7.1 Introduction

Philosophers are in the midst of a debate over the most appropriate methodology for developing theories of human rights. Some defend a traditional, moral approach, deriving a theory of human rights directly from ethical theory.Footnote ¹ Other philosophers defend political conceptions of human rights, where normative claims rest on an interpretation of the functional role of human rights in modern political practices.Footnote ² The debate between these two approaches remains unresolved. In this chapter, I aim to offer novel considerations in favor of adopting a political conception, although I do not aim to completely settle this debate. I argue that political approaches offer a better way of understanding the solidarity necessary for realizing human rights. Because political conceptions of solidarity determine a concrete vehicle for pursuing human rights that solidarity is built around, they are superior to moral conceptions, which fail to do so.

While some human rights theorists have argued for the significance of solidarity for realizing human rights, few have related this issue to the debate between moral and political conceptions of human rights.Footnote ³ To bring these discussions together, I begin by distinguishing moral and political conceptions of human rights, and articulating a crucial distinction between strongly and weakly practice-dependent political views. I then explain solidarity’s role in realizing human rights and argue that any conception of human rights must theorize solidarity. Next, I outline how each approach can make sense of solidarity in light of its central methodological commitments, examining the advantages and disadvantages of each approach. Ultimately, I argue that because political conceptions refer to existent practices, they have a strong advantage over moral conceptions, which understand human rights in a practice-independent way. Moral theories do not designate the practices and institutions through which those committed to human rights should try to achieve their goals. As a result, such approaches fail to make sense of the fidelity and loyalty necessary to support joint political action meant to realize human rights. While there are further questions about what sort of political human rights solidarity is best, I conclude that political conceptions are superior to moral ones when it comes to theorizing solidarity.

7.2 Political vs. Moral Approaches to Human Rights

Before delving into political conceptions, I will outline the contrasting moral approach to human rights.Footnote ⁴ As Alan Gewirth, who takes a moral approach, puts it, “Human rights are a species of moral rights: they are moral rights which all persons equally have simply because they are human” (Gewirth Reference Gewirth1982, p. 1). Moral approaches understand the nature and justification of human rights from a substantive, philosophical perspective; the theory is formulated independently of actually existing practices. Based on abstract values, principles, norms, or ideals, moral theories of human rights define rights without drawing on the perspective of positive law or ongoing human rights discourses. Similarly, moral theories need not take the practices of activists, NGOs, and citizens into account. Carl Wellman also expresses a version of the moral approach: “Although there are those who insist that rights are by their nature institutional, I do not find their arguments convincing. I believe that one species of human rights consists of fundamental moral rights that are natural rather than artificial so that their existence and nature does not depend on any legal system or social moral code” (Wellman Reference Wellman2011, p. 3). Normative judgments about human rights can be made regardless of institutional context, on this view. As Charles Beitz explains, these approaches “regard human rights as having a character and basis that can be fully comprehended without reference to their embodiment or role in any public doctrine or practice” (Beitz Reference Beitz2009, pp. 49–50).

Despite moral conceptions’ obvious philosophical interest, their limitations have led philosophers to develop political approaches to human rights. Political approaches have played a significant role in philosophical discussions of human rights since the publication of John Rawls’s Law of Peoples.Footnote ⁵ Even worked-out moral theories of human rights will leave many questions about how to structure international legal institutions unanswered. In particular, philosophers have argued that moral theories of human rights do not specify who is obliged to protect and support human rights, or how strong those obligations are (see Beitz Reference Beitz2009, p. 65). Moreover, as Allen Buchanan has emphasized, the fact that all humans have a moral right is neither necessary nor sufficient to justify a corresponding legalized human right (see Buchanan Reference Buchanan2013, chapter 2). The prior existence of a moral right is not a necessary condition for institutionalizing a right. Many other justifications are sufficient, such as social cooperation and the protection of minority groups. In addition, just because some moral right exists – a right to be respected, for instance – we needn’t legalize it. Whatever virtues moral conceptions have on their own, such views are inadequate for answering concrete questions about structuring human rights law. This abstract approach may also fail to provide guidance when it comes to human rights that do not demand legal institutionalization, if such rights, in fact, exist.Footnote ⁶

In an attempt to answer such concrete questions, political conceptions view human rights in terms of their function within actual institutions and practices. Whereas moral conceptions are practice- and institution-independent, political conceptions are practice- and institution-dependent. They “[take] the doctrine and practice of human rights as we find them in international political life as the source materials for constructing a conception of human rights” (Beitz Reference Beitz2009, p. 102).

This methodology does not simply accept the status quo of international law, however. Rather, theorists develop standards of practical evaluation based on goals immanent to existent practices. Interpreting a practice in light of such reconstructed standards provides a critical perspective that promises to offer guidance for improvement. As Cristina Lafont puts it, “critical reconstruction that is based on an accurate understanding of [human rights practice’s] distinctive functions are likely to issue proposals for revision that aim to improve the practice’s ability to reach its own goals” (Lafont Reference Lafont2012, p. 15). Given this methodology, political conceptions aim to provide a way forward where moral approaches reach their limit. Political approaches can connect normative claims back to concrete practice, offering a way to specify rights and obligations.

The level of practice dependence in political approaches can vary, however.Footnote ⁷ Some political conceptions see particular practices as constitutive of the nature of human rights. Call such views strongly practice-dependent or constitutivist.Footnote ⁸ On such a view, there are particular institutions or practices that constitutively embody human rights. Human rights are dependent on practice, insofar as something only counts as part of the human rights project if it is achieved in the context of particular practices or institutions. In contrast, we can also define weakly practice-dependent or practice-informed views. This latter approach also develops ideals, principles, or norms of human rights by interpreting the functions of existing human rights practices and institutions. Practice-informed views do not take such practices or institutions as constitutively necessary embodiments of human rights, though. Instead, a practice-informed ideal, principle, or norm can be used to evaluate existent practices and institutions to determine whether they are fulfilling their function and, if so, how they might be improved.Footnote ⁹ Practice-informed views justify human rights with reference to particular practical-institutional contexts, but allow that human rights practices and institutions at given times may be inadequate. In this respect, they differ from strongly practice-dependent, constitutivist views, which take certain practices or institutions as necessary embodiments of human rights.

This brief explanation of the debate between moral and political approaches is not meant to explore all aspects of this ongoing controversy. Instead, I have only aimed to elucidate the motivations behind the development of political conceptions of human rights, as well as to spell out some ways they can be articulated. Theorists of the political conception aspire to develop normative theories dependent on existent practices and institutions, in contrast to the moral approach’s abstract, practice-independent view.

7.3 The Demand for Solidarity

7.4 Distinguishing Moral and Political Conceptions of Human Rights Solidarity

In particular, we can ask how the solidarity required by the political approach to human rights is different from that required by moral approaches. I will suggest that we can distinguish between understandings of solidarity that require a normative commitment that is practice-dependent versus those that have a practice-independent focus. These approaches to solidarity correspond to political and moral approaches to human rights, respectively.

In general, solidarity is not a self-standing, sui generis ideal, but is what Jan-Werner Müller calls a “normatively dependent concept” (Müller Reference Müller2007, p. 11).Footnote ²⁰ Particular conceptions of solidarity are embedded in and dependent upon other normative ideals for their substance. In this current discussion, the relevant forms of solidarity are derived from previously developed conceptions of human rights. The particular content of solidarity – meaning the commitments and obligations it entails – is filled in by the human rights theory in which it is embedded. As a result, solidarity has the flexibility to be incorporated into a multiplicity of theories of human rights. Both moral and political approaches are capable of developing such embedded understandings of solidarity, albeit in their own distinct ways.

Solidarity always has some object: a thing, group, or goal those in solidarity are committed to, around which they develop unity and obligations. Conceptions of human rights determine the object of their corresponding forms of solidarity. If a moral conception of human rights understands human rights in terms of a single value, then its corresponding view of solidarity will make that value its central object. When a political conception of human rights views some practice as a central vehicle for achieving human rights, then the practice and its aims will be the object of that conception of solidarity.

7.5 The Limitations of Political Conceptions of Human Rights Solidarity

In the following sections, I speak generally about political and moral human rights solidarity, rather than evaluating each variant of these broad categories in turn. There are broad differences in how both theories of solidarity determine their object of normative commitment, making such generalization acceptable. I will investigate potential downsides and advantages of both approaches, looking at their overall shape to see what boundaries they have when it comes to formulating understandings of solidarity.

7.6 The Limitations of Moral Conceptions of Human Rights Solidarity

In addition, we can look at moral approaches to human rights solidarity and examine their boundaries and limitations. There are questions about what moral forms of human rights solidarity, which do not hinge on existent institutions and practices, might lack or exclude. Those who adopt moral forms of human rights solidarity commit to normative ideals, values, or principles of some sort that they see as central to human rights. These abstract commitments and obligations may elicit a corresponding commitment to existent human rights practices and institutions. Whether this latter commitment emerges, as well as what form it takes, varies based on the particular moral conception one adopts.

Because moral conceptions are formulated without reference to existent practices, the way theorists construct corresponding forms of solidarity differs from political approaches. Moral conceptions of human rights solidarity can accept the kind of radical revolutionary understandings of solidarity that strongly practice-dependent political conceptions cannot incorporate. In a further dissimilarity to strongly practice-dependent views, moral conceptions of human rights solidarity cannot commit to any particular practice as constitutive of human rights. And unlike both strongly and weakly practice-dependent views, moral approaches are indeterminate about which concrete practices should serve as a vehicle for pursuing human rights.

7.7 Conclusion

When it comes to offering a conception of solidarity, then, moral approaches are limited in ways political conceptions are not. Human rights make demands of actors to develop certain forms of solidarity as part of their realization. Moral conceptions of human rights solidarity provide only an abstract object of solidarity. Although it is possible to develop secondary commitments to institutions or practices as vehicles for human rights, moral conceptions do not determine any particular vehicle. As a result, these views lack a clear picture of the solidarity necessary to underpin joint action aimed at supporting or bringing about human rights practices and institutions. Moral conceptions’ failure to support adequate fidelity to particular institutions and/or practices makes them a poor basis for joint action to further human rights. Working together to support the realization of human rights requires such shared commitments, as well as common interpretations of one’s practical context. By explicitly determining a vehicle for realizing human rights, political conceptions designate a venue for pursuing human rights. We can then ask what sort of joint action to undertake and, in the case of weakly practice-dependent views, we can ask if such joint action is possible in our practical context or whether revolutionary solidarity is necessary.

It remains to be seen if strongly practice-dependent or weakly practice-dependent political views of solidarity are superior, however. Weakly practice-dependent or practice-informed views seem to be more flexible, by virtue of allowing for revolutionary forms of solidarity. Many are skeptical of such revolutionary solidarity’s uncompromising vision. It seems utopian and reliant upon an especially difficult to achieve consensus. While more must be said to fully evaluate such solidarity, weakly practice-dependent views’ inclusion of such solidarity does not strongly favor them over strongly practice-dependent views.

Although I conclude that political conceptions of human rights solidarity are superior to moral conceptions, distinguishing between the various advantages and disadvantages of particular political conceptions requires more work. My arguments provide a reason to favor political conceptions of human rights, as well as a reason to engage in further research about human rights solidarity within this paradigm. If what I have argued is correct, the political conception’s approach to solidarity counts in its favor, while practice-independent, moral views are problematic. This conclusion does not settle the debate between these two methodologies once and for all, however. There may be reasons that ultimately favor moral conceptions of human rights over political ones, unrelated to solidarity. Moreover, there may be profitable things to learn from both approaches, depending on the particular aspect of human rights one intends to understand. I only suggest that political conceptions have an overall superior way to view solidarity – and that practice-informed versions are more flexible than constitutivist ones. This conclusion indicates that human rights theorists, in particular those sympathetic to political conceptions, must develop worked-out understandings of human rights solidarity. Formulating theories in practice-dependent terms promises insights into what commitments the pursuit of human rights demands, as well as what attitudes and affects are needed to maintain such commitments.

8.1 Introduction

The triad of terms in the subtitle may make it sound as if this chapter will be introducing quite a complex argument. Indeed, it may appear to take a lot of argumentative work to connect human rights, migrants, and political institutions. Yet, the argument presented in this chapter is not a complex one. On the contrary, it builds on a simple and broadly shared intuition that human rights are rights of all human beings, including migrants. In this chapter I set out to explore the implications of universality of human rights for conceptualizing their political role.

In the recent debate concerning the nature and function of human rights, more and more voices argue that a theory of human rights needs to account for the political role human rights play in practice. Two aspects of that role are particularly salient in these discussions. Namely, human rights not only constrain the states’ conduct but may also provide pro tanto reasons for an international intervention (Rawls Reference Rawls1999; Raz Reference Raz2007; Beitz Reference Beitz2009). By defining human rights as a necessary condition of state legitimacy, this view focuses on the human rights of those residing within states’ borders and the correlated duties of their own states. However, this view does not seem to capture well the complexity of contemporary human rights practice. For, if we take seriously universality of human rights, then their political role cannot be narrowed down to the relation between states and their citizens, but also needs to explain the relation between individuals and all political institutions (Peter Reference Peter2013). In this regard, the human rights of migrants seem to be a good litmus test.

It is ordinarily thought that individuals are morally entitled to human rights irrespective of the place they find themselves: ceteris paribus, residing out of the country of one’s nationality should not affect her human rights entitlements; but given the way states often treat migrants, often it does. Yet, if we accept that human rights are universal as well as claimable, then we need to clarify in what sense the human rights of migrants are claimable against foreign states. Considering this aspect of the claimability of human rights is important for two reasons. First, the current forcible displacement crisis shows how states too easily trade off the human rights of migrants for rights of their citizens. I call this the trade-off problem. This kind of trade-off decreases a normative significance of the human rights of migrants, which further questions universality of human rights as such. Therefore, any conception of human rights that considers them universal has to make the rights of migrants and those of citizens compossible. Second, thinking about claimability of the human rights of migrants against foreign states can also reveal a critical force of human rights, and help us evaluate existing practice accordingly.

The chapter proceeds as follows. First, I describe the approach I am taking here as a version of the moral conception. Second, I explain what kind of challenge is raised by the relation between migrants and states. I then focus on universality of human rights and show how it is reflected in their current political role. In the fourth section I undertake a threefold task. First, I introduce distinction between human rights as external reasons, i.e. common humanity, and as deliberated internal reasons, i.e. reasonable acceptability. In the subsequent two sections I show why human rights taken as external rather than as deliberated internal reasons can better address the trade-off problem. In the end, I draw implications for conceptualizing the relation between migrants and states.

8.2 Human Rights: Moral and/or Political?

Let me begin by describing a theoretical landscape and situating the approach I will take here. Human rights appear to have a dual nature. On the one hand, they are moral entitlements of all human beings possessed in virtue of common humanity. On the other hand, human rights are political in a sense that they place constraints over political institutions’ conduct. Recently, philosophers have started conceptualizing these two aspects of human rights, i.e. moral and political, in a way that makes them mutually exclusive. The moral conception holds that human rights are moral rights that individuals hold independently from the existing institutional arrangements (Simmons Reference Simmons2000; Griffin Reference Griffin2008). The political conception takes the opposite way by identifying the practice as the source of normativity of human rights. Consequently, it defines human rights in terms of the role they play in giving reasons for actions in a global political discourse (Rawls Reference Rawls1999; Raz Reference Raz2007; Beitz Reference Beitz2009). However, conceptualizing the moral and political aspects of human rights as mutually exclusive threatens to rob both conceptions of their explanatory force. The moral conception is often accused of being unable to explain a distinctive role human rights play against institutions, while the political conception is said to be incapable of explaining why we have the rights we have.

