New Challenges for International Human Rights

Yet, as we all know, violations of human rights, of all sorts and all degrees of severity, abound[1]. In this talk I want to suggest how some of the classical controversies within this tradition affect its utility in facing up to challenges, in which the need for international cooperation on HRS issues becomes both more urgent and more complex.

While the ‘rights’ tradition has a long pedigree within Western thought, the idea of International Human Rights has come to its own only after WW2. Its origins make it easier to understand its attractiveness and the unique role international human rights were designed to fulfill: The adoption of the UDHR and the legislation that followed were designed to prevent, or at least legitimate international efforts of minimizing, the kinds of atrocities that were facilitated and perpetrated during WW2.

The rationale of the UDHR and the IHR (International Human Rights) movement is the same as that of the Nuremberg trials: there must be some norms, and some mechanisms of accountability, that are not totally controlled by states. The law and the sense of justice of states cannot be allowed to remain the last word. People seriously harmed by their states should have effective redress. The way to do this, it was thought, was by conferring upon individuals rights that would be independent of states, and could thus form the basis of claims made against states for both legislation and enforcement. To make the enterprise credible, there is a need to deal with all three elements of this mechanism: rights, that are seen as universal rights of man, and that are international in basis and origin. All these issues raise fascinating theoretical and practical issues of great complexity and significance.

1.    Let’s start with the notion and meaning of ‘rights’, one of the hottest debates in contemporary philosophy. What are they? Where do they come from? What is the source of their normative power[1]? While the question is old, it has never been answered definitively and conclusively. It re-emerges whenever there is a serious claim that is allegedly a human right, or an implication of such a right, and when the claim is contested. Suffice it to remind ourselves of the debate, within international law, about the status, the meaning and the scope of ‘the right to development’. Or of the question of the relationships between civil and political rights on the one hand, and social, economic and cultural rights on the other, to which we shall return[2]. But the structural and theoretical problems exist for all rights-talk[3].

The IHR movement did create an advance on this question, however. Bentham and Hume said natural rights were ‘nonsense upon stilts’, meaning that the idea of a pre-state, pre-legal right was unintelligible. Rights only make sense, they argued, within a positive normative system which grants them. They wanted to discredit the idea of natural law, which they found metaphysical and confusing. Burke criticized the notion of natural rights from a different perspective: he contrasted the abstract rights to liberty and equality with ‘real’ rights that are protected through belonging to traditional communities. Today we can affirm human rights without needing to deal with these concerns. We may be agnostic on the question of the ultimate source of these rights, because we may say that IHR are indeed intelligible even for a Bentham or a Hume: they are the products of a normative system, with an identifiable (even if imperfect in many ways) institutionalized system of accountability and enforcement. IHR, in principle, do not seek to replace traditionally recognized rights by a set of abstract values imposed by either reason or an external force. They are the culmination of the accepted values of those accepting them, of the very traditions that people are proud of. Bentham, Hume or Burke did not mean to interfere with attempts to prevent mass murders or torture. They did not object to using moral aspirations to improve the world. In fact, many of their efforts were directed at these very goals. We have found a way of using human rights talk to promote goals with which they would have agreed. However, their concerns are still with us, because while human rights talk does not necessarily lead to the flaws they identified; while we can assume that they would have concurred with many of the goals and the means of the IHR movement; the potential of the dangers they pointed out do exist, and we should be aware of them[4].

This conclusion thus makes all the more pressing the moral and political questions: which claims or interests should be recognized as IHR? What is the meaning of such recognition? What is the status of those interests recognized as IHRs? There are at least three distinct questions here: what claims should be accorded the privileged status of rights? which rights should be dubbed human rights (as distinct from just ‘rights’)? and which rights should be recognized as human rights by international law (as distinct from rights which should be recognized as such by domestic legal systems)? Answers to these questions involve a broad set of different types of considerations.

