The Future of the Four Dimensions of Human Rights

Human rights can be regarded as a system of rules of general effect and a philosophical concept, and ideological justification of reforms, and even as a beautiful idea that embodies the dreams of mankind about universal justice and equality of all in dignity. These four dimensions are interrelated but have a different future. Moreover, the development and rethinking of the very notion of “human rights” perhaps will change our forecasts regarding its future.

We can make forecasts or fantasies on the issue of human rights only when there is a common understanding of what is meant by this notion. Human rights can be regarded as a system of rules of general effect and a philosophical concept, and ideological justification of reforms, and even as a beautiful idea that embodies the dreams of mankind about universal justice and equality of all in dignity. These four dimensions are interrelated but have a different future. Moreover, the development and rethinking of the very notion of “human rights” perhaps will change our forecasts regarding its future.

In order to draw the picture of the future of human rights it is necessary at first to define the terms. Even for human rights activists and professional researchers the words “human rights” may have a different content let alone the ordinary people who have little to do with the topic under consideration. They tend to treat as the human rights violations the refusal of the municipality to fix the leaking roof, and the loud music next door, and high prices at the shop across the street. ““Human rights”, -- notes Lowrens Fridman, -- is, unfortunately, a vague and slippery phrase” [1].

Human rights can be considered from different viewpoints – as a beautiful idea born by the western civilization on the wave of fascination with the ideals of liberty, equality and fraternity, and as a system of values, a sort of New Bible for a modern man, as an ideology, as a system of norms enshrined in the international treaties and national legislation. For some it is a myth, for others – a text, for another – a doctrine invented by the West and now brandished by the U.S. with a mission to justify under the mask of piety the interference of stronger states into the domestic affairs of weaker states.

Depending on the approach or an angle of view that we take we can start to draw up a picture of the future. Let us just dwell on the most general approaches.

Human rights as an ideology

Photo: Wikipedia.org
Eugène Delacroix, La liberté guidant le peuple

If we were to reason on the future of human rights as an ideology, then, after the publication in 2000 of the book by the Greek Professor of Law Costas Douzinas “The End of Human Rights: Critical Legal Thought at the turn of the Century” [2], it would be hard to say anything new. The provocative title of the book that can be interpreted ambivalently – “both as the “termination of human rights” and the “goal of human rights”, -- prepares the reader for an idea that the pessimistic and optimistic forecasts are equally possible in the theory of human rights. Recognizing that human rights have become a major component of our philosophical landscape and political environment C. Douzinas notes that while political liberalism was the progenitor of rights, its philosophy has been less successful in explaning their nature [3]. The future of human rights as an ideology depends on the way we define the goal, for which we need human rights. For Aristotle and Plato the goal of human rights was the achievement of justice, and human rights existed for the community rather than for an individual. The modern understanding of human rights, which formally dates back to 1776 (the year when the U.S. Declaration of Independence was adopted), originates from the natural law theory. This theory has put the individual in the center of human rights ideology and advanced the thesis of the priority of rights over obligations since the basic rights are natural while the obligations are conventional (coming from the Social Compact). If the authorities don’t want to play by the rules (and so, resort to the arbitrary) the human rights ideology begins to serve as a moral justification for the change of regime.

Thus, the first ideological mission of human rights is to serve as a means of resistance against tyranny by putting the limitations on the authorities. Therefore, special attention has been focused on the first generation of rights – political and civil. In order to defend against the power abuse (secular and religious) there should be the right to protest and disagree – freedom of speech, freedom of assembly, freedom of thought, freedom to profess or not to profess any religion, and freedom of association …. In order to ensure protection of these rights the procedural rights are required: personal immunity, presumption of innocence, adversarial nature of the judicial process etc.