In the more recent literature on this matter, philosophers started taking the “middle ground” approach. For instance, the structural pluralist account attempts to preserve the moral nature of human rights, while accounting for its role against political institutions as the primary duty bearers (Barry and Southwood Reference Barry and Southwood2011). A similar approach is also taken by those arguing that the political and the moral conception are in fact complementary, and we need to combine them if we want to understand contemporary human rights practice (Gilabert Reference Gilabert2011). The middle ground approach is also favored by the freedom-centered view, which grounds human rights in Kantian conception of the innate right to freedom and hence defines political institutions as constitutive of human rights (Valentini Reference Valentini2012). All these approaches seem successful in reconciling the moral and political aspect of human rights. Importantly, neither is committed to the view that it is the states alone that should be considered the primary duty bearers.

However, this cannot be the whole story – the point is not only to show that human rights as moral rights are in fact consistent with political institutions as the primary duty bearers, but also to explain distinctive political implications human rights so understood may have. This is important since it can help us not only to better understand the role human rights play, but also to fully grasp their critical potential. I take on that task here. More specifically, I will defend a version of the moral conception that articulates political implications of human rights taken as moral rights, and based on this offers a normative account of the role the human rights of migrants play against foreign states. I will start making my case by describing a challenge that the human rights of migrants raise for states.

8.3 Migrants and States

Migrations are a persistent feature of the world that raises a set of contestable issues concerning the relation between states and foreigners.Footnote ¹ The current unprecedented displacement of people the world is facing reveals a need for a critical assessment of existing practices as well as a proper specification of the relation between migrants and different kinds of political institutions. The number of international migrants has reached 244 million in 2015. This figure includes almost 20 million refugees (UN International Migration Report 2015). The situation raises a need to identify what human rights migrants are entitled to and consequently, how they should be treated by the foreign states.Footnote ² For instance, should economic migrants have the same status as refugees? Are there justifiable limits to a number of refugees that a receiving country can accept? Can foreign states treat migrants however they find appropriate? The current refugee crisis shows that this indeed can be the case since rights set forth by international conventions are often set aside even by law-abiding states. In other words, the states too easily trade off the human rights of migrants for those of their citizens. I have already identified this as the trade-off problem. The trade-off problem appears whenever governments, in the name of legitimacy-related considerations owed to its citizens, downplay claims of migrants. To be sure, we can question the governments’ rhetoric that rights of citizens clash with rights of migrants, but that would be a too easy task to do. Here I take the trade-off at its face value, and consider ways in which it can be constrained. The trade-off problem raises two morally pressing questions. First, in what sense do migrants have human rights? Second, if migrants have human rights, in what sense are they claimable against foreign states? Let me emphasize that I am focusing on a generic category of migrants, meaning all those that cross international borders for whatever reason. While different categories of migrants, e.g. refugees and economic migrants, are entitled to different sets of legal rights, what they have in common is entitlement to at least minimal human rights. Since in the chapter I aim to articulate possible political implications of universal human rights, these differences in legal entitlements do not affect my argument. Even more, to focus on the way states treat refugees would only amount to criticizing states for violating international refugee law. The point I want to make here is more general, for it aims to offer a normative account of such treatment able to address any trade-off between the human rights of migrants and those of citizens, irrespective of the particular situation of these migrants.

First, if human rights are understood as weighty claims and as such “generally suspect” to trade-offs (O’Neill Reference O’Neill, Cruft and Renzo2015, p. 73), and if on the other hand, the human rights of migrants are so easily traded off, it makes one wonder if migrants have human rights at all. However, one can object here that the human rights of migrants are different from the rights of citizens and that the latter surely have priority. Indeed, legally speaking, states parties to international conventions undertake obligations to primarily protect rights of their citizens. However, while citizenship rights normally incorporate human rights, they do not exhaust it. For instance, all persons have a claim against torture whether or not they are citizens of a state concerned. Therefore, while citizens are entitled to citizenship rights, human rights, on the other hand, are universal entitlements of all human beings. To ignore this point would amount to identifying human rights with rights of citizenship, in which case one could wonder why we need a category of human rights at all.

The trade-off problem is distinctive in one more respect. Namely, the human rights of migrants are often set aside for the sake of maximizing interests of citizens. For instance, governments often invoke reasons of security or those of protecting welfare rights of their citizens to justify strict immigration policies. Leaving aside empirical controversies underpinning such rationale, what this shows is that such aggregation of the citizens’ interests easily outweighs individual claims of migrants. Yet, this goes contra broadly shared intuition that persons do not lose their human rights once they cross international borders. Therefore, if we want to show that migrants are, just as all other human beings, entitled to human rights, we need to explain in what sense these rights are claimable against foreign states.

To conceptualize the claimability of the human rights of migrants we need to start from the political nature of human rights. Namely, human rights are considered political by virtue of constraining states’ conduct. Since state institutions are “inescapable” and heavily shape individual lives, human rights impose limits on them (Valentini Reference Valentini2012a). If the coercive impact states’ institutions have over individuals residing within their borders is what explains the political nature of human rights, one can argue that the same holds for those attempting to enter. Indeed, civic boundaries are instances of force that is exercised over both members and nonmembers. This kind of coercion is inescapable for all those attempting to enter a foreign state (Abizadeh Reference Abizadeh2008). If this argument is sound, then we have to start thinking in what sense human rights of migrants can serve as evaluative criteria for states’ institutions. Is it plausible to argue that violations of the human rights of migrants can pro tanto justify intervention the same way it does in a case of the rights of citizens? If not, why not? Given that the human rights of migrants are a subset of the rights of all human beings, to answer this question we first need to examine the political implications of universal human rights.

8.4 Universality and Political Role of Human Rights

It is a broadly shared intuition that human rights are rights of all human beings. While there are disputes over their temporal dimension, the spatial one seems rather uncontroversial – that human beings in all places are entitled to human rights.Footnote ³ Universality of human rights is reflected in their current political role in three respects including the scope of institutions, the nature of political role, and the nature of justification of human rights. Let me briefly elaborate on each.

8.5 Human Rights, Legitimacy, and Justification

So far, I have argued that the fact that states too easily trade off the human rights of migrants for those of their citizens creates a problem for a broadly shared view that human rights are rights of all human beings. Therefore, any conception of human rights accepting universal entitlement to human rights has to be able to constrain such trade-offs, meaning that it has to offer an account of human rights such that it gives more weight to the human rights of migrants. This need not necessarily lead to outweighing rights of citizens, but can at least constrain a set of reasons governments can invoke to justify such trade-offs. Clearly, how much weight the human rights of migrants might have depends on the way we understand these rights. Here I will assess which of the two dominant understandings of human rights – the political conception or the moral conception can better address the trade-off problem.

8.6 Going Back to Migrants

If we accept that human rights are moral rights, what are the implications for conceptualizing the role they play against foreign states?

Let me start from the most general implication. Thinking about human rights in this way can help us explain claims of migrants against foreign states in two ways – by showing how violation of their rights by their own states gives rise to claims against foreign states, but also how migrants have claims against foreign states independent from the way they are treated by their own states. First, it can be argued that a violation of A’s right by X entitles him to a claim against Y. For instance, individuals that fall victims of a crime have a claim against police. Analogously, persons whose rights are violated by their states have claims against other states, such as refugees and asylum seekers have. A right does not cease to be a right if it is violated by a primary duty bearer.

In addition to claims generated by violations of human rights, one can argue that human rights also entail different claims against different duty bearers. I may have a claim against state B even if my state A has not violated my rights. To illustrate the point, let me use analogy. A child has a claim against its parents to a certain kind of treatment. The child’s special relation with its parents generates special rights for it. Now, imagine the child visiting its parents’ friends. The child, even though its parents are the primary duty bearers, still has a claim against its hosts to a certain treatment. Yet, it is entitled to this specific treatment not because of special rights it has against its parents, but because of its status as a human being, or more precisely – a child. Analogously, I have claims against state B irrespective of claims I may have against state A if I happen to be affected by, or for the purpose of the present discussion, have arrived at the borders of state B. In sum, while violation of human rights by their own states is sufficient to give rise to claims against foreign states, it is not necessary for migrants to have claims against foreign states irrespective of the way they are treated by their own states. I deliberately use the vague phrase “a certain kind of treatment” for it is difficult to exactly specify what that treatment in all cases entails.

Second, grounding human rights in the common humanity gives each and every migrant a claim against states on an individual basis. This means that migrants are entitled to a dignified treatment as individuals. Insisting on equal moral status of all human beings which entails equal significance of interests of each and every one of them implies that states cannot justify the trade-off between the human rights of migrants and those of citizens by appealing to maximization of interests of the latter. To be sure, this does not entail that governments cannot put more weight on interests of their citizens, but doing so has to be justified on grounds other than maximization of their interests. Furthermore, insisting on equal importance of interests requires an individualist approach. This means that foreign governments are to assess individual applications to entry on an individual case-by-case basis. An individual assessment of applications would mean taking into account particular circumstances of migrants. This can have important implications for existing policies. For instance, the burden-sharing policy currently employed to deal with the refugee crisis, where states unilaterally accept to take in a certain number of refugees, has to be constrained by individual assessments. This means that it is not only numbers that count when deciding whom to take in, but also particular circumstances of each and every applicant, such as her family links.

Furthermore, moral rights, as a normative idea, give us a useful tool not only to criticize the practice but also to question the limits of the existing legal entitlements. Namely, if we accept that human rights are moral rights, then we have a sufficiently firm stand to question justifiability of existing legal rights. For instance, we can question the present distinction between refugees and so-called economic migrants. In this regard, one can argue that the category of refugees should also be extended to all those fleeing from poverty and natural disasters. As I mentioned earlier, violation of human rights by one’s state is not necessary to give rise to her claims against foreign states.

Finally, acknowledging that the human rights of migrants indeed play a role against foreign states enriches the set of evaluative criteria we currently possess for political institutions. Thus, apart from being a condition of legitimacy in relation to citizens, one can argue that the treatment of migrants should be a part of assessing a state’s legitimacy as well. Importantly, this would give us a critical tool to assess practices of all states, no matter how democratic they might be.

8.7 Conclusion

In this chapter I have tried to articulate possible political implications of universal human rights. I have concentrated on the case of the relation between migrants and states. More specifically, I have argued that the fact that states too easily trade off the human rights of migrants for those of their citizens creates a problem for a broadly shared view that human rights are rights of all human beings. Therefore, any conception of human rights accepting universal entitlement to human rights has to be able to constrain such trade-offs, meaning that it has to offer an account of human rights such that it allows the compossibility of the human rights of migrants and those of citizens.

I have examined which of the two dominant conceptions of human rights – the political and the moral one – can offer a better account of such compossibility. In this respect, I have made two claims. First, I have argued that the political conception, by defining human rights in relation to the role they play, yields an account of human rights as the deliberated internal reasons, which does not seem able to give a proper weight to the human rights of migrants, and consequently, cannot solve the trade-off problem. Second, I have also argued that the moral conception, by grounding human rights in the common humanity, can provide more weight to the human rights of migrants and, accordingly, rule out the maximization of interests of citizens as the justification for the trade-off.

Since the trade-off problem ultimately concerns the justification of human rights, I have conducted the discussion at a very general level, leaving aside numerous intricate details concerning the relation between states and migrants. My aim has not been to offer a full account of such relations, but only to explain their nature. Therefore, I have only scratched the surface and more work needs to be done to fully explicate the political implications of human rights taken as moral rights. Such a project is worth pursuing, for it can help us remove the obstacles to the fulfillment of human rights that the present state system creates.

9.1 Introduction

The indigenous right to self-determination is often called a third-generation human right. The notion of a third generation of human rights has arisen in the last decades when certain collective rights were introduced into the human rights discourse. The status of these rights as human rights is still strongly contested as they are perceived to fall outside the traditional understanding of human rights as individual rights that serve as a protection against attacks and rights abuses by the state. This view mainly goes back to what are called naturalistic theories of human rights. Consequently, philosophers like Griffin within this tradition reject the idea that collective rights can be human rights. They argue that human rights are necessarily individual rights and that this follows from the definitional features of human rights. In contrast, political conceptions of human rights are much more flexible in incorporating such “new” rights into the official human rights body. This has led to the picture that only political conceptions of human rights can support the indigenous right to self-determination as a human right whereas naturalistic conceptions might see it as a right but not as a human right (Griffin Reference Griffin2008).

In the following, I will start by outlining how political conceptions of human rights include the indigenous right to self-determination into their theories. I will then challenge the assumption that naturalistic conceptions of human rights cannot do the same. In order to do so, I will first present four core features of naturalistic conceptions of human rights as they are identified by Charles R. Beitz and the criticism they attract from alternative, namely political, conceptions of human rights. I will then discuss the distinction into basic and derived human rights that is proposed as an answer to two of these criticisms. In a third step I will show that the indigenous right to self-determination can be interpreted as such a derived human right even though it is a collective right. I will argue that in many cases it is a necessary means to protect the right to individual self-determination as well as the social bases of self-respect and the status equality of indigenous peoples. All of these goods constitute basic interests of human beings so that these individual interests can motivate a derived human right which protects them.

9.2 Practical Implications of the Indigenous Rights to Self-Determination Being a Human Right

Whether one believes that indigenous rights are human rights or not seems largely to depend on which conception of human rights one favors: If one sticks with the more traditional naturalistic conception, collective and indigenous rights seem to have no place in the human rights discourse. Advocates of a political conception of human rights, in contrast, are much more likely to accept them as human rights. This has important implications for the practice that is informed by such background theories. According indigenous rights the status of human rights puts them on a par with other human rights. This means that in cases of rights conflicts a careful deliberation needs to take place that aims at balancing the different rights claims. This does not mean that indigenous rights will always win out over other human rights but this possibility at least needs to be considered. On the other hand, if indigenous rights are excluded from the human rights realm, they are seen as potentially weaker rights than those having human rights status. Consequently, if there is a rights conflict, they will always be trumped by the stronger human rights claims. It is worrying that the human rights discourse can be used strategically to strip indigenous rights of the protective function they are supposed to have.

There are two main conflict areas in which indigenous rights are especially important and in which human rights talk can and is used to undermine them. The first area is land and resource rights. These are both separate rights as well as rights that are contained within the right to self-determination. These rights ensure that indigenous peoples have control over the use and development of their ancestral lands regardless of the good will of the state. However, many states state that they will only honor these rights as long as they do not conflict with the pursuit of the common good or general interest of the state. For example, Section 40 of the Australian Aboriginal Land Rights Act states that, “An exploration licence shall not be granted to a person in respect of Aboriginal land (including Aboriginal land in a conservation zone) unless … the Governor-General has, by Proclamation, declared that the national interest requires that the licence be granted … ” Similar provisions that reduce indigenous land rights to simple property rights to private lands can be found in other countries’ institutions as well. In practice, this means that these rights become noneffective exactly in those situations where they are needed the most, namely when the rights of the minority clash with the interests of the majority. The argument often given to justify the suspension of indigenous rights is that access to these resources and lands is essential in order to fulfill the human rights claims of the other state citizens. The human rights cited are mostly social and economic rights as well as the right to development. Although the latter is also a third-generation human right, its status as a human right is more accepted than that of the indigenous right to self-determination, thus figuring as the higher-level right in a conflict.