2. There is a huge jurisprudential debate about the nature of rights. Ronald Dworkin has made popular the notion of rights as trumps, rights as the kinds of entitlements that preempt policy judgments. Once I have a right, my interest cannot be violated simply because such a violation serves well the interests of others, even the interests of the public at large. Others suggest other accounts, contesting this picture of rights as trumps. But under these accounts, too, a right is a strong type of claim, stronger than the claim that it is right, under some moral theory, to grant my claim. In a way, granting me a right is a way of releasing me from arguing, in each particular case, that it is right that I should win. This is a point of evidence. But it is also a point of substance: I may do what I have a right to do even if, under the circumstances, it would not be justified for me to do so all-things-considered[5]. When the entitlement is positive, giving me a right means that I do not need to convince you of the justice of granting it to me. All I need to do is invoke the right and seek its enforcement. When I have a right in this sense, others are duty-bound to respect it. I do not ask them for charity or even justice, I am simply asking them to perform their duties.

Once we concede that this is the nature of rights, many conclusions follow. First, there is an institutional implication. The protection of rights in particular cases is in the realm of courts, not of executive or even legislative determination. Rights, by definition, are entitlements that we have decided cannot be defeated by mere expediency. The branches responsible for making policies and judgements of expediency are therefore suspect when they seek to infringe our rights. Protection of rights thus must have an independent judiciary as a central element in its enforcement system. Obviously, this is an institutional implication of major importance.

Second, it is a serious question why we should allow entitlements that may defeat our judgement about the right thing to do in any particular case. The question becomes more pertinent in societies in which there are deep controversies about the ways to conduct these all-things-considered judgements. In fact, we agree to have rights precisely because we want to guard, in particular cases, against a simple all-things-considered judgement. We return to the debate between rules- and act- utilitarianism, or to Rawls’ defence of rules in terms of their systemic benefits[6].

Once we identify the reasons for which a strong entitlement in the form of a right is justified, and we agree that at times it is indeed justified to grant people rights rather than allow them to pursue their interests through the political and social struggle for power, the main question is what entitlements should be seen as rights. This is a moral-political, not a conceptual, question. Another crucial question is whether rights conflict, and if they do - how we are going to decide which of the rights should be upheld and protected.

3. It is significant to remember that both historically and conceptually rights are not necessarily the primary normative concept. There are rich normative traditions which do not recognize rights[7]. They regulate human life by the categories of duties and permissions. In the relationships between individuals, we would have mechanisms under which people can demand that promises made to them be performed. This would be an enforceable duty or obligation. Others would then say I have a right that promises made to me are kept. Some would give one a right whenever others have a duty against them, others would limit the identification of rights to cases in which, as a matter of legal fact, the beneficiary of the duty can effectively enforce either performance or at least compensation[8]. But these ‘rights’ are intelligible because, and to the extent, they are defended and made enforceable by a positive legal system. To claim a moral or a political right is therefore to say that there are good moral reasons for us to provide the mechanisms that will make these claims enforceable.

4. Many of these conflicts, in the fields of private law, are decided by the regular political struggle of interest groups, seeking to influence the law-makers. Unions and progressive forces in the US were thus successful in persuading legislators to enact laws limiting hours of work. These laws established a right not to work more than 8 hours a day, and the right was conferred by the statute, as a result of a long political struggle. This struggle, in its turn, was in part mobilized by saying that individuals have a right to human dignity, which requires that they are granted a legal right not to work more than 8 hours a day.

The types of rights we are concerned with work in a similar way, but are also, in some sense, stronger. They are not merely rhetorical tools in our political struggle. They are supposed to contribute to the determination of the result of that struggle. In other words, they belong to the framework of this political struggle. The claim is that these rights should determine, or constrain, its results. It is not surprising, therefore, that the first claims of rights of this sort to be recognized were liberty rights, or rights against state interference in one’s freedom. These are the rights that do not require resources or positive action. They simply reflect the willingness of the state to abstain from imposing certain duties, such as duties to force faith to a particular religion, or to make speech illegal. Roughly at the same time came rights of political participation, which are personal and positive (they require legislation granting people powers). Property was seen as a liberty right, and equality only featured as an element of political rights. Most of the economic aspects of people’s lives were left, under these regimes, to the forces of markets and to individual luck. It is not that society was not concerned with poverty. But poverty was dealt with by organized charity, and for prudential reasons. Moreover, political rights of participation were usually limited to males of property.

