Review by: James W. Nickel and Lizbeth L. Hasse California Law Review, Vol. 69, No. 5 (Sep., 1981), pp. 1569-1586 Published by: California Law Review, Inc. Stable URL: http://www.jstor.org/stable/3480253 . Accessed: 19/10/2014 13:19 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. . California Law Review, Inc. is collaborating with JSTOR to digitize, preserve and extend access to California Law Review. http://www.jstor.org This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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 This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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). This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 1574 CALIFORNIA LAW REVIEW [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 This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 1576 CALIFORNIA LAW REVIEW [Vol. 69:1569 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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). This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 1578 CALIFORNIA LAW REVIEW [Vol. 69:1569 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). This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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). This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 1580 CALIFORNIA LAW REVIEW [Vol. 69:1569 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). This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 1582 CALIFORNIA LAW REVIEW [Vol. 69:1569 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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). This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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. This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions 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). This content downloaded from 14.139.86.166 on Sun, 19 Oct 2014 13:19:50 PM All use subject to JSTOR Terms and Conditions