In such cases, human rights are strategically invoked to stop any critical weighing of interests by implying that because one of the interests is protected by a human right this must be the more important one. In order to counter such claims it is crucial to determine how strong indigenous rights to land and resources are – either on their own or as a subset of the right to self-determination. If they are thought to be weaker than human rights, they inevitably loose out in settings where human rights rhetoric is used to back the majority’s claims. If, however, it can be shown that they can be considered human rights no matter to which theory of human rights one subscribes, this lends them considerable strength and forces the other party to engage in a weighing of the interests at stake. To resolve this issue is especially pressing if one keeps in mind that the number of these conflicts can be expected to rise in the future because the majority of today’s natural resources is on indigenous land.

A similar human rights rhetoric is used in another area of conflict between indigenous people and the state. Many indigenous communities seek full internal self-determination. Apart from land rights, self-determination also includes the right to jurisdiction over the territory in question. While many indigenous communities already enjoy jurisdictional rights on their territory, they are often carefully delineated and restricted by the state. Moreover, the members of this community are thought to be not exclusively under the jurisdiction of the indigenous community but simultaneously under that of the wider state. If laws or interpretations of rights under these two jurisdictions conflict, the state can interfere and impose its law or interpretation on the indigenous community.Footnote ¹ The justification for this restriction of indigenous self-determination is usually that the state has a responsibility to protect the civil rights and human rights of all its members, including the indigenous ones. In order to fulfill this duty, it needs the power to interfere in indigenous communities if they violate those rights of their members.

While this concern is commendable and the issue of protecting the human rights of group members against the powers exercised by a group is important, this same reasoning can be once again used to deny indigenous peoples their full rights and leave them vulnerable to outside attacks. Clashes between different human rights are not unusual and by now there is a well-established and accepted semi-hierarchy of human rights: Rights that protect the physical and psychological integrity of a person are usually taken to prevail over other rights. For example, the right to physical integrity always trumps the right to exercise one’s culture or religion. Yet, within the group of rights that are not protecting the physical and psychological integrity of a person, there is a less rigid hierarchy. Rights to access to one’s culture, freedom of religion, nondiscrimination, etc. can and must be weighed against each other in each individual case anew. By excluding the indigenous right to self-determination from the human rights list, however, such a balancing process does not need to take place if it conflicts with another human right. This enables the state to interfere even in cases in which there are minimal human rights violations or when it depends on interpretation whether a human rights violation has taken place. Making absolute human rights compliance a condition for full internal self-determination is therefore an effective way of withholding this right indefinitely.

In contrast, if the indigenous right to self-determination would be regarded as a human right itself, this could enable indigenous communities to claim full internal self-determination in the absence of grave human rights violations. This seems a much fairer course of action, especially if one keeps in mind that although no existent state has a perfect human rights record, this is not used as a justification to subordinate them to another state’s authority. Rather, the protection of human rights and the decision when and how to interfere in the internal affairs of a self-determined unit is relegated to international human rights bodies and courts. If the indigenous right to self-determination can be interpreted as a human right, a strong case can be made that they should have full internal self-determination that can only be limited by the rulings of international human rights courts and bodies, but not by the state that surrounds them. This would comply with the Human Rights Committee’s General Comments on possible restrictions on the ICCPR rights listed in art. 12, 17, and 19. The General Comment on Article 12 ICCPR, for example, reads: “Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instruments amongst those, which might achieve the desired result; and they must be proportionate to the interest to be protected [Emphasis added].”

If a state is worried about indigenous groups possibly violating some human rights of their members and wishes to protect these members, denying the whole group self-determination is neither the least intrusive nor a proportionate means to this end. Having international human rights bodies monitor and enforce human rights would be less intrusive, as it would still allow for self-determination, and also more proportionate, as it would not eradicate the exercise of one human right in favor of a (potential) violation of another one but would rather balance the protection of the whole range of human rights. Consequently, denying indigenous people full internal self-determination would be wrong if there was an alternative which would allow for both full internal self-determination and the protection of the individual human rights of the group members. Again, in order to make this argument in the first place, it is necessary to show that the indigenous right to self-determination can be counted as a human right so that the general principles on limitations of human rights apply.

Jean L. Cohen (Reference Cohen2008, p. 582) warns that the key problem of the naturalistic approach is that it pays too little attention to the fact that human rights and the human rights discourse today is a part of power politics. Thus it ignores the danger of philosophical human rights concepts being instrumentalized to serve the ones in power instead of protecting the values they are meant to protect. As the examples above show, this risk is very real. Consequently, it is of utmost importance to show that indigenous rights can be embraced both by political and naturalistic conceptions of human rights. This helps to prevent that naturalistic human rights conception are turned into a means to pervert the initial aims of human rights – that is to protect every individual’s basic interests from attacks by states and other powerful agents.

9.3 Political Conceptions of Human Rights

Political conceptions of human rights are united by the importance they assign to the function human rights have in the modern world. For what Cohen (Reference Cohen2008, p. 584) labels “empirical” political conceptions the starting point for determining the content and status of human rights is the entirety of official human rights documents and actual human rights practices in the international political and legal arena as exercised by courts, international organizations, and (quasi-)political actors such as statesmen, UN officials, and NGOs. These political conceptions determine which values human rights should protect and which tasks they should fulfill by looking at these documents and the relevant practitioners. Abstracting from what they find there, political conceptions finally draft a catalogue of human rights and construct what features they must have. This method leads to a strong practice dependence of human rights, although it does not necessarily just mirror the status quo. Beitz (Reference Beitz2009), for example, identifies human rights as those rights that are the subject of international concern and can give cause to international action if a state fails to protect those rights. Accordingly, he is critical whether women’s rights, rights to political participation, and rights against poverty are truly human rights. He doubts that the current practice could support such a claim as he does not regard them as proper subjects of international concern (Beitz Reference Beitz2009, p. 160).Footnote ²

Still, the main orientation for Beitz’s theory is the malleable real-world politics that generate the relevant human rights documents and govern the behavior of human rights practitioners. Accordingly, the human rights list itself is equally subject to change. This enables him to incorporate “new” human rights as long as these rights are part of the international human rights practice and doctrine. This also extends to indigenous rights, which are usually counted among the third generation of human rights. In fact, he explicitly acknowledges the “Rights of ‘peoples’ (conceived as collective entities) – most importantly, self-determination and communal control over ‘natural wealth and resources’” as a fifth category of human rights (Beitz Reference Beitz2009, p. 28). He thereby deviates from more conservative human rights theorists that only accept individual rights as human rights and exclude any collective rights, including the indigenous right to self-determination, from the human rights spectrum. Instead, he embraces the collective right to self-determination and a people’s right to its land and resources, which form the core rights of the UN Declaration on the Rights of Indigenous Peoples. Furthermore, he names the ILO Indigenous and Tribal Conventions (Beitz Reference Beitz2009, p. 26) among the documents constituting the international human rights doctrine and refers to the Draft Declaration on the Rights of Indigenous Peoples as a source of human rights (Beitz Reference Beitz2009, p. 29). Thus, it seems safe to say that even though Beitz does not discuss indigenous rights explicitly, they would be endorsed by his conception.

Another influential strand of political conceptions relies less exclusively on practice. This view has been defended by Joseph Raz. Raz holds that human rights theories should have two goals: “(a) to establish the essential features which contemporary human rights practice attributes to the rights it acknowledges to be human rights; and (b) to identify the moral standards which qualify anything to be so acknowledged” (Raz Reference Raz2007, p. 8). Similar to Beitz, the first part of his account is characterized by attention to actual human rights practice. Like Rawls, Raz identifies human rights as those rights that can be invoked to justify an intervention into another state, i.e. an interference into its sovereignty (Raz Reference Raz2007, p. 9). Here, he employs a wide definition of intervention in that he means it to include not only armed interventions, but also trade boycotts, condemning a country’s violation of the right and other diplomatic measures (Raz Reference Raz2007, p. 9). Contrary to Beitz, however, Raz’s second step in construing a human rights theory assumes that one must identify the moral rights that human beings possess independently from the human rights practice (Raz Reference Raz2007, pp. 10, 18). Rather than being informed by the practice, these moral rights provide a criterion for judging whether an intervention into a state’s sovereignty is justified. Human rights then are rights for which it is morally justifiable to limit a state’s sovereignty and which at the same time have this sovereignty-limiting function in practice (Raz Reference Raz2007, p. 10).

Where does that leave indigenous rights? Raz does not offer a list of human rights, so there is no sure way of knowing whether he would count the indigenous right to self-determination among them. However, he does advocate the national right to self-determination. He understands this as the right of any encompassing group to demand political self-determination, which can go as far as secession, if the members of the group deem it necessary for their self-respect and prosperity (Margalit and Raz Reference Margalit and Raz1990, p. 461). Raz and Margalit define an encompassing group as a group that possesses “a common character and culture”; marks its members with this character and culture; has a membership that is based on mutual recognition; has importance for the self-identification of its members, in whom “membership is a matter of belonging not of achievement”; and which is big enough that “mutual recognition is secured by the possession of general characteristics” (Margalit and Raz Reference Margalit and Raz1990, pp. 443–7). All of these features, save for the last one in a few cases, apply to indigenous people, which includes them into the circle of groups entitled to claim a right to self-determination. Yet, is this right a human right or a lower-level right according to Raz’s theory?

Raz holds that the right to self-determination is based on the aggregation of individual interests, namely the interests in the prosperity and self-respect of their group, which bestow it with enough importance to impose a duty to respect it (Raz Reference Raz1986, p. 187, 208). Furthermore, in an earlier text on national self-determination he imposes a duty to respect, i.e. to not hinder the group in question to exercise the right to self-determination, and even to fulfill this right, e.g. to provide aid in realizing the right, on states (Margalit and Raz Reference Margalit and Raz1990, pp. 460–1). Hence, he acknowledges that there is a moral right to collective self-determination. Now, much depends on how his criterion of limiting sovereignty is interpreted. As mentioned earlier his definition of interventions is rather broad, including also nonmilitary interventions. If understood in such a way one would need to look into the actual human rights practice concerning indigenous rights. Are there enough cases in which other states or international organizations interfered with a state’s sovereignty on behalf of indigenous rights to call them rights that can limit sovereignty? The answer, I think, is yes. Not only are failings of states addressed and publicly criticized, but human rights courts, such as the Inter-American Court of Human Rights, increasingly take up cases that pertain to violations of indigenous rights by states and issue statements, recommendations, and judicial decisions in favor of indigenous peoples (Anaya Reference Anaya2004). Additionally, the UN has formed its own Permanent Forum on Indigenous Issues, an Expert Mechanism, and has appointed a Special Rapporteur on the rights of indigenous peoples who can address specific cases of alleged violations of the rights of indigenous peoples. These demands to respect indigenous rights, to compensate indigenous groups, and to heed court rulings can be seen as limiting the states’ sovereignty with respect to their compliance with indigenous rights. Thus, all of Raz’s criteria for human rights are fulfilled and one would be justified to include indigenous rights into a human rights catalogue.

Political conceptions thus indeed seem to have no problem to recognize indigenous rights as human rights. This mostly stems from the fact that their accounts rely heavily on what rights are acknowledged as human rights in international law and practice. Since indigenous rights have become part of the regular human rights practice at least since the UN Declaration on the Rights of Indigenous Peoples in 2008 (Engle Reference Engle2011), they are easy to integrate in many political human rights conceptions.

9.4 The Four Features of Naturalistic Conceptions of Human Rights

Naturalistic conceptions of human rights predominantly view themselves as part of the modern natural law tradition which goes back to the enlightenment period. Within this tradition, philosophers identified certain natural rights which were thought to belong to humans by nature, independent of any legal decree. Today, the features of human rights that were honed during the enlightenment period and follow the natural rights tradition are still central to naturalistic theories of human rights. Beitz identifies four main features of them (Beitz Reference Beitz2009, pp. 53–8). Even though this list is not exhaustive and there are considerable variations between different naturalistic accounts, Beitz’s summary of the most common features serves as a good starting point for the discussion because most of the criticism of naturalistic human rights theories is aimed at one of these characteristics while others that are not mentioned are much less attacked.Footnote ³

Firstly, it is commonly understood that human rights are based on a certain value, feature, or interest that is thought to be specific to human beings. Examples for that are accounts that ascribe humans some inherent dignity that is expressed by the ability to be a normative agent (Griffin Reference Griffin2008) or interpret human rights as protecting the basic conditions for a good life (Nickel Reference Nickel1987; Liao Reference Liao, Cruft, Liao and Renzo2015). Human rights are then designed to protect this special human feature, value, or interest. This is also the reason why many see the concept of collective human rights so critically – after all, human rights are grounded in something distinctive of humans, which means that any other entity, including groups, does not possess the feature necessary to be a holder of human rights.

Secondly, human rights are taken to be pre-legal moral rights which exist independently from cultural conventions and legal recognition: Human rights are always valid, regardless of whether a state acknowledges them and/or whether a society has values and traditions in accordance or in conflict with them. This accounts for their potential to serve as a critique of and an external yardstick for current policies and behavioral patterns (Cruft, Liao, and Renzo Reference Cruft, Liao and Renzo2015, p. 5). In this sense they present an extralegal authority which can act as an opposing force to a country’s laws and justify citizens as well as other actors disobeying the authorities on moral grounds. On the international level it enables other states to hold their otherwise equals accountable for human rights violations and in some cases it even justifies interventions into their sovereignty. This feature accords human rights universality in scope and opposes moral relativism.

Thirdly, they are also supposed to be timeless, meaning that as long as humans have existed and will exist, they possess the human rights stemming from the initially identified core features or interests of humans.

Fourthly, human rights are thought of as pre-institutional. This is understood both as human rights existing independently from the particular institutions that ensure and protect them and as human rights being conceivable in the absence of such institutions.

These four features of human rights – being grounded in an interest or feature specific to humans, universality, timelessness, and pre-institutionality – are central to how naturalistic theories understand and see human rights.

9.5 Basic and Derived Human Rights

However, this understanding of what makes a right a human right has attracted an array of criticism from advocates of political human rights theories. For the purpose of this chapter, I will focus on the two criticisms that attack the claim that human rights are pre-institutional and timeless. Critics of naturalistic human rights conceptions such as Beitz (Reference Beitz2009) or Raz (2000) argue that human rights would not make sense as a category applied to premodern times and thus are not timeless. Furthermore, they hold that human rights are not only a response to threats that only emerge with the onset of modernity but are also dependent on the existence of certain institutions that did not exist previously. These institutions not only serve to implement and protect human rights, so the argument goes, but are also necessary to conceive of certain human rights in the first place. According to this critique, the list of human rights suddenly becomes very short if one wants to uphold all four characteristics of naturalistic theories of human rights. Beitz, for example, holds that it is not only obviously pointless to speak of certain rights in a pre-institutional setting, but also points out that even if there are institutions and a state, some human rights in the UDHR are still not conceivable unless one lives in a certain type of society (Beitz Reference Beitz2009, p. 55, 57). Instead of seeing human rights as timeless and institution-independent he proposes to understand these rights as a response to possibilities and threats that appear in and are distinct to modern states, thus taking up Shue’s notion of human rights as responses to “standard threats” (Shue Reference Shue1996).

