Can Utilitarianism Ground Human Rights?

So far, I've attempted to show how human rights are grounded in the value of human well-being. More particularly, I've endeavoured to demonstrate how appeals to fundamental human rights are justified by their consequences for minimizing human suffering and for maximizing the opportunity for human happiness, both of which are the result of satisfying some fundamental human needs.

This appeal to the utility of adhering to human rights is attractive for another important reason. The appeal to the consequences of an act, policy or practice for human suffering and happiness provides a practical and convincing method for adjudicating between human rights when they conflict in specific circumstances.

There are many situations in which basic human rights come into conflict. Here are three examples:

• The right to meet at a cafe during a pandemic highlights where a right to free movement conflicts with the right to health.
• The right to avoid conscription for military service highlights where a right to conscientious objection conflicts with the right to safety.
• The right to deny a commercial service to a homosexual couple highlights where a right to religious observance conflicts with the right to not be discriminated against.

Another common case of conflict is restrictions on the right to freedom of movement due to respect for public and private property rights, or from restraining orders related to domestic violence, or from incarceration as a legal punishment for a crime committed. Restriction of the right to freedom of movement also occurs following a natural disaster in order to prevent looting, allow easy access to emergency vehicles and to stop holdups from curious crowds.

When we try to resolve these conflicts by recourse to the supposed commands of a deity or to moral intuition, we run into a problem. Different people, all equally intelligent and acting with good will, consult different deities who purportedly make different judgments. Or if, on the other hand, we consult our moral intuitions for the truth, different people, who are equally reflective, give contrary insights. A significant challenge here in practice is that appealing to one's religious lights or to one's intuitions is prone to personal bias.

On the other hand, the utilitarian's principle of utility gives us a reasonably objective method for adjudicating conflicts when they arise. It seems most humane to count the overriding human right in times of conflict as that whose prevalence leads to preventing considerable misery while least sacrificing the happiness of others. In fact, that is how national and international human rights declarations and covenants are framed.

I will illustrate how considerations of utility determine the overriding right in such instruments with four case studies. These four examples are drawn from the following:

1. European Convention on Human Rights (1950)
2. International Covenant on Civil and Political Rights (1966)
3. American Convention on Human Rights (1969)
4. African Charter on Human and Peoples' Rights (1981)

6.1 European Convention on Human Rights (1950)

In the Convention for the Protection of Human Rights and Fundamental Freedoms [Council of Europe 1950], signed by Members of the Council of Europe in 1950 as a legally binding enactment of the Universal Declaration of Human Rights, the right to privacy, freedom of thought, conscience and religion, and the right to freedom of expression are stipulated to be overridden during those times when national security, public safety, economic well-being, health or public order are threatened. The relevant parts of Articles 8 to 10 state:

ARTICLE 8 [right to respect for private and family life, home and correspondence]

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 9 [right to freedom of thought, conscience and religion]

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

ARTICLE 10 [right to freedom of expression]

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. [emphasis mine]

In addition, the right to possessions is stipulated to be overridden when the public interest, the general interest or the collection of taxes and penalties is threatened. The relevant part of Protocol 1 states:

Protocol 1. ARTICLE 1 [right to possessions]

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. [emphasis mine]

One final example for this case study will suffice. Protocol 4 stipulates that the right to freedom of movement and choice of residence will be overridden when national security, public safety, public order or the public interest is threatened.

Protocol 4. ARTICLE 2 [right to freedom of movement and choice of residence]

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety for the maintenance of 'ordre public', for the prevention of crime, for the protection of rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposes in accordance with law and justified by the public interest in a democratic society. [emphasis mine]

6.2 International Covenant on Civil and Political Rights (1966)

The International Covenant on Civil and Political Rights [United Nations (General Assembly) 1966] is also a legally binding enactment of the Universal Declaration of Human Rights. Ratified in 1966, it stipulates that certain rights are overridden in times of public emergency when national security is threatened. The relevant part of Article 4.1 states:

Article 4.1. [derogation from responsibilities under Covenant]

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

More particularly, Article 12 goes on to limit the right to freedom of movement and choice of residence when national security, public order or public health is threatened.