Costas Douzinas, The End of Human Rights

What is happening to these rights today? The political rights are shrinking while the citizens themselves are giving them up as a trade-off for security that the government must provide. It should be noted though: they think that they forego their rights in exchange for personal security. The State, however, has a different interpretation: the rights are exchanged for security of the state itself – i.e. the institutions of power and control. When the population of Russia supports the restrictions on the media and Internet or persecution of NGOs under the slogan of countering the “foreign agents” it supports first of all the established system of power and governance, which perceives the control from the part of these independent institutions as a threat to itself. These institutions do not pose a threat to any particular individual, and personal security of an individual citizen is not enhanced when another alternative media or “GOLOS” association of NGOs is shut down. At the same time the prevention of torture in the law enforcement agencies or the combat against illegal detentions concerns each individual but this is poorly understood by citizens. Therefore, they support the state initiative to eliminate any NGOs, even such as the “Public Verdict” or the Committee against Torture. The U.S. faced a similar situation when after the events of September 11, 2001 the so called “PATRIOT Act” was adopted. Under this Act the specified persons’ lists were compiled giving the right to deny them the access onboard the aircraft without any explanation. The rights of citizens were significantly restricted but the benefit from the trade-off for safer flights also remained to be seen: if a person is included in the list without sufficient grounds just on the basis of a name or origin then such a security measure resembles to looking for a needle in a haystack without any certainty that this needle is or ever was in that haystack.

It can be assumed that the political and civil rights will continue to shrink at their core in the future as a result of the increasing number of limitations imposed. This tendency will continue for a rather long time in the countries of well-to-do Europe and the U.S., and in Russia. The civil society will continue its resistance but people living on welfare and allowances will vote for a bread ration and the possibility not to make any decisions simply not to bear any responsibility [4]. Accordingly, such an outcome will depend on the demographic and social structure of society: if the number of children, retired, welfare recipients, and government employees outbalance the number of entrepreneurs and employees independent from the state the political rights could be crossed out altogether. As a matter of fact if the economy based on dependency principles fails, then for some time the demand for the right to protest and the freedom of speech will surge again. However, the overall forecast is not that optimistic if only the outlined tendency is not reversed.

By the 22d century the ”erosion”, “blurring” and “fragmentation” of basic rights will represent one of the main threats to human rights as such. The main discourse will be turned on the rights of women, migrants, trade unions, children, tenants of apartment buildings, consumers, cyclists, stamp collectors, house pets and their owners, housewives and homeless. Without denying the need to take care of all these groups (albeit to a different extent) it should be noted that as soon as the world community plunges itself into the protection of specific groups instead of the rights of these groups which may be more infringed upon then for others, then the new violations of the basic and fundamental human rights will emerge on the quiet. The “erosion” of rights will extend its rhetoric to civil servants, law enforcement agencies, mothers of large families, orphans and bankers. Then, on the overall background of “immunity” of these groups the ideology of human rights will stop working for those who stand against the majority, express dissent with the authorities, criticize the economic and social decisions of the ruling elite or fight against corruption and lawlessness. As an example of such extensive interpretation one can cite the introduction of a “social group” as a subject against which the instigation to animosity and hatred has been criminalized (Article 282 of the Criminal Code of the Russian Federation); and criminal prosecution of persons charged with the instigation to discord with such “social groups” as the “Government of the Republic of Tatarstan” (the case of the journalist Irek Murtazin) or “coppers” (the case of the blogger Savva Terentiev). As an anecdotal case one can also mention the poster “Oligarch should seat in prison and not in the legislative assembly” that during the electoral campaign in one of the regions was considered to be instigating to discord with a social group of “oligarchs”.

Photo: Beccaschild.wordpress.com
In countries which to a larger extent formulate
the items and programs of the UN human rights
agenda the human right to water will be claimed
more than the right to have freedom of speech.

The second threat is the formulation of rights as living necessities, which was described in rather detail by the Polish Professor of Law Victor Osiatyński [5]. In the developed countries where the basic human rights are protected to a sufficient degree and the economic situation is stable a certain group of population develops some expectations regarding social security, that are not always associated with labor productivity or objective criteria [6]. The formulation of all social benefits in terms of human rights stimulates such expectations and even gives way to the principle of “freedom in exchange for sausage”. In this context there will be a lesser demand for the rights that are required for an individual who is capable and willing to take independent decisions. In the meantime, in the poorest countries where basic necessities such as food, fresh water and housing are scarce and the population is dying from the lack of elementary medicines and hygiene, the demand for political, environmental or cultural rights will not develop either. In these countries which to a larger extent formulate the items and programs of the UN human rights agenda the human right to water (and, by the way, it has been already included in the list of human rights) will be claimed more than the right to have freedom of speech. Following this trend the human rights will be used by the governments of the countries of Africa, Asia and Latin America as a means of achieving redistribution of resources from the richer to poor or totally destitute countries. And if the advocates of human rights do not reckon with this fact the human rights ideology in its western understanding will be doomed to failure.

