José Jácome/EFE
It is increasingly common to hear the complaint that there are too many international human rights. Those complaining raise three sorts of allegations: that new rights are being created willy-nilly, a sort of rights proliferation; that existing rights are being interpreted by international bodies to include protections that go beyond what was intended, a sort of rights extension; and that the human rights framework—or a “rights-based approach”—is being newly applied to too many areas of human endeavour, like business, or managing the environment.
At first glance, these complaints may seem well-founded. The United Nations (UN) has recently endorsed a right to peace, and a Declaration on the Rights of Peasants, while the High Commissioner for Human Rights speaks of a right to internet access. At the same time, non-discrimination guarantees in international treaties have been interpreted to extend protection to LGBTQ persons, and many other disadvantaged groups not singled out for protection in international treaties. The rights-based approach, meanwhile, is being invoked in settings as disparate as organizing world sporting events, or the use of artificial intelligence.
Yet the complaints about “rights inflation” are not new, and largely mischaracterize the interpretive process through which, over time, judges and other official bodies organically extend human rights protections. Furthermore, in focusing on the apparent expansion in rights protection, commentators commonly ignore the more interesting question – not the fact of an expansion, but the reasons why new struggles seize the language of human rights. The most obvious answer is that the human rights framework continues to prove appealing to new struggles for justice; indeed, ‘rights inflation’ is not a sign of a movement going off-track, but rather of its continuing relevance and attraction.
‘Rights inflation’ is not a sign of a movement going off-track, but rather of its continuing relevance and attraction.
As noted, the complaints are not new. Indeed, the tendency to rights proliferation and extension at an international level has been commented on for over 50 years. As far back as 1969, in a widely-noted article, Richard Bilder noted “In practice, a claim is an international human right if the United Nations General Assembly says it is.” And he further suggested that the “tendency towards proliferation of international human rights” means “their usefulness as an ordering concept may be distorted”. There have been repeated pleas for “quality control” and for advocates to focus on implementation of existing rights, not defining new ones. But too rarely do these critiques highlight the fact that truly “new” rights are rarely advanced, rather most rights proliferation and expansion arises from an ongoing process of interpreting and applying existing rights to new—or newly acknowledged—realities. Why not clarify how the content of human rights best applies to peasants, or how in a digital age to best interpret rights to free expression and privacy? And the lists of prohibited grounds of discrimination in international human rights treaties were never closed, but deliberately left open to leave room to include groups newly marginalized, or newly recognized as marginalized. It is not so much an issue of adding new rights, but of adding to the scope and content of existing rights.
As regards the trend to apply the human rights framework to new areas of human endeavour, like business or environmental protection, this has indeed continued apace. But this reflects more than just faddishness. Properly understood, human rights are not merely the concern of states, nor restricted to legal and political affairs. A moment’s reflection makes clear that business may impact on human rights, or that dangerous global warming will negatively affect the rights of millions. While the state remains the prime duty-bearer to implement rights, as far back as the Universal Declaration of Human Rights in 1948 it was clear that the need to respect and promote rights fell on “all organs of society”. And Eleanor Roosevelt famously reminded us that if human rights were to have real impact, they must thrive in the “…small places….the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works.”
Human rights are not merely the concern of states, nor restricted to legal and political affairs.
The case for resisting rights expansion is grounded in diverse arguments: too many rights trivializes the concept, and frivolous rights claims undermines their authority; or, this expansion creates unrealizable demands, in turn weakening the stature of human rights. And some claim the alleged proliferation of rights undermines their universality as the new rights are not embraced by all regions or legal and moral traditions. These are all serious arguments, yet they remain unproved. In fact, arguably rights expansion has increased their popularity and appeal as new groups see—through struggle and interpretation—how rights can aid their cause. In 1993, at the Vienna World Conference on Human Rights, the global women’s movement came together to demand “Women’s rights are human rights”. Twenty-five years later it seems obvious, but the slogan and advocacy behind it at the time was needed to put the then marginalized women’s rights agenda at the centre of global human rights demands.
So, instead of talking about “rights inflation”, we should rather understand what we are witnessing not as a slapdash process to create new rights, nor even the colonising advance of a triumphant creed, but the articulation of new interpretations of rights to respond to new struggles for human dignity. Simply put, if human rights were not relevant or useful in these struggles, then few would use them.
Of course, not all the complaints are well-intentioned. Many who decry rights inflation are less worried about the impact this may have on existing rights, and simply oppose the new interpretations arising. This is clearly the case with the “Commission on Unalienable Rights” established by US Secretary of State Mike Pompeo in 2019, which is explicitly intended to focus our attention to a small group of civil and political rights, narrowly defined. But if that’s the case, it is far better to have an honest debate about the content of human rights, then be distracted by a “rights inflation problem” that doesn’t exist.