Beyond Intractability
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Rights
 
By
Michelle Maiese


August 2003
 
What are Rights?

The spread of international human rights has contributed to broader fulfillment of basic human needs and the elimination of arbitrary suffering.

On the flip side, framing disputes in terms of absolute rights that cannot be compromised can contribute to a conflict's intractability.

A right is an entitlement to certain kinds of treatment. While positive rights grant people the ability to demand the performance of some action, negative rights entitle people to demand that others refrain from certain kinds of action.[1] For example, the ability to vote is a positive right, while not being tortured counts as a negative right. Respecting people's rights ensures that they receive some degree of decent, humane treatment.

Some rights are formalized in law or contract, while others serve as socially accepted standards of behavior. During conflict resolution, for example, rights such as reciprocity, equality, or seniority can serve as guideposts toward a fair outcome.[2]

Human rights norms refer to some basic moral rights that all human beings are entitled to, just by virtue of being human. Such rights are ascribed "naturally," which means that they are not earned and cannot be denied on the basis of race, creed, ethnicity, or gender.[3] These rights are advanced as legal rights and protected by the rule of law. However, they are distinct from and prior to law, and can be used as standards for formulating or criticizing both local and international law. It is typically thought that the conduct of governments and military forces must comply with these standards.[4]



Kevin Avruch discusses the relation between human rights and culture.

While some believe that certain human rights can be forfeited in the case of extreme public emergency, there also exists a group of more "basic" rights that cannot be violated under any circumstances. These rights are generally thought to be claimable by all people and to give rise to duties and obligations to meet such claims. Such rights are those listed in international human rights documents, including the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights.

The rights protected in such documents include civil liberties, political rights, and economic and social rights. Civil liberties protect the "free space" that every individual is entitled to. This includes the right to life, security, privacy, private property, free speech, the freedom to practice a religion, and the right to peaceful assembly. It also includes the right not to be subjected to arbitrary measures by government authorities and the right to a fair trial.

Political rights protect individuals' freedom of political choice and association, as well as their ability to contribute to the action of government. These include the right to form political parties, take part in elections, vote, and have the opportunity to hold a state office. Individuals are also thought to have economic and social entitlements, such as the right not to suffer because of social inequality and economic imbalances. Such rights might include an individual's right to employment and fair payment, as well as a people's or nation's right to economic development.



Lowell Ewert talks about preventing violence by promoting human rights.

Finally, peoples or nations have rights to sovereignty and self-determination. This includes the right to choose their own international status and form of government, and the freedom to adopt the institutional arrangements, political system, and economic system that best reflect their people's needs. Each country should also be free to decide how to allow for citizen participation in government.[5]

The History of Human Rights

There is an increasing tendency to speak of what is most important to us in terms of rights, and to frame conflict as a clash between rights.[6] In the United States , in particular, legal speech is heavily rights-oriented. But where did all of this "rights talk" come from?

Our belief in human rights has its origins in the liberal democratic tradition of Western Europe and is the product of Greek philosophy, the Judeo-Christian tradition, and the Enlightenment.[7] During the American and French revolutions, talk of human rights was used to denounce the abuse and arbitrary exercise of power. Such traditions paved the way for a conception of the "natural rights" and dignity of man, rights that all humans are born with just because they are human. However, for a long time, these rights were granted primarily to white male property owners.

During World War II, Nazi barbarism and colonialism resulted in large-scale atrocities. The practices of fascism "were taken to reveal what a system of arbitrary force amounts to, a system administered precisely according to the discriminatory criteria of race, creed, and color."[8] The desire to keep the same kind of arbitrary force from being exercised elsewhere gave rise to the worldwide initiation of the human rights movement. In the aftermath of the Second World War, the world witnessed the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention. All of these declarations aimed to formulate a set of universal human rights.



Marcia Cambell says to mediate or not to mediate: that is the question, when approaching worldview or value conflicts.

The Universal Declaration of Human Rights, for example, was adopted in 1948 by the United Nations. Its first stipulation is that all individuals are born free and equal with respect to dignity and rights. Everyone is entitled to the rights set forward, regardless of race, color, sex, religion, political affiliation, property, or birth. The first cluster of rights sets forth civil and political rights, the most basic of which are the rights to life, liberty, and personal security. These basic rights protect individuals from slavery, torture, and arbitrary arrest, and ensure that they are free from arbitrary intrusions into their privacy. The first cluster of rights also states that all individuals must be recognized as persons before the law, and are entitled to freedom of expression and a fair trial.

