Title: Justifying Human Rights: The Challenge of Cross-Cultural Toleration
Author: Andreas Follesdal
Last saved by: ZS
Company: Universitetet i Oslo

ANDREAS  FOLLESDAL
950410
Justifying Human Rights:
 The Challenge of Cross-Cultural Toleration

In European Journal of Law, Philosophy and Computer Science. 1995; 437-48.

Abstract:
How should universal human rights be justified in a world system of sovereign states, characterized by incompatible modes of life and religious and philosophical traditions?  Human rights face a double challenge: they appear to violate the norm of state sovereignty, and they seem difficult to justify under value pluralism, across deep cross-cultural differences -- forcing us to consider whether they are intolerant, "Eurocentric" attempts at reforming all nation states.
	Based on reflections about why we need a theory of human rights, the paper argues that a justification for human rights need not be acceptable to all existing states:  there are justifiable limits of toleration.  A satisfactory justification, giving sufficient clarity regarding human rights, can build upon overlapping consensus among those world views which respect each other, and which include a commitment to the equal worth of all citizens.  However, human rights need not be based on the intrinsic worth of individuals' autonomy, and can in principle include group rights such as the right to development.  Human rights are justified as requirements of domestic and international legal safeguards of the basic needs of individuals, against certain standard threats posed by state power and the system of states.  This account allows for the universality of human rights, and can respond to the challenge of toleration.

ANDREAS   FOLLESDAL
  (c) 1995  andreas.f@broadpark.no 
Justifying Human Rights:
The Challenge of Cross-Cultural Toleration
I.  Introduction
Human rights, understood as universal, supreme rights, conflict with the central norm of sovereignty within the system of states as we know it.  Careful reflection is required in order to provide a justification of human rights which respects variation among societies concerning world views and religion.  Well-grounded toleration of the views and arrangements of others is important to alleviate fear of intervention, to ensure a stable world order.  In a world were the role of the nation state is undergoing change, it is also important to clarify the grounds and thus limits to toleration, eg. as expressed in international human rights.  In the following sections I sketch a resolution to the challenge of toleration.  I shall suggest how the broad range of human rights as established in international law can be justified by a theory of human rights -- including political rights and freedom of religion -- without being unduly intolerant or threatening world order (pace Rawls 1994).  Such a theory of human rights recognizes cross-cultural differences, and allows that human rights play several roles in the world order of sovereign states.  
1.  Characteristics of human rights
Let us provisionally use the concept 'human rights' to include certain legal norms within the UN and regional organizations.  Such internationally recognized human rights have several generally accepted characteristics (van Boven 1982; Lindholm 1989 and 1990; Schachter 1982):
a) Human rights are regarded as universal in the world of states as we know it: all individuals have such rights.
b) Human rights entail obligations for states and the system of states.  The domestic government is the primary locus of responsibilities.
c) Human rights are high-ranking, legally as well as morally (Schachter 198, in the sense that they serve a critical role with respect to domestic legislation and court practice. 
2.  The system of states
Human rights, understood as universal, moral (and legally) supreme rights, often conflict with the norm recognizing the legal sovereignty of states within a system of states.  Individual states claim legal sovereignty of two kinds (Bull 1977).  A government enjoys internal sovereignty over a population within a territory.  It has a monopoly on the legitimate use of force, regulated by law, and is supreme over all other actors within the territory.  The government also claims external sovereignty, to not be legally subordinate to any agent beyond state borders.