Despite enormous changes, this distinction between first and second generation’s rights, or between civil and political on the one hand, and social and economic on the other, is still with us[9]. It is easier to suggest that states abstain from using their power to suppress critical speech than it is to demand that states redistribute income and wealth to achieve social justice. It is easier to say that torture is inconsistent with a shared commitment to human dignity than it is to suggest that the state should tax the rich and the middle-class so as to provide every citizen (or resident) with an adequate standard of living, irrespective of their skills or efforts; or to enable handicapped people to minimize the limitations imposed on them by their handicap. The difference stems, in part, from one’s conception of the role of the state, and of the relationships between individuals and their civic communities. Libertarians like Nozick, who believe the state should serve as a night’s watchman, could agree on freedom from speech and from torture. They would vehemently oppose massive redistribution. In terms of broad consensus, then, first-generation and second-generation rights are indeed very different. On the other hand, no one can deny that for most individuals, the right to a decent living, the right to a life not totally exhausted by the need to survive, is a much more central part of human dignity than the right to free speech or association. In this sense, second-generations rights may seem prior to many first-generation rights.

So this issue raises a distinction central to this field: the difference between normative debates about which interests should be recognized as rights, and between the political feasibility of effectively protecting these rights. Both levels of discussion are important, and the relationships between them create some of the most fascinating problems of IHR theory and practice.

5. In today’s world, many states are multicultural. Clearly, the broader we cast the net of rights, the larger and deeper are the cultural and religious differences we encounter. This fact brought to the center of the rights debates the issue of universality. The protection of rights is not easy even when there is shared commitment to some values. Suffice to remind ourselves of the difficulties in fighting racism in the US, despite the fact that no serious voice is raised in support of claims that discrimination on the basis of race is justified. Often, a lip-service shared agreement is reached. Norms against torture, racism, the taking of hostages, lawless executions - are all considered universally valid prohibitions. The human rights problem that remain in such areas are at the level of enforcement and elaboration. But in other cases, the values themselves are contested. A major area of controversy is related to the rights of groups to maintain their traditional ways of life even when these involve what others see as major violations of the rights of their individual members. Many of these debates involve the rights of women to equality and even to bodily integrity. But others involve the rights of all to exit, or, more frequently, the right to criticize or to explore ways of changing the culture from within, without losing their right to membership while doing so. It is important to remember that this is an area in which the conflicts are internal to the HR narrative, especially once we concede the legitimacy of groups’ rights[10].

The universality of rights is an important part of their special validity as human rights, that is rights that belong to individuals everywhere, simply because of their shared humanity. If we want human rights to trump the preferences and decisions of states and traditional societies or established religions, these rights should be ones that every individual may legitimately raise against their states, communities or religions. Not surprisingly, some of these establishments challenge the alleged constraints on their powers of law-making. A popular form of challenge is the denial that a particular claim is indeed a human right, a universal right which may be derived from the most basic characteristics of humanity. Another structure of the challenge is the claim that some infringements of rights may well be justified by the necessity to maintain a valuable form of life, in which the practices which allegedly violate human rights are essential ingredients[11].

Again, we do not have to go into the claims, suggested by Bentham and Hume and Burke, that rights can never be universal or human in a strong sense. We do not have to underwrite a picture of individuals as having a disembodied existence, prior to their communities, in which they enjoy ‘rights’. IHR talk does not presuppose such pictures of people. It gains its validity from a less sweeping, but equally ambitious, claim: that we can all agree that there is enough that is similar in wishes and characteristics of persons, wherever and whenever they are born, to justify what H.L.A. Hart called ‘a minimal content of natural law’. True, modes of respect may be very different. But the need for dignity and respect, the need for liberty and some control over one’s life, are universal human wishes. The history of movements for liberation the world over attest to the universality of these cravings, as do the great works of art of all civilizations.

Yet, conceding that universality is the source of power of IHR does have costs. Particular arrangements will rarely be dictated by a commitment to HRS. We can all agree on the necessity for prohibitions on murder and torture. We may well differ on the scope of arrangements balancing reputation or privacy with freedom of speech. While respect for both values is an ingredient of a commitment to HRS, no particular arrangement is dictated by it. Similarly, we may all agree on the right to bodily integrity. We may well differ on the question whether the circumcision of boys required by Jewish law is consistent with it.

