VI-c. Soft vs. Hard Rights
Soft rights are defined here as rights that are not spelled out in the law, or if they are in the law there is no strong and effective mechanism to assure their realization. For example, several national constitutions have comprehensive provisions regarding human rights that are thoroughly ignored. Without good implementation mechanisms, rights in law are little more than empty promises.
Of course soft rights can be useful in a transitional stage. The articulation of rights in the law is important even where there are no special means to assure their realization. The Universal Declaration of Human Rights, for example, has been one of the most important statements of international law even though it is not binding and does not include any implementation mechanism. Its power arises from its cogent articulation of the near universal imperative: Do the right thing. This is the right thing.
Hard or strong rights are clearly articulated in the law, and there are effective mechanisms for implementing that law. There are designated agencies responsible for carrying out the law and there is adequate funding to do the job. Hard rights have a history of cases through which the meaning of the right is tested and refined. There is clear recourse in law for individuals whose rights are not realized, and clear public accountability. This is illustrated by, say, the right to freedom of religion in the United States. The right is stated in just a few words in the first amendment to the U.S. Constitution ("Congress shall make no law respecting an establishment of religion . . . "), but the meaning of that right is then elaborated in more detailed federal law and in judicial interpretations. There will always be some ambiguity around the edges, but the meaning of that right has now been extensively elaborated and tested in practice in the United States.
Without clear, hard rights, those who are more powerful, more highly educated, or better connected have an advantage in obtaining protection and other kinds of services. Firmly established rights empower the weak, leveling the playing field a bit so that the weak are not so disadvantaged.
Rights can be truly hard–that is, clearly articulated and systematically realized–only where there is a strong and effective legal system in place. In many countries there is no such system. However, even where the legal system is weak, it is worthwhile to advocate the hardening of rights. Even if government does not effectively implement them, rights enshrined in the law can provide a strong basis for political action by civil society organizations and others. Establishing hard rights is not always immediately practicable, but the vision should be kept in view as an ideal, helping to set the course in long-term efforts to strengthen human rights.
All people have all human rights, as a matter of definition. The fundamental human rights have been articulated in the Universal Declaration of Human Rights of 1948. If all people have all these rights, what then is the function of the subsequent human rights agreements? The answer is that these agreements continue the steady progress of hardening these rights. The main function of the Convention on the Rights of the Child, for example, is not to create new rights for children, but to clarify and strengthen rights that had already been articulated, for all people, in the Universal Declaration of Human Rights and the two covenants.
Further hardening of human rights takes place through practice, through scholarly analysis, and through the authoritative interpretations offered by human rights agencies at the global, regional, and national levels. The treaty bodies elaborate the major treaties through their responses to national reports and through the issuance of General Comments on particular themes. Of particular interest here are those provided by the Committee on Economic, Social and Cultural Rights. General Comments issued by this committee and also by the Human Rights Committee are available through the UNHCHR website.
When states ratify international human rights agreement, they agree to be legally bound to work for the realization of those rights. People in countries that have not ratified, say, the International Covenant on Economic, Social and Cultural Rights nevertheless have those economic, social and cultural rights. They are, after all, human rights, rights held by all human beings. The difference is that where countries have not ratified particular human rights agreements, their governments have not made commitments to act on them. The people have these rights, but they remain soft.
The international human rights treaties are binding in principle, but the rights and obligations are not set out in detail, and implementation mechanisms are not fully specified in those treaties. The rights can be transformed into hard rights by national governments creating suitably strong and specific laws and policies, along with effective agencies with adequate resources to implement them. The relatively soft international human rights law can be understood as a guide to the formulation of national-level human rights law. It is at the national level that rights are likely to be hardened first. In the long term, as we move toward more effective global governance, it may be possible to have human rights hardened at the global level as well.
Critics sometimes complain that international human rights law is not clear enough. They ask, for example, "what exactly is the 'best interests of the child'? Who is to decide?" They want the international documents to lay out the specifics in great detail, with unambiguous rules to be applied in specific situations.
That is not how the human rights system works. Rather than having the specifics formulated at the global level and imposed downward, they must--within broad limits--be worked out locally, in each society, through democratic processes of governance. After a time, norms at the global level may evolve out of carefully scholarly analysis and practice rooted at the local level (cf. Alston 1994). To draw an analogy, in a country with a federal form of government, the central government may determine that it is important for all of the member states to have speed limits on their roads, but leave it to the separate states to determine those limits, not arbitrarily, but in accordance with established guidelines. Many aspects of human rights law provide a broad, but not unlimited, latitude for interpretation. There are some areas--torture, for example--where there is no latitude for varying local interpretations. In most cases, however, the international law is deliberately soft, with the intention that it will be interpreted and hardened locally.
The human rights system is based on having clear global norms, and some latitude in application depending on local circumstances. Where the state has latitude in interpreting its human rights obligations, this is a controlled latitude. It is controlled through the accountability of the state to the rights holders themselves, to the United Nations treaty bodies, and to other agencies as appropriate. As the European Court of Human Rights has put it, there is a "margin of appreciation" for local circumstances that permits variation in the application of human rights (Advisory Council 1998; Yourow 1996). The norms must be interpreted and applied at the local level through democratic processes. Then, through legislation or through other means of policy articulation, governments should specify how they will interpret and apply their human rights obligations.
Continue to VI-d. Rights as Goals
Subsection VI-c last updated on October 27, 1999