Week 6: Minimalism and annan’s failures?
human rights protection inr 4075
Human Development Index
”The HDI was created to emphasize that people and their capabilities should be the ultimate criteria for assessing the development of a country, not economic growth alone.”
1.) Health Life Expectancy at Birth 2.) Education 25 years and beyond 3.) Standard of Living as measured by GNI.
“ Justificatory minimalism aims to avoid imposing unnecessary hurdles on accepting an account of human rights, by intolerantly tying its formulation to a particular ethical tradition.”
His conception of Human Rights
Ethical Traditions Explored
Place violators of international HR standards, on the international agenda
Empower domestic opposition groups
Create a transnational pressuring of groups.
Key Questions driving their work to think about:
Do Human Rights Abuses end because perpetrators are persuaded they are wrong?
Do they care because Leaders care about their international image.
Do they believe they are to be held accountable?
8 April 1938-18 August 2018
Seventh Secretary-General of the United Nations
January 1997 to December 2006
Why did Annan Fail?
Failed to implement a cease fire between Bashar al-Assad and opposing forces.
Failure of Logistics
China, Russia & Iranian Challenge
Both the West and Arab States are to blame
Or was it just Assad’s?
The Human Rights Council
The new Human Rights Council has not lived up to its Mandate
Replaced the Commission on Human Rights w/the Human Rights Council
“Recent events in the Middle East, North Africa, and elsewhere once again demonstrate that we must have a credible, balanced, and preeminent global body to expose human rights abuses and take actions to alleviate them. ”
Do we have sufficient reasons for giving up on the council?
“It is true that conducting effective diplomacy and changing political dynamics is hard, but working to find agreement with countries that have disparate worldviews has always been a difficult endeavor. ”
By tying its formulation to particular ethical traditions, how does Justificatory minimalism suppose it will avoid unnecessary obstacles?
Why do Skeptics find the New Human Rights Mandate has not lived up to its “Mandate?’
In “Why did Annan Fail,” which of the explanations (you can chose more than one), contributed most to the lack of success in negotiating cease fire?
PDFlib PLOP: PDF Linearization, Optimization, Protection
Page inserted by evaluation version www.pdflib.com – [email protected]
The Journal of Political Philosophy: Volume 12, Number 2, 2004, pp. 190–213
Symposium: Toward International Consensus
Minimalism About Human Rights:
The Most We Can Hope For?*
Joshua Cohen Philosophy & Political Science, MIT
AT THE conclusion of his book Human Rights, Michael Ignatieff says that“we could do more than we do to stop unmerited suffering and gross physical cruelty.” Efforts to halt such suffering and cruelty are, he says, the “elemental
priority of all human rights activism: to stop torture, beatings, killings, rape and
assault to improve, as best we can, the security of ordinary people.”1 Ignatieff
describes this focused concern on protecting bodily security as a minimalist outlook on human rights. And he distinguishes human rights minimalism from
more expansive statements about the content of human rights and more ambitious
agendas for their promotion—agendas that might extend both to a richer array
of civil and political rights, and to social and economic rights.
The 1948 Universal Declaration of Human Rights presents one such more
ambitious agenda. Its account of human rights extends well beyond minimalist
assurances of bodily security, to comprise rights associated with the rule of law
(Arts 6–11), political participation (Art. 21), work (Art. 23), education (Art. 26),
and culture (Art. 27). And neither of the 1966 Covenants on human rights
(which entered into force in 1976) is a minimalist charter—certainly not the
Covenant on Economic and Social Rights, but equally not the International
Covenant on Civil and Political Rights, with its provisions on self-determination
(Art. 1), rights of peaceable assembly and freedom of association (Arts 21, 22),
© Blackwell Publishing, 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 238 Main Street, Cambridge, MA 02142, USA.
*I presented earlier versions of this paper at the 50th Anniversary celebration of the MIT Center for International Studies, the Center for Ethics and the Professions at Harvard’s John F. Kennedy School of Government, Boalt Hall, the Annual Meeting of the Association of American Law Schools and as a Romanell-Phi Beta Kappa Lecture at MIT. I am grateful for comments from audiences on all these occasions, and in particular to Charles Beitz, Alyssa Bernstein, Robert Goodin, Donald Horowitz, Michael Ignatieff, Patrizia Nanz, Robert Post, Samuel Scheffler, Judith Thomson, and three anonymous reviewers for The Journal of Political Philosophy. I also wish to thank Daniel Munro for research assistance.
