About the Author: Elena Namli is Professor of Theological Ethics at Uppsala University, Sweden. Her research focuses on social and political ethics. Her publications include Human Rights as Ethics, Politics, and Law (Human Rights as Ethics, Politics, and Law), Jewish Thought, Utopia and Revolution (Jewish Thought, Utopia, and Revolution | Brill), Mänskliga rättigheter i det offenliga Sverige (Human Rights and the Swedish State, co-editor, 2017), Future(s) of the Revolution and the Reformation (Future(s) of the Revolution and the Reformation | SpringerLink), Legal Positivism, Politics, and Critical Ethics (forthcoming at Lexington 2025).
Human rights are many things. They are the legal protection of individuals against state power. They form the international regime to encourage states to respect the subjective rights of people. Whenever people lack claimable rights, human rights can be used as justification to demand change.
These three dimensions of human rights are revolutionary as compared to the traditional settings of power relations because they restrict state power by claimable rights. However, like any other man-made legal instrument, human rights may be manipulated to serve those in power. As political realists clearly demonstrated, human rights cannot be separated from material interests of political agents who seek to sustain and extend their power. Human rights are an attractive ideological instrument for those in power.
So, how should proponents of human rights respond to this ambiguity of human rights? I believe that we should take the critique of human rights very seriously and look for resources to uncover merely ideological usage of human rights. When do human rights protect people? When are they perverted into an ideology? Let me address these questions focusing on the context of the rights of the child, more precisely the discussion of duty-bearers of the rights of the child.
Expansion of duty-agency as a demand to strengthen the implementation of rights
The classical approach to duty-bearers within human rights law stipulates that nation-states hold human rights obligations toward individuals and minorities. Human rights law is expected to enforce fundamental moral principles of how legitimate state power should be exercised.
There is, however, a current trend within human rights practice and academic discourse that differs from the classical approach; it extends the duty-agency of human rights beyond nation-states. For example, transnational companies and non-governmental organizations are considered duty-bearers in the context of human rights.
The main rationale behind the expansion of duty-agency is a plausible demand to strengthen the implementation of human rights. Most nation-states are not exclusive power possessors, and if we want to efficiently protect people, duty-agency in human rights regimes must be recognized by actors other than states. This thesis is widely discussed and debated in several contexts–from the context of “responsibility to protect” to that of “corporate responsibility to protect human rights.” Many relevant and thought-provoking arguments are presented by both proponents of the expansionism of duty-agency and its critics.
Less attention has been paid to scrutiny of the expansionistic trend within the context of the rights of the child, or so I claim. For many theorists and practitioners of children’s rights, the recognition of parents, families, and communities as duty-bearers appears natural. The United Nations Convention on the Rights of the Child (CRC) already mentions the responsibilities of families and communities in the preamble. Although the document does not describe these responsibilities in terms of human rights duties, it is possible to interpret the convention in an expansionist manner.
I do not think we should move in that direction. Instead, we should sustain the classical approach to human rights by distinguishing human rights agency sensu stricto from other types of legal and moral agency. States should be viewed as duty-bearers of the rights of the child. Parents, families, and communities do have moral and legal responsibilities and duties toward children, but these duties differ from the direct duties of a human rights agency.
In my view, the distinction between direct duty-bearers of human rights and those who are bound by other types of legal and moral obligations prevents two serious types of misuse of human rights: the first is a tendency to regard states as guardians of human rights, which in turn is understood as personal morality. The second is a proclivity to use human rights law and morality as the legitimization of discriminatory practices against minorities. Let me elaborate on these trends.
Expansion of duties – is the state a guardian of human rights morality?
My thesis is that the expansionism of human rights duty-bearers comes with disproportional costs – at least in the context of the rights of the child.
One significant cost is that of states behaving as guardians of people who are supposed to endorse human rights as their personal morality. While the classical model of human rights protection regards states as potential violators, many expansionist models view human rights as a (universal) personal morality that states have a responsibility to sustain. Let us take an example.
