Cameroon, compiled a report on US compliance that included 228 specific recommendations for improvement many of which were based upon the NGO civil society submissions.

In responding to the judgment of the UN Working Group, a somewhat chastened Harold Hongju Koh, who was at the time serving as the chief legal adviser to the US Department of State, concluded his summary of these recommendations by noting: “In closing, let me express our deep appreciation to our own civil society for continuing to work with us to achieve a more perfect union. Civil society has made invaluable contributions to our UPR report and presentation and will continue to be our partner as we consider these many recommendations.”

Both the US DOS submission for 2015 and a shadow report compiled by the US HRN are currently being written. It will be interesting to see how they agree and disagree about the state of human rights and social justice in this country in 2014.

Allow me to conclude with a few caveats. First, I do not wish to oversell the idea that human rights can be seen as a template for assessing social justice. While the human rights framework does cover a great many topics and issues that are reasonably regarded as matters of social justice, it does not (and does not aspire to be) a complete theory of social justice. Human rights are paradigmatically equal rights, and while equal rights are important elements of any theory of social justice, there are also social goods, such as wealth, income, status and other competitive goods that are and should be distributed unequally. For instance, tax policy can be seen as a matter of social justice, but the human rights framework is almost completely silent on this topic. It is also largely silent on the many questions and issues that have to do with the institutional mechanisms for delivering on human rights norms and standards. For example, the ICESCR does tell us that: "Article 12 -  1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". But it does not specify how enjoyment of that right is to be delivered, whether health care should be delivered by means a national health service as in the UK, a national health insurance system as in Canada, by a mixed public/private system such as we have here in America, or by means of any other particular institutional scheme.

Surely questions about wealth and income inequality, taxation, and institutional reforms are legitimate questions of social justice, but they are not within the scope of the human rights paradigm. The current debate about high level of income and wealth inequality sparked by the Occupy Movement and books like Thomas Piketty’s Capital in the 21^st century, are certainly issues about social justice, but the human rights framework says nothing about such matters.

The current human rights paradigm is also mainly silent on questions of environmental justice, for instance issues such as climate change, species preservation, biodiversity, and ecosystem protection. However, there are some theorists who are currently looking into these questions from the perspective of human rights.

Finally, it should be noted that the idea of human rights does not provide a utopian vision of a perfectly just society. When I said at the outset of this talk that my idea of just society is one in which all members of the community have reasonably secure enjoyment of all of their human rights, I did not mean to suggest that I expect there will ever be perfect compliance with all human rights norms and standards. What one can expect is “reasonably secure enjoyment and access to remedy.” This means that most people will feel secure in the enjoyment of their human rights most of the time, and that when violations and abuses occur, as they certainly will, those persons whose rights have been denied  can access to effective remedies. Human rights are not a type of perfectionist ethic which supposes that the goal of social development is to make every society maximally just. Instead, human rights is really a kind of minimalist ethics that attempts to articulate the necessary conditions that a human society must meet in order to be considered minimally just and decent. When understood in this way, the idea of human rights still present a stiff challenge to contemporary societies, one that few, if any, contemporary society has adequately met.

Morton Winston

November 22, 2014

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[1]        Manfred Nowak, Karolina M. Januszewski, and Tina Hofstatter  All Human Rights for All: Vienna Manual on Human Rights.  Intersentia, 2012.