Human Rights Promotion (24): Forcing People To Be Free

In the case of a people or a nation whose rights are violated and who complain about it, it seems pretty obvious that certain types of foreign intervention aimed at helping them is morally acceptable and maybe even necessary, at least as long as the means we use are also morally acceptable (as long as we don’t cause more problems than we solve, for instance). A much tougher question: can we, irrespective of the risks inherent in any type of foreign intervention, promote human rights abroad if the people in the target country do not want their human rights protected?

It’s evidently paradoxical and self-contradictory to force someone to be free. Rights imply freedom and respect for the choices and the consent of people. That’s what they’re for. Hence imposing them is futile. And yet, freedom isn’t always the result of people’s free choice. Just as peace isn’t always restored with peaceful means. So maybe there are good reasons to force rights on unwilling recipients, but before exploring those reasons I should make it clear that the imposition of rights on unwilling recipients should be the exception. Consent is important. People have a right to reject their rights and outsiders are normally not allowed to impose rights in an authoritarian way.

This general rule is, however, general rather than absolute. I can see at least four reasons why we can sometimes deviate from it.

First, it’s obviously incorrect to reduce rights to a matter of choice, to something that can be chosen or rejected. In a sense, rights are prior to choice: it’s only when people have their rights that they can make an informed choice. That is true for all types of choice, including the choice to reject rights: only after free discussion about the pros and cons of rights can those rights be reasonably rejected. While it’s not impossible that people who have rights may decide to forgo them after such a discussion, I think it’s unlikely. The more common occurrence is opposition from people who have never had rights and have therefore never had the opportunity to make an informed choice about rights. It’s likely that unfamiliarity, the force of habit or tradition, fear, indoctrination or a combination of those plays a part in their rejection. While those social, political or psychological processes are not in themselves sufficient to override people’s choices, they do make those choices suspect. The least one can say is that those choices are not sufficiently informed. And if the status of people’s choices is lowered, then the relative status of intervention is raised (given of course the assumption that intervention doesn’t harm other moral rules besides the requirement of consent).

A second problem: even if we assume that people who have never had the benefits of human rights are able to make an informed choice against human rights, then it’s still the case that those people act in a way that is self-contradicting (not less so than the enforcers of freedom). Rights make choice possible, and rejecting rights therefore means choosing not to choose. Or, better, it’s choosing a system in which it’s hard if not impossible to choose. One can of course do that, but if you’re really opposed to choice, then why exercise a choice in the matter? It’s like a decision not to decide, which is a kind of decision but a pointless one. Making indecision more obvious by loudly proclaiming that you’re deciding not to decide doesn’t add any value to your indecision.

So a nation that chooses against rights contradicts itself and is at odds with its own opinions. By making a choice against rights, this nation acts in a way that is coherent with rights.

And yet, even if we suspect that an expression of lack of consent is insufficiently informed and self-contradictory, we may still want to hold on to the rule that we should avoid intervention because of this expression of a lack of consent. Maybe we should err on the side of consent. But then we face a third problem: how do we determine that this expression truly reflects popular opinion within a nation? Is it the nation that rejects rights, or some vocal and self-interested individuals wrongly presenting themselves as representatives? The members of this nation need rights in order to express their opposition to rights. When they do in effect have these rights, then we’re back at problem #1. But when they don’t, there’s no way to know that a statement “coming from the people” does in fact express widespread popular opinion rather than the voice of a privileged minority that may benefit from rights violations.