Today the following issues are emerging on the agenda: how to provide humanitarian assistance precisely to the population and not to the ruling top, and how to form the demand for human rights without reverting to military interference? As long as the major corporations of the rich countries continue to plug the resources of the poorest by bribing their rulers and place their economic interests on top of humanitarian interests the human rights situation will not improve neither here nor there. The human rights ideology, beautiful and constructive in its nature, dies when it starts to be used as a cover-up for political and economic interests not related to the protection of people.

Under a pessimistic scenario of developments the barbarous plundering of resources of the third world countries by the transnational corporations will lead to even greater impoverishment and extinction of local population, spread of diseases and a growing number of refugees. This in its turn will contribute to the “splitting” of the human rights ideology into “the rights for oneself” and “the rights for others”, which ultimately will lead to the devaluation of the very idea of human rights and the emergence of a new ideology. It will ensure the building of the society not on the basis of the “social compact” and the idea of symmetrical relations between the power and people, but instead on the basis of hierarchical relations between the institutions of power/control (of major corporations, banks, political parties, government authorities, church, etc) and individual persons united in small associations. The individual rights will be replaced by the rights that can be fulfilled only in a group formed on the basis of language, ethnic origin, religion, culture, gender, profession or other identifiers. The “community standards” (a term from the U.S. Supreme Court practice of the mid-20th century) will continue to conflict with the values and understanding of freedom by an individual. Therefore, people will unite in the groups with similar value orientation (primarily having to do with religion, family, sexual preferences, language and origin). These groups will lobby their interests in order to survive and preserve the right to their way of life, which seems correct to them. The development of the UN standards follows the way of providing guaranties to separate vulnerable groups: indigenous peoples, handicapped persons, children, migrant workers etc. When (and if) the situation of these groups is equalized the new vulnerable groups will emerge since any minority is vulnerable vis-à-vis the majority. It is more difficult for an individual than for a group to lobby their interests, and this is why the groups will articulate and defend their rights.

Human rights as a system of norms

C. Douzinas has noticed an interesting detail: If in France in the 18th century the human rights were associated with the protest, revolution, barricades and insurgents, In the U.S. from the very inception they were more associated with lawyers, compliance reports, protocols and conventions – i.e. legal remedies. C. Douzinas sees one of the reasons for the sunset of human rights in this “juridization”. As soon as human rights transform from ideology into the text of regulatory acts the state is tempted to “self-appropriate” the exclusive right to protect these rights from violations of its own doing, by sending the victims of abuse to its own courts.

“On the side of practice – writes C. Douzinas – it is arguable that Home Secretaries should come from the ranks of ex-prisoners or refugees, Social Security Secretaries should have some experience of homelessness and life on the dole, and that Finance Ministers should have suffered the infamy of bankruptcy. Despite the consistent privileging of experience over theory this is unlikely to happen. Official thinking and action on human rights has been entrusted in the hands of triumphalist column writers, bored diplomats and rich international lawyers in New York and Geneva, people whose experience of human rights violations is confined to being served a bad bottle wine. In the process, human rights transformed from a discourse of rebellion and dissent into that of state legitimacy [7]”.

Photo: sydwalker.info
If in France in the 18th century the human rights
were associated with the protest, revolution,
barricades and insurgents, In the U.S. from
the very inception they were more associated
with lawyers, compliance reports, protocols
and conventions – i.e. legal remedies.

C. Douzinas has quite accurately detected the trend: the more human rights are codified in the international conventions and in the national legislation the more violations of these rights the states allow themselves. On the background of mushrooming international conventions, treaty compliance monitoring agencies, international courts, reports of international organizations, human rights commissioners and rapporteurs in multiple areas the 20th century has confronted such phenomena as genocide, summary ethnic cleansing, killings of journalists, bombardment by the U.S. and UK of Iraq (1998) and Serbia (1999) without of the UN Security Council sanction, secret NATO prisons in Eastern European countries, inhuman tortures of persons of Arab origin in Guantanamo, “extraordinary expulsion” (rendition) of foreign citizens from the U.S. airports to third countries for torturing and compelling incrimination, and other violations of fundamental rights that many modern states have been given to.

