To rescue human rights from management
I wrote my PhD towards the last days of the debate over “social rights”. This debate harkens back to the fifties, when the International Covenant on Social and Cultural Rights was being negotiated. Some claimed that social rights could never be true rights. Others claimed that without social rights human rights where an empty joke. I took a position in the latter camp.
The debate has ended with the proponents of social rights being the victors. While I still believe that positive rights are important, as it is common in life, sometimes in winning one loses. If we have indeed moved away from a pharisaical system of law where “the rich and the poor both have the (human) right to sleep under a bridge” into a system of “practical and effective” freedoms, we have, without much noticing it, fallen into a different hole.
The first move in the defence of social rights is the idea that human rights are protections of fundamental human interests (compare with Mill Utilitarianism, Ch. V). These interests, if taken seriously, need to be protected not just against actions, but also against omissions, or against actions of third parties. This is where the ubiquitous respect, protect and fulfill doctrine has its conceptual root. In the United Nations, the innovator was Absjørn Eide drawing on the work of Henry Shue. The regional courts all have their equivalents for this doctrine.
The problem with this doctrine is that it tends to turn human rights into a form of management. What matters is that goods are secured; legality and justice are optional. The stringencies of legal form are easily given up for other advantages. Whether courts are effective means to do this is something that is very context dependent. Why insist on courts if studies show that soft-regulators are more effective and palatable to the corporate world? Even if that means going soft on slavery? Of course, we are promised that the rule of law is an effective means for the achievement of economic ends, that the rights of women push forward economic development, and so forth, but we can never be sure and contrary data always threatens to appear. Even when courts operate, they cannot understand themselves except as managers of conflicting interests. Rights evaporate into thin air as a court finds that this or that restriction is after all worth the cost.
In spite of many mistakes, for some time, the sensibilities of the human rights community have prevented the management frame from imposing management outcomes. We just know that free speech is very valuable, we know that freedom of religion is very valuable, we know that it is better to leave a guilty person free than to convict the innocent. But this is now ready to change. As the world of economists, policymakers and development experts starts to fully integrate into the world of human rights, human rights lawyers will not be able to stand on their sensibility and what they know to be valuable. They will have to put up (the numbers) or shut up; shut up and let go of their irrational phobia of convicting the innocent.
The endgame of the dilution of human rights into the management of human interests can already be seen in the Sustainable Development Goals (SDGs) and allied enterprises. The SDGs are a list of targets for donors, states, NGOs and IGOs that embody the idea of development, understood sensibly enough, in terms of human freedoms, capabilities, opportunities and so forth. But development is about money. Once everything has a price tag, there will be talk about prioritizing this or that. If that is unpalatable, the talking will be done behind closed doors, and when that happens, we may end up recommending the promotion of internet access over the reduction of child mortality because in the grand scheme of things it has more impact per dollar. Or recommending the protection of coral reefs higher than the provision of education for women on the same grounds.
We are missing out on something important if we can see nothing more than a quantitative difference between the preventable death of a child, or the consignment of women to ignorance, and sundry other desirable economic targets. The problem is that under the existing paradigm we are unable to explain what that is.
It is no surprise then that we become tongue tied when we look at China. Here we have a state whose development trajectory has done more to lift humans out of poverty and its evils than any other human institution or enterprise. But then there are also the tortures, the purges, the massacres. We must not entertain the thought that the tortures in Chinese prisons were proportional and necessary to the great growth, or that they were wrong because they were disproportional; so that had they been more modest in scale they would have been acceptable (compare with Eric Hobsbawm). No, we must keep two books using two different accounting systems. As we welcome the efficiency of China, we must stand ready to unconditionally denounce its crimes. Anything less than this is to have the moral vision of human rights on sale, to be purchased by the benevolence of whoever holds power; whoever can buy us by contriving good outcomes.
A problem with human rights today is that we do not have a conceptual apparatus to resist the transformation of human rights into humane management. We cannot explain why child mortality and education for girls are not just one more item in an ever-growing list of desirables. We do not know how to keep two books. Through the respect protect and fulfill doctrine the human rights community has come to speak the language of the managers, and they cannot win in that game. If we allow management rationality to be the rationality of human rights, then human rights will only be able to maintain a shadowy existence as a mere emotional appendage, as a cosmetic add on, to the international development powerhouse, which already dwarfs the human rights by orders of magnitude and stands ready to coopt and silently assimilate it.
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