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Basic Rights by Henry Shue


Review by: James W. Nickel and Lizbeth L. Hasse
California Law Review, Vol. 69, No. 5 (Sep., 1981), pp. 1569-1586
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BOOK REVIEW
BASIC RIGHTS,
by Henry
Shue. Princeton: Princeton
University
Press,
1980.
Pp.
231.
Reviewed
by
James W
Nickelt
and Lizbeth L. Hasset
Basic
Rights presents
an
important
and
original
case for a univer-
sal human
right
to subsistence. Shue
begins
with
philosophical argu-
ments for this
right;
he
argues
that
subsistence,
along
with
security
and
liberty,
is a "basic
right"
in the sense that it is
necessary
to the
enjoy-
ment of all other
rights.
The second section of the book defends a uni-
versal
right
to subsistence
against
several
objections
based on the
high
costs of
implementing
such a
right
around the world. The third section
explores implications
that
recognition
of a
right
to subsistence would
have for United States
foreign policy-implications
that
go
considera-
bly beyond
what even the Carter administration was
willing
to
accept.
Although
we find much to criticize in Shue's
book,
it offers
daring
ar-
guments
and useful
analyses
in an area that is much in need of serious
intellectual work. For
this,
Basic
Rights
deserves careful attention and
discussion.
The
Reagan
administration's
hostility
to human
rights
activism'
promises
a
chilly reception
for Shue's
arguments
for a
right
to subsis-
tence and his
suggestions
about its
implications
for United States for-
eign policy.
But even if talk of human
rights
is much less
likely
to be
taken
seriously by
members of the
present
administration,
large seg-
ments of the
political spectrum
in
Europe
and America have
begun,
in
the three decades since the United Nations General
Assembly adopted
the Universal Declaration
of
Human
Rights,2
to evaluate
political poli-
cies in terms of human
rights.
Because of
this,
human
rights
issues
may
yet
return to haunt the
Reagan-Haig approach
to
foreign policy.
t Visiting
Professor,
Jurisprudence
and Social
Policy Program,
Boalt Hall School of Law,
University
of
California,
Berkeley,
1980-1982;
Professor of
Philosophy,
Wichita
State
University.
t B.A. 1977,
Wesleyan University; graduate
student in
Jurisprudence
and Social
Policy,
University
of
California,
Berkeley; third-year
student,
Boalt Hall School of
Law,
University
of
California,
Berkeley.
1.
See,
e.g.,
Role
of
Human
Rights
Cut in
US.
Arms
Sales,
Los
Angeles
Times,
July
10,
1981,
at
18, col. 1;
After Lefever-Nobody,
NEWSWEEK,
June
22, 1981,
at
19;
The Human
Rights
Picture,
Washington
Post,
July
11, 1981,
at
18,
col. 1.
2. G.A.
Res.
217A,
U.N. Doc.
A/810,
at 71
(1948).
1569
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1570 CALIFORNIA LAW REVIEW
[Vol.
69:1569
I
SHUE'S CASE FOR A RIGHT TO SUBSISTENCE
Among
the three broad human
rights
that former
Secretary
of
State
Cyrus
Vance
recognized
in his 1977 articulation of the Carter ad-
ministration's human
rights policy
was a
"right
to the fulfillment of
such vital needs as
food, shelter,
health care and
education."3
The view
that economic and social
rights
are fundamental is
certainly
not a new
one;
it is asserted in
many contemporary
human
rights
documents.4
But this view is not
widely accepted among
American
politicians
and
makers of
foreign policy.5
Even the Vance enunciation of a
right
to "vital needs" was soft-
ened,
however
unintentionally, by
his
recognition
that fulfillment of
this
right
would
"depend
in
part
on the
stage
of a nation's economic
development."6
Vance's concern for economic
rights
did not
translate,
therefore,
into an announcement that the United States
government
was
discontinuing
its traditional
practice
of
splitting
human
rights
into
"higher
order" civil and
political rights
and less
compelling
economic
and social
rights.'
For
Shue,
even a
position
as
enlightened
as Vance's
can
become,
in
practice,
another
example
of the traditional American
view that
although meeting
vital economic needs is a
worthy goal,
a
duty
to
promote
and
protect
them
may place
too
great
a burden on
those
obligated
to
satisfy
this
right.8
Shue
begins
his defense of a
right
to subsistence
by attacking
the
distinction between
negative
and
positive rights,
a distinction often
used as the foundation for an
argument
that economic
rights
are not
3. C.
Vance,
Human
Rights Policy (April
30,
1977) (Washington:
Office of Media
Services,
Bureau of Public
Affairs,
Department
of
State,
PR 194 at
1).
The other two
categories
of human
rights
were "the
right
to be free from
governmental
violation of the
integrity
of the Person" and
the
"right
to
enjoy
civil and
political
liberties." Id
4.
See,
e.g.,
International Covenant on
Economic, Social,
and Cultural
Rights (1966) (this
appears
in the annex to a resolution
adopted by
the United Nations General
Assembly
on Dec.
16,
1966), G.A.
Res.
2200A,
21 U.N.
GAOR,
Supp. (No. 16) 49,
U.N. Doc.
A/6316
(1967); European
Social
Charter,
entered into
force
Feb.
26, 1965,
[1965] Europ.
T.S. No. 38
(Cmd. 2643);
American
Declaration of the
Rights
and Duties of
Man, 1948,
Final
Act,
Ninth International Conference of
American States. All of the above are
conveniently
collected in BASIC DOCUMENTS OF HUMAN
RIGHTS
(I.
Brownlie ed.
1971).
5. M.
CRANSTON,
WHAT ARE HUMAN
RIGHTS?
65
(1973);
C.
Frankel,
Human
Rights
and
Foreign Policy,
FOREIGN POL'Y ASSOCIATES HEADLINE SER.
241,
October
1978,
at
38;
F.A. von
Hayek,
The
Misconception of
Human
Rights
as Positive
Claims,
FARMAND
11/12
at 32-35
(1966).
6.
Vance,
supra
note
3,
at 1.
7. For evidence of continued subordination of economic and social
rights
to
political
and
civil
rights,
see NATIONAL POLICY
PANEL,
U.N. ASSOCIATION OF THE UNITED STATES OF
AMERICA,
UNITED
STATES
FOREIGN POLICY AND
HUMAN RIGHTS
35
(1979) (endorsing
"the
right
to the satisfaction of basic human needs-such as
food, shelter,
and essential medical care-when
resources are
available").
See also
Weissbrodt,
United States
Ratification of
the Human
Rights
Covenants,
63 MINN. L.
REV. 35
(1978).