1Michael Ignatieff, Human Rights as Politics and as Idolatry (Princeton, N.J.: Princeton University Press, 2001), p. 173.
MINIMALISM ABOUT HUMAN RIGHTS 191
political participation (Art. 25), and equality before the law (Art. 26).2 In
response to the criticism that minimalism is simply a political strategy—and not
an especially plausible one—for defusing authoritarian objections to human
rights by reminding authoritarians that they do not have to do very much to stay
in compliance, Ignatieff denies that minimalism is simply strategic. It is, he says,
“the most we can hope for.”3
In the Critique of Pure Reason, Kant says that the three great philosophical questions are: “What can I know?”; “What should I do?”; and “What may I
hope?”. The first question expresses the interests of our reason in its theoretical
use; the second question expresses the interests of our reason in its practical use.
The third joins the interests of both theoretical and practical reason: given the
demands of morality and what we know about how the world does and might
work, what sort of world, we ask, is it reasonable to hope for, and to strive to
achieve?4 The world that the minimalist imagines—a world without torture and
with genuine assurances of bodily security for all—is no small hope, and I do
not wish here to dispute Ignatieff’s assertion about elemental priorities—about
the relative importance of rights of bodily security. But I do wish to dispute the
idea that human rights minimalism is “the most we can hope for.” Minimalism
may be more than we should ever reasonably expect. But hope is not the same
as expectation. And human rights minimalism draws the boundaries of hope too
This is a large thesis, and I do not propose to argue for it fully. Instead, I will
concentrate here on one apparently attractive route to minimalist conclusions.
The route I have in mind begins with an emphasis on the value of toleration and
an acknowledgement of ethical pluralism, and ends in human rights minimalism.
Ignatieff suggests this argument when he says that: “The universal commitments
implied by human rights can be compatible with a wide variety of ways of living
only if the universalism implied is self-consciously minimalist. Human rights can
command universal assent only as a decidedly ‘thin’ theory of what is right, a
definition of the minimal conditions for any life at all.”5 If human rights are to
apply to all, as basic demands on social and political arrangements, then it seems
desirable that they be acceptable to all: that they command “universal assent.”
And if we want them to be acceptable to all, then—in view of the wide range
of religious, philosophical, ethical, political outlooks that are now endorsed in
different societies, and that we can expect to persist into the indefinite future—
the content cannot be very demanding, perhaps no more than a statement of the
protections required “for any life at all.”
2For the Declaration and Covenants, as well as other human rights conventions and charters, see the “Annex on Documents” in Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, 2nd edn (Oxford: Oxford University Press, 2000).
3Human Rights, p. 173. 4Immanuel Kant, Critique of Pure Reason, trans. Paul Guyer and Allen Wood (Cambridge:
Cambridge University Press, 1998), A805–B833. 5Human Rights, p. 56.
192 JOSHUA COHEN
This case for human rights minimalism suggests a dilemma for more expansive
conceptions of human rights. According to the dilemma, we can be tolerant of
fundamentally different outlooks on life or we can be ambitious in our
understanding of what human rights demand, but we cannot—contrary to the
aims of many human rights activists—be both tolerant and ambitious. Just as
some people argue that deep disagreement pushes us to a minimalist conception
of democracy, with an emphasis on electoral competition, or a proceduralist view
of justice, the suggestion is that, in the case of human rights as well, disagreement
dissipates substance. I disagree with the thesis about democracy and justice, and
also want to dispute the thesis about human rights. I deny that more ambitious
projects of human rights are bound to be objectionably intolerant.
So the proposed route to minimalism begins in toleration and ends in a very
thin set of normative principles. To assess it, I need first to describe it more
precisely. And describing it will require a distinction between two views that play
a role in theoretical discussions of human rights. Both have a claim to the title
“minimalist,” but they are very different from one another in content and role.6
I will call the first view substantive minimalism, which is a position about the content of human rights and, more broadly, about norms of global justice. The central
idea of substantive minimalism is that human rights are confined to protections of
negative liberty: and, even more particularly, to ensuring against restrictions on
negative liberty that take the form of forcible intrusions on bodily security.
