Abstract
Should conflicts among human rights be dealt with by including general principles for priority setting at some prominent place in the practice of human rights? This essay argues that neither setting prominent and principled priorities nor a case-by-case approach are likely to be defensible as general solutions. The main reasons concern how best to realize all human rights for all. Conflicts among human rights are more defensibly addressed (1) by checking whether the conflict has been correctly diagnosed: Do human rights as a whole get due priority? Have feasibility considerations inherent in human rights been considered, and the possibility of bringing in additional dutybearers? (2) If a conflict among human rights is genuine, formal principles for priority setting are of some help. Sometimes, it is clear that these should be “upgraded” to substantive principles and sometimes that they should not. Many cases, however, are as yet unclear and will need further investigation.
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Notes
They often also reject the term “prioritization”, preferring instead to speak of “balancing”. However, in this essay, I will stick to “prioritization”.
Nothing I will say concerns principled priorities that are not prominent. Philosophers, for example, may try to work out an account that specifies principled priorities that cover all (pertinent) conflicts among human rights. Such an account could play a valuable role in generating discussion in, say, the background culture of a given society (cf. Rawls 2007, ch. 1). But that is very different from its having a prominent place in the practice of human rights.
The most important ones are generally considered to be: the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of all Forms of Racial Discrimination (CERD); the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD) (cf. Beitz 2009, p. 25–26).
To give an impression of the existing areas of agreement: It is generally accepted that human rights are in any case about the protection of certain urgent human interests against certain important threats. There is also wide agreement that human rights envisage a number of roles—among other things, in legitimating state power, and justifying certain international interventions—and that they are not exclusively legal and political, but also have important moral dimensions.
To be sure I do talk, among other things, about a position that I take many lawyers to hold, namely a position that amounts to opposition to prominent and principled priority setting among human rights. But the approach of the essay remains philosophical throughout.
“Realizing” human rights refers to respecting both negative and positive duties. More precisely, it refers—at least for states—to three kinds of duties: duties to avoid depriving, to provide protection against deprivation by third parties, and to assist those who have been deprived of the substance of their human rights. See Shue (1996).
The question of whether it will be worth it, is of course not an empirical question, or at least by no means only an empirical question.
Cf. the famous remark attributed to Jacques Maritain, one of the drafters of the Universal Declaration: “We agree on the rights, but on the condition that no one asks us why” (quoted after Beitz 2009, p. 21).
See ICESCR, Art. 2.1 as compared with ICCPR, Art. 2.1. ICESCR: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (italics mine); ICCPR: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
I should add that I do not think that the doctrine of “progressive realization” is so central to the practice of human rights that one effectively “changes the subject” (and thus is no longer concerned with human rights) if one abandons it.
This may be so even if the ICESCR requires states to do what they can to the maximum of their resources. For, by allowing graduality in the realization of socioeconomic rights, the notion of progressive realization may provide states with an excuse for not doing more.
There are also normative versions of indivisibility, but they are not relevant for my purposes; invoking them could make my argument (close to) tautological.
Furthermore, Nickel suggests that widespread indivisibility is even more unlikely where there is low-quality implementation of human rights (Nickel 2008, p. 997 ff.).
This is also true if we work with the correct baselines (see Nickel 2008, p. 988–989): even without the right to a decent standard of living, a decent standard of living will often be achieved. One should therefore not overestimate what the right adds.
Many thanks to an anonymous reviewer for pressing this point.
This is so even if an approach of principled and prominent prioritization can, of course, hold that certain rights are equally important or are to receive equal priority. For the general tendency that such an approach encourages remains to think about which rights, etc. are to get precedence.
These families are: “(1) security rights, (2) due process rights, (3) fundamental personal freedoms, (4) rights of political participation, (5) equality rights, (6) social rights, and (7) minority and group rights.” (Nickel 2008, p. 986).
For (in line with what was argued above) saying that some rights are particularly important in certain ways generally still leaves open the question of whether the full realization of all human rights for all is helped by granting these rights some kind of prominent and principled priority. The “What to Do Where Conflicts among Human Rights Remain?” section below will further elaborate on this.
Nonderogation clauses, forbidding the suspension of certain rights even in emergency situations, can be found in, among other places, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.
The problem arises in its sharpest form where principled prioritization is proposed too quickly, and in a prominent way. However, also where there is case-by-case weighing among human rights, it should be asked whether this is not done too quickly.
There is no implication that changing the circumstances is a painless process: cf. Nagel (1991, p. 170).
Of course, there will not always be agreement about what one can and cannot do without changing the subject. But there will be clear cases on both sides.
