Lane Kenworthy, The Good Society
May 2023

Democracy is the fairest method for decision making about the rules that govern our lives. But we set aside certain protections that a democratic government can’t abridge, even if a majority of citizens or elected policymakers favor doing so. These are universal human rights. They are exceptions to democratic decision making, formalized in constitutions and treaties.

What are these rights? How are they enforced? Is the establishment of human rights effective — does it increase protections and capabilities? Are rights consistent with democracy? What is America’s approach to international human rights?

Skip to:

• What are our human rights?
• How are universal human rights enforced?
• Are rights helpful?
• Are rights consistent with democracy?
• The United States and human rights
• Summary

WHAT ARE OUR HUMAN RIGHTS?

Our specification of human rights is laid out in three core documents: the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (ICCPR, 1966), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR, 1966). Together these form the “International Bill of Human Rights.”¹ It came into force in 1976.

The civil and political rights are²:

• Freedom from discrimination
• Right to equality between men and women
• Right to life
• Freedom from torture
• Freedom from slavery
• Right to liberty and security of person
• Right to be treated with humanity in detention
• Freedom of movement
• Freedom of non-citizens from arbitrary expulsion
• Right to fair trial
• Right to recognition before the law
• Right to privacy
• Freedom of religion and belief
• Freedom of expression
• Right of peaceful assembly
• Freedom of association
• Right to marry and found a family
• Right of children to birth registration and a nationality
• Right to participate in public affairs
• Right to equality before the law
• Minority rights

The economic, social, and cultural rights are³:

• Freedom from discrimination
• Right to equality between men and women
• Right to work
• Freedom to choose and accept work
• Right to just and favorable conditions at work
• Right to form trade unions
• Right to strike
• Right to social security
• Right of mothers to special protection before and after birth
• Freedom of children from social and economic exploitation
• Right to an adequate standard of living
• Freedom from hunger
• Right to health
• Right to education
• Freedom of parents to choose schooling for their children
• Right to take part in cultural life
• Right to enjoy benefits of science
• Right of authors to moral and material interests from works
• Freedom to undertake scientific research and creative activity

These rights are considered to be universal, meaning they apply to all humans regardless of nationality. And they are specified in international treaties rather than (or in addition to) national constitutions.

The rights specified in the various human rights treaties have binding status in international law for countries that have ratified those treaties. Many legal experts consider these rights to have the status of “customary law,” which means they are legally binding for all countries, even those that didn’t vote in favor or ratify.⁴

HOW ARE UNIVERSAL HUMAN RIGHTS ENFORCED?

One mechanism of enforcement is norms, publicity, and pressure — sometimes referred to as “naming and shaming.” There are approximately 10,000 nongovernmental human rights organizations (NGOs) around the world, including Amnesty International and Human Rights Watch. These NGOs, together with rights movements, investigative media reporters, UN human rights committees, the UN Human Rights Council, expert “special rapporteurs,” human rights lawyers, and sometimes governments or government actors, bring breaches of rights to public attention. When a human right has become widely recognized as a norm and a violation of the right is brought to light, the guilty actor — whether a government, an opposition movement, or a corporation — frequently feels compelled to justify its behavior and sometimes will relent. More important, the existence of norms encourages most actors to obey even in the absence of a serious threat of punishment.⁵

Beginning in 2008, the United Nations added a new and potentially more influential source of publicity and pressure: Universal Periodic Review. “Coordinated by the UN Human Rights Council, all 193 UN member states are periodically reviewed by other member states for their human rights practices and for upholding human rights standards. NGOs also submit information and evaluations.”⁶

A second mechanism of universal human rights enforcement is courts. In the United States, rights that are set down in the Constitution and its various amendments have the status of law and are enforced by the judicial system. The international counterparts are the United Nations Human Rights Council, the International Court of Justice, and the International Criminal Court.⁷ Their power is more limited and their jurisdiction more contested than that of their nation-state counterparts, but they do matter. There are analogous regional courts in Europe, the Americas, and Africa.