8. H.
SHUE,
BASIC
RIGHTS
7-9
(1980).
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1981]
BOOK REVIEW 1571
genuine
human
rights.9
This conclusion is
reached, first,
by asserting
that all
genuine
human
rights
are
negative rights,
and, second,
by
clas-
sifying
civil and
political rights
as
negative
and economic
rights
as
posi-
tive.'0
The classification is based on the belief that to
comply
with civil
and
political rights,
one has
only
to refrain from
acting,
while to com-
ply
with economic
rights,
one must take
positive steps
to assist those in
need. Shue attacks this distinction
by arguing
that the
right
to secur-
ity-a
civil
right-is
not
negative
because
governments
must take
posi-
tive
steps
for its effective
implementation.
For
instance,
effective
provision
of
security
not
only requires
that
governments
refrain from
killing, torturing,
and
raping;
it also
requires
that
they protect people
against
these kinds of attacks. From
examples
like
this,
Shue concludes
that most or all
rights require
both
negative
and
positive
measures for
their
implementation. Rights
are not in themselves either
positive
or
negative;
these labels are more
properly
attached to the duties
rights
entail. Because
any right
is
likely
to entail both
negative
and
positive
duties,
Shue
argues
that the
dichotomy
between
negative
and
positive
rights is "intellectually bankrupt.""
Those who wish to
preserve
the
dichotomy might
transform the
distinction between
negative
and
positive rights
into a distinction be-
tween
inexpensive
and
expensive rights;
the
argument
would be that
economic
rights
cannot be basic human
rights
because
they
are too ex-
pensive
for
many
countries to
implement.12
Shue's
response
to this re-
lies on his earlier contention that
security rights
are more
"positive,"
and subsistence
rights
more
"negative,"
than is
commonly thought.
Thus,
he claims that the
implementation
of subsistence
rights
"need not
be
any
more
expensive
or involve
any
more
complex government pro-
grams
than the effective
protection
of
security rights would.""3
Claims
to the
contrary
are held to involve
"empirical speculation
of dubious
generality."4"
But Shue himself does not
support
his
response
with
data from
representative governments
about how much
they spend,
re-
spectively,
on
security
or
subsistence,
and hence we seem to be left in
the realm of
competing speculations.
Shue's attack on the distinction between
negative
and
positive
rights
undermines one
argument against
the
high priority
of subsistence
rights,
but it does not in itself
provide adequate support
for the inclu-
sion of a
right
to subsistence
among
essential human
rights.
We
might
9. C.
Frankel,
supra
note
5,
at
36-49;
Nagel, Equality
in MORTAL
QUESTIONS
114-15
(1979).
10. H.
SHUE,
supra
note
8,
at 36-40. See also
Shue,
Rights
in the
Light of
Duties,
in HUMAN
RIGHTS AND U.S. FOREIGN
POLICY
65-81
(P.
Brown & D. MacLean eds.
1979).
11. H.
SHUE,
supra
note
8,
at 6.
12. M.
CRANSTON,
supra
note
5,
at
66-67,
69.
13. H.
SHUE,
supra
note
8,
at 39.
14. Id at 40.
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1572 CALIFORNIA
LAW
REVIEW
[Vol.
69:1569
expect
Shue to make a
strong
case for the
high priority
of subsistence
rights by arguing
on substantive moral
grounds
the value of
providing
adequate
food, water,
clothing,
or
shelter,
and the horror and immoral-
ity
of
permitting
malnutrition and starvation.
Instead,
Shue uses a
more modest and
considerably
less
satisfying "presuppositional" ap-
proach, declaring
that a
right
to
subsistence,
along
with
security
and
liberty,
must be
effectively implemented
in order for the fulfillment of
any
other
rights
to be
possible."
Shue contends that
rights necessary
for the effective
implementation
of all other
rights
are "basic
rights"-
all
equally
basic
and, hence,
of
equal weight
or
priority.
In this cate-
gory
are
rights
to
security,
subsistence,
and
liberty.'6
It is
important
to understand that Shue is not
merely making
the
point
sometimes made
by
Marxists that
guarantees
of
security
or
polit-
ical
participation
are not
very
valuable if a
person
must
constantly
worry
about where the next meal is
coming
from.17 Instead,
he is mak-
ing
the much
stronger
claim that a
person
who does not have an effec-
tively implemented right
to subsistence
enjoys
no
rights
at all. A
major
component
of this
presuppositional argument
is Shue's definition of a
right:
"A moral
right provides (1)
the rational basis for a
justified
de-
mand
(2)
that the actual
enjoyment
of a substance be
(3)
socially guar-
anteed
against
standard threats."" In Shue's
view,
a
person
does not
really "enjoy"
a
right---ie.,
a
right
is not
effectively implemented-un-
less there are social
guarantees
to
protect
the substance of the
right
against
the most common threats.
Thus,
a
given right
is basic if it is
impossible
for a
person
to have
any
other
effectively implemented right
in the absence of the
given right.19
If Shue is correct in
saying
that
subsistence,
security,
and
liberty
are all basic
rights
in this
sense,
trade-offs of liberties for subsistence
rights-so
often the excuse for
repressive development policies by
au-
thoritarian
governments20-are literally impossible.
In
response
to a
1978 statement
by
a
spokesman
for the former Shah of Iran
that,
"[t]he
masses
might
indeed be much
happier
if
they
could
put
more in their
mouths than
empty
words;
if
they
could have a health care center in-
stead of a
Hyde
Park
corner;
if
they
were assured of
gainful employ-
15. Id at
18-27,
67-71.
16. Id Shue
says
that this list is not
necessarily
exhaustive;
there
may
be other basic
rights.
Id at 31.
17.
See,
e.g.,
K.
MARX, CRITIQUE
OF THE GOTHA PROGRAMME
(1838);
K.
MARX,
The Rela-
tionship
of
Private
Property,
in KARL MARX: EARLY
WRITINGS
138-44
(T.B.
Bottomore trans.
1963);
B.
Sichel,
Karl
Marx
and the
Rights of
Man,
32 PHILOSOPHY AND PHENOMENOLOGICAL
RESEARCH 355-60
(1971-72).
18.
H.
SHUE,
supra
note
8,
at 13.
19. Id at 19-20.
20.
See,
e.g.,
note 21 and
accompanying
text
infra.
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1981]
BOOK REVIEW 1573
ment instead of the
right
to march on the
Capitol,""21
Shue would
say
that it is
impossible
to
implement
a
right
to subsistence or medical care
in the absence of
rights
to
security
and certain fundamental liberties.
In
short,
a trade-off of basic
rights
is
actually
a denial of all
rights.