Article 12. [freedom of movement and choice of residence for lawful residents]

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. [emphasis mine]

Articles 14 and 18 further restrict the right to public access to the courts, freedom of thought, conscience and religion. These are overridden when national security, public safety, order, health, privacy or juvenile interests are threatened.

Article 14. [equality before courts, tribunals and right to fair trial]

The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Article 18. [right to freedom of thought, conscience and religion]

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. [emphasis mine]

The final example for this case study is the restriction of the right to opinions, freedom of assembly and of association. These are overridden when national security, public safety, public order, public health or private reputations are threatened. The relevant parts of Articles 19, 21 and 22 state:

Article 19. [right to hold opinions without interference]

It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre public), or of public health or morals.

Article 21. [right of peaceful assembly]

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22. [right to freedom of association with others]

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. [emphasis mine]

6.3 American Convention on Human Rights (1969)

The American Convention on Human Rights [Organization of American States (OAS) 1969] that was adopted by many countries in the Western Hemisphere in 1966 stipulates that the right to freedom of conscience and religion, and freedom of thought and expression are overridden when national security, public safety, health, public order or reputations are threatened. The relevant Articles state:

Article 12. Freedom of Conscience and Religion

3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.

Article 13. Freedom of Thought and Expression

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

1. respect for the rights or reputations of others; or
2. the protection of national security, public order, or public health or morals. [emphasis mine]

In addition, the right of assembly and of free association, to property, freedom of movement and choice of residence are overridden when national security, public safety, public order, public health, public utility, public interest or social interest are threatened. The relevant Articles stipulate:

Article 15. Right of Assembly

The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others

Article 16. Freedom of Association

2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

Article 21. Right to Property

2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.

Article 22. Freedom of Movement and Residence

3. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent necessary in a democratic society to prevent crime or to protect national security, public safety, public order, public morals, public health, or the rights or freedoms of others.

4. The exercise of the rights recognized in paragraph 1 may also be restricted by law in designated zones for reasons of public interest. [emphasis mine]

This Convention also stipulates a general override on the rights described in times of war and public danger, and when security of the state and the general interest are threatened.

Article 27. Suspension of Guarantees

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

Article 30. Scope of Restrictions

The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.

CHAPTER V - PERSONAL RESPONSIBILITIES

Article 32. Relationship between Duties and Rights

2. The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society. [emphasis mine]

6.4 African Charter on Human and Peoples' Rights (1981)

The African Charter on Human and Peoples' Rights [Organization of African Unity (OAU) 1982], adopted by members of the Organization of African Unity in 1981, restricts the right to property and other rights and freedoms when such restriction is in the interest of public need, in the general interest of the community, in the common interest or if collective security is threatened. The relevant Articles stipulate:

Article 14: The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

Article 27: 1.2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest. [emphasis mine]

The upshot of this section of my essay is that international covenants on human rights do not leave the settling of conflicts between rights to controversial subjective inclinations, such as consulting the dictates of a posited deity or to personal moral intuitions. Appeals to general welfare—to public safety, security, health, order, and so on—provide the objective criteria on which to decide when individual rights are to be set aside. Utilitarian considerations of preventing gross amounts of misery while least compromising the happiness of citizens are central to how our modern human rights instruments adjudicate between competing rights based on fundamental needs.

This section satisfies the second of my three key objectives for this essay. That is, to show how considering consequences for human suffering and happiness provides a rational method for adjudicating when rights conflict in particular situations. In the next sections, I will respond to particular criticisms that an appeal to utility is insufficient for grounding human rights and is fundamentally mistaken.

Copyright © 2023 Leslie Allan