‘Can We Still Afford Human Rights?’ This was the provocative question asked by the four editors of the book Can We Still Afford Human Rights? Critical Reflections on Universality, Proliferation and Costs (Edward Elgar 2020). A question which several authors aim to answer in their contributions to the book. In the volume, 14 chapters focus on one of the three interlinked topics of universality, proliferation and costs. In this blog series, three posts relating to the book will focus on one of these topics respectively. In this first post, however, we draw from the book’s introduction to share the idea behind the project and the links between the three topics.
In the run-up to the 70th anniversary of the Universal Declaration of Human Rights (‘UDHR’) on 10 December 2018, we felt confronted with an increasing popular skepticism towards the human rights project. We asked ourselves whether human rights believers and activists are undermining the universal project launched by the UDHR by turning ever more issues into human rights issues.
Has the ever growing amount of human rights instruments, bodies and litigation become too expensive? Should alternative means to fight social injustices be considered? Is the ‘human rights backlash’ a natural reaction to the proliferation of human rights? Is the human rights project becoming something only a Western, liberal elite believes in?
The main question clearly touches on many more sub-questions, which we found to revolve around the interlinked topics of universality, proliferation and costs.
To begin answering these questions, firstly, a fresh look at the longstanding debate about the universality of human rights is required. In his book Human Rights in Thick and Thin Societies: Universality Without Uniformity(CUP 2018), Kaplan distinguishes ‘thin societies’, which are ‘highly individualistic and value choice, fairness, justice and rights’ on the one hand, and ‘thick societies’, which are ‘highly sociocentric and value order, tradition, duty, sanctity, and purity’ on the other hand . Typically, thin societies favour a (Western) universalist approach, while thick societies – or thick communities within thin societies – are more relativist. According to Kaplan, the stark difference between how both types of societies interpret human rights risks undermining the project’s ‘legitimacy and relevance as a multicultural, multinational project’. Hence, Kaplan argues for a ‘flexible yet universalist approach’ ( see also ‘relative universalism in Donnelly 2013). The approach entails a ‘return to basics’ that restores ‘the overlapping consensus’ on human rights that existed at the time the UDHR was adopted.
Kaplan’s proposed ‘return to basics’ contrasts with the proliferation of human rights, sometimes negatively phrased as rights ‘inflation’. Following the idea that ‘when everything is a human right, nothing is’ (Kaplan 2019), many have argued that rights proliferation ‘cheapens the purpose of human rights’ (Gutmann 2001; see e.g. Alston 1984, Griffin 2008, Mchangama & Verdirame 2013, Posner 2014, Clément 2018). It follows that the issue of proliferation is linked with that of universality. Rights proliferation ‘makes it far more difficult to achieve the broad intercultural assent to rights that an international human rights regime requires to be effective’ (Gutmann 2001). However, as Western universalism has ‘difficulty contemplating alternative visions of social justice that are less individualistic and more focused on religion, communities, social institutions, and duties’, ‘alternative approaches to human rights’ are largely neglected (Kaplan 2018). Moreover, rights proliferation is also linked to the issue of costs, as it makes the human rights project more expensive.
Human rights, and especially social and economic rights, are costly. As resources are finite, trade-offs need to be made. According to Clément, rights proliferation has resulted in an ‘impossible aspiration of guaranteeing all grievances that are today framed as human rights’ and ‘forces states to make impossible choices using limited resources’ (Clément 2018). The fact that not all rights can be satisfied may in turn result in frustration and skepticism about human rights law (Tasioulas 2019). The issue of trade-offs is present markedly in developing states, where the problem of scarce resources has been used to explain the curtailing of civil and political rights to foster (economic) development. This observation brings us back to the issue of universality: are human rights truly universal, if not all states are willing and able to afford (all) human rights?
The links between universality, proliferation and costs can be visualized through the figure below. Needless to say, this figure is stylized, and societies may tend towards different combinations of extremes.
The contributors to the book generally answered the question ‘Can we still afford human rights?’ by turning it around. Nick Goetschalckx, whose blogpost will follow ours, argues that the question is not whether we can still afford human rights, but ‘whether we can still afford to ask this very question’. He argues that we should emancipate human rights law from the universalism-relativism debate by mythicizing the UDHR and its legacy as a global belief system inspiring people and justice across cultures.
Consequently, Dalia Palombo’s blogpost will focus on proliferation. She perceives a tension between those who think that social injustices should be fought with other means than human rights, and those for whom human rights represent hope and a possibility for social change. She considers proliferation to be a natural consequence of the human rights story, which is ‘a circular plot of hopes and failures that slowly but firmly develops further’.
To avoid that human rights are dismissed as utopian or even deceitful, human rights advocates must address conflicts between rights. Looking at the issue of costs from a societal perspective, Felipe Gómez Isa, concluding the blog series, proposes a new social contract that recalibrates ‘the balance between the market, the state and other stakeholders that has been reversed by the current process of globalization’.
Overall, the book found that the human rights project is in need of more calculation. At the same time, for those who believe in humanity, there is no equivalent alternative. In other words, ‘we cannot afford not to afford human rights’.
Marie BOURGUIGNON & Thomas VAN POECKE, "Can we still afford human rights? Issues of universality, proliferation and costs", Leuven Blog for Public Law, 9 November 2020, https://www.leuvenpubliclaw.com/can-we-still-afford-human-rights-issues-of-universality-proliferation-and-costs (geraadpleegd op 10 May 2021)
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