Consider a case of education initiatives that a state supports to strengthen children’s human rights. Within the classical model of human rights protection, such education should be mandatory for state officials whose actions might impact children’s lives. Additionally, children, as holders of claimable rights, should learn how to claim rights when they are not respected. To implement such an education is to take human rights seriously because it presupposes that the rights of the child are subjective claimable rights. Duty-bearers must recognize their duties and offer transparent possibilities for children to claim their rights.
Naturally, most states fail to secure children’s rights to the extent the classical model of human rights protection expects them to. In Sweden, for example, most state officials lack knowledge of their responsibilities under the CRC, and existing educational programs on human rights for state officials, with a few exceptions, are optional. At the same time, children’s rights are taught at school and this particular education is mandatory for all. Because children in Sweden lack practical possibilities to claim most of their rights against the state, human rights education focuses on protection against domestic violence and rights as personal moral values. The curriculum for Swedish schools stipulates that human rights are values that should be endorsed by educators and promoted among children.
Obviously, it is important that children learn how they can be protected by the state if their families abuse them. Neither is it wrong to discuss human rights as a kind of morality persons can endorse. However, most serious human rights issues remain invisible for both teachers and children in Swedish schools. There are gaps surrounding how one can use human rights as a tool if a child and their family are discriminated against with regard to education, housing, or medical care. What kind of human rights legislation exists in Sweden, and what kinds are missing? What do international bodies say about the protection of children’s rights in Sweden? These questions are fundamental for human rights protection because they focus on the state’s obligations and citizens’ right to be critical of institutions.
Although most educators in Sweden are motivated by a genuine will to protect children, they, in practice, redirect human rights from being an instrument of control over state power to one of personal morality. Such a move weakens human rights if we want them to protect people. Even more serious is that this move serves those political actors who wish to get rid of human rights as a culture prescribing moral obligations to states and justified claims to all persons. Nationalists, such as Sweden Democrats, for example, happily proclaim human rights as “personal values” that the state is the main guardian of. They are much less positive about the international human rights law demanding the Swedish state to implement human rights through institutions.
I am convinced that the view of human rights as personal values that states are entitled to be guardians of is a perversion of human rights, which in practice reclaims a pre-modern understanding of the relationship between states and citizens. In a modern democracy, citizens are free to endorse different moral values while the exercise of state power is bound by human rights principles.
My argument against the expansionist approach toward human rights duty-bearers does not imply that other actors than state officials cannot be legally bound in order to implement the rights of children. When protective regulations are legislated and enacted through legal systems in different states, they should and do involve many actors, parents, and other guardians. Such regulations demand obedience to law as law, i.e. even if citizens do not endorse political and moral legitimization of particular legislation. For example, the prohibition of corporal punishment of children, enacted in Sweden in 1979, does not demand parents and teachers to embrace human rights as their personal moral values. What it does demand is that the law is obeyed by all, regardless of their value preferences. Such preferences are simply irrelevant when corporal punishment of children is regarded as violence.
To sum up my argument thus far, the expansionism of duty-bearers of human rights risks weakening the right of the child by presenting the state as the guardian of the moral values of citizens. Additionally, the classical human rights model includes the prohibition of discrimination, meaning when states legislate and implement human rights, they are expected to do it without discrimination. Unfortunately, defenders of the expansionism of human rights duty-agency often overlook discrimination as a significant side-effect of their position. Let me now elaborate on this.
Expansion of duties and the risk of discrimination
Proponents of the expansionism of human rights duty-agency rightly believe that many actors other than states have power over people, and therefore risk treating people inhumanly or unjustly. However, the normative conclusion they draw from this descriptively correct observation is wrong. In the context of children’s rights, to treat other agents as we treat states is to overlook important differences in power relations.
For the sake of argument, let us consider the example of democratic states in times of peace. States are legally and morally obligated to protect children’s rights. They are expected to secure this protection by democratic legislation and implementation of such legislation. Moreover, the classical human rights model demands the non-discrimination clause to be observed by both legislators and state officials.