One popular strategy to counter this criticism is to distinguish “basic” from “derived” human rights. When Beitz attacks the idea of timeless human rights, he presupposes that those who endorse that idea mean that the specific interpretations and formulations of human rights that we have nowadays are invariant. If the UDHR states that “Elementary education shall be compulsory” (UDHR art. 30), Beitz takes this to be the supposedly timeless human right that naturalistic theories speak of. However, proponents of the naturalistic conception such as Griffin dispute this interpretation of human rights. They admit that the human rights as they are worded in the UDHR are not timeless because they depend on certain institutional settings such as courts, schools, or a welfare system. Yet, they argue that the reason for this is that these rights are only derived human rights and not basic ones (Liao and Etinson Reference Liao and Etinson2012, p. 15). Basic human rights are those rights that relate directly to the feature or interest that is thought to be the very core of human rights. These rights are often rather abstract and are thought of as timeless and independent from institutions because they aim to protect something that becomes human beings no matter when or under what institutions they live. In contrast, derived human rights are neither timeless nor institution-independent. They are thought of as specifications of basic human rights that state more precisely what needs to be done at a certain time and under certain circumstances to fulfill a basic right (Griffin Reference Griffin2008, p. 50). According to naturalistic conceptions, it is often the latter form of human rights that is found in official human rights documents such as the UDHR (Liao and Etinson Reference Liao and Etinson2012, pp. 15–16). This division between basic and derived human rights allows naturalistic theories to account for the change human rights undergo and the fact that some UDHR human rights would neither have been possible to fulfill nor been conceivable in this form in former times. At the same time it justifies the assumption that there are some core human rights that are unchanging and are owed to every human being.

9.6 Collective Self-Determination and the Social Bases for Self-Respect

The second fundamental interest protected by the indigenous right to self-determination is the interest in having secure social bases of self-respect. In the following I will define self-respect as having a realistic and favorable picture of oneself based on the understanding of oneself being of equal worth as anyone else; of one’s abilities as being enough to control many parts of one’s life, but not being omnipotent; and of oneself as having certain entitlements but not having claims on everything. Such self-respect combines the descriptive psychological concept of self-esteem understood as “the positive or negative evaluations of the self, as in how we feel about it [Emphasis added]” (Smith and Mackie Reference Smith and Mackie2007, p. 107) with the more prescriptive philosophical concept of moral self-respect as “properly valuing oneself” by “affirming one’s moral rights in one’s thought, processes and behaviours” (Massey Reference Massey1983, pp. 247, 250).

The moral constraints on the sources of one’s self-esteem, that is the grounds on which one feels good about oneself, are introduced to distinguish self-respect from egotism, pride, or what psychologists would call too high self-esteem. Such phenomena describe persons with high self-esteem, i.e. someone seeing himself very favorably, but with a lack of moral self-respect. Without the guidance by moral self-respect, the sense of worth is being derived from the wrong sources, e.g. from regarding oneself as being better than everyone else or from being able to subject others to one’s will.Footnote ⁶ Self-esteem is included to explain why someone who has moral self-respect, that is, the proper understanding of everyone as equal human agents intellectually, can still feel that he is worth less and less able than other persons.Footnote ⁷ This in turn can lead to refraining from pursuing one’s goals, anxiety, depression, and other mental health problems (Mann et al. Reference Mann2004).

In contrast, someone who has the kind of self-respect described above will trust in his competence to make and pursue plans and will be confident in his own worth, while also showing respect toward others and their interests and rights. Therefore, a healthy amount of self-respect is usually perceived as crucial for leading a good life and being able to exercise one’s individual autonomy. Yet, in contrast to many other goods, self-respect cannot be provided directly. The reason for this is that self-respect is sustained from both internal and external sources, which often interact in a complex way. Internal sources of self-respect correspond closely to forms of moral self-respect. Moral self-respect is derived from conforming to moral standards (Massey Reference Massey1983; Hahn Reference Hahn2008). External sources of self-respect are mostly studied under the heading of self-esteem in psychology. Here, social acceptance and recognition influence self-esteem considerably (Leary Reference Leary1999; Kirkpatrick and Ellis Reference Kirkpatrick, Ellis, Fletcher and Clark2001).

Of course, in most cases people are not treated the same by everyone. There might be a difference in how their family, their friends, their peer group, and wider society treat them and while the actions of one group might sustain a person’s self-esteem, the actions of another might at the same time undermine it. There is no reliable way of predicting which of these sources of self-respect is the most important one for a person and how much negative influence from one source a person’s self-respect can withstand if she has alternative sources of self-respect available to her. Also, the state cannot exert influence over all of these possible sources of self-respect. However, it is true that the state can control the availability of some of the external sources of self-respect and that these often play an important role in the development and maintenance of a person’s self-respect. This is why there can be no right to self-respect as such, but it is possible to speak of a right to the social bases of self-respect, that is, a right to live in a society that does not undermine self-respect through its rules, institutions, or public culture. The state can nurture its citizens’ self-respect in two ways: by making them feel respected and treated as equals with everyone else and by giving them the opportunities needed to exercise control over their own lives and thereby feeling as competent actors.

Being respected as an equal and not treated as an inferior is very directly linked to self-respect. The respect of others conveys a feeling of respect toward one’s own self and affirms one’s status as an equal which is constitutive of one’s self-respect. Having control over one’s life, being able to pursue one’s life plans, and having a realistic chance at realizing them are essential for individuals to feel that their actions are effective and they possess the competences needed to live an autonomous life. In the following, I will discuss two interrelated mechanism through which the state can try to secure these social bases of self-respect: (1) promoting a public culture of equal and mutual respect (Rawls Reference Rawls1999, pp. 155–6) and (2) the provision of equal rights and liberties for all (Rawls Reference Rawls1999, p. 477).

9.7 Equal Rights and Freedoms

Equal rights and freedoms serve a threefold purpose. For one, they are a public statement about the assumed equality of all citizens and as such can foster the adoption of this view among citizens themselves, which is an expression of mutual respect (Rawls Reference Rawls1999, p. 156). At the same time they are not only a public statement about the equality of citizens but also a means to guarantee the actual equality of citizens by protecting them from attacks on their equal status. Thereby, each citizen’s perception of himself as having the same worth as any of his fellow citizens is supported. Finally, these rights and freedoms usually also give each citizen an equal say in political affairs which is essential for the feeling of having control over one’s own life chances and circumstances by taking part in shaping them. Additionally, the basic rights and liberties act as a safeguard from unwanted intrusions into the citizens’ lives and gives them control over important aspects of it like religion, family life, education, and so on.

This ties in with the before discussed interest in individual self-determination or control over one’s own life and explains why some minority rights might be essential in this context. With regard to minorities the guarantee of the same basic rights and freedoms might not be enough to ensure that they have the same amount of control over the political processes and the political system that shape their lives. In order to give them an effective say in public politics, they might need and want either special representation rights or (partial) collective self-determination rights. The first option is more inclusive in that it requires the majority and the minority to engage with each other and find some common ground, demanding compromises from both sides. The second option, on the other hand, gives both sides complete control over their affairs at the cost of a more or less complete separation. Which of the two arrangements is preferable in a given situation depends on various factors. One important consideration, however, should be in how far either choice would further the perceived equality and mutual respect of citizens. I will argue that in the case of indigenous people much speaks for favoring self-determination rights over special representation rights, as they are more effective in protecting actual equality as well as status equality. They thereby fulfill a function that Buchanan (Reference Buchanan2010) identifies as one of the main motivations behind human rights, namely to secure status equality.

9.8 Equality and Mutual Respect

In the following, I will mainly talk about the paradigmatic cases of indigenous peoples, that is, peoples that have been living on a territory before the arrival of colonists and settlers from overseas and that nowadays form a minority on their original homeland territory. As such the discussion will focus on the history and present-day situation of indigenous people in countries such as the United States, Canada, South America, Australia, and New Zealand. Nevertheless, most arguments also apply to the more contested cases of indigenous peoples that were never colonized by nations coming from another continent, but who were nevertheless subjected to oppression and cultural and societal marginalization by a majority culture occupying the same or the bordering territory of their homelands. The decisive feature here is the existence of historic injustice and oppression that expresses itself in a form of cultural and territorial domination and a denial of formerly possessed self-determination rights. When deciding whether self-determination rights or special representation rights should be given to indigenous people, one important factor to consider is the history between the indigenous minority and the majority that is mainly constituted of descendants of former colonists. There are a number of reasons why in such a case collective self-determination rights are not only more desirable than special representation rights but also necessary in order to provide secure social bases of self-respect. In the case of indigenous people self-determination rights play a symbolic role as well as a more instrumental role.

The instrumental role is largely identical to the role of minority protections discussed above. However, in the case of indigenous people this kind of protection might be felt to be even more important because there is distrust on the side of indigenous people that the state will respect their interests and deal with them on equal footing. Against a history of broken treaties and repeated rights violations, indigenous people have come to doubt agreements with the state. Moreover, the fact that members of indigenous people today are still worse-off than the average citizen of their countries in economic and social terms reinforces the impression that against all assertions to the opposite, the majority is not really invested or even interested in making them equals and erasing the negative effects of past wrongs (Spinner-Halev Reference Spinner-Halev2012, p. 86). Thus, one driving force behind the indigenous push for far-reaching and irrevocable self-determination rights seems to be the worry that any right short of the right to self-determination is not able to effectively protect indigenous interests or to guarantee them a fair say in decision-making.

This fear seems justified if one looks at past behavior of the majority, the situation of indigenous people today, and at the ineffectiveness of alternatives to self-determination rights in this special case. One such alternative mechanism to protect indigenous interests without granting them complete self-determination is the concept of free, prior, and informed consent (FPIC). First introduced by the ILO, the FPIC concept demands that states and companies consult indigenous people before any projects are undertaken that affect them considerably. The goal is to get the consent of indigenous people for the project in question and to work out ways in which the negative effects can be minimized. Note that it is only necessary to seek, not to actually get, consent before conducting such a project (ILO 169). The withholding of consent does not function as a veto power, thereby it considerably lessens the possibility for indigenous people to influence the outcome.

Besides, even though FPIC could still be a powerful tool, in practice it is not a protection against domination. There is a plethora of problems associated with the concept of FPIC.Footnote ⁸ For example, there exist no criteria for the question of who can act as a legitimate representative for the community in question. In the past this has been utilized to only conduct consultations with a group that is sympathetic to the project but that does not represent the whole or even the majority of the indigenous group. Nevertheless, their consent was taken as sufficient while dissenters are silenced by not being given access to the official deliberations and by ignoring their protests. Another problem is the lack of a neutral outside authority to guarantee that the information given is sufficient and accurate. This has led to a plethora of court cases in which indigenous peoples sued because they were misinformed or information was withheld from them.Footnote ⁹ Yet, even if successful before court, in most cases an irrevocable damage is already done, leaving indigenous people once again in a situation to which they neither consented nor from which they benefit. It leaves them feeling powerless and vulnerable to the whims of the powerful or the majority, cementing their unequal position within the state.

In contrast to FPIC, the right to self-determination is a long-standing principle of international law which is well defined and internationally protected. Thus, it is much clearer what the right in question entails and violations of it are easier to identify and less contested. Furthermore, once self-determination rights are granted, these rights are more difficult to revoke or restrict in the absence of compelling arguments – a simple majority vote is not enough to withdraw self-determination competencies from a minority. Hence, in the light of founded distrust in the state’s willingness and ability to respect their rights, the right to self-determination offers a more secure protection for indigenous people than other rights designed to protect their interests. Granting indigenous groups self-determination ensures that they effectively possess the same rights as everyone else, thereby protecting their equal status.

There is also a symbolic aspect of self-determination rights and the refusal to grant them. They stand for the historic injustices that the colonists inflicted on indigenous people and that were never repaired. Before the arrival of colonists and settlers, indigenous communities were self-governing units enjoying ownership of the lands that they traditionally lived on and that formed the bases not only of their livelihood but also of traditions, rituals, and beliefs that were closely connected to the land. During the years of initial colonialization both were taken away from indigenous peoples: They lost the majority of their lands as well as their status of self-governing people. Instead their living space got confined to small pockets of “reserve” land and they were incorporated into a state founded and formed by the settlers and subjected to rules and a system that was not only foreign to them but to which they never consented. Treaties that were supposed to govern the mutual relations and preserve at least some of the self-governing rights of indigenous communities were broken and the new state soon treated them as just another minority living on its territory. Against this background it becomes understandable why indigenous people attach such great importance to land and self-determination rights. These two things are exactly what was wrongfully taken from them in the past and what was never restored, although the wrongfulness of these acts has been officially acknowledged by now. In this sense, the denial of self-determination rights stands for a historic injustice that endures until this day.

Although the current state does admit that it was wrong to rob indigenous people of their land, they only hesitantly and minimally restore it. This reluctance of repairing wrongful acquisitions of territory and powers is even more pronounced with regard to self-determination rights. For example, Canada, the United States, Australia, and New Zealand did not sign the UN Declaration on the Rights of Indigenous People at first. They complained that this would give too much power to wide-ranging land and resource claims by their respective indigenous groups and would undermine state sovereignty with regard to provisions concerning indigenous self-determination rights.Footnote ¹⁰ Especially this last statement weakens these states’ credibility as being committed to right past wrongs. It fails to acknowledge that the state sovereignty they seek to protect does not extend over indigenous people in the first place.

Will Kymlicka (Reference Kymlicka and Etinson2015) draws attention to the fact that mass settlement that turns the original inhabitants of a territory into a minority and denies this minority self-determination rights is a form of imperial occupation. He holds that mass settlement is comparable to the annexation of a territory in the strategy employed by the foreign power and its effects on the thus created minority. The strategy employed is to change the “‘facts on the ground’ in ways that are potentially fatal to aspirations for self-determination (and indeed in ways that are intended to be fatal to these aspirations)” (Kymlicka Reference Kymlicka and Etinson2015). In contrast to colonial rule or apartheid-like systems, citizenship and voting rights are not withheld from the other group but they are forced to exercise them within and under the jurisdiction of a state different from their own. The effect is that the existence of other collective selves with self-determination claims is concealed as everyone appears to be a free and equal citizen of the state. At the same time, the supposedly free and equal members of the minority are hindered in exercising a right that the majority unquestioningly claims for itself: the right to collective self-determination. This purports a view of this minority that regards their members as anything but equal with the majority as it rests “on the assertion that the hegemonic society is fit to rule while denying the same to native peoples” (Kymlicka Reference Kymlicka and Etinson2015).

This view can be found even more explicitly in early court rulings such as US v. Nice, which confirmed that even if Indians become US citizens, they still remain under the guardianship of the state which therefore can limit their citizen rights. The ruling on US v. Nice declares that “When Indians are prepared to exercise the privileges and bear the burdens of one sui juris, tribal relations may be dissolved and the national guardianship ended, but the time and manner of ending the guardianship rests with Congress [Emphasis added]” and reinstates that “Citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians, or placing them beyond the reach of congressional regulations adopted for their protection [Emphasis added].” It also cites US v. Kagama stating plainly that, “These Indian tribes are the wards of the nation. They are communities dependent on the United States … From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and, with it, the power.” These rulings explicitly ground the state’s right to interference in an assumed “weakness and helplessness” of Indians and asserts their inferior status in being wards that need guidance from a guardian state. They openly purport the view that Indians are less capable than the average American to lead their lives without a paternalizing state, thereby assigning them an inferior status and less rights and freedoms than the rest of the citizens. These rulings still form the legal basis for state interference into indigenous affairs. During decolonization “the goal was to counter the view that whole peoples where inferior in ways that disqualified them from self-government” (Buchanan Reference Buchanan2010, p. 686) by granting these nations independence and their citizens the full range of political rights. At the same time, Indians in the United States are still held in a position that legally affirms this colonial view of them as inferior and incapable of self-government.