Supporters of HRS should beware of presenting all the conclusions which they support as the ‘one right answer’ derived from a general commitment to human rights. They should draw a clear distinction between those conclusions that can indeed be presented as universal requirements of human rights, and those that may well be desirable, but enjoy a weaker status: they are simply arguments for a political decision in favor of a particular arrangement, which may well be the right answer for a given culture at a given time, not necessarily for all cultures everywhere. In other words, IHRs may not dictate particular arrangements. Rather, they identify constraints that suggest that some types of arrangements should be excluded, and some should be reviewed with great skepticism[12].

6. The emphasis of international protection of human rights came when it became clear that human rights are most often violated by governments, not by individuals. It thus became clear that states could not be trusted to formulate, alone, the norms protecting human rights within their borders; and that even if states had the most perfect of norms, they could not always be trusted to follow them. Most of the IHR legislation seeks to deal with these issues and improve the accountability of states for HR violations within them. The main purpose is to improve the extent to which human rights are enjoyed by individuals in the world. Limitations of power imply that often it will be impossible to prevent these violations, and the focus is moved to the imposition of liability after the event, so that perpetrators of violations do not go unpunished.

International pressure and adjudication is indeed necessary for such matters. The international elaboration permits the articulation of normative standards which are not tinted by the inevitable political pressures of the intra-state situation. This is precisely the function of internationalization which also creates new tensions and frustrations - often the normative clarity just highlights the limits of enforcement.

However, some of the most serious HR problems are not the result of atrocities performed by rulers or individuals. While the need to protect individuals against violations of their rights by their rulers still exists, a lot of the problems of the world, and a lot of the misery of individuals in it, are not connected to violations of human rights by rulers. Notably, poverty, famine and a life dedicated to subsistence is the fate of large parts of the human race today. These are intensified by forces of globalization. No state on its own can deal with these issues. The need for international cooperation in redressing them is structural. The forces affecting these are only in part states and governments. In the modern world, they are quite often the result of the fact that states are not allowed to regulate market forces, both on the national and on the international levels. The impact of welfare and human rights is made by forces of ‘civil society’, often forces which are not connected to the particular communities in any ties of special solidarity or accountability. Similarly, all of us are deeply affected by patterns of environmental development and population control. Both phenomena are international in the strongest and deepest senses of the word.

7. Against this theoretical background, I want to discuss is slightly more detail three different types of challenges to the IHR movement. One deals with the hard core of human rights violations, and the attempt to increase the effectiveness of their prevention by institutionalizing international mechanisms, culminating in the statute of Rome establishing the ICC. I‘ll use the Pinochet case as a paradigmatic illustration. The other relates to the problem of universality in a hard core area- that of bodily integrity. I’ll illustrate this type by the debate over women’s genital mutilation. And the third relates to the fact that states have become much more interdependent because of globalization, and to the status of SE rights in our scheme of rights. There are huge differences between the levels of affluence of different parts of the world. Globalization means that corporations move their bases to the third world countries, where they can produce their goods in conditions that would be unacceptable in the North-West. This process has far-reaching implication to the welfare of individuals in both the affluent and the less affluent parts of the world. The HR framework is invoked in all these contexts. I will argue that attending to both the similarities and the differences between the types of cases can teach us about the power and the limits of this approach. I will conclude with some short general concluding guidelines about the ways in which the IHR framework can be used most effectively.

I. Atrocities

This is the area in which the influence of WW2 is greatest. We came a very long way from 1945, when there was a debate about Nuremberg and Tokyo. Indeed, the UDHR and the move towards the enactment of conventions of human rights, with the intricate mechanisms developed to ensure international enforcement, culminating in the recent Rome decision to establish a permanent ICC did create an unprecedented body of norms and institutions. Nonetheless, the kinds of human rights violations we encountered in WW2 and sought to prevent are still happening in the world. While in WW2, the atrocities depended on the existence of a major international war, so that many of the victims were harmed by foreign powers, many of the cases of torture, even genocide, that we have now are the result of internal strife within one country, where governments and rulers harm their own citizens, or at least people who are subject to their laws (such as residents of territories that they occupy after war).

No serious voice seeks to justify atrocities. Genocide, torture and the taking of hostages are prohibited absolutely by international norms. Most of those have become offences of universal jurisdiction. Sovereignty is no longer a legal barrier against prosecution or international interference when these kinds of atrocities are concerned. Nonetheless, not only are such atrocities prevalent in our world, but their perpetrators often go without punishment. Indeed, it is rare that anyone is punished for them, in either state or international tribunals.

