Here is Israeli artist Amir Schiby commemorating the Israeli killing of four Palestinian children playing on a beach in Gaza:
Just a few days after the event:
Universality doesn’t equal uniformity. If we insist on uniformity, then we will probably not achieve universality. We will convince more people of the desirability of human rights if we take local circumstances into consideration than if we simply copy things coming from the outside. And that’s not just a tactical surrender: we don’t need uniformity.
Regional differences are possible both at the level of the laws that protect human rights, and at the level of the ways in which these laws are applied, and all this without impairing the universality of human rights. We can frame laws in a flexible way and we can apply them in a flexible way.
Laws are necessary (although not sufficient) for the effective protection of human rights. However, it’s obviously impossible and undesirable to have the same laws in all countries, even the same basic laws. We have to translate the general, morality based language of treaties and declarations into specific and operable legal wordings, and those can differ from country to country, as well as from period to period. Effective laws and rights can’t be formulated in a globally uniform way or in a way that does not take the concrete circumstances in which they have to function into consideration. As these circumstances differ from country to country, the laws have to be different as well. Laws have to correspond to specific needs. A certain social or political context can make it necessary to focus attention on one particular right, on one particular group of rights or on one particular aspect of a right.
A “Bill of Rights” is always a “Bill of Wrongs”. Rights begin with the experience of an injustice. According to the nature of the injustices or “wrongs” in a particular society, some rights have to be especially accentuated or elaborated. Sometimes, elements of rights have to be specified in one country but not another because the problem in question is present only in one country. For example, we can imagine that in post-Soviet Russia, for example, there is a need for a right establishing the freedom to criticize the works of Marx and Engels, or a need for a particular emphasis on the right to private property of the means of economic production. In the constitutions of other countries there may be no need for such an emphasis because the things one wants to protect are never threatened.
Of course, this doesn’t mean that circumstances or “cultures” should be given priority over rights. It only means that the need for certain rights or for certain emphases can be different in different cultures or countries. Human rights have to be integrated in concrete legal systems and concrete societies, each with their own history and their own problems, but this contextuality does not imply ethical relativism or “anything goes”.
Insisting on global uniformity also means disregarding the fact that rights evolve. The body of rights as it exists now is not fixed for all times. New rights or new and wider definitions of existing rights can be established when new wrongs are identified, for example as a consequence of technological or scientific developments (think of the internet, which may require a new right to internet access). It can also happen that we need new rights because we have only now become aware of certain wrongs that have existed for ages, but have been neglected. This was the case for women’s rights, although some of those rights – such as universal suffrage – are a different emphasis rather than an innovation.
Similarly, we may one day have to eliminate rights that become superfluous. Maybe food shortages can become a thing of the past, given the right technology and political will. If so, then the right to food will sound as strange as the right to air does today (although the same future may remove the strangeness of the latter).
Not only the legal formulation of rights should allow flexibility; the same is true for the ways in which given formulations are applied by judges. In order to take into account certain specific needs, laws can be applied in a flexible or different way according to the context. Most human rights are not absolute. They can be limited when limits are required in order to protect other rights or the rights of others. Someone’s right to property, for example, can be limited if this is necessary to realize the economic rights of other people. We have a right to property but not at the expense of the rights of people who do not have enough property to survive. Rights can contradict each other or can be used or misused to harm people, and when this happens, priority has to be given to one right or another, or to the rights of one person or another. The protection of one right may require limits on other rights.
This does not contradict the claim that rights are interdependent. In many cases, rights are dependent on other rights. In other cases, rights require limits on other rights.
How do judges decide which right has priority? Normally this is the right that in the given circumstances best protects the different goals and values of rights. Take for example the conflict between the right to freedom of expression of a journalist and the right to privacy of a public figure. What value is served by the publication of the sexual habits of a politician? None, I believe, except, of course, when these habits influence his or her public role. Normally, the right to privacy should prevail in such a case. A publication describing the sexual habits of someone does not contribute to any of the values that rights are supposed to serve, such as prosperity, peace etc. On the other hand, the right to privacy of the politician obviously does contribute.
The flexibility of human rights is expressed in the way in which these rights are limited. A country with a serious problem of violence, crime or terrorism needs a strong police force. Certain rights will then have to give way to the so-called integrity rights (life, physical integrity, security etc.) and will have to give way to a larger extent than in other states. States that face a persistent and widespread problem of racism can be forced to impose more severe limits on the freedom rights of some, in order to protect the equality of others. Maybe Germany does have to be less forgiving towards neo-Nazis and their right to speech and to associate – maybe it even needs a law against them.
It’s true that circumstances can be used as an excuse to violate rights. But that’s not an argument in favor of uniformity.
More posts in this series are here.
It’s important to know what exactly is covered by a certain human right, otherwise we can’t be sure that we have a right to do what we do and we can’t properly protect others against violations of their rights. Maybe we think that a right protects a certain thing that we do but in reality this thing is outside the scope of the right. Or maybe we want to protect other people engaging in an activity but none of their rights covers this activity.
So you see the importance of the question of coverage or scope. Having a right means knowing how far this right goes. Answering this question requires an answer to at least three further questions:
Let’s try to answer these questions by way of the example of the right to free speech.
1.1. Who’s protected?
Both speakers and audiences are protected. A cursory look at the language – “a right to free speech” – would lead us to assume that only speakers are protected, but that’s wrong: the right to free speech includes the right of audiences to receive the free speech of others. The interests of both speakers and audiences are protected by the right to free speech. This is evident when one takes a closer look at the exact formulation of this right in legal texts.