Cara Nine (Reference Nine2008) also gives a powerful argument for the view that “changing the facts on the ground,” that is turning indigenous people into a minority on that territory, does not lead to a supersession of all their claims as Waldron (Reference Waldron1992) would suggest. She agrees with Waldron that the descendants of settlers did not themselves rob the indigenous population of their land and that they indeed do not have anywhere else to go. Therefore, she accedes, it would be wrongful to expel them from the country. Yet, she points out, the right to stay does not imply the right to impose one’s jurisdiction on the original inhabitants; they retain this right even if they should become a minority on their own lands. Of course, this does not preclude that the two groups voluntarily merge at some point and share territorial sovereignty – but if one of the groups insists on preserving their own territorial sovereignty, that is their self-determination, the other one is in no position to force them to merge. Thus, an argument as Waldron’s that sees historic injustices and claims as superseded when the circumstances change, becomes hypocritical if the change of circumstances was willfully brought about by the initial perpetrators exactly to the end of invalidating the claims of the wronged. Nine concludes that “the descendants of colonists have a duty of reparative justice to return territorial sovereignty to the original inhabitants of the land” (Nine Reference Nine2008, p. 80).

If Nine and Kymlicka are right – and I suggest they are – the continued denial of self-determination rights treats indigenous people as less than equal in two essential ways: They are seen as less capable than the majority to govern themselves, instead needing the “guidance” of others, and they are regarded as having less rights than the members of the majority when it comes to receiving redress for injustices and having their interest in self-determination satisfied. This last aspect also expresses a lack of concern for their interests that reflects an underlying assumption of them having less worth as persons.

To sum up: Assuming that the current state’s sovereignty extends over indigenous people equals a denial that this state forcefully incorporated formerly self-governing units into its own system and unjustly imposed its rule on them. If, on the opposite, the state does admit that it violated the indigenous groups’ right to self-determination, but fails to recognize that in order to repair this injustice this right needs to be restored, its apologies and assurances to treat indigenous people justly and as equals lose credibility. This stand on the issue of self-determination not only signals to indigenous people that they are still seen as inferior to the majority. It also means that they continue to be subjected to illegitimate state powers over them, thus feeding the distrust in the state being willing to honor rights that are designed to empower indigenous people against the majority’s will. The state fails to publicly affirm what Buchanan (Reference Buchanan2010) calls status equality of all people and which has a distinctly social-comparative aspect. Buchanan (Reference Buchanan2010, p. 684) stresses that human rights aim for status equality, which is compatible with a certain level of material inequality but does not tolerate any differences in the public treatment of groups and their members that imply inferior status. Accordingly, given the specific historical situation of indigenous people, the withholding of self-determination rights can at the same time function as a denial of their equal status. It thereby also constitutes a serious attack on their social bases of self-respect as they are being denied the acceptance and recognition they are due.

9.9 Indigenous Self-Determination as a Derived Human Right

Indigenous self-determination might be necessary to ensure individual self-determination and social bases of self-respect, but does this make the indigenous right to self-determination a human right?

I have argued that in some instances collective self-determination is crucial to create the conditions necessary for self-respect, to secure individual self-determination through collective self-determination, and to give the group members a secure sense of status equality. Furthermore, if these goods are essential to human well-being and of high interest to human beings, there is good reason to speak of rights protecting these goods as human rights. Rawls (Reference Rawls1999) argues convincingly for the idea that the social bases of self-respect are an important basic, or primary, good for humans because self-respect is a precondition to make use of all the other rights and freedoms persons have. Even without its relevance for the enjoyment of other rights, self-respect seems a likely candidate for the inclusion into the list of goods that make a human life (minimally) good. It is an important part of the psychological well-being of humans and the protection of its sources deserves the importance that comes with being a human right. Individual self-determination is a crucial component of normative agency, which Griffin (Reference Griffin2008) regards as the core value protected by human rights, but it can also be regarded as an interest humans have independent of their appreciation of normative agency. Every person has certain interests and aspirations on how to lead their life and individual self-determination protects their ability to realize these plans within reasonable limits. Buchanan (Reference Buchanan2010) identifies status equality as the normative core of human rights. While status equality is a value in itself for many people, it is also instrumentally important as a way of securing the social bases of self-respect. If this is true, the indigenous right to self-determination can be interpreted as a derived human right.

It is a human right because it is derived from universal basic interests of humans. As such it safeguards individual interests even though it itself is a collective right. It is a derived human right because it is a right that is required to protect those basic interests under the specific historical and institutional circumstances of today. The right to self-determination is not a good in itself but owes its status to its significance for the fulfillment of high-order human interests. If there is a group whose members rely on the right to self-determination to satisfy these important individual interests, we can say that the right to self-determination is a derived human right. Nowadays, indigenous people are the most obvious candidates for such a human right. Many of the features that are seen as definitional of indigenous people qualify them at the same time for this right: Having been on the territory as self-governing peoples before the arrival of the settlers constituting the current majority makes for a shared experience of injustice that goes back to the loss of the status as self-determined peoples; being a minority in the country makes them more vulnerable to majority rule and puts their effective participation rights at risk; having experienced or experiencing ongoing discrimination and oppression predestines them to feel as less than equals and mistrust the rest of the society to treat them with respect and uphold their rights.

Indigenous peoples have a convincing argument why they are in need of the right to self-determination in order to provide their members with self-respect and adequate individual self-determination. The same applies to any other group in a similar situation. Yet, whenever these interests can be met without granting the right to self-determination, there is no human right to self-determination even though there might still be good arguments for there being a right to collective self-determination. In this regard, the human right to self-determination is not universal but similar to the right to maternity care. It is nonuniversal because it is bound to certain features that are not universally distributed among humans, being a woman or respectively being a member of a group that cannot provide self-respect and a sense of identity without the right to self-determination. Accordingly, the right to self-determination is not recorded in the Universal Declaration on Human Rights but has been acknowledged by the UN in a separate declaration just like the rights of children or the rights of persons with disabilities. Although neither listed in the UDHR nor fitting the criteria of basic human rights in the naturalistic tradition at first glance, there are good reasons to count all these rights among the body of human rights as they are specific implementations of the more general rights in the Universal Declaration on Human Rights and serve to protect these individual rights in today’s world. In this sense, the indigenous right to self-determination can be considered a derived human right in the naturalistic conception even though it is a collective right.

10.1 Introduction

Does a political conception of human rights dictate a particular view of corporate human rights obligations? John Ruggie, who served as the United Nations Special Representative for Business and Human Rights, drafted the “Protect, Respect, and Remedy” Framework, which specifies corporate human rights obligations. Ruggie’s “Guiding Principles on Business and Human Rights,” which aim to implement the Framework, were unanimously adopted by the UN Human Rights Council in 2011. However, there have been numerous critics of Ruggie’s approach. A primary point of contention is that Ruggie assigns to corporations only a responsibility to respect human rights, while states (or governments) bear the full range of human rights obligations, including duties to respect, protect, and fulfill these rights. Some critics have argued that corporations should be responsible for a wider range of human rights obligations, beyond merely an obligation to respect such rights. Furthermore, it has been argued that Ruggie relied on a political conception of human rights, and that this is what led him to limit corporate obligation to mere respect for human rights. In this chapter, I explore and critically assess this general claim about political conceptions of human rights. This will involve distinguishing different types of political conceptions of human rights, as well as specifying what makes a theory of human rights a “political conception.” In light of this clarificatory discussion, I argue that the general thesis is false; the mere fact that a theory offers a political conception of human rights does not necessarily entail any certain range of corporate human rights obligations. Finally, I identify some of the other aspects of a theory of human rights that do affect the range of corporate human rights obligations it will prescribe.

In Section 10.1, I provide a brief history of recent attempts by the UN to frame corporate human rights obligations. In Section 10.2, I outline the criticism of Ruggie’s Framework, which contends that it was reliance on a political, rather than moral, conception of human rights that led him to limit corporate obligation to mere respect for human rights. In Section 10.3, I provide a brief characterization of the distinction between moral and political conceptions of human rights. In Section 10.4, I consider two approaches that have been suggested as underpinning the development of the Framework. I offer a criterion for determining whether an approach to constructing human rights norms constitutes a political conception of human rights, and claim that both of the suggested approaches constitute versions of a political conception of human rights. I then draw the preliminary conclusion that a political conception of human rights can endorse either no corporate human rights obligations or a narrow range of such obligations. In Section 10.5, I consider the most prominent political conceptions of human rights, those offered by John Rawls, Joseph Raz, and Charles Beitz. These theories of human rights will be assessed in terms of two aspects: the essential feature(s) or function(s) they attribute to human rights and the standard(s) they use to qualify a norm as a legitimate human right. I also discuss the degree to which each theory is more revisionary or more conforming with regard to international human rights practice. In Section 10.6, I show that human rights practice can be understood as including a broader or narrower range of the activities relating to human rights, and that this will tend to influence whether a political conception of human rights recognizes a more or less state-centric account of human rights obligations. If a political conception of human rights relies on a broader conception of the practice, this may make it more likely that the theory will prescribe corporate human rights obligations. Finally, I conclude that the range of corporate human rights obligations prescribed by a theory is underdetermined by the mere fact that a theory offers a political conception of human rights. The factors that play a role in this determination include the range of aspects included in the conception of the practice on which theory relies, and in turn, the degree to which this conception of the practice leads the theory to conform with existing human rights norms.

10.2 A Recent History of Business and Human Rights at the UN

In the 1990s, as economic globalization and its effects became more pervasive, the UN began to direct more attention to the issue of multinational corporations (MNCs) and human rights. This led the UN Sub-Commission on the Promotion and Protection of Human Rights to create a working group to examine the issue. By 2003, the working group had produced the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (Sub-Commission 2003). The Norms identified a range of areas in which MNCs would have human rights responsibilities. Within the MNCs’ “spheres of activity and influence,” it assigned to MNCs the same range of human rights obligations as states. In other words, within this sphere, MNCs would have duties to respect, protect, and fulfill human rights. In 2003, the Sub-Commission voted to approve the Norms. However, the Norms faced strong opposition from the business community. When the Norms were brought before the Sub-Commission’s parent body, the UN Commission on Human Rights, it decided not to adopt them.

While the Commission chose not to adopt the Norms, it nevertheless sought continued examination of the issue of business and human rights, and requested the appointment of a special representative to further investigate. In 2005, Harvard political scientist John Ruggie was appointed the United Nations Special Representative of the Secretary General (SRSG) on human rights and transnational corporation and other business enterprises. After extensive research, and consultation with governments, business, and civil society from around the world, in 2008 Ruggie released “Protect, Respect, and Remedy: A Framework for Business and Human Rights” (United Nations Human Rights Council Reference Ruggie2008). The Framework was favorably received by a variety of stakeholders, which led the UN Human Rights Council to extend Ruggie’s appointment and ask that he develop guidelines for its implementation. Ruggie proceeded with this task, and in June of 2011, the Human Rights Council voted unanimously to adopt his “Guiding Principles on Business and Human Rights,” which seeks to operationalize the Framework (United Nations Human Rights Council Reference Ruggie2011).

International human rights law, which applies primarily to states, divides the duties corresponding to human rights into three distinct obligations to respect, protect, and fulfill. The UN High Commissioner for Human Rights defines each of these duties as follows: respect for a right requires that states “refrain from interfering with or curtailing the enjoyment of a right,” protection of a right requires that a state “protect individuals and groups against human rights abuses,” and fulfillment of a right requires a state to “take positive action to facilitate the enjoyment” of the right (United Nations High Commissioner for Human Rights). Ruggie’s “Protect, Respect, and Remedy” Framework relies on this tripartite distinction of human rights obligations recognized in international law. As its name suggests, the Framework involves three dimensions: The first is the state duty to protect human rights, which requires states to “protect against human rights abuses committed by third parties, including business, through appropriate policies, regulation, and adjudication” (United Nations Human Rights Council Reference Ruggie2008). The second is the corporate responsibility to respect human rights by “acting with due diligence to avoid infringing on the rights of others, and addressing harms that do occur” (United Nations Human Rights Council Reference Ruggie2008). And the third is access to effective remedy, which involves an acknowledgment that “effective grievance mechanisms play an important role in both the state duty to protect and the corporate responsibility to respect” (United Nations Human Rights Council Reference Ruggie2008). In relation to the state duty to protect, this requires that “states take the most appropriate steps within their territory and/or jurisdiction to ensure that when such abuses occur, those affected have access to effective remedy through judicial, administrative, legislative or other appropriate means” (United Nations Human Rights Council Reference Ruggie2008). In relation to the corporate responsibility to respect, it requires that “company-level mechanisms should also operate through dialogue and engagement rather than the company itself acting as adjudicator of its own actions” (United Nations Human Rights Council Reference Ruggie2008).

In short, the Framework attempts to clearly divide the human rights obligations of government and business. In keeping with international law, it reiterates that states bear the full range of human rights obligations, including duties to respect, protect, and fulfill human rights, while emphasizing that the duty to protect human rights includes ensuring protection against abuses by third parties such as corporations.Footnote ¹ Additionally, it makes the determination that corporations simply have a responsibility to respect human rights. Respect for human rights requires corporations to “avoid infringing on the human rights of others,” and if they do, to “address human rights impacts with which they are involved” (United Nations Human Rights Council Reference Ruggie2008). In other words, the Framework clarifies the respective roles of each party, by assigning to businesses an obligation not to cause harm through a failure to respect human rights, and when they do so, to address such harm, and reiterating that states have this same obligation, in addition to obligations to protect and fulfill human rights.

10.3 A Criticism of Ruggie’s Framework

A number of critics have taken issue with Ruggie’s restriction of corporate human rights obligations to a mere responsibility to respect such rights. These critics believe that corporations ought to bear responsibility for a wider range of human rights obligations, including obligations to protect and fulfill such rights.Footnote ² Throughout this chapter, I will refer to an obligation to merely respect human rights as a “narrow” range of human rights obligations, and the inclusion of an additional obligation to protect and/or fulfill human rights as a “broad” range of human rights obligations. There are a number of dimensions to this debate, but here I want to focus on a particular aspect. This is the claim that Ruggie’s endorsement of a narrow range of corporate human rights obligations derives from his (supposed) reliance on a political, rather than a moral, conception of human rights.

Florian Wettstein has advanced this criticism. Wettstein claims that accounts of corporate human rights obligations “typically are based on political or legal conceptions of human rights (which can then be extended into the private sphere), rather than on moral ones” (Wettstein Reference Wettstein2012, p. 744). Furthermore, he adds, this is true of Ruggie’s Framework: “The SRSG’s framework is a case in point. It explicitly refers to the International Bill of Human Rights and the ILO core conventions and thus to a combination of legal and political conceptions of human rights as the benchmark against which to judge the human rights conduct of companies” (Wettstein Reference Wettstein2012, p. 744). Finally, Wettstein points to this political (or legal) conception of human rights as directing focus on negative duties not to infringe on rights, and thus as the source of the Framework’s narrow range of corporate human rights obligations.

Thus, Wettstein contends that the endorsement of a narrow range of corporate human rights obligations, which he refers to as Ruggie’s “human rights minimalism,” is due to the fact that Ruggie relied on a political conception of human rights. However, even if one grants that the Framework relies on a political conception of human rights, is Wettstein correct that this is what led Ruggie to endorse a narrow range of corporate human rights obligations?

