Abstract
As Rawls’s and Habermas’s accounts of human rights do not offer a satisfying manner to respond to the challenges raised in Chaps. 2 and 3, this chapter is an attempt to constructing an alternative conception of human rights that can address them more satisfactorily than do the other accounts. Following Beitz ’s insight of a practical conception that looks at human rights in their international function, the conception suggested here goes beyond Beitz by drawing the understanding of human rights from local practices which integrate states in a larger web of actors involved in shaping the practice and meaning of human rights. These actors are the beneficiaries of human rights activities; local non-state actors, state and state-sponsored institutions, regional organizations, international non-states actors and the international community . The interaction among these actors produces a multilayer model of human rights in which the local non-states actors and the beneficiaries are key players. They assume the role of protecting their basic interests in their local context, using the international human rights discourse. Once elaborated, I then confront this multilayer conception to both the theoretical and practical challenges to show how better it deals with them than the other accounts.
It is men and women working ‘out there’ who spread and protect human rights (Mathews Davies)
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Notes
- 1.
Limiting my choices to Rawls and Habermas does not mean that there are no other theories of human rights—for indeed they are many, one of those and no less appreciated is the capability approach developed by Amartya Sen (1999, 2009), and Martha Nausbaum (2000). I chose the two authors because it is my conviction that they are the most influential thinkers in political and social theory in contemporary thoughts. It is another question whether those other theories satisfy the challenges presented here, and on this point I concur to their critique by Charles Beitz (2009) especially chaps. 3–4, notwithstanding the question raised by Mark Navin in his book review of Beitz. (Navin 2011: 246).
- 2.
From an African point of view, see Francis M. Deng (1990). For a historical evolution of the idea of human rights, from natural rights to modern human rights, see Brian Tierney (1997, 2009); Virpi Märkinen and Petter Korkman , eds., (2006); Costas Douzinas (2000). As to Samuel Moyn , he seems to think that human rights movement is a result of the exhaustion of ideologies; that is why he presents it as a last utopia. (Moyn 2010).
- 3.
This is a commonplace view, especially from the Third World scholars. As one examples among many, see Boaventura de Sousa Santos (2002).
- 4.
Adam Etinson notes that Beitz discusses weak versions of naturalistic theory, which, according to him, weakens Beitz’s argument, although Etinson himself does not mention an example of stronger cases of naturalistic theory. He even contends that Beitz’s theory becomes naturalistic at the end, but he does not elaborate on this claim. (Etinson 2010: 444).
- 5.
Beitz takes care to point out that, although borrowed from Rawls, Rawls himself never used “the overlapping consensus” to justify human rights. (Beitz 2009: 76–7).
- 6.
The Bill of Rights is composed of the UDHR, the International Covenant on Civil and Political Rights (ICCPR ) and the International Covenant on Economic, Social and Cultural Rights (ICESCR ), whereas what Beitz calls the Core are the four main Conventions on human rights: 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), and the Convention on the Rights of the Child (CRC).
- 7.
- 8.
This state-centric conception is not new for Beitz, because in his seminal work on international relations, he argued that states were not the only actors of international relations, but he insisted that they were the only subject of international morality. (Beitz 1999: 37 vs. 65).
- 9.
Thanks to one of the reviewers for calling my attention to this point.
- 10.
On the same theme of conflict in interpreting torture, see Mark Goodale (2007); Shannon Speed , (2007).
- 11.
See for instance ICESCR , art. 6–12. There is no place for communal ownership, such as found in some traditional settings. In this sense, Beitz is correct that human rights consider the world politics to be organized into states. But we have to bear in mind that this state model is also a result of colonialism and not necessarily a free choice or is it a result of historical evolution. For an example of this different understanding of property, see the study of Abdul Aziz Said (1980: 90–1).
- 12.
- 13.
Although from an institutional point of view, Thomas Pogge subscribes to this point. (Pogge 2008: 69).
- 14.
It is a common fact to either imprison human rights activists or simply eliminate them physically. That is why the notion of local I am using here is independent of the dichotomy of North/South, because even in societies that are more open today, some people had to struggle in order to gain their space of expression. But, since according to Merleau-Ponty, philosophy is about to reflect on one’s experience, my current example is about a Burundian human right activist called Pierre Claver Mbonimpa, very much engaged for detainees’ rights, stemming from his own example in prison. After witnessing how horrible were the conditions of inmates in the Burundian penitential system, he created a local NGO dedicated to the advocacy for detainees. He has received many awards, but also has been in prison many times. In 2015 summer, he was short and almost died. After more than three months in a hospital in Europe, now he can barely speak because one of the bullet touched the vocal cords. During those three months of convalescence, those who were not able to eliminate him physically, succeeded to kill his son-in-law and one of his sons in less than three weeks of interval. While no official investigation was conducted, the opinion is that he is harassed by the Burundian government because of his engagement for human rights and denouncing their states’ violations.