	These aspects of the system of states may conflict with human rights.  External sovereignty is challenged, at least insofar as other states or international organizations may intervene in the 'internal' affairs of a state.  Human rights to international redistribution of resources, eg. according to a right to development,  may also limit a state's right to dispose of resources as it wants.  One might claim that such conflicts seldom occur, simply because so many states have ratified the human rights instruments.  Sovereignty has been transferred most markedly within the European human rights regime:  Individuals may petition the European Commission on Human Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has generated European constitutional case law (Moravcsik 1994).  Furthermore, the Human Rights Conventions of 1966 are accepted by many non-Western states..  Many of the rights in the Declaration of Human Rights are repeated in regional documents, in African and Latin America, and many Non-Western constitutions include or incorporate the Declaration explicitly (Alston 1983, 63-64). However, many hold that human rights constitute a moral requirement, or customary international law, regardless of whether they are technically ratified by governments (Schachter 1985).  And more to our point: the documents are vague, and it is thus unclear which obligations states have taken on. 
II.  Pluralism as a challenge
Large cultural differences among states accentuate these problems.  Societies have different dominant life styles, values and cultures.  This helps explain why it is important for states to be protected from intervention by other states: individuals have an interest in shaping the social institutions which in turn shape their common life and aspirations.  But this pluralism of values make us wonder whether it is possible to justify human rights as universal, critical norms constraining state power.  Thus many critics hold that human rights are based on European, Western, liberal values which are not generally accepted in the rest of the world.  Other conceptions of the good life and of the relationship between individual and state stress the importance of securing the needs of society, and individuals' obligations to society.  Humans must also be regarded as social beings; the individual is fundamentally dependent on the social setting and society in order to develop fully as a human being.  Human rights, on the other hand, appear to assume that there is a deep conflict between individual and state, and that certain interests of the individual must be paramount.
	We should not exaggregate the actual disagreement about human rights:  No government admits that it violates central human rights such as freedom of speech, or protection against slavery and torture.  Such violations are denied or excused, but never defended (Schachter 1982, 336).  Disagreements on details within separate regions may also be more limited, eg. as expressed in the American Convention on Human Rights, the African Charter on Human and Peoples' Rights, and in the European Convention on Human Rights.  Nevertheless, the critical role of human rights challenges the central norm of sovereignty.  It is difficult to combine human rights with unbridled respect for the unique nature of each society.  Indeed, is it possible to justify universal human rights in a way which respects pluralism of value?
III.  Why do we need a theory of human rights?
A response to this challenge may start by considering why we need a theory of human rights.  From the legal point of view there is already broad international consensus on human rights as they are stated in the UN conventions.  Why, then, worry about the justification of these norms?  Indeed, the philosopher Jacques Maritain warned against attempting to justify human rights: the only way the parties reached agreement on the Declaration of Human Rights was precisely to agree to not discuss why we all have such rights (Maritain 1949, 11-12).  Why then look for a justification?
	We seek justifications not only to increase our understanding of the world, but also to resolve disagreement.  We justify our positions in order to reach agreement on particular issues, among particular parties, on the basis of some shared views -- both values and facts.  The current consensus on human rights documents does not suffice for resolving important conflicts:  the function of human rights is hotly debated, and their institutional implications are unclear.
1.  Implementation requires precision
Regardless of the function of human rights, they must be precise enough to allow the determination of violations (Alston 1988, 35-36).  The current human rights documents are a mixed bag: some rights are carefully specified, others are vague; their scope of application are unclear, and many conflicts remain unresolved.  It has proved very difficult to arrive at international agreement about these issues, even among individuals, groups and states which in principle support human rights (Cf. Schachter 1977, Meron 1986, Tushnet 1984).
 2.  Change requires justification
The set of generally accepted human rights is not an unchanging or unchangable list.  There are continuous discussions about whether new rights should be included, such as the 'third generation' rights to development (General Assembly 1986), a clean environment, and to peace; as well as the rights of minorities.  How should we assess such suggestions?
	A theory of human rights seeks to resolve these disagreements by presenting and justifying an understanding of the functions and content of human rights.  Such a theory must thus seek to match 'considered judgments' eg. as expressed in the international human rights instruments, offering an explanation of why these rights are universal in a world system of states.  The addressees of this justification are those who to a large extent accept the existing legal framework, and who are prepared to change their views in light of reasons.  A theory of human rights thus does not need to justify human rights towards individuals, groups or governments who deny the significance of human rights completely.  However, the theory must deal in a satisfactory way with the problems of pluralism of value.