10.4 Political vs. Moral Conceptions of Human Rights

Let us now turn to the current controversy among philosophers about how to properly theorize human rights, which involves the distinction between moral and political conceptions of human rights. Political conceptions of human rights are typically characterized by their focus on the role(s) that human rights play in political relations between states at the international level.Footnote ³ Such roles often include limiting state sovereignty and providing a criterion for legitimate interference by other states, among others. Political conceptions generally take the practice of international human rights as their starting point, and theorize human rights based on a characterization of this practice. The “practice” is usually understood to refer to the movement that began in the wake of World War II, beginning with the drafting of Universal Declaration of Human Rights (UDHR), the subsequent drafting of numerous legally binding human rights conventions and their adoption by the majority of states around the world, and the activities surrounding these documents, including the work of monitoring bodies, human rights courts, and so forth. But as we will see, the notion of human rights “practice” can have fuzzy borders, and may include a broader or narrower set of activities associated with international human rights.Footnote ⁴ The focus on the role(s) or function(s) which human rights play in the relations between states implies that political conceptions of human rights will tend to give primary attention to the obligations that human rights impose on states.

Moral conceptions of human rights may or may not appeal to the practice of international human rights, typically situate human rights within the natural rights tradition,Footnote ⁵ and view human rights as the rights that individuals possess simply in virtue of their humanity.Footnote ⁶ Thus, moral conceptions of human rights tend to see the human rights listed in the UDHR and subsequent human rights documents, as simply giving political or legal recognition to preexisting moral rights. The focus on human rights as moral claims tends to be taken to imply that human rights impose obligations on all agents, including both individuals and institutional agents, such as states, NGOs, and corporations.Footnote ⁷

Based on these general and abstract characterizations of political and moral conceptions of human rights, a couple of things become immediately apparent. First, at this level of abstraction, we will be unable to determine whether political or moral conceptions of human rights necessarily prescribe a certain range of corporate human rights obligations. Second, the characterization of political conceptions of human rights just offered differs from what Wettstein has in mind when he uses that term. In other words, Wettstein is not using the term “political conception” of human rights in the same way that political philosophers typically do. When Wettstein claims that Ruggie relies on a “political conception” of human rights, he points to Ruggie’s reference to the International Bill of Human Rights and the ILO core convention. In other words, for Wettstein, a political conception of human rights is constituted by appeal to international human rights treatises and conventions, rather than to the role that human rights play in the relations between states. So we will need to sort out these different uses of the term, and determine what qualifies a theory as a “political conception” of human rights.

10.5 Political Conceptions of Human Rights: Wettstein and Ruggie

Before turning to the most prominent political conceptions of human rights, which have been developed by political philosophers, let us first consider Wettstein’s characterization of a political conception, as well as Ruggie’s own description of his approach to developing the Framework. As we shall see, Ruggie offers a different account of his methodology than the one Wettstein attributes to him.

When Wettstein uses the term “political conception” of human rights, he seems to have in mind a legalistic view, that is, one which appeals almost entirely to human rights treatises and conventions. For Wettstein, a political conception of human rights, in contrast to a moral conception, has little or no room for prescriptions beyond those embodied in current human rights law and conventions. This is why he believes that Ruggie’s appeal to the International Bill of Human Rights necessarily led to the endorsement of a narrow range of corporate human rights obligations. The International Bill of Human Rights imposes direct (legal) human rights obligations only, or primarily, on states, and thus does not necessarily allow for the recognition of direct corporate human rights obligations, and particularly not for a broad range of such obligations.

However, Ruggie himself claims to have taken a different approach when developing the Framework. Rather than relying on human rights treatises and conventions, Ruggie says that in formulating the corporate responsibility to respect human rights, he was specifying something that “already exists as a well-established social norm” (Ruggie Reference Ruggie2013, p. 91). According to Ruggie, “a social norm expresses a collective sense of ‘oughtness’ with regard to the expected conduct of social actors, distinguishing between permissible and impermissible acts in given circumstances; and it is accompanied by some probability that deviations from the norm will be socially sanctioned, even if only by widespread opprobrium” (Ruggie Reference Ruggie2013, pp. 91–2). Furthermore, Ruggie contends, while different people and societies hold different expectations about corporate conduct concerning human rights, “one social norm has acquired near-universal recognition within the global social sphere in which multinationals operate; the corporate responsibility to respect human rights” (Ruggie Reference Ruggie2013, p. 92). Thus, Ruggie’s justification for codifying the corporate responsibility to respect human rights is that it is a more or less universally held social norm. In other words, this approach seeks to identify the human rights norms that all (or nearly all) parties agree upon, and endorses those as the legitimate ones. This type of approach can be referred to as an “agreement theory.”Footnote ⁸

Now let us compare these two theories. First, both the legalistic theory and the agreement theory can be classified as versions of a political conception of human rights. They do not appeal to moral rights grounded in people’s humanity or human dignity, as moral conceptions are apt to do. Rather, the legalistic version appeals to the contents of contemporary human rights treatises and conventions in order to ground human rights norms, while the agreement version appeals to more or less universal agreement by all cultures or societies in order to ground human rights norms. Thus, both versions ground human rights in a political or social basis, rather than appeal to the moral rights of individuals. I believe this is sufficient to classify them as political conceptions of human rights, although they do not appeal to the functional role that political philosophers have generally taken to be characteristic of political conceptions, namely, regulating the political relations between states on the international level.Footnote ⁹

Second, these two versions of a political conception may entail a different range of corporate human rights obligations. The legalistic version is constituted by appeal to contemporary human rights documents, namely, the International Bill of Human Rights and ILO core conventions. But it is not clear whether even a narrow range of corporate human rights obligations can be derived from these documents. These treatises and conventions impose human rights obligations on states, but do not necessarily impose direct human rights obligations on any other agents. This is certainly true of the legally binding human rights covenants (ICCPR and ICESCR), which impose legal obligations only on the states that are party to them. The UDHR, which is not a legally binding treaty, contains a clause that states “every individual and every organ of society” has an obligation to “promote respect for these rights … and … to secure their universal and effective recognition and observance” (United Nations General Assembly 1948, Preamble). Perhaps direct corporate human rights obligations could be derived from this particular clause. If so, however, it is extremely unclear precisely what range of corporate human rights obligations would be prescribed. There is reference to “respect,” but also to “effective recognition” and “observance.” Can these latter terms be understood as involving obligations to protect or fulfill human rights? The clause is open to multiple interpretations, which renders it difficult to determine whether it can serve as a basis for any direct corporate human rights obligations, and if so, what range of obligations. If no direct corporate human rights obligations can be derived from the legalistic version, then contrary to Wettstein’s claim, Ruggie could not have developed the corporate responsibility to respect human rights based on such an approach. But perhaps Wettstein believes it is possible to derive a narrow range of corporate human rights obligations from the UDHR, or from some other element of the relevant human rights treatises and conventions. He never explains precisely how he believes Ruggie derived this norm from the treatises and conventions in question.

In the case of the agreement version, a narrow conception of direct corporate human rights obligation can be justified, assuming Ruggie is correct that a corporate obligation to respect human rights is a more or less universally agreed upon human rights norm. However, it is important to point out that the agreement version does not necessarily entail a narrow range of corporate human rights obligations. It allows that the range of justified corporate human rights obligations can change as universal agreement shifts. So given time, it is always possible there could come to be universal agreement that corporations also have an obligation to protect or fulfill human rights, or that corporations have no direct human rights obligations at all. In fact, the international human rights regime is an evolving practice, as are the normative beliefs surrounding it. Direct human rights obligations of corporations is a relatively new issue, and there is not yet strongly settled opinion on the matter. Thus, rather than the agreement version necessarily entailing any specific range of corporate human rights obligations, it is a merely contingent empirical truth that it entails a narrow range of such obligations at the present time.

So far, then, we have seen that a political conception of human rights can potentially entail no corporate human rights obligations (according to a certain interpretation of the legalistic version), or, contingently, a narrow range of corporate human rights obligations (according to the agreement version, given currently held normative beliefs). And thus it might seem Wettstein was correct to claim that Ruggie’s reliance on a political conception of human rights dictated that the Framework would prescribe only a narrow range of corporate human rights obligations. So, given our investigation up to this point, Wettstein’s claim does seem to be correct, as long as he did not mean it as a necessary, rather than a merely contingent, truth (based on present facts about universal agreement). However, before settling on this conclusion, we should examine the most prominent political conceptions of human rights, those developed by political philosophers. Whereas Wettstein and Ruggie offer quite brief characterizations of the versions of a political conception they have in mind, John Rawls, Joseph Raz, and Charles Beitz have developed much more elaborate political conceptions. Examining these theories will put us in a position to more fully determine whether political conceptions of human rights entail a specific range of corporate human rights obligations.

10.6 Political Conceptions of Human Rights: Rawls, Raz, and Beitz

Joseph Raz claims that a political conception of human rights will include two aspects: (1) it will establish the essential features that the practice of international human rights attributes to such rights; and (2) it will identify the moral standards that qualify a norm as a human right (Raz Reference Raz, Besson and Tasioulas2010). Let us refer to these two aspects of a political conception of human rights as the “essential features (or functions)” aspect and the “qualification standards” aspect.Footnote ¹⁰ Before proceeding, I want to point out that given my view that the legalistic and agreement versions count as political conceptions of human rights, I do not necessarily accept Raz’s claim that every political conception will include these two aspects. While both the legalistic version and the agreement version include the qualification standards aspect, it is not immediately apparent that they include the essential features aspect. The legalistic version claims that inclusion in a human rights convention is the standard that qualifies a right as a legitimate human right, while the agreement version holds that being a more or less universally agreed upon human right is the standard that qualifies a right as a legitimate human right. But neither of those theories, at least given the very brief characterizations offered by Wettstein and Ruggie, seem to explicitly identify the essential features attributed to human rights by the practice.Footnote ¹¹ So, rather than Raz’s two aspects being necessary features of a political conception of human rights, I maintain that it is appeal to a social or political basis for human rights which qualifies a theory as a political conception. Nevertheless, Raz’s two aspects suggest a helpful way of approaching the political conceptions that have been developed by political philosophers. Indeed, we will find that both aspects are to be found in the theories of Rawls, Raz, and Beitz. So let us now proceed by assessing the remaining political conceptions of human rights in terms of these two aspects.

John Rawls has offered perhaps the most influential political conception of human rights in his book The Law of Peoples. In this work, Rawls presents a theory of international justice. His methodology is to provide a normative reconstruction of the principles of international law, which will yield a theoretical framework for determining just relations between societies of peoples. In the course of this reconstruction, Rawls presents his political conception of human rights. For Rawls (Reference Rawls1999, p. 80), human rights play three roles:

1. 1 Their fulfillment is a necessary condition of the decency of society’s political institutions and of its legal order.

2. 2 Their fulfillment is a sufficient condition to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or in grave cases by military force.

3. 3 They set a limit to the pluralism among peoples.

This provides Rawls’s account of the essential features aspect. For Rawls, the essential feature or function of human rights is to provide a criterion for the decency of the political institutions of a society, which if met, excludes the possibility of justified intervention by other states and the international community. As a corollary of this, human rights define the limits of acceptable pluralism among societies. In other words, if a society behaves in a way that violates human rights, then it has exceeded the limits of pluralism tolerable in international society, and other societies or the international community are then justified in intervening in that society.

When it comes to the qualification standards aspect, Rawls holds that human rights are “necessary conditions of any system of social cooperation” (Rawls Reference Rawls1999, p. 68). For Rawls, social cooperation is a matter of cooperation between “free and equal people,” which entails fair terms of cooperation and a system of mutual advantage.Footnote ¹² Based on these criteria, Rawls offers a very short list of human rights, which includes merely the rights to life, liberty, and formally equality (similar cases must be treated similarly) (Rawls Reference Rawls1999, p. 65). In comparison to the UDHR, and other international human rights documents, this is a sharply truncated list of rights. So, at least in this respect, Rawls’s theory of human rights is quite revisionary, because it deviates drastically from the practice of international human rights.

At this point, we should notice that Rawls’s theory of human rights has little to say about what, if any, should be the human rights obligations of corporations. Rawls has defined the essential feature or function of human rights exclusively in terms of the role they play in the relations between societies or states in the international arena. So when it comes to corporate human rights obligations, one can read Rawls in at least two different ways: First, Rawls could be read as providing an exhaustive account of the role of human rights, in which case, his theory prescribes no direct human rights obligations for corporations, because human rights (directly) apply only to societies or states. Second, Rawls could be read as merely focusing on a theory of international justice between societies or states, and thus only specifying the role of human rights in that context. On this latter reading, we do not know what Rawls would say about corporate human rights obligations, because he never provided a comprehensive theory of human rights. If the latter reading is correct, then Rawls’s political conception of human rights is silent on the matter of corporate human rights obligations, and offers no prescription when it comes to a narrow versus broad range of such obligations.

Joseph Raz’s political conception of human rights is perhaps less developed than Rawls’s theory, but offers some interesting contrasts (Raz Reference Raz, Besson and Tasioulas2010). In terms of the essential features aspect, Raz holds that human rights set limits to state sovereignty. More specifically, he claims, “the fact that a right is a human right [is] a defeasibly sufficient ground for taking action against violators in the international arena, that is to take its violation as a reason for action” (Raz Reference Raz, Besson and Tasioulas2010, p. 328). So Raz and Rawls attribute nearly the same essential feature or function to human rights. However, the two theories differ when it comes to the qualification standards aspect. Raz holds that “human rights are those regarding which sovereignty-limiting measures are morally justified” (Raz Reference Raz, Besson and Tasioulas2010, p. 329). He believes that Rawls’s criterion for something being a human right, that it be a necessary condition of any system of social cooperation, is insufficient. This is because while Rawls’s criterion may help to define the limits of state authority, which concern the morality of a state’s actions, this criterion fails to define the limits of sovereignty, because such a criterion must also involve the right of others to intervene. Not all moral wrongdoing by a state will justify intervention by other states or the international community. The right of others to intervene will depend in part on the international situation (e.g., whether intervention will be used to increase the domination of a superpower over its rivals), and not merely on the morality of the actions of the state that is the potential subject of intervention.

Raz does not specify which types of wrongdoing justify intervention (the justified limits of sovereignty), and thus does not provide a list of justified human rights. However, it is safe to assume that his theory, like Rawls’s theory, will offer a truncated list of human rights in comparison to the UDHR and other international human rights documents. This is because there are many rights included in such documents which surely Raz does not believe justify intervention. Examples of such rights in the UDHR include the right to periodic holidays with pay, the right to social security, and the right to education, to name just a few. For instance, if a state fails to provide a system of social security, or if it fails to provide basic public education for a large percentage of its children, this is not usually understood as a justification for intervention by other states or the international community. And, in fact, there are many states that currently fail in just these ways. But no one calls for forceful intervention in such states. Furthermore, Raz himself seems to suggest that the list of rights found in international human rights documents exceed those which he believes are justified, when he says, “International law is at fault when it recognizes as a human right something which, morally speaking, is not a right or not one whose violation might justify international actions against a state … ” (Raz Reference Raz, Besson and Tasioulas2010, p. 329). So as with Rawls, Raz appears to deviate from the practice of international human rights, by offering a fairly revisionary theory in terms of the list of rights that qualify as legitimate human rights.

However, Raz differs from Rawls when it comes to the issue of corporate human rights obligations. While pointing out that states have been the primary agents addressed in international law, and that in accordance with this his theory treats human rights as being rights against states, he nevertheless allows that human rights may also be rights against agents other than states.

In other words, Raz treats the violation of human rights by government as a reason for action against states as the distinctive feature or function of international human rights practice, but he is not claiming that this is a complete characterization of human rights. Raz acknowledges that human rights can impose duties on individuals and domestic institutions, as well as non-state international agents. And if he allows that individuals can have human rights obligations, then it seems likely he will include domestic and multinational corporations among the “domestic institutions” and “non-state international agents” that can have human rights obligations. For surely if individuals can have human rights obligations, then corporations, with their far greater resources and power, can have human rights obligations. However, Raz says nothing further about this dimension of human rights. And thus Raz’s theory is silent about whether it would prescribe a narrow or broad range of corporate human rights obligations. The difference between Raz’s and Rawls’s theories in this regard is simply that Raz seems to explicitly acknowledge that corporations can have direct human rights obligations, while Rawls (at least on the second reading) is silent about whether this is the case.

