Which Rights are Human Rights?
This section discusses the question of which rights belong on lists of human rights. Not every question of social justice or wise governance is a human rights issue. For example, a country could have too much income inequality, inadequate provision for higher education, or no national parks without violating any human rights. Deciding which norms should be counted as human rights is a matter of some difficulty. And there is continuing pressure to expand lists of human rights to include new areas. Many political movements would like to see their main concerns categorized as matters of human rights, since this would publicize, promote, and legitimate their concerns at the international level. A possible result of this is “human rights inflation,” the devaluation of human rights caused by producing too much bad human rights currency (Cranston 1973, Orend 2002, Wellman 1999, Griffin 2001b).
One way to avoid rights inflation is to follow Cranston in insisting that human rights only deal with extremely important goods, protections, and freedoms. A supplementary approach is to impose several justificatory tests for specific human rights. For example, it could be required that a proposed human right not only deal with some very important good but also respond to a common and serious threat to that good, impose burdens on the addressees that are justifiable and no larger than necessary, and be feasible in most of the world’s countries (see Nickel 2006). This approach restrains rights inflation with several tests, not just one master test.
Human rights are specific and problem-oriented (Dershowitz 2004, Donnelly 2003, Shue 1996, Talbott 2005). Historic bills of rights often begin with a list of complaints about the abuses of previous regimes or eras. Bills of rights may have preambles that speak grandly and abstractly of life, liberty, and the inherent dignity of persons, but their lists of rights contain specific norms addressed to familiar political, legal, or economic problems.
In deciding which specific rights are human rights it is possible to make either too little or too much of international documents such as the Universal Declaration and the European Convention. One makes too little of them by proceeding as if drawing up a list of important rights were a new question, never before addressed, and as if there were no practical wisdom to be found in the choices of rights that went into the historic documents. And one makes too much of them by presuming that those documents tell us everything we need to know about human rights. This approach involves a kind of fundamentalism: it holds that if a right is on the official lists of human rights that settles its status as a human right (“If it’s in the book that’s all I need to know.”) But the process of listing human rights in the United Nations and elsewhere was a political process with plenty of imperfections. There is little reason to take international diplomats as the most authoritative guides to which human rights there are. Further, even if a treaty could settle the issue of whether a certain right is a human right within international law, such a treaty cannot settle its weight. It may claim that the right is supported by weighty considerations, but it cannot make this so. If an international treaty enacted a right to visit national parks without charge as a human right, the ratification of that treaty would make free access to national parks a “human right” within international law. But it would not be able to make us believe that the right to visit national parks without charge was sufficiently important to be a real human right.
Once one takes seriously the question of whether some norms that are now counted as human rights do not merit that status (Griffin, 2001a and 2001b) and whether some norms that are not currently accepted as human rights should be upgraded, there are many possible ways to proceed. One approach that should be avoided puts a lot of weight on whether the norm in question really is, or could be, a right in a strict sense. This approach might yield arguments that human rights cannot include children’s rights since young children cannot exercise their rights by invoking, claiming, or waiving (Hart 1955, Wellman 1995). This approach begs the question of whether human rights are rights in a strict sense rather than a fairly loose one. The human rights movement and its purposes are not well served by being forced into a narrow conceptual framework. The most basic idea of the human rights movement is not that of a right, but the idea of regulating the behavior of governments through international norms. And when we look at human rights documents we find that they use a variety of normative concepts. Sometimes they speak of rights, as when the Universal Declaration says that “Everyone has the right to freedom of movement” (article 13). Sometimes these documents issue prohibitions, as when the Universal Declaration says that “No one shall be subjected to arbitrary arrest, detention, or exile” (article 9). And at other times they express general principles, as illustrated by the Universal Declaration’s claim that “All are equal before the law” (article 7).
A better way to evaluate a norm that is nominated for the status of human right is to consider whether it is compatible with the general idea of human rights that we find in international human rights documents. If the general idea of human rights suggested above is correct, it requires affirmative answers to questions such as whether this norm could have governments as its primary addressees, whether it ensures that people can have minimally good lives, whether it has high priority, and whether it can be supported by strong reasons that make plausible its universality and high priority.
Questions about which rights are human rights arise in regard to many families of human rights. Discussed below are (1) civil and political rights; (2) social rights; (3) minority and group rights; and (4) environmental rights.
3.1 Civil and Political Rights
These rights are familiar from historic bills of rights such as the French Declaration of the Rights of Man and the Citizen (1789) and the U.S. Bill of Rights (1791, with subsequent amendments). Contemporary sources include the first 21 articles of the Universal Declaration, and such treaties as the European Convention, the International Covenant on Civil and Political Rights, the