The second cluster sets forth the economic, social, and cultural rights to which all human beings are entitled.[9] The Declaration here recognizes that the realization of certain rights is necessary for personal development and social security. Such rights include economic rights related to employment and education, fair remuneration, an adequate standard of living for health and well being, and the right to participate in the cultural life of the community.[10]

The final cluster provides a larger protective framework in which all human rights are to be universally enjoyed. This includes the right to a social and international order that allows for the exercise of fundamental freedoms. This third cluster also acknowledges that, along with rights, human beings have obligations to the community that must be met if individuals are to achieve their full potential.[11]

While the rights adopted by the European and American conventions differ somewhat from those formulated in the Universal Declaration, all of the human rights formulations have a few key elements in common. These include an emphasis on the respect for human life and security, the elimination of all forms of discrimination and prejudice, and the acknowledgement of certain basic human liberties.

An increase in rights-based claims in the United States began with the civil rights movement of the 1950s and 1960s. Focus was shifted from the division of authority between states and the federal government to an emphasis on individual rights and the elimination of discrimination.

What's So Important About Rights

Human rights continue to be internationalized with great momentum, and respect for such rights has become a pillar of foreign policy. The specific goal of expanding human rights is to "increase safeguards for the dignity of the person."[12] Because such rights are ascribed "naturally" and universally, they cannot be denied on the basis of religion, ethnicity, gender or race. Human rights are moral rights advanced as legal rights and ensured by rule of law. They are thought to protect something of indispensable human importance.[13] The expansion of liberal rights has provided a new assembly of bargaining tools and resources to many previously "right-less" individuals.[14]

Many believe that the protection of human rights is "essential to the sustainable achievement of the three agreed global priorities of peace, development, and democracy."[15] Since 1948, all countries in the world have had at their disposal human rights norms to help them decide how to conduct themselves and how to judge others.[16] Having such rules in place imposes certain requirements on governments and legitimizes the complaints of individuals in those cases where fundamental rights and freedoms are not respected.[17] Human rights norms constitute a standard for the conduct of government and the administration of force, including the rules of just war -- jus ad bellum and jus in bello.

Today, the international code of human rights allows countries to condemn the practices of other nations as human rights violations. Because certain "basic" human rights are considered inviolate under any circumstances, violation of such rights counts as a crime against humanity itself. Because political systems that protect human rights are thought to reduce the threat of world conflict, all nations have a stake in promoting worldwide respect for human rights.[18] In some cases, the perceived need to protect human rights and maintain peace has led to humanitarian intervention.

Human rights norms can also be used as "universal, non-discriminatory standards" for formulating or criticizing law.[19] While all human rights are not similarly interpreted, these norms nonetheless form a common human rights vocabulary in which the claims of various cultures can be articulated. The language of human rights structures the debate over disputed issues and provides a framework within which the infliction of arbitrary suffering can be condemned.[20]

The Universality of Rights?

Many believe that human rights norms arise out of some universal and objective moral standards. However, it is unclear whether there really are certain moral beliefs and claims that are universally true and universally justified. Do human rights norms truly apply to and obligate all persons equally? Is there really some international consensus with regard to human rights?

Cultural relativism is one of the most common attempts to challenge the universality of human rights. It seems that human rights are observed differently, and conceived of differently, in different countries. What is held right in one society may be regarded as inappropriate or anti-social by another culture. For example, the emphasis on individualism in the West may have no place in Asian cultures, where allegiance to the community outweighs concern for individual rights.[21] The Western countries think of human rights as innate in individuals, central to the nature of the human person. These rights precede any state structure and must be absolutely respected by governments.

However, many Eastern countries think that human rights only exist to the extent that they are specifically recognized by the state.[22] They are concerned not with being free from government intervention, but with "harmonizing as far as possible the individual's action with the leader's, in view of the duty and obedience owed to the latter."[23] In many Eastern countries, for example, the family is central to self-realization. And in Africa, it is thought that individuals can realize their full potential only through the community. Leaders of these communities help individual members to integrate fully into the group and harmonize their interests with those of the group. The dichotomy between authority and liberty so prevalent in the West does not surface in the Asian or African traditions.[24]

In addition, certain concerns about protecting rights are characteristic of some political systems but not others. While it seems that both economic and political rights are necessary for the proper realization of human potential and well-being, the rights stressed by developing countries are often different from those stressed by developed countries. These countries tend to have different ideas about the relationship between civil and political rights on the one hand, and economic, social, and cultural ones on the other.

