VI-b. Moral vs. Legal Rights
Many of us have strong views on what ought to be recognized as human rights. However, there are significant differences in our views. We can move from saying that something ought to be recognized as a human right, out of deep personal conviction, to saying it is recognized as a human right when we can somehow demonstrate that there is a strong and widespread consensus on this conviction. The best way to make this demonstration is to be able to point to widely accepted resolutions, declarations, or treaties on human rights. As suggested earlier, in Subsection V-c, an international treaty can be viewed as a kind of referendum for detecting and confirming widespread agreement.
When human rights are articulated in widely ratified international law, human rights that had originally been advocated because of widespread and strong moral conviction--moral human rights--become transformed into legal human rights. Softer forms of law, such as resolutions and declaration, voice softer forms of legal human rights, while harder forms of law, such as covenants and treaties, articulate harder--and thus more legally binding--forms of legal human rights. (See the following subsection, VI-c, for further discussion of the distinction between soft and hard rights.)
In 1998 the cities of San Francisco, Berkeley, and Oakland in California all passed resolutions declaring that they supported and would honor the International Covenant on Economic, Social and Cultural Rights. This was a strong expression of moral conviction, but it did not bind these cities under international law. From the perspective of the international legal system, only nation-states can officially become parties to the international human rights agreements. However, any locality may choose to adopt the principles as a sign of its moral conviction. If they wish, governments of local jurisdictions may go further and incorporate them into local law.
Much of what we may agree ought to be recognized as human rights (rights in principle, or matters of "natural law", or moral rights) are not rights in the written "black letter" law. It is always important to distinguish what ought to be rights in the law from what is actually found in the law. A moral right does not become a legal right simply by assertion; it becomes a legal right through legislative action. At the international level the equivalent of legislative action is the well-established practice of negotiating draft agreements and then offering them up for signature and ratification by the states of the world.
In this tutorial, when we speak of human rights we generally have in mind legal human rights, that is, human rights explicitly stated in international law. We are especially concerned with the ways in which these lead to legal rights locally, manifested in national and subnational law. In our view, all human rights work is about the law, either to assure the realization of rights already established in the law, or to establish and strengthen that law.
Continue to VI-c. Soft vs. Hard Rights
Subsection VI-b last updated on October 18, 1999