There is a risk that if this trend is continued the human rights in the 22d century will “spread out” to the texts of conventions, constitutions, acts and bylaws, government resolutions and decrees by chief executives, and will be thoroughly recorded in multi-volume binders of legal and regulatory acts, and will quietly die on the shelves or computer data bases of Law libraries.

Human rights as a system of values

We can perceive the human rights as a system of values irrespective of their historical origin and philosophical justification. The values for many people undoubtedly coincide with what the international conventions and the Russian Constitution propose them to consider as values. People as a rule value life, freedom and dignity of others and believe that to torture is inadmissible, to take others’ property is bad, and that the weak and helpless have the right to assistance and care from the strong. But it is precisely in the context of human rights interpretation as a system of values that the debate begins on the universality of human rights and cultural relativism. The systems of basic values do not coincide in different countries and cultures. Moreover, they can change with time and under the influence of external factors. The Law of course could be used as a measure of the system of values if the new authorities and the “enlightened ruler” decided to change the customs that in their view are barbarian and slowing down the economic development. However, in any case they will for a long time experience the “material resistance”. It is not necessary to recall here as examples the substitution of blood vengeance by other types of criminal punishment; the reforms of Alexey Mikhailovich Romanov or Peter I. It is enough to mention the public debates in the modern Russia on the abolition of the death penalty or on gender equality. The systems of values vary even among people who belong to the same community.

“Freedom of speech, or religion, or the right to vote, or the right to travel, are just a few of the rights people might mention if you ask them to draw up a list of basic and fundamental rights. Perhaps no two people would come up with identical list. And the typical list in, say, France might be different from the list in Finland or Japan. Moreover, the typical list today would obviously be different from the list that John Locke or Thomas Jefferson would have come up with in their day” – rightly notes L. Friedman [8].

Even if in the future they are able to reach an agreement regarding the list of rights of highest value (which itself is quite improbable) different people and even more so different societies will continue to build the hierarchy of these values, and since the human rights can conflict with each other the situation with the human rights protection will vary. Let us explain it by an example: any modern constitution where is a section dealing with human rights enshrines the right to life, but the issues of admissibility of abortions, euthanasia or the death penalty are addressed differently in that or another countries.

The biggest changes will affect precisely the list of human rights and their hierarchical order. Today’s tendencies are such that the “human rights” started to be actively “explored” in the discourse of the countries that do not belong to the Western European tradition. Moreover, the attempts are made to rethink and fit them into existing traditional concepts: political, philosophical and cultural [9]. For example the system of “Asian” values is less concerned with freedom and more so with order and discipline in the hierarchy [10]. Thus, the political and civil rights are of less value in Asia than in the West. The order and harmony instead of freedom and equality, self-sacrifice and cooperation instead of individual independence, commitment to common dogmas instead of freedom of thought – such an order of values was formulated by the Prime Minister of Singapore Lee Kuang Yew [11]. The African politicians and scholars talk about personal restraint, responsibility, respect and reciprocity [12].

Moreover, today the very content of such basic rights as property and privacy is being reconsidered. Property begins to raise doubts as a natural, universal and inalienable right (since not everyone is endowed with it at birth unlike dignity) [13], while privacy cannot be ensured because of the total use of modern means of communication – smart phones, tablets, computers, Internet, electronic data bases, online banking and other electronic services. They make it possible to track the location of a person, get an access to his medical records, or the list of books he buys, etc. Most of citizens voluntary abandon their privacy – the state has but to take advantage of what is posted in the web and contained in the data bases.

What is the bottom line for the universal values as such? All that is associated with life and bodily integrity – freedom from torture, prohibition of extrajudicial trials and executions, prohibition of cruel and physically degrading punishments. It seems also that there will be a growing demand for the procedural fairness of the trial: people may accept any verdict if it is passed in accordance with the rules and if they are applied equally to all without exception, and do not change during the game. This means that the strife for mutual responsibility of the state and individual will go on: if I am guilty and should get punished, the state should also bear responsibility for outside the law actions or violations of the rules. If the rights do exist for me, they should also exist for an official. Either the state, or its institutions, or individual officials should not play without the rules.