The existence of formally specified human rights in international declarations and treaties coupled with publicity and pressure from NGOs and other actors encourages countries to revise their constitutions and laws to include similar or identical rights provisions. This matters a great deal because in most instances, international human rights violations are not handled in international courts. Instead, UN monitoring committees “consider the reports of states and complaints against states, and act more as legal advisers to states than as their judges.”⁸ So when enforcement of international human rights occurs through the courts, it tends to be national courts, and to a lesser extent regional courts, rather than international ones.⁹

Under the principle of “universal jurisdiction,” the national courts in any country can charge and try human rights violators of any nationality. So, for example, if a former Syrian government official suspected of human rights violations flees to Germany, the German government can arrest him and try him for the alleged abuses. This principle has been in force for several decades, but it was seldom used until the late 1990s. Through 2017 there were a total of nearly 2,000 of these cases in 16 countries.¹⁰

A third mechanism of human rights enforcement is military force. The United Nations may decide to send peacekeeping forces to a country in order to stop or limit human rights violations. In 2005 the UN’s General Assembly ratified a “responsibility to protect,” which allows for military intervention, by the international community or by groups of countries or by individual countries, though only with specific authorization by the UN. This is a significant shift in international rules and norms. For three centuries, from the 1648 “Peace of Westphalia” until the signing of the Universal Declaration of Human Rights in 1948, the principle of national sovereignty effectively forbid such intervention to rectify wrongs committed by a government within its own borders.

ARE RIGHTS HELPFUL?

There is good reason to hypothesize that establishment of formalized universal human rights in international treaties improves people’s well-being. For example, establishing a prohibition on torture as a universal human right will lead to less torture than if we relied on each nation’s government to prohibit torture on its own. This is partly because law tends to have an impact, but perhaps even more because the specification of rights in formal treaties fosters greater monitoring, publicity, and pressure than would have been the case if rights claims were confined to books, reports, and speeches.¹¹ Amartya Sen puts it as follows¹²:

“Movements for civil rights, for democratic entitlements, for social equality, for economic justice, for equal treatment of women, for rights of minorities, which have powerfully developed across the world in the second half of the twentieth century, and which continue today, have been drawing on a capacious vision of which the Universal Declaration [of Human Rights] was the trailblazing expression, in championing the dignity and rights of all human beings. That vision has led to fresh legislation (…), but also to broader interpretations of existing legal provisions, in this way taking us beyond older understandings of constitutions and laws. It has also led to activist agitations, to powerful advocacies for the weak, and to a growing stream of public reasoning and resolve in different parts of the world — and all of this has had a significant impact on public policies and social conventions. The vision has helped to inspire the dedicated work of many people in Human Rights Watch, Amnesty International, OXFAM, Save the Children, Médecins Sans Frontieres, Action Aid, and other such global institutions, as well as initiatives originating in the developing world, such as the Grameen Bank and BRAC set up in Bangladesh. It has also encouraged less organized and more spontaneous groups of concerned people — neighbors and non-neighbors — to defend the basic freedoms of others.”

Skeptics hypothesize that formal establishment of human rights has little impact. One reason is the limited enforcement powers of international actors.

A second is that governments weaken the force of human rights by filing “reservations, understandings, and declarations (RUDs) when they ratify a rights treaty, “declaring either their own interpretations of certain treaty provisions or their intention to exempt themselves from certain articles.”¹³

A third potential hindrance is that by putting so many protections and provisions under the rubric of human rights, proponents may reduce respect for rights or stretch the rights movement too thin. The Economist magazine once put it this way: “Minimum levels of food, housing, medical care, and education for every person are undoubtedly goals which should be pursued by any decent society, but what is gained by including them in an international covenant? Describing paid holidays as a basic human right (as the Universal Declaration does in Article 24) just seems wrong-headed. If a country is too poor to meet such goals, then labelling it as a human-rights violator achieves nothing.” Moreover, it notes, “mixing the two categories of rights in international human-rights law has created its own problems. For decades it allowed the Soviet Union to counter western criticism of its record on civil and political rights by claiming that they were simply giving priority to social and economic rights. China and some third-world countries still make this case, and for the same reasons.”¹⁴ And longtime human rights proponent Michael Ignatieff says “The challenges that lie ahead for human rights are to refuse to make everything a human rights issue and to concentrate on those central concerns of discrimination, injustice, torture, and tyranny that are the movement’s special cause.”¹⁵

So has the establishment of human rights yielded progress in well-being?