One may also think that some elements of the practice of human rights—not only show a sensitivity to scarcity but—amount to prominent and principled priority setting. In the context of this essay, two cases should be distinguished. (1) Where controversial features of the practice—such as most notably progressive realization—engage in prominent and principled priority setting, the central question of this essay is (among other things) whether it is a good idea to abandon these features. (2) However, it may also be the case that essential features of the practice amount to prominent and principled priority setting or something close to it. This could, for example, be the case in formulating a particular human right when the threats to be protected against are articulated in a prominent way (e.g., which threats does the right to life protect against?). In such cases, this essay should be understood as asking whether any prominent and principled priorities ought to be set beyond those that are already inherent in these essential features. Many thanks to an anonymous referee for urging that I elaborate on this issue.
Pablo Gilabert (2009, p. 675) makes a few valuable modifications: fulfillment should not only be possible within countries but also in within different social settings (as I understand him), and not necessarily now but in the foreseeable future.
Nickel (2007) does address issues concerning the scope and boundaries of human rights on p. 42 ff. but he does not clearly include them in his framework for justifying specific rights (p. 70 ff.). Furthermore, Nickel correctly observes that not all conflicts among human rights can be avoided by specifying their content in certain ways (ibid., p. 43)—nor should they be.
Pablo Gilabert (2009) is another author who proposes that human rights should be conceptualized so as to have an inbuilt sensitivity to feasibility of various kinds (logical, physical, biological, economic, political, and cultural). However, his account—which is not in all respects especially clear—reads primarily as a philosophical proposal rather than an explication of what any plausible interpretation of the post-WWII practice must accept. Gilabert adds the important point that candidate human rights which do not yet qualify can still guide institutional transformation, etc. With this, I am fully in agreement.
I add this point with some hesitation for, although it draws on a plausible interpretation of the post-WWII practice of human rights, it is not going to be common ground among all plausible interpretations. It will be explained later on why I discuss the point nonetheless.
That is, unless one were to hold that richer states owe very little to their citizens in the way of human rights entitlements. But the conception of human rights-based entitlements that is implied here—to wit, that it is permissible or even required to level these down to the “lowest common denominator”—is probably indefensible.
Cf. Albie Sachs (2011), who argues—in his discussion of the case of Mr. Soobramoney—that in South Africa, dialysis is not required under the constitutional right to health. In, say, a country like Germany, it would be unthinkable that it were not. A similar story can be told about what is plausibly required under the human right to health in South Africa or Germany. Indeed, the ICESCR allows for this with its doctrine of progressive realization (cf. note 11, above). This doctrine is not recognized for civil and political rights, but similar issues are bound to arise there (cf. Nickel 2007, p. 148).
Cf. the Preamble of the UDHR.
There are at least three reasons for this: (1) such arguments do not entail that one may not move in the direction of smaller inequalities to the degree that doing so is compatible with honoring special relationships; (2) even if the normative weight of special relationships—such as those of co-citizenship—is considerable, honoring them will not always have more normative weight than attending to, say, the urgent needs of strangers; and (3) the relative normative weight of special relationships such as co-citizenship will be further diminished to the extent that countries are violating negative duties not to harm (cf. Pogge 2008). Of course, these short remarks do not claim to do full justice to the sophisticated debates in the literature about justice and special relationships. Some key references are Blake (2001), Nagel (2005), and Sangiovanni (2007, 2012). (It is telling that these authors generally exclude basic entitlements from the domain where global inequalities are permissible.)
See footnote 27 above.
Or because certain important dutybearers are shirking their duty and cannot be brought to act as they should. Many thanks to an anonymous reviewer for this addition.
Of course, there is ultimately a continuum between the two and it will remain contentious in certain cases whether substantive or formal priority setting is involved. But I believe the general contrast is clear enough.
After all, the psychological/motivational tendencies that formal principles evoke, are less outspoken than is the case for either substantive principles or a case-by-case approach.
That number is enormous even if one limits oneself to confrontations between specific rights, excluding questions of cores of rights, different groups of recipients, etc., which emphatically are also relevant questions in relation to priority setting among human rights. And the number remains very large even if one were to cluster human rights rather than engaging in pairwise comparison between particular human rights (cf. Nickel 2008).
Something similar may be true for widespread starvation and disappearances (or the threat thereof). However, this would require more discussion than can be provided here.
For example, in cases of interdependence between rights and where not everything can be done at once, one can still ask whether general principles should be prominently adopted as to what to do first (which parts of the rights to realize first, etc.).
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Acknowledgments
This article has benefited from valuable comments by Joel Anderson, Monika Bobbert, Jenny Goldschmidt, Nina van Heeswijk, Titia Loenen, and two anonymous reviewers for Human Rights Review. Also, I should like especially to thank the Marsilius Kolleg at Heidelberg University (Germany), in particular Tobias Just and Lina Girdziute, for their generous support and for the opportunity to deliver a Marsilius lecture based on the present article.
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Philips, J. On Setting Priorities among Human Rights. Hum Rights Rev 15, 239–257 (2014). https://doi.org/10.1007/s12142-013-0300-4
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DOI: https://doi.org/10.1007/s12142-013-0300-4