Carl Wellman

Solidarity, the Individual and Human Rights

In his inaugural lecture to the tenth study session of the International Institute of Human Rights in 1979, Karel Vasak presented a brief but systematic theory of what he called “the third generation of human rights.”1 The first generation of human rights included primarily those defined in the International Covenant on Civil and Political Rights (ICCPR).2 The second generation consisted mainly of the human rights specified in the International Covenant on Economic, Social and Cultural Rights (ICESCR).3 Although no third covenant was under consideration until 1981, Vasak argued that several new human rights, such as the rights to development, to a healthy environment, and to peace, were already beginning to emerge in international law. He suggested that these three generations of human rights corresponded respectively to the three ideals proclaimed in the French revolution: liberty, equality and fraternity.4 Accordingly, these new human rights should be thought of as solidarity rights.

The moral dimensions of human rights

1. An Approach to Human Rights 1. THE NATURAL RIGHTS TRADITION 2. ALTERNATIVE APPROACHES 3. CONCLUSION 2. The Nature of Moral Human Rights 1. RIGHTS 2. MORAL RIGHTS 3. HUMAN RIGHTS 4. MODALITY 5. ADVERSARIAL 6. UNIVERSAL 7. POLITICAL IMPORT 8. INALIENABLE 9. IMPORTANCE 10. CONCLUSION 3. Grounds of Moral Human Rights 1. BASAL RIGHTS 2. DERIVED RIGHTS 3. CONCLUSIONS 4. Moral Dimensions of Human Rights Documents 1. DECLARATIONS 2. TREATIES 3. SECURITY RIGHTS 4. RIGHTS TO LIBERTY 5. EQUALITY RIGHTS 6. WELFARE RIGHTS 7. DUE PROCESS RIGHTS 8. POLITICAL RIGHTS 9. GROUP RIGHTS 10. CONCLUSIONS 5. Nature of International Human Rights 1. RIGHTS 2. MODALITY 3. ADVERSARIAL 4. UNIVERSALITY 5. CONCLUSION 6. Grounds of International Human Rights 1. THE CHARTER OF THE UNITED NATIONS 2. CONVENTIONS SPONSORED BY THE UNITED NATIONS 3. GENERAL ASSEMBLY RESOLUTIONS 4. REPORTS OF HUMAN RIGHTS COMMITTEES 5. EVIDENCES OF CUSTOMARY INTERNATIONAL LAW 6. JUDICIAL DECISIONS 7. CONCLUSIONS 7. International Rights vs. National Sovereignty 1. UNITED NATIONS CHARTER 2. GENERAL ASSEMBLY RESOLUTIONS 3. UNITED NATIONS PRACTICES 4. INTERNATIONAL COURT CASES 5. UNRESOLVED LEGAL ISSUES 6. JUST RESOLUTIONS 7. CONCLUSIONS 8. Constitutional Rights 1. CONSTITUTIONAL RECOGNITION 2. ENTRENCHMENT 3. AS HUMAN RIGHTS? 4. CONCLUSION 9. . Judicial Recognition of Human Rights 1. ADVANTAGES 2. DISADVANTAGES 3. APPRAISAL ON BALANCE 4. REDEFINING CONSTITUTIONAL RIGHTS 5. DERIVING RIGHTS 6. RECOGNIZING ADDITIONAL RIGHTS 7. CONCLUSION 10. Legislative Recognition and Implementation 1. DISADVANTAGES OF LEGISLATIVE RECOGNITION 2. ADVANTAGES OF LEGISLATIVE RECOGNITION 3. WHICH RIGHTS? 4. KINDS OF IMPLEMENTATION 5. WHICH KINDS? 6. CONCLUSION 11. Recognition and Implementation of Treaty Rights 1. WHEN AGREE? 2. WHEN RESERVATIONS? 3. HOW IMPLEMENT? 4. CONCLUSIONS 12. . Moral Dimensions 1. MORAL HUMAN RIGHTS 2. INTERNATIONAL HUMAN RIGHTS 3. NATIONAL HUMAN RIGHTS

A New Conception of Human Rights

The demand that individual privacy be respected is becoming more common and more insistent in our age. This probably reflects a rapidly increasing need for privacy arising from converging ecological, cultural, technical and social changes. The population explosion together with modern urbanization have made it much more difficult for the individual to get away, physically and psychologically, from the crowd of strangers around him. The growing allegiance to political individualism and moral autonomy have caused the individual to resent and resist legal regulation and social interference more intensely. At a time when bugging and other techniques of surveillance have been perfected to an alarming degree, the development of computers enables us to store and retrieve vastly increased amounts of information about any specified individual in even very large populations. Finally, as organizations have grown larger in size and more bureaucratic in structure, their tendency to invade the life of the individual has grown apace.