The rhetoric of trade-offs has served
regimes
on both the left and
the
right
that refuse to
implement important rights.
The violation of
some
rights
is
conveniently-if
often
incorrectly-redefined
as the im-
plementation
of others. The United States
government
has contributed
to
this;
it has sometimes endorsed immediate
implementation
of civil
and
political rights
while
proposing
that the achievement of subsistence
rights
in
many
countries await some undefined transition
period.
But
this has not
kept
it from
ignoring security rights
violations
by govern-
ments
friendly
to United States
goals.
Shue's
theory suggests
that a
person's enjoyment
of one basic
right
cannot be traded off
against
his or her
enjoyment
of other
rights.
How-
ever,
sacrifice of some
people's
subsistence or
security rights might sup-
ply
the means to
implement
such
rights
as
paid holidays
or medical
care for others.
Thus,
Shue cannot use his
presuppositional approach
to
argue
that a
society
without subsistence
rights
for
everyone
cannot
provide any
other
effectively implemented rights
to
anyone;
it
just
can-
not
provide any
other
effectively implemented rights
to
everyone.
Shue insists that there is an
all-or-nothing
core of
rights
that
every-
one must have if
everyone
is to have
any
other
rights: "Every right,
including every
basic
right,
can be
enjoyed only
if all basic
rights
are
enjoyed."22
This view has a number of
problematic
and even absurd
consequences, including
the
following:
(1)
Since most countries now fail to
guarantee
at least one of Shue's
three basic
rights
to a
significant
number of
people,
Shue's
posi-
tion
implies
that in most countries a
large part
of the
population
has no
effectively implemented rights
at all.
(2)
Since no one in the United States in 1930 had an
effectively imple-
mented
right
to
subsistence,
no one in the United States at that
time had
any effectively implemented rights
at
all,
not even
rights
to
property.
(3)
It makes no sense to
talk,
as Shue nonetheless
does,23
of
poor
la-
borers who have their "own little
plot"
of
land,
and
yet,
because
they
are
incapable
of
growing enough
to
support
themselves,
are
deprived
of a
right
to subsistence. If Shue is correct and
they
lack
an effective
right
to
subsistence,
they
also must lack effective
prop-
erty rights
in the
plots
of land.
Ownership,
as a constellation of
21.
Amuzegar, Rights,
and
Wrongs,
N.Y.
Times,
Jan.
29, 1978,
? IV,
at
17,
col. 1.
22. H.
SHUE,
supra
note
8,
at 178 n.13.
23. Id at 41-42.
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1574 CALIFORNIA
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[Vol.
69:1569
legal rights,
does not exist under Shue's
theory
unless the
putative
owner's basic
rights
are satisfied.
(4)
Prisoners can
enjoy
no
rights
whatever. This is a
consequence
of
including
a
right
to freedom of
physical
movement within the ba-
sic
right
to
liberty.
Shue concedes that "even in the absence of a
right
to freedom of
physical
movement,
people
can
enjoy
the sub-
stance of
many rights,"
but he
goes
on to
say
that
"they
cannot
enjoy
them as
rights,
only
as
privileges,
discretions,
indul-
gences."24 Accordingly,
without a
right
to freedom of
physical
movement,
no
prisoner
can have
any effectively implemented
rights.
It
might
be
objected
that we have been able to draw these
implau-
sible
consequences
from Shue's
theory only by placing
too
strong
an
interpretation
on what it means for a
right
to be
"socially guaranteed"
or
effectively implemented.
But Shue himself
rightly gives
a
strong
in-
terpretation
of these
terms;
he maintains that the
supply
of a freedom
or benefit is not
socially guaranteed
unless failures to
supply
it can
gen-
erally
be
prevented
or remedied
through protest, petition,
or
legal
en-
forcement.25
A. Shue's Case
for Security
as a Basic
Right
Security against
violence is a basic
right,
Shue
says,
"because its
absence would leave available
extremely
effective means for
others,
in-
cluding
the
government,
to interfere with or
prevent
the actual exercise
of
any
other
rights
that were
supposedly protected."26 Suppose,
for
example,
that a
country purported
to
implement
a
right
to freedom of
assembly
without
protecting people against
violence. When an
unpop-
ular
group attempted
to exercise its
right
of
assembly
in that
country,
it
could be
prevented
from
doing
so
by
threats of
violence,
and it would
know that no
government help
would be available to meet those
threats. This
example suggests
that
protection
of
security
is
necessary
to effective
implementation
of
many
other
rights.
It is not
obvious,
however,
that
general protection
of
security
is
necessary
to the
imple-
mentation of all other
rights.
Consider,
for
example,
the
right
to trial
by jury.
This
right applies only
after a
person
has been arrested. If a
society
did not release
people
on
bail,
but did
provide
a secure environ-
ment for all
persons
in
custody,
then
any
arrested
person
could
enjoy
the
right
to a
jury
trial in the absence of a
general right
to
security.27
24.
Id.
at 81
(emphasis added).
25. Id at 76.
26. Id at 21.
27. The distinction we are
drawing
between
general
and
specific rights
is not made
by
Shue,
and his
argument
for the
interdependencies
of
rights
is less
convincing
for lack of this distinction.
Very general rights,
such as
rights
to
security
or
liberty,
are more
usefully
viewed as families of
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1981]
BOOK REVIEW 1575
Thus,
a
general right
to
security
fails Shue's test for a basic
right
since it
fails to be
necessary
for the
enjoyment
of all other
rights.
It
might
be
objected
that without a
general right
to
security,
a
per-
son could be
prevented
from
exercising
his
right
to a
jury
trial
by
a
threat to kill an
unprotected
friend or relative.
However,
this
argument
proves
too
much;
even with an
effectively implemented right
to secur-
ity,
it would still be
possible
to kill
people
or threaten
people
with death
should
they
choose to exercise their
rights.
At
best,
carrying
out such a
threat would be riskier under such a
system.
Thus,
the threat
example
will not serve as
proof
that a
person
cannot
enjoy
other
rights
unless
security rights
are
guaranteed,
because similar threats can be
present
and
plausible
even within a
strong system
of
security rights.
Shue's
"social
guarantee" only requires
some reasonable
degree
of
protection
against
"standard
threats,"
not
against every imaginable
means that
might
be used to
prevent people
from
exercising
their
rights.28 Nothing
can be
perfectly guaranteed.
B.