In some cases, the conduct complained of is described by those accused of it as not really falling under the prohibitions. The Turks deny that genocide was practiced against Armenians. The Israeli GSS deny that they use torture in interrogations, and argue that the measures they are in fact using are justified by the legitimate need to fight terrorism. In others, the significance of the conduct is controversial: some describe Israeli settlements as against the Geneva Convention and thus as a war crime. Others deny this characterization, and the implied inclusion of these settlements in the category of ‘atrocities’. There is quite an industry of revisionist history saying the Nazi genocide of Jews is a fabricated sham. In other cases, the alleged conduct is denied altogether, or individuals claim that there are wrongly held accountable.

But the most troubling of cases for human rights are those in which neither of these evasions are used. The wrongs are conceded, but nonetheless atrocities are not prevented in time, and liability is not imposed after the event. Lack of prevention is usually a matter of absence of power. Clearly, those who are murdered and tortured are often not in a position to take their murderers and torturers to task. More troubling for the IHR community is the fact that the IL community does not stop the atrocities. While the principle of sovereignty has been eroded in the sense that norms are now limiting the right of states to commit atrocities, it is often powerful enough to leave the power of governments and their secret police to harm their citizens almost unlimited. More importantly, the dynamics of power that hinder prevention of the atrocities in real time often mean that liability-imposing mechanisms will also be of limited force.

Even in the aftermath of WW2, when justice was imposed by the victorious allies, international imposition of liability was extremely limited. It was also quite controversial. The factors that had made that imposition of liability both limited and controversial have not disappeared[13]. In many cases, typical situations now are more complex than the post WW2 experience: many societies dealing with atrocities committed by their rulers against themselves need to balance the claims of justice to the many that had been wronged with the wish to establish some solid basis for a future-regarding shared existence. In many such situations, the number of those involved in the atrocities, and the number of victims, are both large. The balance thus becomes extremely painful and frustrating. More importantly, the transition from the period of atrocities to the period of “truth and reconciliation’ is often not made through war and victory, but through political processes of negotiation between the rulers who committed the atrocities and the democratic and progressive forces within their societies. The offenders do not start the negotiations out of moral conviction. They correctly read the social forces and see that their rule is not stable. But they have enough strength to dictate the terms of the transition to some extent. These terms often include some deal on amnesty.

The Pinochet case is a dramatic illustration of these complexities. The democratic government of Chile is asking the world to let it deal with the problems on its own. International HR organizations refuse. The legal tool is head-of-state immunity. I think it’s clear that the conceptual, legal and political issues are far-reaching and complex. All 4 of the Lords who wrote an opinion in the original decision made very clear their moral condemnation of the alleged deeds. More important, they all agreed that, as a matter of English and international law, Pinochet would have been completely immune while he was still head of state performing the atrocities. They were divided on the question whether England or Spain, rather then Chile, should adjudicate his responsibility now, after he has relinquished power, and despite the amnesty deal and the internal fight within Chile to hold him accountable. Whatever the decision in the HL now, the issues will continue to be with us. It should be remembered that head-of-state immunities do not apply to other officials or state organs. The original majority opinion may destabilize the (concededly problematic) present balance struck between claims of IHRs and claims of sovereignty.

The HL decision thus illustrates the tensions within this ‘branch’ of the rationale for internationalization of HRS. With its totally justified insistence on fighting impunity it seeks to avoid the intra-state mechanisms that suggests that justice may have to give way to the prudential need to move on. The international community thus not only strengthens the claim of victims for justice, it also threatens the power of governments (and communities) to decide how they must deal with past atrocities. The experience of Chile, Uruguay, Argentina and SA all

suggests that this may be a dangerous route. It may well be that the more ambiguous balance between truth and reconciliation, between acknowledgement and pardon, is the best one can achieve. IHRs activists have to choose between letting IHR discourse serves as the locus of pure normative talk, as contrasted with the political realities of states; or whether it should aim at the more ambitious role of avoiding local constraints to increase actual accountability. Doing the one without the other is very frustrating. Seeking to do the second, on the other hand, may end up weakening the clarity and the force of the first role.