IV.  The functions of human rights in the system of states
In order to determine which human rights we have, it is important to agree on the function such rights have -- their role in the system of states.  Several suggestions have been offered.
1.  Secure peace
The system of states as we know it was established through the Westphalia agreement in 1648.  At that time, a promise to protect religious minorities was necessary to achieve peace.  Thus, state sovereignty has always been limited by human rights considerations -- even though these rights were not understood as the rights of individuals against the state, but as conditions for interaction among states (Graefrath 1985).  Human rights thus serve to restrict grounds for acceptable warfare, promoting, in a modest way, world order.  John Rawls' recent contribution (1994) stresses this function of human rights.
	Peace -- preserving the existing order -- can be secured by a great many set of rules.  Why settle for human rights, instead of simply allowing states unrestricted sovereignty?
2.  Blueprint for the ideal society
Human rights can also be regarded as offering a sketch or blueprint of the good or just society.  An exhaustive list of human rights would thus identify all the ends and institutions of a legitimate state.  However, the need for such a blueprint is unclear.  Why is international agreement important with regards to a broad range of ideals?  Furthermore, this picture does not fit with existing legal human rights.  To be sure, there are some requirements concerning institutional forms:  freedom of speech, the right to vote etc., but the human rights documents also include many general conditions, which may be satisfied by a range of institutional arrangements -- for instance, requirements regarding distribution of goods.  There is little detailed regulation (Schachter 1982, 349)
	A further difficulty with this view is that it seems to reduce state sovereignty drastically, because the government is left with little leeway for accommodating to local conditions, culture and desires.
3.  Securing a just order
A more satisfactory account is that human rights serve to shape and maintain a just system of states.  Since the start of the UN system human rights have clearly been intended to secure a just peace. Human rights should not replace national cultures, but place limits on how individuals are to be treated.  
	On this view, Human Rights are principles of legitimacy for states and the system of states which serve several functions:  
1) Compliance with human rights is sufficient for securing external sovereignty, for preventing international humanitarian intervention -- neither diplomatic protests, economic pressure, or military intervention.  Military intervention is perhaps the greatest threat to regarding human rights as conditions for external sovereignty:  What happens when a state violates human rights?  We must distinguish sharply between human rights as rules of external legitimacy -- that is, under what conditions a government has a valid moral claim that other states and international organizations respect its decisions -- and rules for when military intervention is legitimate.  Violations of human rights is a necessary condition for intervention, but on this view violations are not sufficient for the justification of such intervention (Buergenthal 1979, Hoffmann 1981).  The dangers of military intervention, and the risks of abuse of the power to intervene militarily on humanitarian grounds, counsel that we be very wary of granting states such powers (Schachter 1984)  -- possibly with the exception of multilateral intervention in response to systematic and gross violations of human rights.  Human rights can serve other important roles, without running into the dangers of military intervention:
2) Human rights also limit the external sovereignty of states by laying down certain obligations across state borders.  For instance, arguments may be made that a just system of states must have arrangements to provide aid under certain circumstances; human rights may constrain the operations of multi-national companies, and they may regulate international or regional financial institutions.
3) International human rights also have an important role domestically, within states, even in the absence of international sanctioning powers, and without restricting government sovereignty.  International accountability regarding government decisions -- simply a requirement that the government presents an account of the decision procedure and factual basis -- can often be an important aid for citizens trying to determine whether their government and politicians are worthy of support and re-election (Schachter 1982, 351; Alston 1989; An-Naim 1990, 49).