Subsistence
as a Basic
Right
Similar
problems
vex Shue's
presuppositional argument
that sub-
sistence is a basic
right. Admittedly, people
must be alive in order to
enjoy
their
rights,
but it is not clear that in order to
enjoy
a
right
to due
process,
or a
right against being
tortured,
a
person
must have an effec-
tively implemented right
to the necessities of life. For
example,
as
long
as
people
in
jail
are
provided
with
food,
they
can
enjoy
a trial
by jury
at
those
relatively
rare times when its exercise is
important
without a
gen-
eral
right
to subsistence.
Another
objection,
offered
by
Mark
Wicclair,
is considered in one
of Shue's footnotes.29 Wicclair asks us to
imagine
a
society
in which
people
have a
right
not to be tortured but no
right
to subsistence.
Could the
right against
torture be
enjoyed by people
who were near
starvation? Some would
say
the answer is
yes: "[S]tarvation
without
torture is
preferable
to starvation with
torture,
and the
right
not to be
tortured is still worth
something
even in isolation
and,
in
particular,
even in the absence of subsistence
rights."30
On this
basis,
Wicclair
concludes that subsistence
rights
are not
necessary
for the
enjoyment
of
all other
rights
and, thus,
are not basic in Shue's sense. Shue's
response
more
specific rights. Specific rights
include,
for
example,
a habeas
corpus right
or a
right
to
peace-
ful
assembly. Any convincing
demonstration of
interdependencies
between
rights requires
the
identification of
specific rights
and a
showing
of how
enjoyment
of one
specific right necessarily
depends
on the existence of others.
Often,
fulfillment of a
particular specific right
does not
require
the existence of a
right
as
general
and
sweeping
as the
very general right
to
security.
28. H.
SHUE,
supra
note
8,
at
17,
32-34.
29.
Id.
at 178 n.13.
30. Id at 179.
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1576 CALIFORNIA
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REVIEW
[Vol.
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is that
"a
person
who had no social
guarantee
of,
say,
food and was in
fact
deprived
of food
might,
without other
recourse,
be
willing
to sub-
mit to limited torture in
exchange
for
food."31
Since the
right against
torture can thus be undermined
by
the absence of a
guarantee
of sub-
sistence,
Shue
rejects
Wicclair's
objection.
But here Shue's
response
is
simply
an
example
of the "exotic threat
gambit"
that we have
already
discussed.32
As Shue
admits,
rights
can
only
be
guaranteed against
fre-
quent
and standard
threats.33
To show that
something
is a basic
right,
we will therefore have to show that it
protects against
at least one stan-
dard threat to
every right,
not
merely
that it
might
be needed to
protect
against imaginable
threats. This is the definition that Shue is commit-
ted
to,
but it seems doubtful that
any rights
as
general
as
rights
to sub-
sistence,
security,
or
liberty satisfy
this
definition.34
Another
problem
with Shue's
response
to Wicclair is that even if a
person
chooses to waive his
right
not to be tortured
by accepting
torture
in
exchange
for
food,
the
person
could still be said to have in some
sense
enjoyed
the
right
not to be tortured.
By choosing
to waive his
right
not to be
tortured,
the
person
was able to receive
something
of
value,
namely
food,
in
exchange.
Further,
enjoyment
of the
right
not
to be tortured
might
also include the
knowledge
that the
right
would be
protected
in the
future,
even
though protection
had been waived in the
present.
C Shue's Basic
Right
to
Liberty
Shue's
argument
that
liberty
is a basic
right
is also
subject
to criti-
cism.
According
to
Shue,
rights
to certain liberties are basic when
they
are so central to a
system
of
rights
that no other
rights
can be
imple-
mented
effectively
without
protecting
them."
Perhaps
the most
likely
candidates are those liberties which
permit
actions essential to the exer-
cise and enforcement of
rights.
Victims must be free to
protest
viola-
tions and seek
remedies;
persons obligated by rights
must be able to act
in accordance with their
obligations.
Hence,
some liberties are re-
quired
for the
implementation
of
rights.
Shue
attempts
to
generalize
this into a
general right
to
"participation"
which includes
rights
to
pro-
test,
to
petition,
to
assemble,
and to resist
violations.36
However,
al-
though
some
people
must have these liberties in order for
anyone
to
have
rights,
it is not clear that all
people
must have them in order for
31. Id
32. See text
accompanying
note 28
supra.
33. See id.
34. See note 27 and
accompanying
text
supra.
35. H.
SHUE,
supra
note
8,
at 19-20.
36. Id at 71-76.
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1981]
BOOK
REVIEW 1577
all
people
to
enjoy rights.
As is obvious in the case of children's
rights,
rights
can be exercised and
upheld by
third
parties.
Under the moni-
toring
of a
parent
who will act to
uphold
her
rights,
a child can have
some
rights
without
having rights
to
protest, petition,
assemble,
or resist
violations. The same is true of freedom of movement.37 It
may
be that
a
system relying
on second and third
parties
to claim
rights
is not as
efficient as
systems
that
rely
more
heavily
on actions
by rightholders
to
uphold
their own
rights,
but that does not mean that it is not a
system
of
rights
at all. The cost of such an assertion would be to
deny
the
possibility
that
children,
the
unconscious,
and the senile have
rights.
If these criticisms of Shue's
arguments
for these three basic
rights
are
correct,
Shue's
presuppositional
method establishes far less than he
thinks. There
may
be
significant interdependencies
between
rights,
but
these are
likely
to be far more
specific
than the
very general
ones that
Shue claims to have discovered.
Rights
as
general
as
"security"
or
"subsistence"
do not seem to
satisfy
Shue's own definition of a basic
right.
If a
high priority
human
right
to subsistence is to be
defended,
it
seems that substantive rather than
presuppositional arguments
will be
required.38
II
SHUE'S TREATMENT OF OBJECTIONS TO A
RIGHT TO SUBSISTENCE
The second section of Basic
Rights
treats several
objections,
all re-
lating
to scarce
resources,
to the
recognition
of a
right
to subsistence.
"Practical"
objections
to the
recognition
of a
high priority right
to sub-
sistence are
particularly
effective as
challenges
because the same
objec-
tions
may appeal
to those who are
theoretically opposed
to
recognition
or elevation of subsistence
rights
and to those who
sincerely regret
the
frequent impracticability
of
implementing
subsistence
rights they
would otherwise
strongly
endorse. If
only
for their
popularity,
the
three
challenges
Shue attacks are
among
the most
threatening
to the
view that a
high priority right
to subsistence should be
implemented
worldwide. Shue examines
objections
that
(1)
a worldwide
right
to
subsistence should not be
implemented
at
present
because it would en-
courage population growth
that would
only
lead to even
greater
starva-
tion
later;
(2)
a worldwide
right
to subsistence would be so
costly
as to
put
inordinate burdens on
people
in
developed
countries,
eventually
37. The thesis that freedom of movement is
necessary
to claim or
enjoy rights ignores
the
role of written and electronic
communication,
for
example by prisoners,
in
claiming rights
and
protesting
violations.