II. Universality

When torture or mass-murder is concerned, no one is saying that the West or the North is trying to impose on the East or the South its values or its conceptions of human dignity. No one is claiming that it is good, for cultural reasons, that young children work 14 hours a day, even if it is often claimed that in some cultures such arrangements are inevitable. Claims of relativity and imposition are made, and some HR narratives are resented, on many other issues. Major among them are the (related ones) of the effort to privatize religion or traditional culture, and the status of women.

Again, the problems are theoretical, moral and tactical-prudential. Are there universal values, or are values immanently culture-specific? If the latter is the case, is it just that all cultures should be judged by an allegedly universalistic single set of norms? And is it not accidental that the claim of universality is made by the powerful and rich communities, seeking to create the whole world in their own image? Finally, if we agree that a certain practice indeed violates the human rights of members of a group, what kinds of mechanisms should be used to deal with such violations? What should the international reaction be? How should Western states deal with such practices when performed in their countries by immigrants enacting their old cultural ways?

The case for universality in these matters is lent strong support by the fact that individuals from within these religions and societies endorse the HR narrative. Usually, these individuals, men and women alike, see themselves as members of their groups. They do not want to westernize them. But they do think that they should change in directions suggested by the concerns underlying IHR thought. Their opponents argue that they may be sincere but that they are naive: traditions are complex webs of life, and it is impossible to take some of the strands and let go of others. These reformers may not want to westernize their culture, but the reform will inevitably do just that, and destroy the distinctness of the cultural form the others are eager to protect. It seems impossible to decide such controversies without a historical perspective. Clearly, changes are made within cultures without their disappearance. On the other hand, what appear now as slight changes may indeed start a process of assimilation and self-destruction. Equally clearly, those who raise a voice against reform may be truly concerned about the distinctness of a culture, but they may also be protecting their vested interests by excluding newcomers. On the other hand, those who fight for change may be concerned with their own liberation, without giving enough weight to the fragility of social forms. The issues have to be analyzed with sensitivity to the general circumstances and viability of the cultures under discussion. At a certain point, a value decision will have to be made about whether the persistence of a social form or a tradition is justified if it requires the kind of violations of rights of members and non-members alike.

Once we concede that groups have some rights to self-determination, conflicts between rights of groups and rights of individual members are, as I said, internal to the HR perspective. It is not as if the HR perspective requires one arrangement, and tradition or religion another. Freedom of religion, for example, is a basic HR. Sometimes, freedom of religion requires practices that seem violative of the rights of members or non-members[14]. What HR require this becomes a difficult question, prior to the question how we should balance HRs against other legitimate concerns. Or, if we see HRs conclusions as already taking these other concerns into account, so that the HR conclusion is the ‘trump’, there is a serious moral debate that should take place within the HR movement.

Finally, even if we agree that there is one HR tradition, and that this one universalistic tradition condemns a practice, we need to think about ways to promote the struggle against this practice. By definition, this is not an atrocity conceded to be unjustified by all. This is a practice that is claimed by many to be a cornerstone of their cherished way of life. This situation calls for special moral and practical sensitivity, lest the struggle against the practice be perceived as a fight against the way of life itself, or against those who bear the banner of wishing to preserve it unchanged.

All of these themes are dramatically illustrated in the ongoing debate over female genital mutilation[15]. All concede that the practice (or practices) is deeply embedded in the cultures that use them. There seems no denial that the practices are dangerous to health, and very seriously affect the enjoyment of sexual relations. The practices are usually performed in bad conditions, causing serious pain and infection. Nonetheless, within the communities in which these practices are still widely used, most women support their continuation, fearing the loss of respectability and social status that may come with not undergoing the surgery. It is also conceded that attempts to abolish the practice by legislation have failed, with the additional undesirable effects that women suffering as the result of the practices could not seek medical help, and that trends to perform the procedures by doctors in hospitals were halted.

The most difficult question is how to deal with communities in which these practices are to this day extensively followed and conformed to[16]. Feminists who belong to these communities often condemn the practices, and seek to generate social processes that will result in their voluntary abolition. At the same time, they resent what they see as the paternalism and absence of sensitivity of Western feminist groups[17]. An interesting debate has developed concerning the role of doctors and hospitals in the practice. The World Health Organization (WHO) has taken a clear position that all such involvement should be prohibited, while others recommend that this should be a way of maintaining some of the rationale of the traditional practice without many of its undesirable consequences[18].