The already mentioned legal prohibition of corporal punishment of children in Swedish law is a good example of human rights legislation within the realm of what I call the classical paradigm of human rights and duties. This prohibition is general, and it applies to both public and private spheres. The prohibition of corporal punishment is justified by the belief that such punishment constitutes violence regardless of how this punishment is rationalized. Thus, the law does not point out any particular legitimization of corporal punishment, but secures human rights of children by the categorical prohibition of the very practice.
Currently, many proponents of human rights pay attention to the traditions and practices that they believe are both specific to particular groups and seriously violate human dignity. For instance, many activists of human rights in the Global North believe that cultures of some Muslim and Roma minorities are more patriarchal and more abusive towards women and girls than cultures of majoritarian populations in Western democracies. As a consequence, they demand particular types of human rights legislation to protect members of minority groups, mostly young women and girls, from other members of these groups who, presumably, are violators of human rights.
In Sweden, a particular “honor-related oppression” (hedersförtryck) clause was introduced in the Swedish Penal Code in 2022 (2022:310). The aim was to protect young women and girls (mostly, but not exclusively) exposed to patriarchal control and violence. According to this new regulation, criminal offenses are regarded as more serious whenever they are committed with the protection of “family’s, relatives,’ or a similar group’s honor” as a motive.
In clear contrast to the prohibition of corporal punishment of children, this regulation is designed to counteract a particular culture of patriarchal control presumably endorsed by what the legislator depicts as “collectivistic cultures.” It is presumed that “honor-cultures” exist among some minorities which do not respect individuals’ freedom of choice presumably endorsed by the majority population.
Although the law does not single out particular minorities, it constitutes indirect discrimination of minorities already exposed to racism, such as Muslims and Roma, in practice. There is no doubt that many activists behind the legislation against “honor-related oppression,” such as the NGO “Never Forget Pela and Fadime,” are motivated by a genuine desire to protect girls and women. And yet, they point out wearing a hijab is a sign of the “honor-culture”. Tips för dig som arbetar med barn och unga | Riksorganisationen GAPF
Does this mean that states cannot restrict the exercise of minority traditions when they risk to violate human dignity? I believe that states can. Most importantly, they can do it without discrimination. The state is obligated to defend women and girls from abusive and violent forms of social control. However, if we believe that such a defense demands an increase in severity of a punishment for crimes, it should be introduced in a non-discriminatory form.
In defense of the classical approach to human rights
The aim of my defense of the classical model of human rights is not to idealize this model. For different reasons, states fail to protect people and they will continue to do it. Yet, for proponents of human rights, it is most reasonable to sustain the classical view of states as duty-bearers, and individuals and minorities as subjects of human rights.
This classical model is realistic in that it does not imply that whenever states take human rights seriously all forms of violations of dignity are eliminated. Although human rights are a revolutionary type of legal regulation of the relationship between the state and people, they are not the solution to all forms of injustice and to the deficit of freedom.
It seems to me that the expansionists who challenge the classical model tend to expect too much of human rights, which in practice weakens the capacity of human rights to restrain the power of the state. This becomes most clear in the case of the rights of the child. Although parents, families, and communities do have legal and moral obligations toward children, they are not bearers of human rights duties. This is because human rights introduce a historically novel and radical asymmetry between states as duty-bearers and people as rights-holders. Every human, regardless of their social and moral status, has legitimate claims toward the state, while the state is under legal constitutional obligation to respect these claims. The expansionist destabilization of this asymmetry, even when motivated by the desire to achieve stronger protection of individuals, risks to restore a pre-modern view of the state as the guardian of people’s morality.
Although realistic in its view of the state, the classical model of human rights is compatible with the desire to strengthen the implementation of human rights, naturally involving many actors other than state officials. Stronger protection of human rights can be achieved by a combination of ordinary non-discriminatory legislation and vital public discourse on concrete forms of injustice. In the case of the rights of the child, we should add that minorities must be treated as legitimate participants in democratic deliberation on human rights law, in turn influencing the formal process of legislation.
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