V.  Modes of justification
We need, then, a justification of human rights regarded as principles for the legitimate exercise of sovereignty within and across borders along the lines sketched above.  However, few justifications are suited for dealing with cultural differences and the pluralism of values.  In this section I discuss several theories.  Jack Donnelly has presented such an ideal of equal, free and autonomous persons (Donnelly 1989, 24).  Human rights are necessary for such individuals to live acceptable lives.  However, even this basis is controversial.  Donnelly must place a high value on individuals' autonomy -- their control over their own living conditions.  It is not at all clear that autonomy of this kind will be recognized by many non-European or non-Western cultures.  It is also difficult to explain why this shared bases can ground human rights which are critical towards existing legal order and existing social institutions:  If this basis actually commands consent, there would seem to be insufficient critical distance.  This insight brings us to recognize that even though different cultures should be respected, this does not entail that every culture and conception of the good assent to the theory of human rights.
VI.  Human rights as protections of social basic needs
1.  Seek overlapping consensus among not unreasonable views
A more promising mode of justification starts with premises which can be accepted by many -- though not all -- existing world views.  In the following, I sketch a justification of human rights within a contractualist framework, arguing that they could be the object of agreement on an uncoerced bases among all who share this commitment to reach agreement.  The philosophers John Rawls (1971, 1992) and T.M. Scanlon (1982) are modern representatives of this tradition, which harks back to Rousseau and Kant.
	Some religious and philosophical traditions that flourish today are incompatible with this approach, for instance insofar as they are completely intolerant towards other religions.  These traditions are in a certain sense unreasonable world views (Rawls 1987).  An important issue is to determine which world views are unreasonable in this sense (An'Na'im 1990).
I submit that this is a fruitful way to proceed, seeking a justification of human rights directed primarily towards those who are prepared to submit to shared rules which can command free and informed consent among people of different moral views -- views which are not unreasonable.  How, then, can we justify human rights based on premises that form an overlapping consensus (Rawls 1987) in this sense?  Let us start with some fruitful suggestions.
2.  Justification from individuals' capabilities
Amartya Sen has claimed that the central basis of individuals' claims should be the capability set they are accorded, to do and be a variety of things (Sen 1980, 1984)  Human rights might be defended on these grounds, to secure that all are allowed equal primary or fundamental capabilities.
	However, it is not easy to determine what 'equal capabilities' amount to, and when such a goal is satisfied.  Furthermore, it is not clear why increased capabilities must be given such high weight within all these conceptions of the good: There may be an unreasonable element of European controversial individualism at work.
3.  Justification from the basic needs of individuals
Christian Bay (1982) starts from a more modest basis: certain physiological, psychological and social human basic needs.  These needs must be satisfied in order to live human lives, and in order to promote one's interests at all.  However, critics hold that the list of basic needs is either so narrow that few human rights can be justified, or so expansive that it cannot command overlapping consensus (Pollis 1981, Streeten 1984).
	A more acceptable contractualist justification expands on Bay's basis, combining it with the role of human rights as sketched above.  The justification must achieve overlapping consensus, and must therefore take as its premise uncontroversial basic needs, such as nutrition, care, bodily protection etc.  Furthermore, we must consider the function of human rights within a system of states, with the attendant opportunities and risks of such a social arrangement. Such opportunities and risks can also command overlapping consensus.  In the following, I sketch this approach, with special attention to two topics which might appear troublesome: political rights and the third generation of rights.
4.  Social basic needs
Humans are social beings: we are dependent on a society in order to live full lives.  Modern states make it possible to secure our basic needs, but state power can also easily prevent the satisfaction of needs.  To illustrate: in a society where the government maintains a market for all food stuffs, money -- and hence paid labor -- is necessary in order to satisfy one's basic nutritional need.  Likewise, under a centralized government with a monopoly on legal force, a broad distribution of political influence is important to prevent abuses -- hence the strong claim to political rights.  Under these social conditions, the citizens have a social basic need for money and for political influence.
5.  The general argument
The general justification for human rights is that they prevent many of the threats to social basic needs which a government poses towards its citizens.   Human rights are thus requirements regarding various institutional arrangements which safeguard the individual, holding the government accountable internationally in order that it maintains such arrangements (Scanlon 1978, 1979; Shue 1980).  Such a justification and specification of each human right requires detailed, interdisciplinary arguments about social needs, harms and efficacious institutional protections.
