Basic Rights

Subsistence, Affluence, and U.S. Foreign Policy: 40th Anniversary Edition

Henry Shue

• Publisher: Princeton University Press
• Year: 2020
• ISBN:
  9780691200835
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

An expanded and updated edition of a classic work on human rights and global justice Since its original publication, Basic Rights has proven increasingly influential to those working in political philosophy, human rights, global justice, and the ethics of international relations and foreign policy, particularly in debates regarding foreign policy's role in alleviating global poverty. Henry Shue asks: Which human rights ought to be the first honored and the last sacrificed? Shue argues that subsistence rights, along with security rights and liberty rights, serve as the ground of all other human rights. This classic work, now available in a thoroughly updated fortieth-anniversary edition, includes a substantial new chapter by the author examining how the accelerating transformation of our climate progressively undermines the bases of subsistence like sufficient water, affordable food, and housing safe from forest-fires and sea-level rise. Climate change threatens basic rights.

Notes

PREFACE TO THE 40TH ANNIVERSARY EDITION

1. Charles R. Beitz and Robert E. Goodin, “Introduction: Basic Rights and Beyond,” in Global Basic Rights, edited by Charles R. Beitz and Robert E. Goodin (Oxford: Oxford University Press, 2009), 1–24, at 17–23; and Simon Caney, “Human Rights, Responsibilities, and Climate Change,” in Global Basic Rights, 227–247, at 228.

2. I have meanwhile written in passing about climate change and human rights in (1) “Changing Images of Climate Change: Human Rights and Future Generations,” Journal of Human Rights and the Environment 5 (2014): 50–64; reprinted in Anna Grear and Conor Gearty, eds., Choosing a Future: The Social and Legal Aspects of Climate Change (Cheltenham, UK: Edward Elgar, 2014), 50–64; (2) “Human Rights in the Anthropocene,” in Encyclopedia of the Anthropocene, edited by Dominick A. DellaSala and Michael I. Goldstein (Oxford: Elsevier, 2018), 4:103–109; also available online as a chapter in Reference Module in Earth Systems and Environmental Sciences, Science Direct, doi:10.1016/B978-0-12-409548-9.10480-4; and (3) “Last Opportunities: Future Human Rights Generate Urgent Present Duties,” in Global Policy (November 26, 2015): http://www.globalpolicyjournal.com/blog/26/11/2015/last-opportunities-future-human-rights-generate-urgent-present-duties; part of Global Policy’s e-book, Climate Change and Human Rights: The 2015 Paris Conference and the Task of Protecting People on a Warming Planet (2015), edited by Marcello di Paola and Daanika Kamal.

INTRODUCTION

1. The label “International Bill of Human Rights” very usefully groups together the Preamble and Articles 1, 55, and 56 of the Charter of the United Nations; the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; and the Optional Protocol to the International Covenant on Civil and Political Rights. Although the U.S. Senate has failed to ratify the two Covenants and the Optional Protocol, they all entered into force internationally in 1976. The Carter Administration has failed even to submit to the Senate for ratification the Optional Protocol, which contains the most important mechanism for the enforcement of civil and political rights. The protocol is “optional” only in the sense that it requires separate ratification. To this grouping probably should be added the most widely ratified UN human rights treaty currently in force (once again, without United States ratification or participation): the International Convention on the Elimination of all Forms of Racial Discrimination, in force since 1969.

On the role of the United States government in promoting within the International Bill of Human Rights the artificial division between civil and political and economic, social and cultural rights, see below, chapter 7, n. 7. On why the division is artificial, see chapter 2.

2. Secretary of State Cyrus R. Vance, “Human Rights Policy,” April 30, 1977 (Washington: Office of Media Services, Bureau of Public Affairs, Department of State), PR 194, p. 1. The inclusion of “the right to the fulfillment of such vital needs as food, shelter, health care, and education” was re-affirmed by Deputy Secretary of State Warren Christopher in “Human Rights: Principle and Realism,” August 9, 1977 (Washington: Office of Media Services, Bureau of Public Affairs, Department of State), PR 374, p. 1.