Charles Beitz offers the most developed political conception of human rights (Beitz Reference Beitz2009). His methodology involves first providing a close interpretation of the practice of international human rights, which can then be used to develop a model that best characterizes the practice. This model provides an account of the practice, including its values and purposes, which can be used to judge the various aspects of it.

After assessing and interpreting the practice, Beitz arrives at what he refers to as a “two-level model” of human rights, which is comprised of three elements. The first element defines human rights: “Human rights are requirements whose object is to protect urgent individual interests against predictable dangers (‘standard threats’) to which they are vulnerable under typical circumstances of life in a modern world composed of states” (Beitz Reference Beitz2009, p. 109). The second element specifies the “first-level” obligations created by human rights. Human rights apply first and foremost to the political institutions of states, including their constitutions, laws, and public policies, and require states to respect, protect, and “aid” these rights. The third element specifies the “second-level” obligations created by human rights. It identifies human rights as matters of “international concern,” and holds that when states fail in their first-level obligations, human rights may provide a reason for capable outside agents to act. Such action is called for in the following circumstances:

This is a two-level model because, at a first level it assigns to states primary responsibility for respecting, protecting, and fulfilling the human rights of their residents, and at a second level it assigns to the international community the role of guarantor of those responsibilities.

The two-level model provides Beitz’s account of the essential features aspect. For Beitz the essential features of human rights are, first, to impose obligations on the political institutions of states, and secondarily, to create matters of international concern which give pro tanto reason for action by the international community when states fail in their obligations. Beitz’s theory is similar to Raz’s theory in that both treat human rights violations as (pro tanto) reasons for action (intervention), whereas Rawls takes the stronger position of treating human rights violations as requiring intervention.

In terms of the qualification standards aspect, Beitz’s theory holds that human rights are “protections of ‘urgent individual interests’ against ‘standard threats’ to which they are vulnerable” (Beitz Reference Beitz2009, p. 110). He defines “urgent interests” as those that would be “recognizable as important in a wide range of typical lives that occur in contemporary societies: for example, interests in personal security and liberty, adequate nutrition, and some degree of protection against the arbitrary use of state power” (Beitz Reference Beitz2009, p. 110). And he defines a “standard threat” as “a threat which is reasonably predictable under the social circumstances in which the right is intended to operate” (Beitz Reference Beitz2009, p. 111). Based on this account of the standards that qualify something as a human right, Beitz is able to justify more or less the list of rights found in international human rights documents. In this respect, his theory differs from the theories of both Rawls and Raz, because whereas they offer truncated lists of human rights which are quite revisionary compared to the list of rights found in the practice, Beitz is able to more or less recognize the list used in the practice.

Let us pause for a moment to consider a potential objection. Some commentators may object to my claim that Beitz offers a theory of human rights which closely conforms to the list of rights found in the practice. These commentators will likely point to Beitz’s discussion of “hard cases.” These cases concern specific human rights, or categories of human rights, which are recognized in the practice, but that Beitz believes his theory may not endorse. The human rights in question include antipoverty rights, women’s rights, and the right to political participation. More specifically, Beitz suggests that his emphasis on human rights as matters of “international concern” may have some potentially revisionary implications for these areas of human rights. However, I will argue that Beitz’s theory is not in fact very revisionary, and where he claims that it is, he is (mostly) mistaken in drawing such a conclusion.

The easiest case is that of antipoverty rights. The potential problem with treating this category of human rights as matters of international concern, according to Beitz, stems from two issues: first, determining which outside agents have reasons to act when states fail in their domestic obligation to fulfill such rights, and second, determining what kinds of reasons for action failure to fulfill these rights give to outside agents (Beitz Reference Beitz2009, p. 163). Beitz suggests that there can be a wide range of sufficient reasons for affluent states to act to reduce or mitigate poverty in impoverished states. Such reasons range from “strong beneficence” (Beitz Reference Beitz2009, p. 167) to harmful interaction, historical injustice, non-harmful exploitation, and political dependence (Beitz Reference Beitz2009, p. 171). This shows that there will not be one type of uniform reason for action provided by these rights, but rather, “an uneven web of disaggregated responsibilities” (Beitz Reference Beitz2009, p. 173). In other words, attributing responsibility to outside agents for ensuring these rights will involve different reasons in the case of different agents, and will depend on the details of particular cases (Beitz Reference Beitz2009, pp. 173–4). The fact that there is a range of sufficient reasons for outside agents to act in reducing or mitigating poverty leads Beitz to conclude that “there are anti-poverty rights” (Beitz Reference Beitz2009, p. 173). In other words, while Beitz considers the possibility that his treatment of human rights as matters of international concern might challenge the legitimacy of antipoverty rights, in the end he concludes that his theory does indeed justify such rights. Thus, in the case of antipoverty rights, his theory is not revisionary of the list found in the practice.

Moving on to the case of women’s rights, Beitz believes there is no principled problem with such rights, even in societies where those rights conflict with deeply rooted cultural beliefs and practices. This is because men’s and women’s interests are of equal importance, and thus governments ought to, in principle, equally protect both (Beitz Reference Beitz2009, pp. 193–4). But a practical problem with such rights does arise, according to Beitz. The human rights of women are concerned not merely with changes in law and policy, but with changes in social beliefs and practices. However, changing law and policy, which is the primary means available to the state, is unlikely to bring about changes in social beliefs and practices. Furthermore, if domestic governments lack the means to enact the necessary sort of change, the international community is even less capable of doing so (Beitz Reference Beitz2009, pp. 194–5). This seems to imply that women’s rights cannot be matters of international concern on practical grounds, because there is no effective form of action for realizing such rights available to outside agents. “A government’s failure to comply with those elements of women’s human rights doctrine that requires efforts to bring about substantial cultural change does not supply a reason for action by outside agents because there is no plausibly effective strategy of action for which it could be a reason” (Beitz Reference Beitz2009, pp. 194–5). Thus, Beitz concludes that since women’s rights fail (for practical reasons) to be matters of international concern, they therefore cannot be legitimate human rights according to his theory.

Now let us consider how revisionary Beitz’s theory really is in the case of women’s human rights. First, we should note that Beitz does not intend this argument to apply to the full range of women’s human rights. He says that the majority of women’s human rights “are perfectly general … interests in physical security and personal liberty” (Beitz Reference Beitz2009, p. 188). In other words, most areas of women’s human rights represent general interests of both women and men, and thus are perfectly legitimate human rights.Footnote ¹³ Beitz singles out a few issues that he believes involve background beliefs and social practices that cannot be changed via law and policy: violence against women in the household, protection against rape, and abuses associated with prostitution (Beitz Reference Beitz2009, p. 194). It is only this limited set of women’s issues that Beitz believes cannot (for practical reasons) be matters of international concern, and thus fail to be legitimate human rights. In short, Beitz does not claim his theory is so revisionary as to deny the legitimacy of all women’s rights, but only a certain subset of such rights. Nevertheless, it can still be argued that in comparison to the practice, Beitz’s theory would be quite revisionary in denying that these important women’s issues are a matter of human rights.

However, I do not believe Beitz has correctly construed the implications of his theory in this area. First, he may be wrong to claim that changes in law and public policy are unable to influence the background beliefs and social practices necessary for the realization of the full range of women’s human rights. Kristen Hessler, for example, points to evidence which shows that changes regarding women’s legal status in Tunisia were accompanied by major changes in women’s general social status and status within marriage (Hessler Reference Hessler2013, p. 381). Hessler concludes that the subordinate social status of women is in part created by public policy, and can therefore be changed by making changes to law and policy (Hessler Reference Hessler2013, p. 382). Empirical evidence, such as that presented by Hessler, shows that Beitz may simply have been wrong to claim that a primary form of action available to the state – changing law and policy – will be unable to influence the background beliefs and social practices necessary for realizing the particular subset of women’s rights that are in question.

Second, Beitz acknowledges that the implementation of human rights admits of a wide range of strategies and forms of action (Beitz Reference Beitz2009, pp. 33–42). It is worth remembering that rather than treating human rights failures as simply triggers for “intervention,” as Rawls and Raz do, Beitz treats human rights as matters of “international concern” which generate “reasons for action.” In other words, Beitz does not view failures to realize human rights as simply grounds for coercive or forceful intervention, but instead, as generating reasons to engage in an array of strategies for realizing these rights. He discusses six strategies for implementing human rights: accountability, inducement, assistance, domestic contestation and engagement, compulsion, and external adaptation (Beitz Reference Beitz2009, p. 33). As Hessler argues, each of these strategies of implementation is no less likely to be effective in the case of women’s rights than in other areas of human rights (Hessler Reference Hessler2013, pp. 384–7). In the category of “accountability,” Beitz includes the reporting and auditing processes carried out by the various human rights treaty bodies. This is perhaps the most common means of implementation used within the practice. Hessler points out that states are no less likely to implement women’s rights in response to such auditing processes, than they are to implement, say, social and economic rights (Hessler Reference Hessler2013, p. 385). And if changes in law and policy can affect the social practices necessary for realizing women’s rights, as was suggested above, then the reporting and auditing processes may encourage states to take the necessary actions to bring about such change. For example, in 2001, the Convention on the Elimination of Discrimination Against Women Committee encouraged Egypt to conduct a national survey of violence against women and to provide a reporting process so that more victims would come forward to report rape (Hessler Reference Hessler2013, pp. 384–5). Pursuing such a policy may in fact lead to changes in women’s willingness to come forward and report cases of rape. If that does occur, then the accountability provided by the reporting and auditing process will have contributed to the implementation of an area of women’s rights that Beitz believed could not be a matter of international concern.

Within the category of “compulsion,” Beitz includes coercive interventions, such as economic sanctions, and within the category of “inducements,” he includes strategies such as economic incentives for compliance. If the concern is a lack of state willingness to take action regarding the implementation of the full range of women’s human rights, there is no reason to believe that in response to economic sanctions or economic inducements, a state would be less likely to take action regarding women’s rights, than it would be to take action toward implementing, say, civil and political rights (Hessler Reference Hessler2013, p. 386). So given Beitz’s acknowledgment that a wide array of strategies or measures can be employed in the implementation of human rights, and the evidence that changes in law and policy can help to influence the relevant background beliefs and social practices, it seems mistaken to claim that there is nothing the international community can do to implement the full range of women’s human rights. Thus, contrary to Beitz’s claim that the full range of women’s human rights cannot be justified by his theory, a closer examination reveals that his theory can in fact justify such rights. Once again, as in the case of antipoverty rights, it seems that Beitz’s theory need not be revisionary of the list of rights found in the practice.

Finally, let us turn to the case of the right to political participation. Beitz points out that this right is now generally interpreted as a right to democracy. His main concern with interpreting the right to political participation in this way is that such a right may only be justified in protecting a certain underlying interest (or interests), but not justified in imposing a specific type of institutional mechanism for realizing that aim. He points out that the empirical evidence is uncertain and does not support the claim that promoting democratic political institutions in poor societies will make it more likely that people’s basic interests are satisfied (Beitz Reference Beitz2009, p. 180). Furthermore, he argues that the attempt to impose democratic institutions on a society would violate the society’s right to political self-determination, at least in those societies that have a conception of the common good which they believe is best realized through a non-democratic form of political institutionsFootnote ¹⁴ (Beitz Reference Beitz2009, p. 182). For these reasons, Beitz does not believe that a human right to democracy can be justified.

While in the case of women’s rights Beitz was concerned about the practical ability to implement such rights, in the case of a right to democracy he is more concerned about the justification of this right in principle. Beitz notes that there is now “a pattern of international action” aimed at the development of democratic movements and regimes where they do not exist, and the support and protection of ones that do exist (Beitz Reference Beitz2009, p. 174). And nowhere does he indicate a belief that this action is ineffective. So in practical terms, the international community may indeed be able to promote democracy, and thus it can qualify as a matter of international concern. However, Beitz’s argument in this case is that a right to democracy may not be justified in principle, both because it fails to make it more likely that the interests protected by human rights will be realized, and because it may conflict with other rights. Let us assume Beitz is correct that a human right to democracy cannot be justified in principle, for the reasons that he provides. Even if this is true, Beitz has not rejected a human right to political participation, which is the right explicitly listed in international human rights treatises. He has only rejected the interpretation of this as a right to a democratic form of government. This interpretation has become commonplace in the practice, although it is not a consensus belief (Beitz Reference Beitz2009, p. 174). In that case, Beitz’s position will be to some extent revisionary in comparison with current human rights practice, but not radically so. We can understand Beitz as simply agreeing with the minority of practitioners, who reject this particular interpretation of the right to political participation and render it a non-consensus belief. Furthermore, Beitz’s theory is intended to be prescriptive, not merely descriptive. So it is not surprising if we find it in some ways critical of the practice.

After assessing the “hard cases,” we have found that Beitz’s theory merely takes a minority position on the interpretation of a certain human right recognized in the practice, and in the other cases his theory seems fully capable of justifying the rights found in the practice. He either explicitly endorses the rights recognized in the practice (antipoverty rights), or as I have argued, should endorse such rights (women’s rights). For these reasons, I think we are justified in claiming that his theory largely conforms to the list of human rights found in the practice. Now that we have dealt with a potential objection to this claim, let us return to the issue of corporate human rights obligations.

We can see that the second element of Beitz’s model holds that states have an obligation to protect human rights against threats from non-state agents that are subject to the state’s jurisdiction. Here Beitz’s model echoes the “state duty to protect human rights” found in Ruggie’s Framework, which requires the state to protect against human rights abuses by business through regulation and adjudication. But does Beitz’s theory prescribe direct corporate human rights obligations? In the third element of Beitz’s model, he states that both state and non-state agents (with the means to act effectively) have “pro tanto reasons to assist an individual state to satisfy human rights standards in cases in which the state itself lacks the capacity to do so” and “pro tanto reasons to interfere in an individual state to protect human rights in cases in which states fail through a lack of will to do so” (Beitz Reference Beitz2009, p. 109). I assume that “satisfying” human rights is equivalent to fulfilling them. So Beitz’s theory acknowledges that “non-state agents” can have reasons to both protect and fulfill human rights. However, Beitz’s further discussion makes clear that the non-state agents he has in mind are not corporations, but rather human rights NGOs such as Human Rights Watch and Amnesty International. Indeed, the practice of international human rights can be understood as encompassing the roles played by these non-state agents. But given this clarification of the non-state agents in question, the third element of Beitz’s model does not seem to include a role for corporate human rights obligations.

Furthermore, Beitz goes on to explicitly address the possibility of direct corporate human rights obligations, resisting the idea that such obligations can be derived from an account of the practice. “It is true that there have been efforts to frame human rights principles directly applicable to business firms, but thus far these efforts have lacked the independent structure and regularity to justify considering them as elements of an ongoing global practice” (Beitz Reference Beitz2009, p. 124). This is a revealing statement, and one which I believe holds an important lesson concerning the range of corporate human rights obligations that a political conception will prescribe. Beitz claims that despite efforts to specify direct human rights obligations for corporations, these efforts have lacked certain features that would justify treating them as part of the practice.Footnote ¹⁵ Due to the fact that these efforts fail to qualify as part of the practice, there is no range of direct human rights obligations, narrow or broad, that we are justified in assigning to corporations. Since Beitz’s methodology involves closely considering and interpreting the practice of international human rights, his theory is very practice-sensitive.