Some developing countries believe that economic and social rights have absolute priority, for it is only when people's immediate needs are met that civil and political rights have any real significance. Freedom of expression does not mean very much if one is starving. Countries struggling against famine and disease may not devote as much attention to the classic liberties of the Western world.[25] Instead, these countries often focus their attention on the right to economic development and the improvement of economic conditions, as well as social, political, and cultural development. Many speak of the "right to development" as a necessary corollary of other fundamental rights.[26] There is thought to be an essential correlation between the enjoyment of human rights and economic development.

Industrialized and developed nations, on the other hand, tend to emphasize civil and political rights and to focus on individual liberty.[27] Many Western countries, for example, focus on freedom of expression and political association, the right to a fair trial and the right to privacy. Rights to economic and cultural development are regarded as secondary to these basic individual freedoms.

In light of these differences, in what way can human rights standards be conceived of as universal? Certainly we must be careful not to overlook the cultural differences noted above. However, while there are indeed various points of disagreement among the different cultures, there is also some near-universal agreement about what count as the gravest violations of human rights.[28] Acts that nearly all of humankind would be shocked and revolted by include genocide and torture. These are basic standards to which all cultures must be subjected.[29] Some human rights do indeed appear to be universal.

Rights and Intractable Conflict

It is commonly recognized that the protection of human rights helps people to live together peacefully, and ensures humane treatment for all society members. Rights can also help minorities to articulate claims that majorities will respect, and enable the weakest members of society to have their voices heard.[30] Where human rights are respected, there is likely to be less violence and oppression, and thus less conflict resulting from such human rights violations. In the long term, respect for human rights may play a central role in developing attitudes of tolerance and mutual respect that put parties on a permanent path to reconciliation, stability, and peace.[31]

However, framing a dispute as a rights-based grievance can also contribute to intractability. A dispute begins when one person or group makes a claim or demand on another who rejects it. One way to resolve disputes is to rely on some independent standard of perceived legitimacy or fairness.[32] However, if both groups advance their claim as a "right," moderate positions become less likely. Framing a dispute as a rights issue, rather than an interests issue, makes it difficult to compromise or reach consensus. Rights talk can foreclose "further communication with those whose points of view differ from our own."[33]

This is in part because people treat rights-based arguments as "trump cards" that neutralize all other positions. A tendency towards absolute formulations in rights talk promotes unrealistic expectations and increases the likelihood of conflict. It also ignores social costs and the rights of others, and inhibits dialogue that might lead to the discovery of common ground or compromise.[34] For example, abortion is typically framed as pitting two rights -- the "right to life" and the "right to choose" against each other in an all-or-nothing contest. This sort of absolute, win-lose framing is typically not conducive to problem solving.

People's assumptions that they are entitled to certain rights can also result in self-centeredness. Transforming something into a right gives bearers of the supposed right the ability to demand its realization from those who have a "duty" to realize it.[35] However, such demands are often not conducive to a society of reasonable people attempting to live cooperatively together.[36] An appeal to rights may make it more difficult to modify one's claims in the face of reasonable claims of others.

Indeed, rights talk often leads parties to forget that their liberties are limited by the stipulation that they do not harm others.[37] Parties also tend to confuse "rights" and "rightness": to say that one has a right to do something is not to say that it is the right thing for one to do. Rights do not give a sufficient, moral reason for action.[38] All rights claims must be balanced against the rights of others, and taking one right as far as it goes soon brings it into conflict with other rights.

This is all the more troublesome in light of the "rights revolution" that has taken place in the United States in recent years. The expansion of individual rights and liberties has blurred the line between privileges that one has to earn and the rights one is entitled to, simply by virtue of being a citizen.[39] There is disagreement as to whether resources such as health care, higher education, and adequate housing truly count as rights. Likewise, there is little agreement about what to do when rights are in tension with one another. For example, many perceive a need to balance individual privacy rights with concerns about public health and safety.[40] They want to protect rights as a way to meet compelling social needs, rather than a means to thwart government authority and power.

In addition, United States rights rhetoric often lacks corresponding well-developed responsibility talk. Strong rights would seem to presume strong responsibilities. But while current talk about rights captures the importance of individual liberty, it tends to neglect concerns about caring for the community and cultivating civic responsibility. People demand strong political rights but do not wish to carry out the duties and responsibilities of good citizenship.[41] For example, many citizens neither vote nor wish to carry out jury duty. There is also a tendency to think that we have no obligations toward others except to avoid the infliction of harm.[42] Many have noted that citizens need to be more prepared to take responsibility for the less fortunate, as well as for themselves and their dependents.