3. For my account of subsistence rights, see chapter 1.

4. By focusing discussion upon positions taken by elements of the State Department I do not intend to encourage the false impression that State is the leading force in the Executive Branch on foreign policy. In recent decades the Department of Defense and National Security Advisers to the President (namely McGeorge Bundy, Henry Kissinger, and Zbigniew Brzezinski) have often exerted far more influence—see, for stimulating reflections about this, Graham Allison and Peter Szanton, Remaking Foreign Policy: The Organizational Connection (New York: Basic Books, 1976). State is simply the portion of the Executive Branch that makes more of its positions public than others usually do, with the result that citizens can examine them, unlike the more often secret positions pursued by the National Security Council.

5. One published account says that the legal analyses of the International Covenants, signed by Deputy Secretary of State Christopher, were “drafted” by the White House, not by the Office of Legal Advisers, and were forwarded without consultation with the Bureau of Human Rights—see Thomas M. Franck and Edward Weisband, Foreign Policy by Congress (New York: Oxford University Press, 1979), p. 96. For some of the reasons why it would not be surprising if no one wanted to take responsibility for the destructive collection of reservations, understandings, and declarations that would turn Senate ratification of the Covenants into a farce, see the first section of chapter 7.

6. See Senate Comm. on Foreign Relations and House Comm. on Foreign Affairs, 96th Cong., 1st Sess., Report on Human Rights Practices in Countries Receiving U.S. Aid (Joint Comm. Print, February 8, 1979), passim. For the PQLI scores, see pp. 666–673. For a thorough discussion of the PQLI by its developer, see Morris D. Morris, Measuring the Condition of the World’s Poor: The Physical Quality of Life Index, Pergamon Policy Studies, No. 42 (New York: Pergamon Press for the Overseas Development Council, 1979).

7. See Donald M. Fraser, “Freedom and Foreign Policy,” Foreign Policy, No. 26 (Spring 1977), p. 144.

8. An example of this traditional way of fudging the issue is: “the right to the satisfaction of basic human needs—such as food, shelter, and essential medical care—when resources are available,” United Nations Association of the United States of America, National Policy Panel, United States Foreign Policy and Human Rights (New York: UNA-USA, 1979), p. 35. Must any effort be exerted to make resources available, or shall we just use what turns out to be left over after business as usual?

1 • SECURITY AND SUBSISTENCE

1. Obviously this is not the usual North Atlantic account of what a right is, although it incorporates, I think, what is correct in the usual accounts. Perhaps the most frequently cited philosophical discussion is the useful one in Joel Feinberg, Social Philosophy (Englewood Cliffs: Prentice-Hall, Inc., 1973), pp. 55–97. A more recent and extended account is A. I. Melden, Rights and Persons (Oxford: Basil Blackwell, 1977). The best collection of recent English and American philosophical essays is probably Rights, edited by David Lyons (Belmont, Calif.: Wadsworth Publishing Co., Inc., 1979). For a broader range of views, in less rigorous form, see Human Rights: Cultural and Ideological Perspectives, edited by Adamantia Pollis and Peter Schwab (New York: Praeger Publishers, 1979). For additional references, mostly to work in English, see Rex Martin and James W. Nickel, “A Bibliography on the Nature and Foundations of Rights, 1947–1977,” Political Theory, 6:3 (August 1978), pp. 395–413. Some older but more wide-ranging bibliographies are International Human Rights: A Bibliography 1965–1969 and International Human Rights: A Bibliography 1970–1976, both edited by William Miller (Notre Dame: University of Notre Dame Law School, Center for Civil Rights, 1976).

2. In saying that these three features constitute “the general structure of a moral right” I do not mean that every moral right always has every one of the three. Wittgenstein, for one, has argued persuasively that we have no particular reason to expect all authentic instances of any concept to have all features—indeed, to have any one feature—in common and that what instance A shares with instance B need not be the same as what instance B shares with instance C. See Ludwig Wittgenstein, Philosophical Investigations, Third Edition (Oxford: Basil Blackwell, 1967), Part I, paragraphs 66–67. What we are left with is the more realistic but more elusive notion of standard, central, or typical cases. The danger then rests in the temptation to dismiss as deviant or degenerate cases what ought to be treated as counter-examples to our general claims. We have no mechanical method for deciding what is standard and what is deviant and so must consider individual cases fairly and thoroughly, as we shall soon be trying to do.