6.  Types of Rights
Some human rights establish conditions on legitimate institutions, while other human rights require that certain institutions are in place.  The conditions on acceptable institutions may, for instance, require that agricultural strategies and markets are completely subjected to majoritarian political considerations, to the detriment of the need for nourishment for some of the population.  
	Such rights require more than simply that the distribution of goods actually satisfies the social basic needs of all (pace Henkin 1981, and cf. Donnelly (1989, 11) against Chung-Shu Lo 1949). Basic needs are often threatened by political decision makers, particularly in times of crisis.  These threats against basic needs must be removed, eg. by including legal protection against such political decisions.  Examples include bolstering constitutional constraints or directives, such as in the Constitution of India (Sen 1982), or by incorporating international human rights legislation into domestic law.  There is no reason to prohibit each government from determining the specifics of the institutions, and how they are to be maintained, taking account of local circumstances, culture, and resources (Cohn 1982, 21).
	Other human rights require that quite specific mechanisms be in place.  Some of these detailed requirements, eg. concerning the use of markets, seem unwarranted (Schachter 1982, 348-49, Alston 1988), but in some cases it is possible to provide a sound justification.  Thus, freedom of the press and freedom of speech serve to secure individuals' options and ability to decide among political candidates based on good information.   These protections need not rely on a view that the autonomy of individuals is of intrinsic worth, but merely that other modes of distributing discretionary political power present avoidable risks to individuals' basic needs.  Thus Amartya Sen has argued that freedom of the press and political parties protect against famines (1988).  There is no good reason to insist that governments should decide who may voice their concerns publicly, in particular because such powers are easily abused.  This argument for political rights is not, then, based on an assumption of the intrinsic value of individual autonomy, but instead on a comparative argument that the alternative modes of allocating political power is detrimental to vital needs.
7.  The right to development
At first glance, it seems difficult to bring this general account to bear on the third generation of human rights.  How can eg. the right to development be justified? (G. A. Res. 41/128 1986; cf. Schachter 1985, Alston 1988).  I submit that the "third generation rights" are directed against a somewhat different set of threats than other human rights.  The basic needs of individuals are threatened not only by their own governments, but -- increasingly -- by the system of states, because regimes serve to limit the actual ability of governments to act in furtherance of citizens' interests.  For instance, basic needs are often threatened by economic and financial regimes: international markets, finance markets and loan institutions.  A central question is to determine whether there are institutional mechanisms that can protect against such threats -- without opening up for other equally worrisome risks.  On this view, the right to development should properly be regarded as a demand for a new economic world order of some form (Gilpin 1987, 298pp, Cornia 1987).  However, it remains to be determined what kinds of mechanisms that can secure fair terms for international trade.  It is by no means clear that a new economic world order is a feasible path, the only legitimate path, or the best way to proceed. 
	Furthermore, the risks of establishing such rights must be determined, and steps must be taken to avoid risks.  For instance, the right to development can easily become an excuse for a government which is not securing the basic needs of the population (Donnelly 1989, 146).  For instance, some claim that the right to political participation must be traded of against the need for -- and the right to -- economic development.  However, there seems to be little in support of the claim that a trade off is required in practice, neither in the short nor in the long run (Beitz 1981a, 1981b, Alston 1989, Donnelly 1989, Olson 1993).
	Another cause for concern is that third-party violations of the right to development can be used by states to excuse their own institutions, in violation of citizens' human rights.  If development is necessary to secure human rights, and requires assistance by other states, such an excuse may be tempting -- and perhaps even sound (Sohn 1982, 48, van Boven 1979 and Donnelly 1985, 506).  However, this excuse does not hold up: the right to adequate nourishment, for instance, does not entail an obligation for the government to feed the population, but is an obligation that the government develops and carries out an agricultural policy in light of basic needs, taking heed of available resources (Alston and Quinn 1987).  Even if international violations of the right to development reduces resources, the government must still develop and implement development strategies in light of available means.