The second view I will call justificatory minimalism. Here, in contrast with substantive minimalism, we have a view about how to present a conception
of human rights, as an essential element of a conception of global justice for
an ethically pluralistic world—as a basic feature of what I will be referring to
as “global public reason.” Justificatory minimalism is animated by an
acknowledgement of pluralism and embrace of toleration. It aspires to present
a conception of human rights without itself connecting that conception to a
particular ethical or religious outlook; it minimizes theoretical aspirations in
the statement of the conception of human rights with the aim of presenting a
conception that is capable of winning broader public allegiance—where the
relevant public is global. The conception is presented, as Rawls suggests in his
account of overlapping consensus, as a “module,” and the case that the module
can win support from different ethical and religious traditions is a matter of
argument within those traditions, with, of course, different traditions offering
different lines of argument.7 (I will make some remarks later about how such
argument might proceed.)
In the service of a practical reason, then, the justificatory minimalist minimizes
philosophical depth. That ambition is important, but it needs to be properly
6I believe that Ignatieff uses the term “minimalism” to cover both; Human Rights, pp. 55–6. 7John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 12, 145.
My emphasis in this paragraph on how the human rights conception is presented follows Rawls’s account of the second feature of a political conception of justice. See Political Liberalism, p. 12.
MINIMALISM ABOUT HUMAN RIGHTS 193
understood: and in section II of this essay I will discuss and reject what I will
refer to as “skeptical” and “empirical” variants of justificatory minimalism, and
propose an alternative formulation which does not—contrary to the line of
thought sketched above—have substantively minimalist implications.
Of course justificatory minimalism is not the only proposed route to
substantive minimalism, with its focus on rights associated with bodily security.
Five considerations are commonly offered for resisting more demanding lists of
human rights, for example, social and economic rights, as well as a richer class
of civil and political rights:
• They threaten to overtax the resources and disperse the attention required
for monitoring and enforcing human rights;
• More expansive lists of social and economic rights cannot be fully realized
because their realization is simply too costly, and for that reason are not
genuinely speaking lists of rights; • Because rights correspond to obligations, and we cannot give determinate
content to the obligations associated with social and economic human rights
in advance of their institutionalization, there are no economic and social
• Expansive lists threaten an (undesirable) substitution of legal principles for
political judgments, of often uncompromising rights claims (“rights talk”)
for informed and more supple political deliberation and judgment; and (a
partly related point);
• Expansive lists threaten to subordinate the political self-determination of
peoples (within acceptable limits) to the decisions of outside agents, who
justify their interventions in the language of human rights.
Though I will say something about the fourth and fifth of these considerations
near the end of this essay, my principal focus here is on the thought that pluralism
and toleration, expressed in the idea of justificatory minimalism, lead us to a
substantively minimal account of human rights.
II. JUSTIFICATORY MINIMALISM
The central idea of justificatory minimalism is that a conception of human
rights should be presented autonomously: that is, independent of particular
philosophical or religious theories that might be used to explain and justify its
content. Jacques Maritain—perhaps the central figure in mid-20th century efforts
to reconcile Catholic social thought with democracy and human rights, and who
participated in discussions leading to the Universal Declaration—formulated the
idea as follows: “Yes, we agree about the rights, but on condition that no one
8For discussion of the merits of this line of argument, see Onora O’Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000), chap. 6; Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton, N.J.: Princeton University Press, 1980); Amartya Sen, “Towards a Theory of Human Rights,” unpublished.