Human rights as a beautiful idea

Photo: Svoboda.org
The pessimistic forecasts regarding Russia
might well not work since they are based on
the tendencies existing today but do not take
into account the role that human rights
movements and individual citizens may begin
to play already tomorrow.

They say that beautiful ideas like beautiful women are often disloyal. However, both are very attractive and not so easily forgotten. Thus, even if the human rights become obsolete as an ideology and/or a system of generally binding universal norms, still at the level of an idea they will long thrill the minds and make future generations search for albeit new but equally great foundations for building a united human world that promises equality for all living in dignity and love and being valued by the society. This idea will not collect dust on one shelf with the “Utopia” of Thomas More or the “City of the Sun” of Tommaso Campanella, let alone the classical works of Marx and Lenin, since by declaring all men equal it does not try to make them identical, does not promise too much and does not take away their own “identity”. And we can be absolutely confident in the bright future for at least this dimension of human rights.

It can be noted in conclusion that the theory of human rights based on the western understanding of the value of the human person and his relationship with authorities and communities that he joins voluntarily or belongs to by birth will continue to be seriously criticized by the countries, which do not consider this view to be universal. Human rights impose serious limitations on any mechanisms of power and control, used both by national states and transnational corporations. Indeed they emerged due to the need to defend that sphere of individual life where entry is forbidden to the state or any other institution that claim control over an individual. Therefore, people will keep on trying to create and uphold “their world” but this desire will run into a conflict with the main expectations of material wellbeing placed – more and more – on the state. Accordingly, they will protect “their world” from other “alien” groups unlike their own, instead of from the state. The thesis that it is possible to achieve economic prosperity, no matter the freedoms, with an iron hand rule and order is becoming increasingly widespread. The examples of China and Singapore will be used as an argument. Even so, no account will be taken of the policies of these countries to create favorable environment for individual enterprise and such a system social support to citizens that would provide incentives to work rather than to be a freeloader.

The demand for human rights in their Western meaning will grow only if the citizens of Russia associate their wellbeing not with the state but their own contribution to the development of the society in which they live, and are prepared to assume responsibility for their acts and decisions. Today’s tendencies with regard to human rights in Russia are such that it is easier to make pessimistic forecasts. Human rights organizations and media independent from the government have been brought on the brink of survival; independent entrepreneurs (the main human rights “consumers”) have been put under pressure from the government entities and live in constant fear of criminal prosecution or “stripping off” of their business; expectations of citizens are linked with the search for employment in state corporations and government bodies (meaning total loyalty to any decisions by the authorities); social rights have been put forward as the most important issues on the agenda of the so called GONGO [14] – a simulacrum of the real “grassroots” entities of the civil society. By calling themselves “human rights” organizations they distort the meaning and the goal of human rights protection, fueling false ideas among the general public that the “real protection of human rights” is the provision of services to low income groups of population and thus continue to promote the perception of human rights as a mechanism to fulfill the unsatisfied needs. The rethinking of human rights in such a way allows the idea (but not ideology) of human rights to come to terms with the totalitarian thinking, and, instead of symmetrical “individual – authorities” relations to successfully build hierarchical and paternalistic relations on its basis.

As to other countries, the future of human rights in the global context will depend on the extent to which the countries of Europe will be able to prove to mankind the universality of the values that are essential for themselves. It is absolutely obvious that any human rights violation in the European countries or the U.S. – is a serious blow to the human rights idea and is not instrumental to its global victorious advancement. Therefore, to make the idea of the human rights universally attractive instead of human rights rhetoric we need to ensure consistency of legislation, law-enforcement practice and all government decisions of the countries, that claim to build their policy on the priority of human rights, with the goals stated in their constitutions and international instruments.

However, the pessimistic forecasts regarding Russia might well not work since they are based on the tendencies existing today but do not take into account the role that human rights movements and individual citizens may begin to play already tomorrow.

1. Friedman L.M. The Human Rights Culture: A Study in History and Context. New Orleans, Lousiana: Quid Pro Books, 2011. P. 2.

2. Douzinas C. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Oxford and Portland, England–USA: Hart Publishing, 2000.