38. For illustrations of the kinds of substantive
arguments
that
might
be used to
support
this
view,
see
Nickel,
Is There a Human
Right
to
Employment?,
10 PHILOSOPHICAL F. 149
(1978-79).
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1578 CALIFORNIA LAW REVIEW
[Vol.
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leading
to their
impoverishment;
and
(3)
a
person's major
moral obli-
gations
are to that
person's
fellow
citizens,
not to
people
in other coun-
tries.39
These three
challenges
can be viewed as
involving
an odd sort of
trade-off
proposal.40
Instead
of
trading
one kind of
right
for another
kind of
right,
these
challenges propose sacrificing
one
group's present
right
to subsistence for another future
group's right
to subsistence. The
same
right-although
it is to be
enjoyed
at different times-is involved
on both sides of the trade-off.
Hence,
a
ranking
of different
rights
in
order of
importance
is of no
help.
Even those who take a
right
to subsistence
seriously may worry
that because needed resources are
scarce,
fulfillment of a subsistence
right
in the
present
or near future is a
self-defeating project.
The
provi-
sion of food to the current
poor
of the world
may help
breed an even
larger, hungrier
horde;
affluent donors
may
be forced to sacrifice their
wealth and
preferred ways
of life in futile
attempts
to meet the subsis-
tence needs of the
poor;
and the needs of
compatriots may
be
slighted
in the effort to
satisfy
the needs of an insatiable world.
Even to the
rights
activist,
what at first
appears
to be mere
practi-
cal
impediments give
rise to difficult theoretical dilemmas. These di-
lemmas,
Shue reminds
us,
are versions of the
question
one of
Dostoyevsky's
Karamazov brothers asks another:
Imagine
that
you
are
creating
a fabric of human
destiny
with the
object
of
making
men
happy
in the
end,
giving
them
peace
and rest at
last,
but
that it was essential and inevitable to torture to death
only
one
tiny
creature-that
baby beating
its breast with its
fist,
for instance-and to
found that edifice on its
unavenged
tears,
would
you
consent to be the
architect on those conditions? Tell
me,
and tell the truth.41
Humanitarians who fear that redistribution of resources to the
starving
will
only encourage
the
growth
of these
populations-and
who
may suspect
that
present
resources are insufficient to
satisfy
worldwide
subsistence needs
anyway-may accept
the horror of their decision to
starve the child and save the world. When starvation is
seriously
con-
sidered as a means of
population
control,
a severe conflict arises in the
theory
of
rights.
To
put
it
starkly,
this is not a trade-off of
rights
but a
trade-off of
people.
Shue's
theory, however,
is not
put
to this severe test.
Instead, Shue
appeals
to the "facts of the matter" to
suggest
that there is no need to
consider a trade-off of
persons.
A 1977 United Nations
study by
39. H.
SHUE,
supra
note
8,
at 91-92.
40. See text
accompanying
notes 20-21
supra.
41. F.
DOSTOYEVSKY,
THE
BROTHERS
KARAMAZOV
126-27
(C.
Garnett trans.
1952).
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1981]
BOOK REVIEW 1579
Wassily
Leontief42 is
among
the studies that convince Shue that there is
no resource
shortage
and that fulfillment of subsistence
rights
could be
accomplished
worldwide
by reducing inequalities
in
production
be-
tween
developed
and less
developed
countries.43
Only
a
partial right-
ing
of the imbalance is
thought
to be
necessary:
if the differences in
per
capita gross
domestic
production
of the
developed
and
developing
countries were reduced from the twelve to one ratio of 197044 to a seven
to one ratio in
2000,
the inhabitants of the world could-and
according
to Shue's
analysis
would-receive what their subsistence
rights
de-
mand. All of
this,
Shue
claims,
is
"perfectly possible physically
and
economically."45
Since Shue believes that transfers of sufficient resources to sustain
the
poor
are
perfectly possible
without
threatening
the subsistence
rights
of the
affluent,
he
suggests
that to
fail
to
bring
about that transfer
is to sacrifice the subsistence
rights
of some
people
to the
preferences
and
pleasures
of others. But Shue himself seems unsure of how much
reallocation would be
required
to
implement
subsistence
rights
world-
wide or how such reallocation could be
affected,46
and he does little to
advance our
understanding
of what can be done and how.
Of
course,
it is
easy
to
agree
with Shue that there are more hu-
mane methods of
population
control than starvation of the
present
population
and that
improved
standards of
living
will
probably
be a
necessary part
of
any
effective
program
for
population stability.
Unfor-
tunately,
there remains the
very
real
danger
that
living
conditions will
be
improved enough
to reduce infant
mortality
but not
enough
to
bring
about a reduction in the birth rate.47
Shue avoids
having
to resolve a
potential
"trade-off of
persons" by
relying
on
optimistic
economic and
demographic
data;
he reduces what
might
be an irresolvable debate about whether or not to sacrifice sub-
sistence rights
of
present populations
for subsistence
rights
of future
populations
to a resolvable clash of subsistence
rights
and
present pref-
erences of
people
who are well off. But the issue is
dispelled
this
easily
only
if Shue's statistical rebuttal is both believable and workable. Un-
42. W. LEONTIEF,
A. CARTER & P.
PETRI,
THE FUTURE OF THE WORLD ECONOMY: A
UNITED
NATIONS
STUDY
(1977).
43. H.
SHUE,
supra
note
8,
at 106-07.
44. W. LEONTIEF,
A. CARTER & P.
PETRI,
supra
note
42,
at 3.
45. H.
SHUE,
supra
note
8,
at 107.
46. See id at
103-04,
109.
47. A
strong
advocate of the
position
that
enjoyment
of subsistence levels
by
more
people
would
produce
too
many people
for continued
enjoyment
of
rights
to be
possible
is Garrett Har-
din.
See,
e.g.,
Hardin,
Living
on a
Lifeboat,
in MANAGING THE
COMMONS
261-79
(G.
Hardin & J.
Baden eds.
1977); Hardin,
Carrying Capacity
as an Ethical
Concept,
in LIFEBOAT ETHICS: THE
MORAL DILEMMA OF
WORLD
HUNGER 120-37
(G.
Lucas & T.
Ogletree
eds.
1976).
See also D.
MEADOWS,
D.
MEADOWS,
J. RANDERS & W.
BEHRENS,
THE
LIMITS
TO
GROWTH 113
(1972).
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1580 CALIFORNIA
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[Vol.