All agree that changes in such matters must be generated from within the groups in question, and there are signs that such slow changes are indeed taking place. However, this kind of practice raises serious questions both about the substantive universality of IHR norms and about the additional efficacy of enforcement via international pressure. It should be noted that in some of these cases, the relevant states sought to prohibit the practice (EG Sudan). However, the ‘violators’ of the rights here are not the states, but the traditions of the very communities to which most individuals belong. In such situations, the ability of state laws to achieve results is notoriously weak, since individual conduct is dictated more by their social needs than by the possible protection they can gain from the laws. This may well be a case in which the limits of states do not call for more international pressure, but indicate the need to limit the involvement of international groups to the empowering and strengthening the work of local groups, at both state and civil society levels.

III. Globalization, Markets and HRs

Rights to work, decent working conditions, fair salary, fair retirement benefits system, free public education for all and guarantee of decent living quarters are rights contested within many countries, in both the developed and the undeveloped world. The problems persist irrespective of the extent to which the regime is truly democratic. More often than not, the have-nots do not organize politically to translate their electoral power (if they have some) into political gains. In this sense, the SE rights have never achieved the status of CP rights. It is unlikely that IHRs can do in this sphere what internal political pressure will not do.

States, however, especially democracies, have some built-in mechanism that contribute to that poverty is kept within tolerable bounds. Some sense of solidarity obtains in such nations, because of a combination of moral and prudential reasons. It is very difficult to found a stable democracy with very high unemployment and with a sense of exploitation. Turn of the century US is a case in point. While the US never became a European welfare state, progressive legislation imposed serious limits on unbridled capitalism.

Similar constraints do not operate between nations, especially not between the developed and the not developed parts of the world. Even more so, multinational corporations are not usually motivated by concerns with the welfare of their workers or with the robustness of the societies in which they are functioning. They may be interested in stability in guarantees of their investments, but they do not have any built-in interest in the welfare of those on whose work they depend. The possibility to separate one’s own community life and the locations of one’s commercial and industrial activities, aided by advances in transportation and in communication, has resulted in a growing number of industrial plants being moved to Asia or to other cheap labor locations. This process is complemented by cheap labor being imported, often illegally, into the developed countries. And with trends of privatization going on in many parts of the world, including the former USSR and East Germany, so that larger parts of the world are now controlled by market forces[19].

These processes are creating HRs problems of various sorts. Guest workers have a problem of status and political rights in the host countries. They make it increasingly difficult to hire local unskilled labor, since its costs are not competitive. This trend makes lower class people resent the guest workers, with the result of the growth of xenophobic and racist tendencies strengthening in the host countries. Guest workers, and especially the importation of industry to Asia does threaten the employment base of low-skill native workers in the developed world. The underclass thus grows, and increasing numbers of individuals cannot find gainful employment and risk a life of despair and poverty. The situation is not much easier in the Far East. The new industries do bring wealth and income into these parts of the world. However, the work force receives wages which are ridiculous in Western terms, and minimal in local terms. A sense of exploitation and resentment is created. The structure of international business usually requires that licenses are granted to the developers and industrialists. This could have been an opportunity for the host countries to maintain control over most of their natural resources (leasing out just a part of the use) and to regulate to some extent the way their citizens are employed and paid. More often, however, the structure creates islands of huge corruption, with a small number of individuals becoming extremely rich while the country’s resources, including its person power, are sold to foreign investors, who have no concern with the welfare of the country or its inhabitants. The consequences of these processes may be far-reaching and irreversible, threatening the quality of life of large populations. Yet the combination of norms and enforcement mechanisms that were developed within the IHR framework do not seem equal to the task.

In addition to the inherent weakness of SE rights, the problem is that the agents that pose the threats to HRs and welfare are mainly ‘private’ bodies and economic processes rather than states and their governmental activities. In fact, the internationalization of commerce and industry mean that states lose a lot of their control over their own economies. HR traditions and institutions are not used to deal with private agents and activities. Moreover, in some traditions, the right to private property, and the freedom to make contracts and pursue one’s business are themselves seen as basic human rights. Consequently, it is hard to even think how to begin tackling these problems. On the other hand, it many places it may well be that these processes pose much more serious threats to quality of life than the hard core of CP Hrs.

The picture for international work is made more complex by the immanent tension between respect for SE rights of individuals and measures