Skeptics sometimes point to the fact that torture, capital punishment, and other rights violations haven’t been extinguished. But the question isn’t whether human rights have fully solved the problem; it’s whether they have helped.

Human rights optimists point to declines in war deaths, torture, capital punishment, discrimination against women, and other indicators as evidence that human rights are effective. But what we want to know is whether these improvements exceed what would have occurred in the absence of human rights declarations and treaties. One test is to compare the incidence of violations in a country in the years immediately preceding versus immediately following its ratification of a human rights treaty. This type of analysis tends to yield little indication of a positive impact of human rights.¹⁶

But the real benefit of human rights establishment is likely to be broader and longer-term. As more and more people in more and more countries come to know about, understand, and embrace human rights protections and provisions, we should observe the gradual spread of a shared moral impulse — a global ethic, a common conscience — and consequently a slow but real shift toward reduction in violations.¹⁷ Here we might compare the pace of worldwide progress before versus after we began to establish formal human rights. Philosophical appeals to human rights principles have existed at least since the early Buddhists and the ancient Greeks, yet while there was progress in reducing slavery, torture, killings, hunger, and other violations of life and freedom prior to the 1948 Universal Declaration of Human Rights, the rate of advance has been more rapid since then, which suggests that formal establishment of rights may have helped.¹⁸

There is, as of yet, no comprehensive assessment of the impact of human rights. The most careful research suggests that they’ve had a beneficial impact, albeit a limited one.¹⁹

Human rights have yielded more progress with respect to civil and political protections than economic and social ones. We’ve gone farther in reducing slavery and torture than in ensuring everyone has a job, an adequate standard of living, social security, and good health.²⁰ One reason might be that not enough countries have included economic and social rights in their national constitution. But it could be that it’s simply more difficult to enforce such rights even when they’re established. As one observer, commenting on a proposal by the British left to create a new set of economic and social rights, has commented, “Left-wing governments elsewhere have tried entrenching ‘social rights’ in constitutions; they are especially popular in Latin America. But they are not always effective. A right to emergency treatment does not of itself pay for hospital beds.”²¹

A 2016 report by a Global Citizenship Commission offered some potentially useful recommendations for how to advance economic and social rights, particularly in poor and middle-income countries. First, determine a feasible floor for provision — an acceptable minimum. Second, determine a reasonable expectation for progress — the raising of the floor. Third, mandate financial assistance from richer countries.²²

ARE RIGHTS CONSISTENT WITH DEMOCRACY?

There are (at least) four questions worth considering. The first is the most basic. Human rights advocates often refer to rights as “innate” or “inalienable,” by which they mean we have these rights by virtue of being human. But while this is may be a useful rhetorical device, it doesn’t make sense, as rights clearly are something we construct. Given this, is it justifiable to exempt rights from the democratic decision-making process? I think it is, because conferring this exemption on certain things doesn’t mean they are forever immune from reconsideration. It merely sets a higher bar for changing our decision, in the same way that a constitution does.

Second, some critics suggest that “advocates often try to use international human rights law to establish norms that they could not get adopted by democratic processes in their own societies.”²³ But the fact that public opinion may not support the establishment of a particular right doesn’t render it undemocratic. In representative democracy, elected officials aren’t required to have majority support among the public before deciding to enact a proposed policy. Instead, officials are elected by the people and then given a free hand to enact policies they believe will advance well-being. The same is true when a country’s democratically-elected government votes in favor of establishing of a human right or signs a treaty authorizing that establishment.

Third, should we support the practice of treating an established human right as “customary law,” applicable even to countries that didn’t vote in favor of it or sign a treaty authorizing it? Is this consistent with democracy? Again yes. A useful analogy here is America’s political system: If senators from 90% of the US states vote to establish a right, we don’t see it as inappropriate or problematic for that right to apply in the 10% of states whose senators didn’t vote in favor.