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fortunately,
Shue's
response
assumes that what can be done will be
done.
Relatively
affluent
people may eventually
ask
themselves,
"Why
should the
poor
have less
right
to consume scarce food and
energy
than
we,
the
affluent,
who consume these resources at much
higher
rates?"
Yet,
there are no
guarantees
that once the
question
is
asked,
the afflu-
ent will
agree
to moderate their
growth
rate until the
poor
have acceler-
ated theirs. Traditional distributions and
practices
are not
easily
changed.
The
probability
that
any attempted
reallocation of wealth or
resources will be diverted
by
institutional obstacles and
political
con-
straints,
as well as
by
economic and
physical
barriers,
however
tempo-
rary
and
surmountable,
renders Shue's reassurances doubtful and does
little to
mitigate
the
worry
that the "trade-off of
persons" may
be a
genuine
and
persistent problem.
The next
challenge
Shue examines-that universal fulfillment of a
right
to subsistence will lead to the
pauperization
of the affluent-can
also be considered a
proposal
to trade off some
rights.
Shue deflates
the
challenge by
use of the same statistics with which he countered the
first.48
If we
accept
the view that there are more than
enough
resources
to fulfill subsistence
rights universally,
the
challenge
does lose much of
its force.
Nonetheless,
before allocation efforts will even be considered
by
those in
positions
to make
them,
the
responsibilities
of those whose
resources
may
be used to
implement
the
rights
of others must be out-
lined and the
possible
effects on those
supplying
these resources antici-
pated.
In the
terminology
of Joel
Feinberg,
Shue must show that the
"claims
to" of the
needy
can be combined with a
plausible
account of
whom the claims are "claims
against."49
The
presuppositional ap-
proach
is much better suited to
dealing
with the former than the latter.
The
assignment
of "claims
against"
is central to "Affluence and
Responsibility,"
Shue's
chapter-length
rebuttal to the
objection
that
fulfillment of subsistence
rights
would
place
an
unjustifiable
burden on
everyone except
the
impoverished.
The
problem
of
allocating
burdens
breaks down into two issues:
first,
how much sacrifice can
reasonably
be
expected
from one
person
for the sake of
another; and, second,
why
must
any particular
affluent
person
be
required
to shoulder as
large
a
sacrifice as is
required?
Shue answers the first
question
with his
prior-
ity principle
which holds:
1. the fulfillment of basic
rights
takes
priority
over all other
activity,
including
the fulfillment of one's own non-basic
rights; [and]
2. the fulfillment of non-basic
rights
takes
priority
over all other activ-
48. See notes 43-44 and
accompanying
text
supra.
49. See
Feinberg,
The Nature and Value
ofRights,
in
RIGHTS,
JUSTICE AND THE BOUNDS OF
LIBERTY 139
(1980).
For a discussion of this
distinction,
see Martin &
Nickel,
Recent Work on the
Concept of Rights,
17 AM. PHILOSOPHICAL
Q. 165,
167-69
(1980).
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1981]
BOOK REVIEW 1581
ity except
the fulfillment of basic
rights, including
the enrichment
of culture and the satisfaction of one's own
preferences ...
.0
In
short,
no burden
imposed
in order to
implement
basic
rights
is too
great
a sacrifice as
long
as it does not violate the basic
rights
of the
person bearing
the burden.
It is difficult to
judge
the
plausibility
of this
priority principle
with-
out a clearer idea of the exact
scope
of the three basic
rights
and of
precisely
what
qualifies
as a non-basic
right.
Further,
Shue's
justifica-
tion for this
principle
is so
sketchy
that
anyone
who
thought
the
princi-
ple
too burdensome would find little in Shue's book to
prevent
him
from
adopting
a weaker
principle.
To
justify burdening
the
affluent,
Shue
appeals
to moral intuitions that are
poorly
articulated and little
defended. In answer to the
question, "Why
am I
required
to sacrifice
my preferences,
if
necessary,
in order that someone else
may enjoy
his
or her basic
rights?",
Shue
responds
with an
argument
that
"rests
upon
the still
deeper
and broader
principle
that
degrading inequalities ought
to be
avoided."'' Yet,
Shue relies
simply
on an intuition about "the
importance
of what is at
stake,"52
when he defends the claim that inter-
national
inequalities
that
deprive
some
people
of subsistence while al-
lowing
for satisfaction of the
preferences
of others are
"degrading."53
The third
practical objection
to worldwide
implementation
of a
right
to subsistence that Shue
attempts
to rebut is the
argument
that if
developed
countries were to increase their
foreign
aid so as to make
possible
a worldwide
right
to
subsistence,
this would divert resources
away
from
disadvantaged groups
in the
developed
countries,
if
only by
slowing
industrial
growth
and the
jobs
that come with it. The
objection
is
premised
on the belief that
people's
main
obligations
are to their
compatriots
and that a
government's
main
obligations
are to its citi-
zens. To
justify
on moral
grounds
a
diversion
of resources from do-
mestic to
foreign recipients,
a
theory
must
show, first,
that the claims of
people
elsewhere are more
compelling
and, second,
that the claims
should not be discounted because
they
come from other countries.
Shue addresses one of his most
interesting chapters
to this
problem.
His
strategy
is to undermine the idea that
compatriots'
interests have
more
priority
and that the claims of
foreigners
should be discounted
by
pointing
out difficulties that arise in the
attempt
to formulate
principles
that
support
this
position:
The list of alternative
groupings
that could with some
plausibility
be
50. H.
SHUE,
supra
note 8,
at
118.
51. Id at 119.
52. Id at 121.
53. Id at 119.
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1582 CALIFORNIA LAW REVIEW
[Vol.
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taken to
identify
those within which moral bonds are
strongest-the
moral
primary group-is extremely long ....
Suppose
Abdul is a
Syrian
and a Muslim and an Arab.
Initially,
it
might
seem at least as
plausible
to contend that Abdul has
responsibili-
ties to
non-Syrian,
non-Arab Iranian
Muslims,
because of their shared
Islamic
faith,
that override his
responsibilities
to,
say,
Christian
Syrians
54
Shue
argues
that it is difficult to
identify
a characteristic that
justi-
fies the moral
priority
of
compatriots. Perhaps,
however,
the reason for
such
priority
is not found in some characteristic
that,
for
instance,
all
Syrians
have and no Israelis
share,
but
rather,
it
may
be based on the
kind of international
system
that
history
has
given
us and which is not
likely
to be
changed
in the foreseeable future. That
system
divides the
earth into distinct
territories,
expects
a
government
to
emerge
in each
territory,
and
prescribes
a
high degree
of
autonomy
or "self-determina-
tion" for each
government.