Social Justice and Human Rights

In recent decades we have witnessed a multitude of increasingly urgent demands for social justice and for the protection of human rights. Politically, those struggling to promote social justice have worked hand in hand with human rights advocates. The social injustices of racial and sexual discrimination have been protested as violations of the fundamental human rights to equal opportunity and to the equal protection of the laws; a human right to an adequate standard of living has been proclaimed on the basis of the injustice of an affluent society in which the rich can enjoy luxuries while the poor lack the means to meet their basic human needs. Such political arguments suggest to the thoughtful observer that there is some close connection between social justice and human rights. At the same time, we have read, or tried to find the time to read, a deluge of books and articles dealing with the theory of justice and the theory of rights. What is remarkable about these two bodies of philosophical and jurisprudential literature is their virtual isolation from each other. In the index to A Theory of Justice, the monumental 587-page book by John Rawls, there are only three references to natural rights and none at all to human rights. The vast literature dealing with rights takes individual freedom or individual interests as central, depending upon whether the author is advancing a will theory or an interest theory of rights, but hardly mentions justice, whether individual or social. This is all the more surprising because philosophers and jurists typically assume that justice and rights are necessarily connected. The more I ponder the practical politics and moral theory of the past few decades, the more puzzling, and important, appears to me the problem I intend to address today: What is the relation between social justice and human rights?

The Growth of Children’s Rights

A right, as I conceive it, is a system of autonomy. A legal right is a structure of legal liberties, claims, powers and immunities. Each right has one or more core elements that define its essential content but it also contains a number of associated elements that give its possessor freedom and control with respect to that core. Thus, the essential function of a right is to allocate autonomy within some defined sphere to one party vis-a-vis second parties in the event of any conflict of wills or confrontation between these parties (Wellman, 1978).

MORAL CONSENSUS AND THE LAW

New medical technologies typically bring with them new moral problems. This is abundantly and awkwardly apparent in the case of the recently developed human reproductive technologies. Do infertile couples have a moral right to medical assistance in reproduction? Does the donor in artificial insemination have any financial responsibility for the financial support of his child? Is it morally permissible to fertilize in vitro more ova than will be implanted in the female patient? Who ought to have custody of fertilized ova held in storage for possible future use? Ought the law to enforce surrogate motherhood contracts? Is surrogate motherhood itself morally permissible? Does a pregnant woman have a moral duty to submit to unwelcome medical treatment necessary for the health of her unborn child? Bioethicists and medical practitioners are in doubt about how these questions should be answered, and any proposed solution to these pressing moral problems will be highly controversial. Finding disagreement where concerted action of patient, physician, health care institution and public authorities is urgent, one longs for some consensus on these and similar moral issues.

Religious Human Rights and Peace

This article analyzes the international human rights to have or adopt a religion or belief and to manifest ones religion or belief as liberties of individual human beings protected by duties of non-interference and immunities from extinction holding against State Parties. It identifies their moral grounds as analogous moral religious human rights and morally proper purposes of international law, including the promotion of international peace. It argues that although these human rights threaten peace to a limited extent, on balance they would, if universally respected, enhance both internal and international peace even more.

Interpreting the Bill of Rights: Alternative Conceptions of Rights

The Bill of Rights constitutes an immensely valuable part of our constitutional law. Presumably, this is why we have celebrated its two hundredth anniversary. But what is constitutional law, really? Let us begin by recalling two diametrically opposed views.

Conceptual Analysis and Emergency Legislation

This essay will demonstrate by an analysis of the concepts of terrorism, an emergency, and the rule of law how conceptual analysis can be useful for the drafting and evaluation of emergency legislation to counter the threat of terrorism. It suggests that terrorism is best defined as “the attempt to coerce an indirect target by means of terror produced by the use or threat of violence against a direct target.” An advantage of this definition is that it excludes violent attacks such as the recent mass shootings in US schools that are a very different kind of public threat requiring a very different solution. It explains that the sort of emergency relevant to emergency legislation is an unusual situation severely threatening the public welfare that cannot be dealt with adequately by the exercise of executive powers authorized by the normally applicable law. This provides a potential justification for emergency legislation as a means to protect the well-being of the citizens. It argues that a thick conception of the rule of law requiring protection of individual rights is most appropriate for the evaluation of emergency legislation and analyzes rights as complexes of Hohfeldian positions with a core defining position plus associated positions that together confer freedom and control over the defining core upon the right-holder in face of one or more second parties. This conception of the rule of law imposes limits upon morally justifiable emergency legislation.

Why is Terrorism Wrong

Terrorism, as best defined, has four generic wrong-making characteristics. It uses or threatens violence. It typically produces terror. It uses persons as means without respecting them as autonomous moral agents. It attempts to coerce. These make terrorism morally wrong because they involve the infliction of serious harm and the violation of human rights. Political terrorism is also wrong because it undermines trust, generates conflict within a liberal society, undermines the capacity for self-government and disrupts social order. State terrorism violates the duty of nation states to protect citizens from harm and the violation of their human rights. International terrorism threatens peace and security and violates the sovereignty of nations. Racial terrorism always violates the moral right to equitable treatment of its victims and often oppresses members of the terrorized race. Family quasi-terrorism violates one’s special moral responsibilities to members of one’s family, destroys the necessary conditions for intimacy and often causes post-traumatic stress disorder. None of these wrong-making characteristics is limited to innocent victims; innocence is primarily relevant because it excludes any justification of terrorism as a defense against wrongful aggression.