3. Ibid. P. 3.

4. The analytical report of the Institute of Sociology of the Russian Academy of Sciences for 2011 “Twenty years of reforms as seen by Russians (experience of multi-year sociological sampling)” provides interesting facts: “The unquestionable leader among the developments in the life of the Russian society that cause concern among Russians is the crisis of the housing and utilities system and rising household costs (57%) while the restrictions on the freedom of speech in the media alarms only 4% of polls (p.78). The number of people who believe that the respect of traditions and following the regular way of life accepted by the majority increased by 7% and reached 57% in 2011 against 2001, while the people who prioritize the search for renewal and readiness to take risks were in the minority, and their number reduced from 47% to 42% (p.156). The number of respondents who believe that the state should ensure full equality of all citizens is also growing (from 32% in 2001 to 41% in 2011), while the number of people who believe that the state should ensure a certain minimum to all and those who want to get more should achieve it themselves is reducing (from 55% in 2001 to 45% in 2011). In the meantime the option of total independence of social network from the state steadily attracted only 2-3% of polls (p.162). But the most important fact is the change of Russians’ attitude to democracy – the number of people who believe that “the democratic procedures are an essential and indispensable condition for organizing a normal life in the society” dropped from 51% to 44%, and the number of those who differ with that opinion increased from 12% to 20% (p.175). The only gladdening fact is that a significant number of Russians (64% in 2011 and 61% in 2001) believe that “without freedom life makes no sense”.

5. Osiatyński W. Human Rights and Their Limits. Cambridge University Press, 2009.

6. According to the data from the abovementioned analytical report of the RAS Institute of Sociology, “an insignificant number of respondents (only 14%) are prepared to support the model of social policy whereby the state either does not interfere at all in the social life of society or provides assistance to the most disadvantaged groups of population”. It is not surprising because for 65% of population according to their own estimates it will be hard to live without the state support” (p. 159—160).

7. Douzinas C. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Oxford and Portland, England–USA: Hart Publishing, 2000. P. 7.

8. Friedman L.M. The Human Rights Culture: A Study in History and Context. New Orleans, Lousiana: Quid Pro Books, 2011. P. 3.

9. Abu-Lughog L. Do Muslim Women Really Need Saving? Anthropological Reflections on Cultural Relativism and Its Others // American Anthropologist. 2002. Vol. 104. P. 783–790; Afshari R. Essay on Islamic Cultural Relativism in the Discourse of Human Rights // Human Rights Quarterly. 1994. Vol. 16. P. 235; Ayton-Shenker D. The Challenge of Human Rights and Cultural Diversity. United Nations Department of Public Information, Geneva, 1995; Brems E. Human Rights: Universality and Diversity. Martinus Nijhoff Publishers, 2001; Brown C. Universal Human Rights: A Critique // The International Journal of Human Rights. 1997. Vol. 1. P. 41–65; Donnelly J. The Relative Universality of Human Rights // Human Rights Quarterly. 2007. Vol. 29. P. 281–306; Osiatyński W. Human Rights and Their Limits. Cambridge University Press, 2009. P. 144–187; Sabat S. Human Rights in Indian Culture: A Bird’s Eye View // International Journal of Human Rights. 2008. Vol. 12. P. 143–156; Vanegas Farid Samir Benavides. Hermeneutical Violence: Human Rights, Law, and the Constitution of a Global Identity // International Journal for the Semiotics of Law. 2004. Vol. 17. P. 391–418; Zechenter E.M. In the Name of Culture: Cultural Relativism and the Abuse of the Individual // Journal of Anthropological Research. 1997. Vol. 53. P. 319–347.

10. Osiatyński W. Human Rights and Their Limits. Cambridge University Press, 2009. P. 150.

11. Taylor Ch. Conditions of an Unforced Consensus on Human Rights // Bauer J., Bell D. (eds.) The East Asian Challenge for Human Rights. Cambridge, 1999. P. 122–144.

12. Osiatyński W. Human Rights and Their Limits. Cambridge University Press, 2009. P. 151.

13. Ferrajoli L. Fundamental Rights // International Journal for the Semiotics of Law. 2001. Vol. 14. P. 1–33; Palombella G. Arguments in Favour of a Functional Theory of Fundamental Rights // International Journal for the Semiotics of Law. 2001. Vol. 14. № 3. P. 299–326.

14. “ГОНГО” – Russian acronym for GONGO – Government Organized Non-Governmental Organization).