Overloading International Human Rights Law

This panel was convened at 11:00 a.m., Friday, April 10, by its moderator Aaron Fellmeth of Arizona State University College of Law, who introduced the panelists: Erika George of University of Utah SJ. Quinney College of Law; Frederic Megret of McGill University Faculty of Law; James Nickel of University of Miami School of Law; and Henry Shue of University of Oxford. * INTRODUCTORY REMARKS BY AARON FELLMETH ([dagger]) The list of rights included in the corpus of international human rights law has always been controversial. At the drafting of the International Bill of Rights, many wealthy democracies opposed the inclusion of economic, social, and cultural rights as merely aspirational. Some of these rights, such as the right to paid vacations and, in many places, free universal primary education, certainly were and some still are. The claim at the time was that such interests were not fit subjects for human rights because, as important as they might be to human dignity and flourishing, their inclusion was unrealistic. And it would by association potentially degrade the short list of realizable rights, such as freedom of expression and fair trial, to mere moral exhortations rather than legally enforceable mandates. In addition, some purported rights, such as the right to the benefits of science, do not seem to fit into the classic category of Hohfeldian claim-right. The substance of the right is exceedingly vague, and it is unclear against whom the right is properly invoked. Today only a few outliers such as the United States continue to deny the binding status of such rights, but many such rights still reflect aspiration more than reality in most of the world. At the same time, some states, as well as many academics and advocates, have been attempting to grow the list of human rights and expand it to new fields. These include, by way of example: (1) environmental rights; (2) intellectual property rights; (3) group rights (in the corporate, as opposed to collective, sense); (4) animal rights; and (5) a right to Internet access. Furthermore, many have advocated using international human rights law to control the misdeeds of business organizations in foreign lands, which does not so much propose a new right as expand the universe of direct duty-holders beyond the traditional international actors--states. The reason international human rights law has been deployed for these ends is fairly obvious. As the set of the most fundamental community values, human rights are used to claim priority over most competing policy goals. In general, community interests yield to conflicting rights. And so casting an interest as a human right imparts to a policy goal a gravitas beyond that normally attributed even to a binding legal right or its correlative obligations. Although this is an excellent reason to seek to elevate a much desired goal to the status of a human right, it is not a reason to grant it that status. There are two considerations here, of relative values and of systemic functioning. For an interest to be elevated to a right, there must be sufficient reason for preferring it to most competing interests. Ideally, it should be important to the dignity and flourishing of all persons. The interest in sanitary water satisfies that criterion; does the interest in protecting one's trademarks? As to systemic functioning, this is a multifaceted issue that raises many questions. Is the right's scope and content reasonably ascertainable, or is it doomed to abstraction? Does framing the interest as a right make sense in the context of a system of individual entitlements? Will it protect the interest adequately? Will it enable the undermining of other rights? Will it entail imposing duties on an appropriate subject? To discuss these and related issues, we are fortunate to have a very distinguished group of participants from the fields of philosophy, law, and political theory. …

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