That
autonomy,
which is
generally
desira-
ble as a
requirement
of
democracy
and as a condition of stable
international
peace,
means that
governments
will have the main re-
sponsibility
for,
and will
usually
be in the best
position
to
provide
for,
the welfare and
rights
of the residents of their territories.
Although
governments may
have
obligations
to avoid
depriving rights anywhere,
their
obligation
to
uphold
human
rights
is
mainly operative
at
home,
since that is where
they
have
power
and
responsibility.
This
position
does not
imply
that
governments
have no
obligations
to assist
people
in
other
countries,
but it does
suggest
that a
government's
main
responsi-
bilities are for the welfare of its own
people.55
A related
objection
Shue faces is that even if
nationality
has no
moral
significance,
it nevertheless has enormous
political significance
and is
likely
to
handicap severely any program
that
requires
the
recog-
nition of burdensome
obligations
to nonnationals. Shue's
response
is
to
suggest,
"with
apologies
to
Kant,
that sentiments unconstrained
by
principles
lack
authority,
[and]
principles unsupported by
sentiments
lack effect."56 Shue
rightly suggests
that nationalistic sentiments
should be constrained
by
universal
principles,
but he does
not-apart
from
saying
that we should "nurture a sense of transnational
responsi-
bility"57-specify
the source of transnational humanitarian sentiments
that would be
strong enough
to overcome
long-standing allegiances
and
give
effect to
strong obligations
to aid
nonnationals.
This is a
seri-
ous
practical difficulty given
his earlier admission that
doing
a little to
54. Id at 137.
55. For a
development
of this
argument,
see
Nickel,
Human
Rights
and the
Rights ofAliens,
forthcoming
in THE BORDER THAT
JOINS (P.
Brown & H. Shue eds.
1982).
56. H.
SHUE,
supra
note
8,
at 146.
57. Id at 149.
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1981]
BOOK REVIEW 1583
promote
subsistence
may
be worse than
doing nothing
at all.58
III
IMPLICATIONS FOR FOREIGN POLICY
Shue's final
chapter
discusses some of the
implications
that
recog-
nition of a basic
right
to subsistence would have for United States for-
eign policy.
In two
important ways
the
implications
that Shue
identifies are
surprisingly
modest
given
his earlier
arguments.
First,
his
extended
argument
that affluent nations have
duties,
not limited
by
na-
tional
boundaries,
to aid those with unmet subsistence needs is not used
as
grounds
for
demanding
that the United States
expand programs
of
food
exports
and aids to
development.
Instead,
Shue
suggests
that "the
least that must be done"
by
the United States in
response
to his case for
a universal
right
to subsistence is to:
(1)
acknowledge
that subsistence
rights
are basic
rights; (2)
cease economic assistance to all
governments
engaged
in essential and
systematic deprivation
of subsistence
rights;
(3)
cease all
military
assistance to
governments engaged
in
systematic
deprivation
of basic
rights;
and
(4) prevent
the
thwarting
of United
States
policies
towards human
rights by
United States-based
corpora-
tions.59
While Shue admits that this is
only
a list of "some selected
minimal
requirements,"60
he does not
explain
his faiure to
suggest
greater
United States
responsibilities
or to
explore
the
grander implica-
tions of his
theory.
Second,
given
the
vigor
of Shue's
argument against granting
moral
relevance to national
boundaries,61
it
is
surprising
that he advocates
only
such United States intervention on behalf of human
rights
in other
countries as can be exerted
through
continuation or denial of
military
and economic aid. One
might expect
Shue to insist that rich and
pow-
erful countries take an active role in
protecting
human
rights
in all
countries. If national boundaries
ought
not to
impede
redistribution of
resources needed to
satisfy
basic
rights,
can those boundaries nonethe-
less stand as barriers to direct intervention to eliminate human
rights
violations?
By proposing
a
very
modest account of the
implications
of
his
theory,
Shue avoids the difficult
question
of how active a role a
country's
crusade for human
rights permits
it to
play
in the
governance
of another.
58.
"Doing
too little is
certainly
worse than
doing nothing
if its effect is to
exchange
a
smaller famine now for a
larger
famine later. But if. . . the dilemma can be shattered
by
the
adequate
fulfillment of duties to aid those
deprived
of
subsistence,
no such
apocalyptic
choice is
required."
Id at 104.
59. Id at 156.
60. Id at 155.
61. See text
accompanying
notes 54-58
supra.
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1584 CALIFORNIA
LAW
REVIEW
[Vol. 69:1569
Although suggestions
that the United States
recognize
subsistence
rights
as
basic,
cut off aid to those who
ignore
basic
rights,
and
regulate
corporations
which undermine efforts on behalf of human
rights
are
modest relative to Shue's
premises, they
nevertheless
go beyond
what
either the Carter or the
Reagan
administrations have been
willing
to
accept. Additionally,
Shue's
proposals
have even less chance of
adop-
tion now than
they might
have had a few
years ago
under the
Carter
administration.
Still,
there is much to be learned
by reflecting
on
Shue's account of the
policy implications
of
taking seriously
a basic
right
to subsistence.
The first
policy change
S.hue
advocates is official
recognition
of
subsistence
rights
as basic
rights.
He
suggests
that the United
States
should
ratify
the International Covenant on
Economic,
Social and Cul-
tural
Rights.62 Although
President Carter sent this
treaty
and its com-
panion,
the International Covenant on Civil and Political
Rights,63
to the
Senate for ratification in
1978,64 no vote has been taken. It now seems
very unlikely
that these covenants will be ratified
during
the
Reagan
administration.
Shue also
suggests
the United States should
stop providing
assist-
ance to all
governments
that
"engage
in essential and
systematic depri-
vations of subsistence
rights."65 By
"essential
deprivation"
Shue means
deprivations
that are "embedded
in,
and vital to the success
of,
a
gov-
ernment's economic
strategy,
which
may
involve
introducing
technol-
ogy
that eliminates
employment (without
compensating arrangements)
or
restricting
effective demand on the
part
of
many people
even for
necessities."66
Implementation
of
this
policy might
involve a measure
similar to the
rarely
invoked Harkin
Amendment,
which
prohibits
eco-
nomic assistance to countries
engaged
in
"gross
violations of interna-
tionally recognized
human
rights."''67
Of
course,
it must be noted that
the Harkin
Amendment's enumeration of human
rights
includes secur-
ity
and
liberty
but omits Shue's third basic
right,
subsistence. More-
over,
adding
a subsistence
right
to the Harkin
Amendment would not
62.
G.A.
Res.