One reason for this is a purely logical one: speech without an audience doesn’t make sense. Another, more substantive reason why the right to free speech also protects the interests of audiences has to do with the role this right plays in the search for truth. In a nutshell: audiences are necessary for the refinement of arguments. Read the post I just linked to for the full story.
Other groups that can legitimately claim protection of their speech are
1.2. Whose activities are restricted?
A list of protected actors only tells us a tiny bit about how far a right goes. Defining the agents or institutions whose actions are bound by the right is equally important. Traditionally, it’s assumed that the right to free speech – like all other rights – limits the power of governments. Of course it does, but it also does a lot more. If it would only restrict a government’s power to prohibit and sanction forms of speech, then the scope of the right to free speech would be rather limited because private persons would be at liberty to restrict it as they see fit. Theoretically, although not always legally, the right also restricts private individuals, companies, churches etc. None of those agents or institutions has a right to prohibit people from exercising their right to free speech.
The scope of a right depends on decisions about who is allowed to claim it and about who is bound by this claim, but it also depends on the types of actions it protects or fails to protect. In our example, we have to define “speech”. On the one hand, it can’t just be the spoken or written word since we express ourselves in ways that don’t involve speaking or writing. Audiences also want to receive information in forms different from ordinary language. For example art, data and speech acts such as flag burning should also be covered by the right to free speech.
On the other hand, not all forms of expression or information gathering should be covered, because then everything would be covered and legislation would be impossible: every act including murder can be conceived as an expressive act, and people can find information anywhere. Not all expressive acts or information gathering can or should be legally protected. Hence, one has to draw a line somewhere.
The exact location of the line, and hence the exact scope of the right to free speech, varies from case to case and depends on the impact of language and speech acts on other rights and the rights of others. For example, if hate speech violates other people’s rights (such as their freedom of residence or movement), then this form of speech falls outside the scope of freedom of speech. Mere derogatory speech on the other hand may not result in rights violations and then falls within the scope. Speech acts such as cross burning may also, depending on their impact on the rights of others, fall either within or outside the scope (cross burning during a private party is different from burning a cross in the front lawn of a lone black family living in a racist neighborhood).
Another way of putting this is that the scope of one right is determined by the scope of other rights, or that the scope of the rights of some is determined by the scope of the rights of others. Both scopes need to balanced against each other. This balancing is usually the business of judges and there’s no way to fix the outcome by way of strict rules. It all depends on a personal judgment by a judge about the harm done by including an action in the scope of a right compared to the harm done by excluding it. Hence, the scope of a right can never be completely fixed. We can never tell exactly how far a right goes.
The same logic holds for so-called place and space restrictions and fairness restrictions. A right to free speech doesn’t imply a right to free speech in any chosen space or place: not everyone as a right to publish in the New York Times or to speak in Congress; and you can’t insist that you have a right to speak in someone else’s house or private property, unless proper balancing has resulted in a judgment that in a specific case the right to private property should give way. (The latter may be the case when private restaurant and shop owners band together to discriminate black customers and when those customers stage protests). Place and space restrictions can be justified either by the necessity to respect the scope of other rights (property for instance) or by the fact that sufficient alternative speaking channels are available (the NYT isn’t the only newspaper).
Examples of fairness restrictions are the prohibition of the heckler’s veto and the fairness doctrine. In both examples, the right to free speech of some is restricted in order to guarantee the right to free speech of others (proper balancing is again required; methods of balancing are discussed here).
Obviously, the actual as opposed to the theoretical scope of the right to free speech isn’t just determined by legitimate restrictions. In real life, as opposed to ideal theory, governments and (groups of) individuals impose illegitimate restrictions. And other, more creeping restrictions such as chilling effects, psychological biases, self-censorship and political correctness, exist as well.
A final way of measuring the scope of the right to free speech is by having a look at the nature of the obligations it creates. More wide ranging obligations make for a wider scope, and limited obligations for a limited scope. And here as well we find a common misunderstanding. (A first misunderstanding was that the right only protects speakers; another was that it only limits the power of governments). It’s not true that the right to free speech only imposes a negative duty not to restrict speech. This negative duty is important but it’s also meaningless when it’s not accompanied by more positive duties. For example, a person’s speech may not be restricted by anyone and yet her lack of education, leisure time or other resources make it impossible for her to engage in meaningful speech. Hence, the government and others have certain duties to provide resources: education, internet access etc. And let’s not forget that a negative duty to refrain from speech restrictions requires a positive duty to provide mechanisms such as courts, a police force and other means to undo or prevent speech restrictions.
Similar arguments can be made for most other rights.
PS: here are some useful links that I’ve recovered from a previous post and that are relevant to the question at hand:
Wow, this really takes the shock approach to charity advertising to a whole new level:
The video shows a young black boy being treated like a pet by a wealthy white person. For instance, the boy/dog brings the newspaper to his/its “owner” and gets a treat as a reward. The message is that dogs have a better life than young blacks in South Africa, and that racism is to blame. This may be true. There’s still a lot of poverty there and things are only slowly improving. However, the video comes across as unnecessarily offensive, at least to me. I understand that it’s sometimes necessary to shock people in order to get a message across, but it’s not as if we don’t know that blacks in SA are often poor and hungry or that there’s racism in that particular country. I mean, I challenge you to think about “racist country” and come up with another country first.
After the video itself, there’s someone offering a short justification that sounds very unconvincing. “What if this advert changes a child’s life? What if it changes 3.5 million lives?” Well, I’ve got news for you: adverts don’t do that. If you want to make a difference, donate directly.
UPDATE: message received apparently. The video has now been made “private”… This way it’s “impact guaranteed”. A few screenshots that haven’t been censored:
Here’s an incomplete pirate version: