Imagining Human Rights

Susanne Kaul, David Kim, Susanne Kaul, David Kim

• Publisher: De Gruyter
• Year: 2015
• ISBN:
  9783110387292
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

Why is it that human rights are considered inviolable norms of justice at local and global scales although the number of their violations has steadily increased in modern history? On the surface, this paradox seems to be reducible to a straightforward discrepancy between idealism and reality in humanitarian affairs, but Imagining Human Rights complicates the picture by offering interdisciplinary perspectives on the imaginary status of human rights. By that the contributors mean not merely subject to imagination, open to interpretation or far too abstract, but also formative of a social imaginary with emphatic identifications and shared values. From a variety of disciplinary perspectives, they explore critical ways of engaging in rigorous interdisciplinary conversations about the origin and language of human rights, personal dignity, redistributive justice, and international solidarity. Together, they show how and why a careful examination of the intersection between disciplinary investigations is essential for imagining human rights at large. Examples range from the legitimacy of land ownership rights and the inadequacy of human faculty to make sense of mass violence in visual representation to the stewardship of human rights promoters and the genealogy of human rights.

Section One: Claiming Human Rights

Thomas Pogge

The Progressive Potential of Human Rights

We might begin reflection on the progressive potential of human rights by looking at the role that human rights are supposed to play within the present international order. Here two main functions stand out. First, human rights are meant to constrain and inform the conduct of political authorities: of governments and their various domestic and international agencies and organizations. Governments must respect the human right of those living under their authority and of others they may interact with. Governments must protect the human rights of members of their state against internal and external threats from crime, war, civil war and terrorism, from natural catastrophes including epidemics and human-made ecological disasters, and from threats to the economic preconditions for meeting the basic needs of the state’s members. Insofar as these efforts to respect and protect prove insufficient, governments must also provide for their citizens any missing objects of human rights, for example food aid in the event of a flood or a draught.¹²

Second, human rights are also supposed to motivate and guide the design of an international back-up regime of governments that step in with assistance, incentives and compulsion when one state’s political authorities are unable or unwilling to meet their human rights-based responsibilities to respect, protect or provide. Various existing international governmental organizations and arrangements can be seen as elements of such a regime: the UN Security Council with its Chapter-7 authority to use coercive measures, including military force, to deal with “any threat to the peace, breach of the peace, or act of aggression” (UN Charter 1948, Art. 39, 41, 42); the World Health Organization (WHO) with its mechanisms for responding to the outbreak of epidemics; the World Food Program (WFP) delivering emergency food aid to famine-stricken regions; and the UN Framework Convention on Climate Change (FCCC) charged with averting a major human-rights catastrophe caused by the warming of our planet as a result of excessive greenhouse gas emissions.¹³

With this being the prevailing understanding, the objects of human rights are amply protected in our world, protected by a sequence of “waves of duties.”¹⁴ Are human rights then also amply fulfilled in our world? As Amnesty International keeps reminding us, “torture is flourishing in at least three quarters of the world’s countries” (Amnesty International 2014, back cover). And the state of social and economic human rights can only be described as appalling. According to the latest official figures, of the 7.3 billion people alive today, 842 million are officially counted as undernourished (FAO, IFAD and WFP 2013, pp. 8, 42), well over 1 billion lack adequate shelter (Rolnik 2014, p. 1), 748 million lack safe drinking water (Too-Kong 2014, p. 47), 1.8 billion lack adequate sanitation (Too-Kong 2014, p. 45), over 1.2 billion lack electricity (World Bank 2013, http://go.worldbank.org/6ITD8WA1A0), more than one-third lack reliable access to essential medicines (Nyanwura and Esena 2013, p. 208), 781 million over age 14 are illiterate (UNESCO 2013, www.uis.unesco.org/literacy/Pages/literacy-data-release-2014.aspx), and 168 million children aged 5 to 17 do wage work outside their household – often under slavery-like and hazardous conditions: as soldiers, prostitutes or domestic servants, or in agriculture, construction, textile or carpet production (ILO 2014, www.ilo.org/global/topics/child-labour/lang--en/index.htm).

We must conclude, then, that human rights fulfill both of their functions rather poorly. Many governments are unwilling or unable to realize human rights within their territory. And international responses to the remaining massive human rights deficits are discordant, selective and unreliable: the powerful (the U.S., Russia, and China) are routinely exempt from sanctions and the marginal are routinely left unprotected (the people of Libya and Syria recently, or the victims of the genocide in Rwanda). What should we conclude from these facts about the plausibility of the prevailing understanding of human rights?

It depends on how we conceive of human rights. We might conceive of them as a central piece of political morality, and of morality as a purely passive system of timeless universal standards to be used to assess, from an imagined extra- or post-historical standpoint, the relevant occurrences in human history: the conduct and character of human agents, human rules and various pertinent states of affairs. On this conception, it is no fault of our evaluative standards that the world falls far short of them – that, in particular, governments fail to meet their primary and secondary responsibilities. Alternatively, we might conceive of human rights, and perhaps of morality more generally, as practical tools in the struggle to achieve a world in which all human beings live in the firm knowledge that they can securely enjoy certain basic freedoms and securely meet their basic needs. On this alternative conception, we might well conclude that this tool has worked poorly and that we should at least explore ways of adapting our morality to make it more effective at achieving what, by its own lights, matters.

Staying with this latter conception of human rights, why have the rhetoric and legal apparatus of human rights not been a more effective tool in their realization? How can we change this tool or its use so as to make it more effective? One prominent response to these questions involves rethinking the ambitiousness of our list of human rights. Thus, some scholars have argued that by unsystematically recognizing too many human rights, the UN has drawn attention away from the most urgent ones, generally diluting the importance people assign to human rights considerations.¹⁵ Arguably, then, even the expansive set of human rights currently recognized would be better realized if we were officially committed to only a substantially smaller subset of them.

Unconvinced that this diagnosis gets to the heart of the problem, I will here explore a different adaptation of the way the human rights tool is deployed. The basic idea is to apply this tool in a new place: to fight for a central role for human rights in the intergovernmental negotiations through which supranational institutional arrangements are designed.

The last thirty years have seen the rapid emergence of a dense network of global institutional arrangements that now profoundly influence international interactions and also reach deep into the inner lives of national societies. In shaping these institutional arrangements, the more powerful governments, especially those of the United States and its main allies, have played a dominant role. In exerting this influence, these governments were in turn heavily influenced by their most powerful constituents: large investors and the leaders of powerful multinational corporations, industry associations, banks and hedge funds. It is then unsurprising that this rapidly emerging global order reflects the interests of these highly privileged agents. They do not, to be sure, intend any harm to the poor. But they do try to increase their own share of global income, and, insofar as they succeed, the shares of poorer segments of the human population must decline. As the poor are least able to exert political influence – especially on supranational institutional design decisions – it is to be expected that their needs and interests are systematically disregarded. Global institutional arrangements generate a severe headwind against the global poor, a headwind that existing efforts by governments to fulfill their various waves of duties are woefully insufficient to neutralize. We see this when we observe that socio-economic inequality has been rising globally and in most countries, causing severe poverty to persist as the poor are unable to participate proportionally in global economic growth. In the 1988–2008 period, for instance, the income share of the poorest 30 percent of the world’s population has shrunk from an already minuscule 1.52% to an even tinier 1.25% of global household income.¹⁶

What I am asking for, then, is that we stop thinking of supranational rule making as a morality-free zone in which it is acceptable for partisan government representatives to strike bargains for mutual advantage. Instead, we should recognize and highlight the fact that everyday supranational rule making, notably in the economic sphere, has profound effects on human rights fulfillment around the world. And we should accept the principle that supranational institutional arrangements should be shaped so that human rights are fulfilled insofar as this is reasonably possible. Can such a change be effected? And if so, how?

The change can be supported by appeal to the venerable core document of the post-World War II human rights movement, the 1948 Universal Declaration of Human Rights. Article 28 reads: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” This Article clearly calls for human rights to be applied to the design and reform of our international order. What difference would it make if the most powerful governments took this Article to heart and allowed their supranational rule making to be constrained by the imperative of human rights fulfillment?

Let me illustrate the difference this could make with two examples: the new international rules governing pharmaceutical innovation, which systematically deprive poor populations of access to advanced medicines, and the rules governing international accounting and taxation, which systematically deprive poor populations of investment capital and tax revenues.

First Illustration: Pharmaceutical Patents and the Health Impact Fund

The current system of pharmaceutical provision is shaped by Annex 1C of the WTO Agreement covering Trade-Related Aspects of Intellectual Property Rights (TRIPS) (WTO 2014, www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm). Innovators are rewarded through national patents that give them exclusive rights on the manufacture and sale of their new medicines for at least 20 years.

Given the prevailing enormous economic inequalities, this system leads to exorbitant mark-ups that make patented medicines unaffordable to a majority of humankind. It also steers pharmaceutical research away from diseases concentrated among the poor and toward the development of maintenance drugs and close substitutes (“me-too drugs”). Additional inefficiencies arise from massive deadweight losses and wasteful expenditures on countless patents and patent litigation, competitive advertising and counterfeits.

The system could be greatly improved by adding a second reward track for pharmaceutical innovators. The Health Impact Fund (HIF, see www.healthim pactfund.org) is a proposed pay-for-performance scheme that would offer innovators the option to register any new medicine, thereby undertaking to make it available, during its first 10 years on the market, at or below cost. The registrant would further commit to allowing, at no charge, generic production and distribution of the product after expiration of this reward period.

In exchange, the registrant would participate during that decade in fixed annual reward pools divided among all registered products according to their measured health impact. The size of these pools could be chosen to incentivize an appropriate number of important research and development (R&D) projects. At its minimum size of $6 billion annually, the HIF might support some 25 new medicines at any time, with two or three entering and leaving each year.

Since the strength of the incentives depends on secure long-term funding, the reward pools would ideally be financed through a sizable endowment fed from contributions by states (proportional to their gross national income), international agencies, NGOs, foundations, corporations, individuals, and estates. Such contributions to the HIF would produce vastly greater health gains per dollar than the $600 billion that humanity is now spending each year on patented medicines. This is so because of the HIF’s much greater efficiency. The HIF would avoid the bias in favour of maintenance drugs by fully rewarding health gains achieved by preventative and curative drugs. It would discourage the development of me-too drugs by rewarding them only insofar as they produce health gains beyond those achieved by their similar predecessors. It would motivate registrants to care not about mere sales but about health gains: a registrant would focus its marketing on patients who can really benefit from its product...

Table of contents

• Cover
• Título
• Impressum
• Acknoledgement
• Inhalt
• Introduction: Imagining Human Rights
• The Sacredness of the Person or The Last Utopia: A Conversation about the History of Human Rights
• Section One: Claiming Human Rights
• Section Two: Human Rights in Imagination
• List of Contributors
• Index of Persons
• Index of Subjects
• Fußnoten