VII.  Criticism of this approach
The sketch I have offered above is by no means exhaustive.  It is an open question whether all human rights currently acknowledged may be justified along these lines.  The empirical arguments about protections against threats may not hold up (though cf. Beitz 1981a, 1981b).  Social scientists, legal scholars and philosophers must join forces to determine the interests at stake, and how they are best secured against likely threats by alternative regimes.  In conclusion, let me consider the worries we started out with.  Does this theory meet the challenge to tolerance and stability?
1.  Universality?
This theory of human rights does not hold that all individuals have human rights, regardless of their social relations and settings.  Human rights hold, in the first instance, for individuals who live in states, within a system of states.  Nevertheless, the theory presents universal human rights, because all human beings now live within such states that profess internal and external sovereignty.  Previous societies distributed power in other ways, and this approach does not claim that the human rights as we know them would be efficacious and necessary to secure the satisfaction of basic needs then.  But insofar as we all live in states, with centralized power, and hence similar threats,  no government can reasonably claim that human rights need not constrain them (Tomuschat 1985). 
2.  Respect for value pluralism?
How does this theory deal with pluralism of value?  An important philosophical objection this theory is that even though basic needs and the risks of a system of states are not contested among not unreasonable conceptions of the good, the contractualist approach is objectionable.  Why should all pay attention to arguments which command consensus among all not unreasonable views of the good life?  Such contractualist accounts all assume that all affected parties, suitably motivated, must be able to consent to the rules for living together.  This way of valuing each individual is alien to other ethical theories.  A further, related criticism may be made on behalf of states dominated by less tolerant world views, that may be subjected to human rights nevertheless.  Should not their culture and mode of life be respected, even n those issues which conflict with human rights?  
	Both of these are serious criticisms, but they must be expanded before we can assess their plausibility.  We must be shown how they offer alternative starting points for addressing the problems.  Such an alternative must accept a wide range of human rights as found in international treaties; it must acknowledge the value of sovereignty; and finally: it must deal with pluralism in an acceptable way.  In particular: what moral ground can be offered, seriously, by intolerant states, for why international toleration is important?
	A further important criticism is based on the fact that this theory does not require that all existing conceptions of the good must agree to the theory.  Some might regard this as opting out of the serious practical challenge facing us: isn't actual agreement, within each culture, necessary to prevent the violations of human rights (Pollis and Schwab 1978)? I suggest not.  Violations are primarily due to social tensions, large economic inequalities, and the political interests of those in power.  Under such conditions, those in power are just as likely to violate local cultural norms as the international, legally binding treaties (Alston 1983).  If human rights are to promote practical, political change, they must be acceptable for the individuals from a basis they already endorse.  In response, there is no doubt that human rights will have a larger political impact within a society which finds them compatible with its central values.  Thus research on the compatibility of human rights with Buddhism and Islam is important (Wetlesen 1989 and An-Na'im 1990, respectively).  However, we must remember that each society does not have one, shared and generally accepted world view.  To the contrary, human rights often help give words to the oppressed, enabling them to critice the 'generally accepted values' of an unjust society.  International human rights can thus serve as an alternative mode of legitimacy, as a crowbar for political change (Sheth 1984, Tomuschat 1985).
	I have sought to show that this theory is not Eurocentric in unacceptable ways, neither in grounds (not based on the intrinsic value of individual autonomy), nor in effects (eg. by acknowledging third generation rights).  Even though human rights appear to stress individuals and their rights, this is not an undue result of European liberalistic imperialism.  The reason for stressing individuals' rights is that human rights serve as limits on the legitimate exercise of government power, and the limits of obligation (Tomuschat 1985).  Human rights help us assess when the state and the state system is worthy of obedience and respect -- and assisting us in improving on present injustice, when our institutions fail to recognize all as deserving of respect.  

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