194 JOSHUA COHEN
asks us why.” The point of developing a conception of human rights, capable of
being shared by adherents to different traditions, he said, was to create
agreement “not on the basis of common speculative ideas, but on common
practical ideas, not on the affirmation of one and the same conception of the
world, of man, and of knowledge, but on the affirmation of a single body of
beliefs for guidance on action.”9
Maritain’s point of view makes considerable sense if we think of a conception
of human rights as designed to play a certain practical role, to provide “guidance
on action,” as he puts it. The practical role, as I will understand it, is to provide
a broadly shared outlook, across national boundaries, about the standards
that political societies, in the first instance, can be held to with respect to the
treatment of individuals and groups; and correspondingly, the treatment that
individuals and groups can reasonably demand, and perhaps enlist assistance
from outside in achieving. Or if not a shared outlook, at least a broadly shared
terrain of deliberation about the standards to which political societies can
reasonably be held, and when they are appropriately subject to external criticism
or interference. An account of human rights is one element in an ideal of public reason for international society.10 Because that society comprises adherents to a wide range of distinct ethical and religious outlooks, justificatory minimalism,
with its ideal of autonomous formulation or presentation, is an intuitively
plausible desideratum. And its point is not simply to avoid a fight where none
is necessary; the point is to embrace the value of toleration.
A. HUMAN RIGHTS: CONTENT, ROLE, AND RATIONALE
To develop these points more fully, I need first to say something more about
what a conception of human rights is, and about what I have described as its
practical role. Think of such a conception, then, as having three elements.
The first is a statement of a set of rights, of the sort that we find in the
Declaration and the Covenants: there are many such statements, and substantial
disagreement about which rights belong on the list: about whether human rights
include social and economic rights, and if so which ones; but also about whether
there is a human right to democracy, and, if not, what kinds of representation
and accountability might be matters of basic human right.11
9Cited in Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001). On the background of Maritain’s views of human rights in broader efforts to rethink the fundamentals of Catholic social thought— especially the relative significance attached to notions of the human person and the common good— see John T. McGreevy, Catholicism and American Freedom: A History (New York: Norton, 2003), chap. 7.
10Rawls refers to the public reason of the “society of peoples” in The Law of Peoples (Cambridge: Harvard University Press, 1999), pp. 54–7. I do not wish here to engage the issue of whether “peoples” are the moral agents in international society. Thus the less theoretically committed term “international society.”
11On the human right to democracy see Thomas Franck, “The emerging right to democratic governance,” American Journal of International Law, 86 (1992), 46–91. Rawls rejects the right to democracy as a basic human right in favor of a weaker requirement of organized group consultation.
Such disagreement is of course the normal situation when it comes to
issues of justice: disagreement comes with the territory, and should not be taken
as a sign of a deficiency. We can assume that the disagreement is genuine—
not simply a matter of people talking past each other, as it would be if
different proposed lists of rights represented so many different ways of
assigning meaning to the term “human rights.” Nor need we interpret the
disagreement as showing that statements of human rights are simply ways of
presenting power and interest in normatively attractive garb. Instead, there may
be broad agreement about the practical role of human rights as global, public
standards, disagreement about the content of the rights suited to that role, and
a practice of argument that aims to clarify and perhaps narrow the terms of
disagreement. Thus global public reason—and the idea of human rights in
particular—provides a terrain of deliberation and argument about appropriate
norms (specifically, I will suggest below, about the requirements of treating
individuals as members), not a determinate and settled doctrine awaiting
acceptance or rejection.
Second, the role is to present a set of important standards that all political
societies are to be held accountable to in their treatment of their members: it
offers, in the language of the Declaration, “a common standard of achievement
for all peoples and all nations.”12 A statement of human rights presents, as is
commonly said, a set of limits on internal sovereignty, or—perhaps better—
presents conditions on which a state’s internal sovereignty is acknowledged.13
The idea that there are such limits on internal sovereignty is often said to be a
fundamental departure from the Westphalian conception of sovereignty that
prevailed from the mid-17th century until the end of World War II. Stephen
Krasner has suggested an alternative view. Krasner points out that the norms
of Westphalian sovereignty were persistently violated throughout the period
of Westphalian sovereignty by externally guaranteed protections of rights.
According to Krasner, the change at the end of World War II is best understood
as a shift from abridgements of sovereignty in the name of minority group rights
to abridgements in the name of individual rights, rather than a shift in the basic
conception of sovereignty itself. Krasner is certainly right to emphasize that
protections of minority rights were abridgements of conventional norms of
internal sovereignty. But more recent developments seem to have changed the
content of the regnant norms, and not simply the pattern of “organized
hypocrisy” in their abridgements.
