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 50th 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 19th century, the
civil rights movement of the 20th 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.
· 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 21st
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
[1]
Manfred Nowak, Karolina M. Januszewski, and Tina
Hofstatter All Human Rights for All:
Vienna Manual on Human Rights.
Intersentia, 2012.