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Q&A with Jack Donnelly: Human Rights

Jack Donnelly is an Andrew Mellon Professor at the University of Denver Graduate School of International Studies. Donnelly is a professor of Human Rights and Political Theory. He has published three books—The Concept of Human Rights, Universal Human Rights in Theory and Practice, and International Human Rights.
Donnelly is currently in the beginning stages of working on a book about ancient Greek international society. The book will discuss the nature of current day international relations and nature of diversity in the practices of international societies.

Marcus Eagam: How do you define human rights?

Jack Donnelly: I use the literal definition­—a list of rights that people have, simply because they’re human. Being someone that has worked in international relations, I think the easiest thing for us to do in terms of specifying that list is just simply look through the body of Human Rights Law.

Eagan: In your published dissertation, The Concept of Human Rights, you state,
“Rights can be claimed.” Could you elaborate on that assertion?

Donnelly: There’s this whole idea of claiming rights, of asserting them, of demanding them. It’s actually central to human rights. ‘Being right’ makes you an active participant in shaping the world, rather than just being the beneficiary of somebody else’s obligations. That’s why we want rights. I think the whole idea behind claiming and entitlement is this special kind of empowerment. When you have a right to something, you’re empowered in a particular way. It’s not just that it’s good, you’re entitled to claim it and that alters the relationship.

Eagan: What about the notion of two separate groups having conflicting claims?

Donnelly: That happens all the time. I think that’s one thing we have to realize. [Humans] hold lots of rights that conflict over time. The idea that morality or politics is a neatly ordered series of rights—that just isn’t real. The real world is a world in which there are deeply conflicting claims of human rights. One of the things that is involved in the claim of human rights is that they tend to have some kind of [prioritization] of some claims over other kinds of claims. So, this idea of conflicting rights, rights conflicting with each other and conflicting with values is absolutely central to the whole idea behind human rights. At the moral point there certain kinds of claims that take the highest priority. Some people talk about human rights as “Paramount Moral Rights.” That, sort of, gets at the idea that there is ranking but also conflict.

Eagan: I have a particular context for you [on ranking rights]. Moshe Yaalon, the former chief of army and current minister in Benjamin Netanyahu’s cabinet, is quoted in Israel Today and various other publications saying, “Jews have an unassailable right to settle wherever they please, particularly, the land of the Bible.” I just want to ask about when a man makes a claim for a group of people he identifies with as having an “unassailable right” to settle wherever [they desire].

Donnelly: Two kinds of questions there: One, where does the right come from? Two, how, then, does it rank with other rights?
The “unassailable” says that it is never overridden by any other right, the implicit claim is that, somehow, Jews have it and Jews must have gotten it through a covenant with God. Now that is an interesting set of claims that I think the majority of Israelis don’t believe in, let alone, people who don’t have this kind of history. But, I think there’s the point.
We’re going to have to ask where the rights come from and how they relate to others. I think the answer is, that’s a large part of what political conflict is about. So, Palestinians will assert the “inalienable rights of the Palestinian people.” That’s the language that has been used in the UN context for a couple decades now, and is one set of claims.
Palestinians also assert a different kind of historic right, connected with having lived on the land for a certain period of time, right? [They have] their international legal rights. I think the point is that any sort of claim that one right, or one set of rights, from a single source always takes priority, is almost certainly wrong.
What we really have is a world, as you put it before, of compet ing claims. A large part of political conversation is about how do we resolve these competing claims—even accepting them as valid.

Eagan: [In regard to] social contracts, which you mention earlier, do you think that our human rights are substantiated in the Bill of Rights? If not, do you think that social contracts can ever completely define our human rights?

Donnelly: Not completely. Let’s think about the U.S. Bill of Rights, which is usually as close as most Americans get to “talking about human rights”—we only talk about human rights overseas, we talk about ‘constitutional’ rights in the U.S. Notice that these rights don’t appeal, explicitly, to any standard beyond the U.S. constitution. So, there is a contractual basis there, right? There’s not explicit appeal outside of whatever kind of implicit social contract lies inside the constitution. I think one of the interesting questions is whether there is some of kind of moral or, kind of, human rights basis for these rights. If there are, how these two separate rights relate.
Think about for example, Guantanamo. Whether or not constitutional rights apply to the prisoners of Guantanamo, there are interesting questions about whether international legal rights apply to them or human rights, understood in more moral terms, apply to them. The idea that a social contract can completely define rights, even for people who are partied* to that contact, is problematic. It can be what’s central, what’s politically and legally most central. Usually, that contract appeals to some deeper, moral, or religious theory.
Then, certainly, those who aren’t partied* to that contract must have rights in some other way. Again, what we’ve got is, hopefully not deeply competing rights, but different strands of rights, that interact in complex kinds of ways. So, notice that conservative American jurists are reluctant to make appeals outside of the constitution. Trying to treat the constitution as if it is a complete statement of the legal system. This is, sort of, a Scalia kind of line, right?
Other strands of interpretation emphasize the importance of going back to underlying principles, which have a religious or moral or International basis of some fashion. It’s really a matter of going back to the Israeli example, where do rights come from, and the idea that [humans] have multiple sources of rights. I think one of the interesting things about the U.S. case is the typical American assumption that the constitution and international human rights law are essentially the same. International law is broader than that.

Eagan: But, who—

Donnelly: You’re looking for an answer about who decides? It depends on who, what, where and how.

Eagan: Who is the international—

Donnelly: There is no authoritative decision. There is authoritative decision. There is no body that has the legal right to have binding legal judgment on human rights.

Eagan: That’s you!

Donnelly: No, that isn’t me. It’s hard to think of a domestic legal analogy, but what we have is a process, by which can agree on rules. But not process, by which, those rules are authoritatively interpreted and authoritatively interpreted. And, that’s the state of Human Rights Law. That is the state of most international law.

Eagan: I’m sure you have traveled across the country to various universities, what is your impression of Grinnell?

Donnelly: I was here this summer actually, seems like a nice place. I certainly like the history. ‘Founded by abolitionists’ can never be bad.

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