In any case, human rights standards represent a partial statement of the
content of an ideal of global public reason, a broadly shared set of values and
norms for assessing political societies both separately and in their relations:
MINIMALISM ABOUT HUMAN RIGHTS 195
12Universal Declaration of Human Rights, in Steiner and Allston, International Human Rights in Context, p. 1376.
13See Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, N.J.: Princeton University Press, 1999). I am indebted to Thomas Christensen for discussion of the point in the text.
196 JOSHUA COHEN
a public reason that is global in reach, inasmuch as it applies to all political
societies, and global in its agent, inasmuch as it is presented as the common
reason of all peoples, who share responsibility for interpreting its principles,
and monitoring and enforcing them. The precise ways of exercising that
responsibility—who exercises it (international courts and other institutions,
regional bodies, individual states, non-governmental organizations) and with
what instruments (ranging from monitoring, to naming and shaming, to
sanctions, to force)—varies widely. Often, acting on the principles of global
public reason may consist simply in observing the implementation of its
principles by separate political societies, or perhaps in assisting in their
implementation. The more immediate responsibility for interpreting and
implementing the principles will—as the Declaration and Covenants
emphasize—typically fall to those political societies themselves, in part—though
not only—because of the value of collective self-determination affirmed in
Article 1 of the Covenant on Civil and Political Rights.14
Now it might be argued that the human rights identified by principles of global
public reason are identical in content to the basic natural rights that individuals
would have even in a pre-institutional state of nature. But—and here I follow
an illuminating discussion by Charles Beitz15—that claim about identity of
content, whatever its merits, should not be presented as issuing directly from a
conceptual identification of human rights with natural rights. These concepts are fundamentally different, as is evident from the fact that many of the rights
enumerated in the Universal Declaration and the 1966 Covenants—including
rights to a fair hearing and the right to take part in government—have
institutional presuppositions, and thus could not be rights in a pre-institutional
state of nature, assuming there are such rights. Instead, a claim about identity
of content between human rights and natural rights would need to be defended
through a substantive normative argument to the effect that the rights implied
by the most reasonable principles for global public reason—the standards
of individual treatment appropriate to use in holding political societies
accountable—are, contrary to the Declaration, the very same rights that
individuals would hold in pre-institutional circumstances. That conclusion, if
true, would be surprising. Why should reasonable norms of global responsibility,
in a world with separate political societies and substantial interactions—
economic, political, cultural—across and among those societies, have the same
content as the norms for a very different setting, in which there are no organized
14Thus Article 2 of the Covenant on Civil and Political Rights requires states to adopt the “legislative and other measures” needed to give effect to the rights; Steiner and Allston, International Human Rights in Context, p. 1382.
15Charles Beitz, “Human rights as a common concern,” American Political Science Review, 95 (2001), 269–82; “What human rights mean,” Daedalus, 132 (2003), 36–46; “Human rights and The Law of Peoples,” unpublished.
MINIMALISM ABOUT HUMAN RIGHTS 197
political societies and institutions at all?16 My point here, though, is not to
dispute the thesis that human rights are identical in content to natural rights,
but simply to characterize its status.
A third element in a conception of human rights is an account of why the
rights have the content that they have. A conception of human rights is not given
simply by a list of rights together with an account of the role of human rights,
but also by some view about why certain rights are suited to that role: why it is
appropriate to require that political societies ensure those rights. It is here that
justificatory minimalism has real bite. Given the practical role of a conception
of human rights, we need to avoid formulating the rationale for human rights
(as well as their content) by reference to a particular religious or secular moral
outlook. So we should avoid saying that, for example, human rights are
preconditions of the autonomous moral agency prized by Kantians, or for
fulfilling divinely imposed obligations, whether the preferred statement of the
obligations is found in Thomistic or Lockean natural law theory, or some
formulation of the shari’ah.
Instead, I propose that human rights norms are best thought of as norms
associated with an idea of membership or inclusion in an organized political society. The relevant notion of membership is a normative idea—it is not the
same as, for example, living in a territory—and the central feature of the
normative notion of membership is that a person’s interests are taken into
account by the political society’s basic institutions: to be treated as a member
is to have one’s interests given due consideration, both in the processes
of authoritative decision-making and in the content of those decisions.