In the United States, in particular, little emphasis is placed on the idea that everyone has duties to the community and a responsibility to uphold the rights of others.[43] Instead, rights talk refers to individuals as separate, independent, and isolated. This ignores the fact that people are situated in a particular context and neglects the social dimensions of human personhood.[44] It also ignores the communal habits and practices that truly foster respect for others. The environments in which civic virtue is cultivated include families, neighborhoods, religious associations, and communities. Fostering such environments is essential to the well being of society and its members, which in turn lessens the likelihood of protracted conflict. However, such concerns are not easily translated into current talk of individual rights, which seems to regard any community or government authority with suspicion.[45]


[1] David Little, "The Nature and Basis of Human Rights," in Prospects for a Common Morality. Gene Outka, John P. Reeder, eds. (Princeton University Press, 1992). <http://books.google.com/books?id=r7ZCl-I0DHgC>; See also: James Nickel, "The Existence of Human Rights," in Stanford Encyclopedia of Philosophy. (2012). <http://www.beyondintractability.org/library/external-resource?biblio=9532>.

[2] William Ury, J. Brett, and S. Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Cost of Conflict. (San Francisco: Jossey-Bass, 1988), 7. <http://books.google.com/books?id=DBdHAAAAMAAJ>.

[3] David Little, "Universality of Human Rights."

[4] For an argument for a practice-based model of human rights, see: Charles Beitz, The Idea of Human Rights. (OUP Oxford, 2009). <http://books.google.com/books?id=Xzip1IsOIRAC>.

[5] Antonio Cassese. Human Rights in a Changing World. (Philadelphia: Temple University Press, 1990), 49. <http://books.google.com/books?id=_6txQgAACAAJ>.

[6] Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse. (New York: Free Press, 1993), 4. Revised edition (2008) available here.

[7] A. H. Robertson, Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights, 2nd Edition. (New York: St. Martins' Press, 1982), 3. <http://books.google.com/books?id=aK4sAAAAMAAJ&dq>.

[8] Little, "The Nature and Basis of Human Rights."

[9] "Human Rights Today: A United Nations Priority," The United Nations, 1998. <http://www.un.org/rights/HRToday/>. Accessed on January 30, 2002; See also "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework," United Nations Office of the High Commissioner for Human Rights, 2011. <http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf>.

[10] "Human Rights Today: A United Nations Priority."

[11] "Human Rights Today: A United Nations Priority."

[12] Cassese, 3.

[13] Little, "The Nature and Basis of Human Rights."

[14] Charles R. Epp. The Rights Revolution. (Chicago: The University of Chicago Press, 1998), 9. <http://books.google.com/books?id=z_3fvvIumxcC&dq>.

[15] "Human Rights Today: A United Nations Priority."

[16] Cassese, 1.

[17] Cassese, 2.

[18] Cassese, 58.

[19] Little, "The Nature and Basis of Human Rights."

[20] Little, "The Nature and Basis of Human Rights."

[21] Little, "Universality of Human Rights."

[22] Cassese, 52.

[23] Cassese, 53.

[24] Little, "Universality of Human Rights."

[25] Roberston, 13.

[26] Roberston, 14.

[27] Cassese, 60.

[28] Cassese, 64.

[29] Little, "Universality of Human Rights."

[30] Glendon, 15.

[31] Helena Kennedy, "Conflict Resolution and Human Rights: Contradictory or Complementary?" INCORE.

[32] Ury, Brett, and Goldberg, 7.

[33] Glendon, 9.

[34] Glendon, 14.

[35] Cassese, 63.

[36] Glendon, 45.

[37] Etzioni, Amitai. The Spirit of Community: Rights, Responsibilities, and the Communitarian Agenda. (New York: Crown Publishers, Inc., 1993), 7. Updated edition (2013) available here.

[38] Etzioni, 263.

[39] Epp, 7.

[40] Etzioni, 264.

[41] Etzioni, 4.

[42] Glendon, 77.

[43] Glendon, 13.

[44] Glendon, 109.

[45] Etzioni, 164.


Use the following to cite this article:
Maiese, Michelle. "Rights." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: August 2003 <http://www.beyondintractability.org/essay/rights>.

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