The implications of his approach become clear when we compare his theory to those of Rawls and Raz. Rawls and Raz employ qualification standards for justifying human rights that yield truncated lists of rights which are quite revisionary of the practice, while Beitz on the other hand, employs a qualification standard that yields more or less the list of rights found in the practice. Indeed, if Beitz’s theory endorsed a list of rights that deviated much from the list found in the practice, he would likely consider this a flaw in his theory. After all, his methodology requires that he produce a normative model of human rights which is based on a close analysis and interpretation of the practice. This methodology implies that Beitz’s theory will be rather conformist with the practice.Footnote ¹⁶ An interpretation that takes close account of the practice is also confined by the practice. Since determining direct corporate human rights obligations is, at best, in its infancy, and may have yet to become an established part of the practice,Footnote ¹⁷ a close interpretation of the practice is likely to suggest either that there are no direct corporate human rights obligations or that it is indeterminate whether there are such obligations. Indeed, Beitz’s political conception of human rights takes the former position, because, at least at the time of his writing, he believed that efforts to frame direct corporate human rights obligations lacked structure and regularity, and thus did not constitute a part of the practice. With the subsequent adoption of Ruggie’s Framework by the UN Human Rights Council, it is possible that Beitz would now recognize some form of direct corporate human rights obligations as part of his theory.

10.7 Political Conceptions of Human Rights and Corporate Responsibility

I have suggested that Beitz’s comment about direct corporate human rights obligations holds an important lesson as to whether political conceptions entail a certain range of such obligations. The political conceptions of human rights developed by political philosophers have tended to take a specific part of the existing practice of international human rights as their starting point, namely, the role that human rights play in the relations between states. However, as we have seen in our examination of Rawls, Raz, and Beitz, theories of human rights based on a political conception can vary in terms of how revisionary their prescriptions are in comparison to the practice. Beitz’s theory is not very revisionary. But this is an artifact of his methodology, which requires his theory to be derived from a close examination and interpretation of the practice. Rawls and Raz, on the other hand, include some quite revisionary elements in their theories. Up to this point, I have suggested that the revisionary elements of Rawls’s and Raz’s theories derive primarily from the moral standards aspect, which produce lists of human rights that deviate significantly from the list found in the practice. However, we might also think their theories are revisionary in light of the essential features aspect. Both of these theories attribute one essential feature or function to human rights: a criterion for justified intervention in a state by other states or the international community. But it might be argued that the practice attributes more than one essential feature or function to human rights, in which case these theories are revisionary insofar as they focus on just this one feature or function of human rights to the exclusion of others. Beitz, by contrast, treats the essential features or functions of human rights in a broader manner, by holding that human rights first and foremost create obligations for a state with regard to its domestic constitution, laws, and public policies, and secondarily, as providing (pro tanto) reason for action by outside agents if the state fails in its obligations. Perhaps the theories of Rawls and Raz recognize the former element in an implicit way,Footnote ¹⁸ but Beitz explicitly divides the operation of human rights into two different “levels.” Thus, we might say that Beitz attributes at least two features or functions to human rights.

Here is the important point for our purposes: the practice can be understood as including more or less of the activities relating to human rights, and this will tend to influence the essential features or functions that a theorist attributes to human rights. For example, Beitz recognizes that human rights can give (pro tanto) reasons for action to human rights NGOs, and thus that the role of such agents is part of the practice, while Rawls and Raz do not seem to recognize the practice as essentially encompassing such agents. If a theorist appeals to a more narrow range of aspects as comprising the practice, for example, only those obligations that are legally binding under international human rights law, then the result will tend to be a more state-centric theory. This narrow conception of the practice is likely to lead to a narrower construal of the essential features or functions of human rights, which in turn makes it unlikely there will be recognition of corporate human rights obligations. On the other hand, if a theorist appeals to a broader range of aspects as comprising the practice, for example the activities of human rights NGOs, then this may result in a less state-centric theory. A broader conception of the practice is likely to lead to a broader construal of the essential features or functions of human rights, which in turn can make it more likely there will be recognition of corporate human rights obligations. Assume, for example, that a conception of the practice includes the activities of NGOs that monitor and pressure corporations to comply with certain human rights norms. In this case, the conception of the practice that encompasses such aspects may lead to recognition of essential features or functions of human rights that go beyond mere state obligations, to also prescribe corporate human rights obligations. The range of corporate human rights obligations prescribed by such a theory is likely be determined by the norms and expectations involved in the activities that comprise the conception of the practice on which the theory relies.

To illustrate this last point, first consider the political conceptions of human rights developed by political philosophers. Raz did not give determinate prescriptions regarding corporate human rights obligations, and this seems to be a result of his theory focusing on just one essential feature or function of human rights, derived from a narrow conception of the practice. Similarly for Rawls (at least on one reading), his theory prescribes no corporate human rights obligations, and this also has to do with the fact that his theory focuses on just one essential feature or function of human rights, based on a narrow conception of the practice. Beitz’s theory, by contrast, recognizes human rights obligations for agents other than states. His theory holds that human rights can create obligations (pro tanto reasons for action) for NGOs. This seems to result from attribution of a wider set of essential features or functions to human rights, based on a broader conception of the practice.

Next, consider the versions of a political conception of human rights characterized by Wettstein and Ruggie. While neither of these political conceptions focuses on the role that human rights play in the relations between states, we may nevertheless understand them as appealing to certain aspects of the practice. For the legalistic version, it is inclusion in international human rights treatises that qualifies a right as a legitimate human right. These documents are often thought of as part of the practice. Beitz’s political conception, for example, gives a very prominent role to such treatises when offering a characterization of the practice. However, the political conceptions of Rawls and Raz do not focus on these documents. Rawls and Raz focus on just one aspect of the practice: the role that human rights play in the relation between states on the international level. They then allow this feature or function of human rights to determine the qualification standards (limitations on sovereignty) for identifying legitimate human rights. By contrast, the legalistic version focuses on a different aspect of the practice: international human rights treatises. In the case of the legalistic version, the qualification standard aspect is treated as primary. As I discussed previously, when Wettstein’s characterizes the legalistic version, he does not explicitly provide an essential feature or function of human rights. However, I believe that we can interpret the essential feature(s) or function(s) aspect as deriving from the qualification standard aspect, which he does provide. It would seem that on Wettstein’s characterization of the legalistic version, the essential feature or function of the human rights found in international human rights treatises is to create “obligations of non-interference and ‘do no harm’” (Wettstein Reference Wettstein2012, p. 745). Again, it remains unclear precisely how Wettstein thinks Ruggie derived the corporate responsibility to respect human rights from those treatises, but Wettstein clearly states that the “political or legal” human rights found in the treatises essentially emphasize negative duties of non-interference.Footnote ¹⁹

Ruggie’s agreement version appeals to universally held social norms regarding human rights as the qualification standard for identifying legitimate human rights norms. One can conceivably think of these social norms as part of the practice, given a quite broad conception of the practice.Footnote ²⁰ As with the legalistic version, Ruggie’s agreement version does not explicitly state the essential feature or function of human rights. However, I believe that we can once again interpret the essential feature(s) or function(s) aspect as deriving from the qualification standards aspect, which Ruggie does provide. In this case, the legitimate human rights norm in question is the corporate responsibility to respect human rights, from which we can infer that an essential feature or function of human rights is to attribute to corporations an obligation not to harm.Footnote ²¹ Thus, while Rawls and Raz seem to allow the essential features or functions of human rights (the role they play in relations between states) to determine the qualification standard for identifying legitimate human rights, the legalistic version and the agreement version allow the qualification standard for identifying legitimate human rights (inclusion in international human rights treatises or universally held social norms) to determine the essential features or functions of human rights. In other words, Rawls and Raz treat the essential feature aspect of a political conception as primary, whereas the legalistic version and the agreement version treat the qualification standard aspect of a political conception as primary. But in all cases, it is appeal to some part of the practice that determines the primary aspect.

10.8 Conclusion

Based on our examination of various political conceptions of human rights, we can now conclude that the range of corporate human rights obligations prescribed by a theory is underdetermined by the mere fact that the theory offers a political conception. A political conception of human rights will not necessarily prescribe any corporate human rights obligations, and if it does, not necessarily any particular range of such obligations.

Beyond this general conclusion, we can also identify some features of a political conception of human rights that will contribute to determining what, if any, range of corporate human rights obligations is prescribed by the theory. First, a significant factor is which part or parts of the practice a political conception of human rights appeals to. Generally, the part(s) of the practice appealed to will tend to determine its prescriptions. Furthermore, the practice may be used to determine either the essential feature(s) or function(s) of human rights, or to determine the qualification standard(s) for identifying legitimate human rights. In the political conceptions that we examined, one of these aspects was treated as primary, and the other aspect determined by the primary one.

Second, the more parts of the practice that a theory appeals to, the more conformist a political conception is likely to be, where “conformist” refers to how closely the theory mirrors current practice. Beitz appeals to a very broad conception of the practice, and this leads his theory to more closely mirror the existing practice of international human rights. As a result, his theory prescribes human rights obligations for a range of agents that play a role in the current practice. For example, according to Beitz, human rights NGOs have (pro tanto) reason for action when human rights violations or failures occur. Although Beitz’s theory does not assign human rights obligations to corporations, this may be due to the fact that Ruggie’s Framework had not been adopted at the time Beitz developed his theory. With the subsequent adoption of Ruggie’s Framework by the UN Human Rights Council, Beitz might now revise his theory to prescribe a narrow range of corporate human rights obligations. Rawls and Raz, on the other hand, focus on just one part of the practice, with at least some revisionary implications for the practice. They seem to have no room for prescribing corporate human rights obligations within their theories, despite the adoption of Ruggie’s Framework by the Human Rights Council, because their account of the practice focuses only on the role that human rights play in the relations between states.

It should now be apparent that what range of human rights obligations, if any, corporations will be prescribed is determined by a range of factors and choices that a theorist must make. My hope is that this chapter has helped to identify some of the key considerations. The mere fact that a theory of human rights offers a political conception is not among the determinative factors.

11.1 Introduction

Socio-economic rights are often considered the hard case for moral theories of human rights. Dragging down the ambition of rising above contemporary social structures and competing conceptions of justice, it is feared that socio-economic rights compromise the universalist human rights project. In Cranston’s (Reference Cranston1983, p. 12) early swingeing critique, such rights take human rights out of the “realm of the morally compelling into the twilight world of utopian aspirations.” However, in the recent renaissance of the philosophy of human rights, socio-economic rights have found a secure place. Within the realm of moral theory, ideas of freedom, dignity, agency, need, and justice among others have been offered as justifications.

However, crafting theories of human rights through a purely moral perspective is problematic. Not only is it epistemologically questionable, it risks intellectual myopia by neglecting the insights of practice. I argue that practice- and institutional-oriented theories of rights provide a deeper insight into the values that should drive human rights thinking. This eclectic “political” approach shares some affinities with Nickel and Beitz’s appropriation of the international human rights regime. However, their shallow treatment of legal sources, occlusion of domestic institutions, and cursory treatment of ideas of fairness returns them to essentialist-like theorizing on socio-economic rights questions. Instead, I shall argue that these diverse political approaches reveal better a graduated moral concern with equality.

Finally, some scholars in both the moral and political traditions have reiterated conceptual objections to social rights. These complaints typically include the positive orientation of social rights and issues of indeterminacy, resource constraints, and justiciability. Yet, as shall be argued, both moral and political approaches to human rights demonstrate that these concerns must be significantly nuanced and, in some cases, rejected.

The chapter proceeds as follows. Section 2 considers a range of moral theories and their implications for socio-economic rights. Section 3 analyses the implications of a political approach to socio-economic rights, both as an alternative framework for rights and a reflective mirror for moral theories. Section 4 analyses and re-evaluates the standard array of conceptual objections to socio-economic rights.

11.2 Moral Theories

Moral approaches to human rights are typically grounded in the exogenous and distinctive dimensions of personhood. Endogenous social relations and socio-political context are sidelined in the “search for moral standards of political organization and behavior that is independent of the contemporary society” (Heard Reference Heard1997, p. 77). In such essentialist theorizing, the natural rights thinking of John Locke has cast a long shadow (Simmons Reference Simmons2001, p. 185); and the most vocal critics of socio-economic rights tend to be immersed in the Lockean tradition. So I begin my treatment of moral theories there, with a review of Locke. This will be followed by competing approaches that share a similar grounding (in the idea of liberty) or different grounding (such as justice, need, agency, and dignity).

11.3 Political Theories

Moral approaches provide clear deductive templates for rights theorizing but their epistemological and ontological foundations are doubtful. As to epistemology, why should a particular scholar (Locke, Pogge, Griffin) or a particular historical period in one part of the world (the Enlightenment in Europe) determine how we justify and delimit human rights? As Nickel (Reference Nickel2007, p. 9) argues, the Universal Declaration, which contains socio-economic rights, has been “amazingly successful in establishing a fixed worldwide meaning for the idea of human rights.” Buchanan (Reference Buchanan2010, p. 683) questions the validity of the “one-way” reconstruction of international human rights standards by moral theory scholars. A moral logic can simply assume that if there are elements of law that cannot be supported by one’s theory of human rights, it is the law “that must change.”

As to ontology, it is not clear why moral theorizing has confined itself to analyzing the rights of individuals without any significant reference to their social relations. No one is an island. The situatedness of human existence and legalization/institutionalization of rights means that it may be legitimate to take into account the nature of polities in which individuals live in considering the nature of their human rights. It is not immediately clear that socio-economic rights cannot be reduced to bare and mere non-comparative thresholds. As Dworkin (Reference Dworkin1977, p. 367) noted long ago, a social right can be conceived as a threshold minimum, a relative equality claim, or even strict egalitarianism: it might mean a claim to “not less welfare than some specified fraction of the welfare of the best-off person (or group); or possibly, to exactly as much welfare as any other person (or group) has.” Many of these claims are relative and have been institutionalized. A question arises as to whether they provide an alternative theory of social rights or a correction to moral theories.

This section therefore proceeds by looking at two different but complementary political approaches: international practice and domestic institutionalization.

11.4 Conceptual ObjectionsFootnote ³²

Moving beyond the question of the basic contours of social rights, the second major advance on Lockean-style theories is the pushback against traditional conceptual objections. A number of “old hoary chestnuts” are often raised in relation to social rights and four are worth considering: positive rights, indeterminate obligations, excessive costs, and nonjusticiability. Notably, both moral and political approaches have been marshaled to overcome these objections even if some degrees of difference remain between different bundles of rights.

11.5 Conclusion

While socio-economic rights may seem like the poor cousin of human rights for moral theorists, this essentialist dogma is no longer sustainable. Socio-economic human rights can be justified across a spectrum of moral theories ranging from freedom and agency to need and justice. Moreover, this chapter has argued purely moral approaches to social rights are limited. They neglect the more grounded origins of social rights practice and the insights it brings to difficult questions in moral theory. Thus, any fully fledged theory of social rights must take into account both domestic and international practice. It provides an insight into challenging questions around the scope of social rights and their egalitarian character.

Moreover, such practice help us to resolve classical conceptual objections concerning social rights – such as concerns with the positive orientation of socio-economic rights and issues of indeterminacy, resource costs, and justiciability. International treaties, court practice, actual budget allocations, and economic analysis of the effects of institutionalizing socio-economic rights suggest that many of the traditional concerns need to be significantly nuanced. Socio-economic rights is a practice which does not generate all or many of the outcomes or dilemmas predicted earlier by theory.