- 15.
- 16.
- 17.
The Kosovo case comes to mind, but other cases such Haiti, East Timor, Sierra Leone, Burkina-Faso, etc. also fall into the same category, although they are disputed as intervention for protecting human rights. See Chap. 3 of this book.
- 18.
- 19.
- 20.
.In another essay focusing on Islam, he writes that “it is primarily the task of internal actors, supported by external allies, to promote and sustain the necessary degree of official commitment and popular support for changing Shari’a laws.” (An-Na’im 1994: 184).
- 21.
From a general impacts of international norms in Japan, see Andrew Cortell and James Davis (2005).
- 22.
- 23.
The convention against genocide is an example of a project of one man—Raphael Lemkin—who coined the term and convinced governments to adopt an international instrument that proscribes it. (Korey 1998: chap. 9).
- 24.
In her study of constituting economic and social rights, Young identifies three venues: interpretation, enforcement and contestation. (Young 2012).
- 25.
- 26.
- 27.
- 28.
James Griffin (2008: 19) holds the same opinion, but for him the empowerment is for individuals; a reason why I prefer Simmons’s description of empowerment that goes beyond the individual to include all those that were not empowered before, be they individual, groups or parts of states.
- 29.
Baxi would say that “the local…remains the crucial site of struggle for the enunciation, implementation, and enjoyment and exercise of human rights.” (Baxi 2006: 158).
- 30.
- 31.
This seems to join Griffin ’s definition of human rights as protecting normative agency. (Griffin 2008: 2). They differ, though, because the multilayer conception accepts a pluralist justification, and human rights are not derived from one single theory. It is rather practical in that it deduces human rights’ meaning from their function in the local practices.
- 32.
I thank the reviewer who raised this issue.
- 33.
For a longer development of this point, see Sect. 7.3 of this book.
- 34.
See Chap. 2 of this book, talking about the Jules Ferry’s political metaphysics.
- 35.
See for instance ICCPR , art. 2.1., stating: “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.” Emphasis added. This is only one example among many.
- 36.
Again, among many examples, see UDHR, art. 1, asserting “All human beings are born free and equal in dignity and rights.”
- 37.
The UDHR’s Preamble states, “THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance…”
- 38.
Adamantis Pollis observes that the An-Na’im project is biased because the intercultural dialogue is supposed to take place only in the non-Western. As she states, An-Na’im’s “call for dialogue… is somewhat one-sided in that he expects changes to take place primarily in non-Western cultures.” That why she calls for an extension of this dialogue so that “the liberal doctrine of human rights should be as subjected to discourse and dialogue, as are non-Western values.” (Pollis 2000: 24). In my view, An-Na’im focuses on the changes in non-Western cultures because, although he acknowledges their Western origin, he posits human rights universality from the beginning. Hence he is looking for a pragmatic strategy to implement them, without redefining their nature and content.
- 39.
This is the case with Rawls’s Law of Peoples.
- 40.
Martin Luther King Jr. echoes the same idea in his Letter from Birmingham City Jail, saying that “injustice anywhere is a threat to justice everywhere. We are caught in an escapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly.” (King Jr. 1986: 290).
- 41.
In the Asian context with regard to the work of local NGOs, Korey quotes a human rights journal writing, “with Asian speaking out so clearly, [authoritarian governments] will now find that a more difficult defense to adopt.” (Korey 1998: 285).
- 42.
Rajagopal would say that that human rights discourse plays a hegemonic role, although he concedes that it plays a counter-hegemonic role too. (Rajagopal 2006: 153). As to Anghie, he illustrates the ambiguous role of human rights law by the fact it infringes state sovereignty; which allows Western powers to interfere in the Third World States. He says, “Human rights law was controversial, however, precisely because it legalized the intrusion of international law in the internal affairs of a state: it could be used to justify further intervention by the West in the Third World.” (Rajagopal 2003: 749).
- 43.
It is stated in its Preamble that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
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Ingiyimbere, F. (2017). Conceiving Human Rights from Local Practices. In: Domesticating Human Rights. Philosophy and Politics - Critical Explorations, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-57621-3_6
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