2200A,
21 U.N.
GAOR,
Supp. (No. 16) 49,
U.N. Doc.
A/6316
(1967).
63.
Id.
at 52.
64. See
Weissbrodt,
supra
note
7,
at 35-78.
65. H.
SHUE,
supra
note
8,
at 156.
66. Id at 161.
67. 22 U.S.C.
? 2151n(a) (1976)
(originally
enacted as
Foreign
Assistance Act of
1961,
? 116,
75 Stat.
424).
The full text
provides:
No
[economic]
assistance
may
be
provided
under
[this
part]
to the
government
of
any
country
which
engages
in
gross
violations of
internationally recognized
human
rights,
including
torture or
cruel, inhuman,
or
degrading
treatment or
punishment,
prolonged
detention without
charges,
or
flagrant
denial of
life,
liberty
and the
security
of
person,
unless such assistance will
directly
benefit the
needy people
in such a
country.
See also id at
?
2304
(1976
&
Supp.
III 1979).
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1981]
BOOK REVIEW 1585
be
easy.
For one
thing,
it would be
very
difficult to isolate and define
deprivations
of subsistence that meet Shue's criterion of
being
essential
to a
country's
economic
strategy.
Further,
in order to heed Shue's in-
sistence that the United States not
support regimes
that
ignore
their
citizens' subsistence
rights
in
pursuit
of economic
development,
it
would be
necessary
to eliminate the Harkin Amendment's
exemption
allowing
aid to
repressive
countries to continue if it "would
directly
benefit the
needy people
in such a
country."68
Two
counterarguments
to Shue's
proposal
are that assistance
rather than
suspension
of aid will entice
rights-violating governments
away
from their current
practices,
and that the cessation of assistance
will further harm the
deprived
because the effects of withdrawal will
filter down to the most vulnerable. As Shue
points
out, however,
for-
eign
assistance is
usually directly
under the control of the
recipient gov-
ernment which
is,
in these
situations,
the source of the
rights
violations.69 United States
assistance, therefore,
is
likely
to
strengthen
the
position
of the
offending government.
It
may
also
be seen as
legiti-
mating
the
government's
inhumane
policies.
Thus,
the continuation of
assistance is
unlikely
to divert a
violating country
from its basic eco-
nomic
strategies.
On the other
hand,
if some assistance
actually
reaches the
needy,
and if it is Shue's
hope
that
discontinuing
this aid
will
promote
better
compliance
with basic
rights
in the
long
run,
then it
seems to be Shue who is
choosing
to "starve the child and save the
world."70
If
so,
this is a
proposal
Shue has more
arguments against
than for.71
Shue also claims that the United States can best
promote
human
rights by discontinuing military
aid to countries that violate basic
rights.
The most familiar
argument against eliminating military
assist-
ance to
governments
that
systematically
violate the basic
rights
of their
citizens is that United States national
security
is
promoted by military
alliances and the
military
aid that cements them. This
objection
is
often
phrased
as a
weighing
of some basic
rights-United
States citi-
zens'
rights
to national
security-against
other basic
rights-the rights
repeatedly
violated in the
recipient country.72
This articulation as-
sumes that there is no alternative to
sacrificing
one set of
rights
for the
other. Shue's
critique
raises some
questions
that the
Reagan
adminis-
tration,
in its
willingness
to
provide military
aid to authoritarian re-
68. See note 67
supra.
69. See H.
SHUE,
supra
note
8,
at 161-62.
70. See text
accompanying
note 41
supra.
71. See H.
SHUE,
supra
note
8,
at 163.
72.
See,
e.g.,
H.
SHUE,
supra
note
8,
at
166-70; Lefever,
The Trivialization
ofHuman Rights,
POLICY REVIEW, Winter 1978,
at 11-26.
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1586 CALIFORNIA LAW REVIEW
gimes,73 might
well consider:
Are U.S. citizens more secure
today
than
they
would have been if the
U.S.
government
had not been so anxious to
help
the Shah's dictator-
ship spend
so much more of Iran's income from its oil wealth on so-
phisticated weapons
instead of nutrition and
agricultural development
programs?
Will U.S. citizens be more secure in a decade than
they
would have been if the U.S.
government
had not increased
security
assistance to the Marcos
dictatorship
in
spite
of its failure after
impos-
ing
marital law to take effective measures to
improve
the lives of the
poor majority
of
Filipinos?74
Shue
suggests
that the
very concept
of national
security
should be
critically
examined. National
security
is not
simply
an
aggregate
of the
physical security
of all the citizens of a
country.
Rather,
it is an ex-
pandable
term that billows to include such
objectives
as national afflu-
ence and
power, military preparedness,
and entrenchment of
preferred
ideologies."
Small sacrifices of these
objectives
do not
necessarily
vio-
late
any
citizen's
personal right
to
security.
Thus,
to
ignore rights
viola-
tions in
repressive
countries that receive United States aid in
hopes
of
promoting
United States national
security
is not to trade
rights
for
rights.
It is rather to sacrifice some
people's rights
in
exchange
for
modest
gains
in
strategic position.
The rhetoric of national
security
should not be allowed to obscure the
inequality
of this
exchange.
CONCLUSION
Although
we found
significant
weaknesses in Shue's
argument
that
subsistence is a basic
right
because
enjoyment
of it is
necessary
to the
enjoyment
of
every
other
right,
there is much of value in Shue's treat-
ment of
practical objections
to a
right
to subsistence and in his
explora-
tions of the
implications
of such a
right
for United States
foreign
policy.
No one else has treated these issues as
thoroughly
and sensi-
tively.
Basic
Rights
is a
very
welcome contribution to the debate about
the
priority
of a
right
to subsistence.
73.
Reagan foreign policy
has
distinguished
totalitarian
regimes
which control all
spheres
of
action-political,
cultural,
economic and
religious-from
authoritarian
regimes
that
permit
a
greater degree
of freedom and
diversity.
Lefever includes the
U.S.S.R., Cuba,
and North Korea in
the totalitarian
category
and
Brazil,
Argentina, Uruguay,
and Guatamala in the authoritarian
group.
Id at 14-15. See
also
Kirkpatrick, Dictatorships
and Double
Standards, COMMENTARY,
Nov.
1979,
at
34; Walzer,
Totalitarianism
vs. Authoritarianism, NEW REPUBLIC,
July
4 &
11, 1981,
at 21.
74. H.
SHUE,
supra
note
8,
at 167
(footnotes omitted).
75. See id at
168;
D.
YERGIN,
SHATTERED PEACE: THE ORIGINS OF THE COLD WAR AND
THE NATIONAL SECURITY STATE 196
(1977).
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