Fourth, Aryeh Neier, perhaps the most influential human rights activist of the past half century, has argued that “only civil and political rights can be considered real human rights, while two other categories — conventionally called economic, social, and cultural rights and collective rights — cannot…. He argues controversially that civil and political rights say what the government cannot do (torture, restrict speech, control religion); that they are absolute; and that for these two reasons you can take them to court and win…. So-called second- and third-generation rights, by contrast, describe things that the government should do (provide work, health, education, leisure, promote the vitality of minority cultures, and so on). But since the government has to do many such things, Neier argues, and since they all cost money, only the political process [rather than the courts] can legitimately determine how much of one good thing is worth how much tradeoff of another good thing.”²⁴

This is an understandable view. The opposing view is that if we accept the principle of judicial review — allowing courts to decide whether a particular government law or practice does or doesn’t meet a legal standard — then it isn’t undemocratic for a court to decide how to meet the right to health or to an adequate standard of living, any more than it’s undemocratic to ask a court to decide what constitutes torture or privacy or freedom of movement. There isn’t an objectively correct answer here. The question is where to draw the line when it comes to judicial review, and we don’t have widespread agreement on this question among either theorists or practitioners of democracy.

THE UNITED STATES AND HUMAN RIGHTS

The US Constitution, including its Bill of Rights, was one of the earliest formalizations of legally-binding rights. The United States was a driving force in the creation and authorization of the Universal Declaration of Human Rights in 1948. Organizations and movements for policy advance in the US often use the language of rights — states’ rights, civil rights, equal rights, gay rights, immigrant rights, and so on. In 1944 President Franklin Roosevelt proposed what would have been, had it been enacted, the world’s first “economic bill of rights,” including the right to “a good education,” to “a useful and remunerative job,” to “earn enough to provide adequate food and clothing and recreation,” to “a decent home,” to “adequate medical care,” and to “adequate protection from the economic fears of old age, sickness, accident, and unemployment.” In 1968 Martin Luther King Jr. encouraged enactment of a “Bill of Economic and Social Rights,” which included the right to “a decent job,” to “a minimum income,” to “a decent house and free choice of neighborhood,” to “adequate education,” to “participate in the decision making process,” and to “the full benefits of science in modern health care.”²⁵ In the 1970s, President Jimmy Carter pushed to make human rights central in US foreign policy considerations.

It’s therefore ironic that the United States has been one of the countries most resistant to authorizing international human rights treaties.²⁶ The US signed the Universal Declaration in 1964. But for most of the declarations and treaties since then the United States either hasn’t ratified or has ratified with a “provisions are not self-executing” clause, which means the ratification doesn’t apply until Congress passes enabling legislation, which it hasn’t done. And America hasn’t altered its Constitution or its laws to conform to the human rights specified in international treaties.

This has consequences. First, because the United States is a political and economic superpower, this may dampen the legitimacy of international human rights treaties. Second, it means US citizens and organizations can’t sue the US government for violations of international human rights. Third, while a variety of civil and political rights are in the country’s Constitution and Bill of Rights, economic, social, and cultural rights aren’t, and America lags behind other rich democratic nations when it comes to protection of the latter.

SUMMARY

Human rights are protections and provisions that we consider fundamental, so we exempt them from the normal democratic decision making process. Since 1948 large majorities of countries around the world have established, through declarations and other treaties, a number of universal civil and political rights and a number of economic, social, and cultural rights. These have the status of law and are considered enforceable for to all nations, not only those that voted in favor.

There are three chief enforcement mechanisms: norms, publicity, and pressure; courts; and military force.

Some observers are skeptical that the formal establishment of human rights actually helps to achieve desired outcomes. Though we need more study on this question, the best research suggests that rights do tend to contribute to progress. To date they’ve been more effective at advancing civil and political protections than economic and social ones.

It’s worth debating whether rights establishment is compatible with democracy. There are good reasons to conclude that it is.

The United States has been one of the most forceful advocates for human rights and yet at the same time one of the most reluctant participants in the process of establishing those rights as universal and legally binding.