Two important characteristics of this list of features should be emphasized. First, the list of features is, not the premises for, but the conclusion from, the detailed description of individual rights considered in the body of the book. Thus, the order of presentation is not the order of derivation. These general features were distilled from the cases of security rights, subsistence rights, and liberty rights discussed in the first three chapters. These general conclusions are presented here as a means of quickly sketching the bold outlines of what is still to be justified.

Second, most of the argument of the book depends only upon its being correct to say that all basic rights have these three features. Since the features are derived from the detailed consideration only of basic rights, it would be conceivable that basic rights were peculiar in having all three. Yet, many other rights obviously do have this same structure. So I advance the less fully justified broader claim, not merely the safer, narrower claim.

3. Feinberg, pp. 58–59. The terminology of “claim-rights” is of course from Wesley Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1923).

4. Standard moral rights are, in the categories devised by Hohfeld for legal rights, claim-rights, not mere liberties. Certainly all basic rights turn out to be moral claim-rights rather than moral liberties. See chapter 2.

5. This becomes clearest in the discussion of rights to liberty in chapter 3.

6. Who exactly are the relevant people is an extremely difficult question, to which chapter 6 is devoted.

7. See chapter 2.

8. For his clearest single presentation of this analysis, see Friedrich Nietzsche, On the Genealogy of Morals, edited by Walter Kaufmann and translated by Walter Kaufmann and R. J. Hollingdale (New York: Vintage Books, 1967). Much, but not all, of what is interesting in Nietzsche’s account was put into the mouth of Callicles in Plato’s Gorgias.

9. Many legal claim-rights make little or no contribution to self-respect, but moral claim-rights (and the legal claim-rights based upon them) surely do.

10. Nietzsche was also conflating a number of different kinds of power/weakness. Many of today’s politically powerful, against whom people need protection, totally lack the kind of dignified power Nietzsche most admired and would certainly have incurred his cordial disgust.

11. Anyone not familiar with the real meaning of what gets called “infant mortality rates” might consider the significance of the fact that in nearby Mexico seven out of every 100 babies fail to survive infancy—see United States, Department of State, Background Notes: Mexico, Revised February 1979 (Washington: Government Printing Office, 1979), p. 1. For far worse current children’s death rates still, see below, chapter 4, note 13.

12. It is controversial whether rights are claims only upon members of one’s own society or upon other persons generally. For some support for the conclusion assumed here, see chapter 6.

13. Since the enjoyment of a basic right is necessary for the enjoyment of all other rights, it is basic not only to non-basic rights but to other basic rights as well. Thus the enjoyment of the basic rights is an all-or-nothing matter. Each is necessary to the other basic ones as well as to all non-basic ones. Every right, including every basic right, can be enjoyed only if all basic rights are enjoyed. An extended discussion of a case of this mutual dependence is found in chapter 3.

At the cost of being somewhat premature it may be useful to comment here on an objection that often strikes readers at this point as being a clear counter-example to the thesis that subsistence rights are basic rights in the sense just explained. Mark Wicclair has put the objection especially forcefully for me. The arguments for the thesis have of course not yet been given and occupy much of the remainder of the chapter and, indeed, of the book.

Suppose that in a certain society people are said to enjoy a certain security right—let us say the right not to be tortured. But they do not in fact enjoy subsistence rights: food, for example, is not socially guaranteed even to people who find it impossible to nourish themselves. The thesis that subsistence rights are basic means that people cannot enjoy any other right if subsistence rights are not socially guaranteed. It follows that the people in the society in question could not actually be enjoying the right not to be tortured, because their right to adequate food is not guaranteed. But—this is the objection—it would appear that they could enjoy the right not to be tortured ...