In a recent post, Bas van der Vossen urges libertarians to think more about human rights. I agree, so I write this commentary in the spirit of a friendly amendment.

I think it is important at the outset to distinguish two spheres of endeavor. The first is the academic study of human rights; the second is the practice of human rights.

1) The Philosophy of Human Rights

With respect to the philosophy of human rights, libertarians virtually invented the idea (think about Locke, Paine, the Declaration of Independence, and modernly Nozick, the work on Locke by A. John Simmons, and the classic essay by left-libertarian Hillel Steiner). So I gather Bas is thinking about the lack of significant contemporary post-Nozickian writing in the field. Leading human rights writers like Jim Griffin and Joseph Raz do not have (perhaps, I’m not sure) a libertarian counterpart. We should also distinguish conceptual questions (what is a right? are rights reducible to other concepts?) from normative questions (are there socio-economic rights alongside the traditional Lockean, civil and political rights? how should conflicts of rights be resolved?) Now of course there is no reason why libertarians, if they so wish, would not contribute to the literature. The conceptual issues do not require ideological orientation. And the normative issues fold into current debates about the proper role of the state and the existence and scope of redistributive obligations. There is nothing special about rights that is not parasitic on these debates.

2) The Practice of Human Rights

This is a different story. In the beginning, the human rights movement was truly non-partisan. It included liberals, conservatives, libertarians, Democrats, Republicans, and independents. But starting about the mid 70s, the practice of human rights became increasingly captured by the political Left. This capture did not deprive the human rights movement of effectiveness. Human rights activists, like libertarians and just about any other normal human being, are appalled at obvious abuses of state power. These activists have made a real difference ever since the inception of the movement. They have saved lives. Libertarians should gladly join and support the human rights movement when it fights for powerless victims of tyranny.

However, some bad things happened when the movement became populated by left-wing activists. The movement became soft with left-wing regimes, especially those targeted by conservative U.S. administrations. For many years, Eastern European thugs and Cuba got a pass from the movement. Indeed, the double-standard problem is so severe that human rights advocates never even conceded that the overthrow of Saddam Hussein and the Taliban were good things (you can concede this while saying that those wars were illegal or unwise, see my debate with Human Rights Watch here). The only reason for this reluctance was, of course, their partisan repugnance to praise anything George W. Bush would do, even if Bush’s action meant, for example, saving millions of Afghani women from the cruel yoke of the Taliban. Better Saddam and the Taliban than Bush: that’s what the once-inspiring human rights movement had come down to. (To be fair, conservatives are partly to blame for this double-standard rift, as they became soft with anti-communist right-wing regimes.)

Second, and perhaps more important, the human rights movement never endorsed economic liberties, property and contract. This, even in the face of a growing consensus among economists that market-friendly institutions are highly correlated with prosperity and human welfare. As a result, the human rights movement has gone from a concern with abuse of state power to an endorsement of more state power under the guise of socio-economic rights. Human rights advocates today are statists and, as such, unfriendly to libertarians. They also tend to be economically-illiterate, so they don’t always recommend bad solutions solely out of partisan or statist convictions. Here is an example (there are many: just browse the opinions of the Committee that interprets the ICSECR). In 2003 the Inter-American Court of Human Rights, in an opinion obviously targeted at the United States (another common bias of human rights practitioners,) held that undocumented migrants should enjoy virtually all the labor rights that legally resident workers have. To someone who understands basic economics (indeed, you have to understand only the law of supply and demand) it is obvious that, should employers in the receiving country comply with the panoply of labor rights that the Court happily enumerates, they will hire less undocumented workers. If the Court’s goal was to help poor migrant workers, its way of doing so was patently counterproductive. With such friends, immigrants need no enemies. (I leave aside, because they are easy targets, the most grotesque manifestations of the human rights movement, such as the U.N. Human Rights Council’s promotion of the criminalization of blasphemy, or the one-sided obsession of human rights advocates with Israel.)

3) What Is the Problem?

Here is my friendly disagreement with Bas. He says that the language of human rights is the lingua franca of the world, and that libertarians should be wary of being accused of violating human rights. This cannot be right. First, if (half of) the language of human rights reeks of statism and economic ignorance, then libertarians should be critical, not jump on the bandwagon out of fear of being accused of this or that. Second, and more subtly: if one shows the typical human rights activist that unhampered markets would help the poor, they routinely cling to their statist views. In other words: the possibility that the goal of socio-economic rights, the alleviation of poverty, may result from deregulating, and not the other way around, is unacceptable in limine to them. This can only be due to one of three reasons: either dishonesty; or economic illiteracy (as indicated above); or their love of the state, their unwavering attachment to the idea that all solutions must come from government. (Don’t take my word for this: look here what happened to a human rights scholar who suggested that there should be a right to trade. He was insulted and mocked by Phillip Alston, a well-known human rights legal academic who is supposed to be a moderate on these issues.)

Finally, I detect a misconception among people not trained in law about the circumstances under which treaty (or other) rules become binding law. Treaties do not bind non-parties; and even with regard to parties, the ICESCR establishes the principle of “progressive realization” of socio-economic rights. This means, in good English, that you do not have a right to a house, but are only entitled, if at all, that your government make a good-faith effort to reduce homelessness. This is an aggregative goal, not a right in the legal or philosophical sense. Socio-economic rights lack deontological bite. So libertarians need not refrain from recommending deregulation of markets out of fear of being accused of acquiescing in human rights violations. If libertarians wish to become involved in the human rights movement, their first task should be, in my judgment, to vindicate private property rights and freedom of contract and trade as human rights that are crucial to achieve the goals that the movement has always professed.

But maybe all Bas is suggesting is that libertarian scholars should write more about human rights. With that I agree.