Correspondingly, disagreements about human rights may be seen as proceeding
on a shared terrain of political argument, and can be understood—unlike
disputes about the content of natural rights—as disagreements about what is
required to ensure membership—about what consideration is due to each person
in a political society.
The importance of the notion of membership in an account of human rights
is suggested by the breadth and substance of the rights in the Universal
Declaration and the Covenants—including rights to education, work, and
cultural inclusion, as well as assembly, expression, and participation. To be sure,
some human rights (to life and to personal security, for example) are not tied
only to membership, but are more plausibly associated with demands of basic
humanity, irrespective of membership. But the guiding thought behind the more
capacious list seems to be that an acceptable political society—one that is above
reproach in its treatment of individuals—must attend to the common good of
16One might argue that human rights are the result of applying natural rights to the circumstances of an organized political society. So, for example, the right to equality before the law might be derived from a natural right to bodily security, along with some reasonable assumptions about the conditions for protecting that right in a society with a legal system. I do not find this argument compelling, but cannot pursue the reasons here.
198 JOSHUA COHEN
those who are subject to its regulations, on some reasonable conception of that
good, and ensure the goods that people in the territory and subject to political
rule need in order to take part in the political society. Human rights claims, then,
identify goods that are socially important because they are requirements of
membership. Failing to give due consideration to the good of members by
ensuring access to these goods is tantamount to treating them as outsiders,
persons whose good can simply be dismissed in making laws and policies:
no-counts, with no part to play in the political society.
One rationale for the emphasis on membership is suggested by the idea
of political obligation. Thus, on a plausible account of political obligation,
attending to the common good, on some interpretation of that good, is necessary
if the requirements that a political society imposes on people under its rule are
to have the status of genuine obligations and not mere forcible impositions. If
an account of political obligation along these lines is correct—and it certainly is
more plausible than a theory of obligation that ties political obligations to
justice—then the rights that are required if individuals are to be treated as
members would be identical to the rights that are required if the requirements
imposed by law and other regulations are to be genuine obligations.
Two final points of clarification. First, in emphasizing that acceptable
arrangements acknowledge rights as a way to acknowledge and uphold the status
of membership, I do not wish to deny that human rights protections were
particularly animated by more specific concerns about genocide, torture, and
other extreme forms of cruelty. But as the Declaration and Covenants indicate,
the concerns were not confined to those evils, but included other forms of social
exclusion, perhaps understood as both objectionable in themselves and as
opening the way to more hideous forms of treatment. Second, in associating
human rights with membership in an organized political society, I do not mean
to exclude the thought that those rights can also be understood as articulating
the conditions of membership in a more global society. But much of our lives as
“global citizens” continues to be lived within particular political societies, with
distinct institutions, even as it is substantially affected by external decisions
and practices. So if national and transnational institutions worked to ensure
reasonable conditions of membership in organized political societies, they would
thereby go some distance to ensuring the rudiments of global membership as
A conception of human rights, then, has three elements: a statement of what
the rights are; an account of the role of human rights as standards of practical
reason that can be used by a range of different agents in assessing all political
societies in their treatment of their members; and a view about why the rights
are as they are, given that role. The idea of justificatory minimalism is that each
of these elements—including the account of membership and affirmation of its
importance—should all be presented autonomously or independently, so that
they can be affirmed by a range of ethical outlooks, for the varying reasons
MINIMALISM ABOUT HUMAN RIGHTS 199
provided by the terms of those different outlooks, and then used as a basis for
further argument about and elaboration of the content of human rights.
B. JUSTIFICATORY MINIMALISM: NEITHER SKEPTICAL NOR EMPIRICAL
To appreciate the force and plausibility of this requirement of autonomous
formulation, we need to distinguish justificatory minimalism from two
positions—skeptical and empirical—with which it might be conflated.
The first position is a set of familiar nihilistic or skeptical claims about the
need for so-called anti- or post-metaphysical political theorizing. Those claims
deny the truth or reasonableness or knowability of traditional views about the
foundations of human rights in philosophical theories about …