A fourth problem: even if there is a way of determining popular opinion in a nation that doesn’t have rights, we are still faced with the predicament of oppressed minorities. This can also justify intervention. Even the views of the majority in such a nation – whether informed or not – should not always trump intervention. In general, however, the rule against intervention in a non-consenting nation is a good one. In the words of J.S. Mill:

[I]t is difficult to see on what principles but those of tyranny [a people] can … be prevented from living … under what laws they please, provided they commit no aggression on other nations and allow perfect freedom of departure to those who are dissatisfied with their ways … So long as the sufferers by the bad law do not invoke assistance from other communities, I cannot admit that persons entirely unconnected with them ought to step in and require that a condition of things with which all who are directly interested appear to be satisfied should be put an end to because it is a scandal to persons some thousands of miles distant who have no part or concern in it. Let them send missionaries, if they please, to preach against it; and let them, by any fair means (of which silencing the teachers is not one), oppose the progress of similar doctrines among their own people. (source)

Indeed, a lot depends on the specific type of intervention, on the means of intervention. Talking to people and trying to persuade them can also be seen as a form of intervention, but it’s not at all coercive. Other means are more coercive and will therefore violate the rule to respect consent. Which doesn’t mean those means are always forbidden. We may question the value of some expressions of non-consent, as I did above.

There is, however, an error in Mill’s argument, as he pointed out himself. The reason why we do not meddle with the free choice of someone else, is precisely his or her freedom. By choosing to submit to a tyrant, this person alienates his or her freedom. One free choice makes all other free choices impossible.

He therefore defeats … the very purpose which is the justification of allowing him to dispose of himself … The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom. (source)

Which is a better way of stating problem #2 above.

Still, if we want to override the general rule that we can only intervene with the consent of the people and that we shouldn’t impose human rights on a presumably unwilling nation, then we should have strong indications that an expression of opposition is manipulated, unrepresentative or grossly misinformed, or that there is a strong undercurrent of unexpressed consent to intervention. And, of course, we should only intervene in ways that don’t violate other moral rules unrelated to the requirement of consent. For example, if we have indications that opposition to intervention is only a matter of national pride, habit, ignorance or a lack of knowledge of the possible alternatives, then intervention aimed at convincing people, showing alternatives etc. can be sufficient. Habit can make many things acceptable. Even more so, it creates a feeling of tradition and when something belongs to a tradition, it also belongs to an identity. And who wants to lose his identity? It can be more frustrating to lose your identity than to suffer rights violations.

By the way, a lot of what I say about consent may be true of consent in general, not just consent to international intervention.

More posts in this series are here.

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Migration and Human Rights (52): Remote Border Controls, Or How to Deal With Poor People On the Move

Many of the poorest people in the world are determined to seek a better life in wealthy countries. The governments and large swats of the populations of those countries react with increasing despair to this stubborn fact, even though the numbers of immigrants aren’t really much higher than they used to be. It’s also not the case that current immigrants create more problems than their predecessors. (On the contrary, welfare consumption, crime rates etc. are lower among immigrants than among natives, and there’s a lot of evidence that natives benefit from immigration).

But then what is causing this despair? I guess it’s got something to do with the perceived failure of Western governments to deal with the “immigration problem”. Whether or not it’s true that there are too many immigrants causing too many problems, many Westerners think it’s true and are dismayed by their governments’ reaction to this supposed fact: people are upset with ineffective policing of the borders (to the extent that some of them have set up private militias to deal with illegal border crossings); they’re upset with the failure of government agencies to send back “illegals” present on the territory; they want but often don’t get harsher immigration laws; they sometimes get but don’t want amnesty etc.

These governments, being democratic, feel the need to respond to popular discontent – even though the actual popularity of the discontent can be questioned. How do they respond? The first thing they do is step up their existing efforts: tightened border security (including walls if necessary), less generous visa and asylum rules etc. Unsurprisingly, this is often unsuccessful if success is defined as a large reduction in the number of illegal – and sometimes also legal – immigrants. Poor people are very determined folks and often find a way around restrictions.

Hence, there’s now a second line of response. Since a few decades now, Western governments have been trying to “externalize” or “extraterritorialize” their immigration restrictions. They also call this policy, somewhat euphemistically, “upstream” or “remote” border control. Western governments have de facto extended their borders. A first step in this second line of response has been the policy of intercepting people on the high sea, outside of the territorial jurisdiction of the states that are the supposed destinations of the people who are intercepted. For example, the US has used force against Haitian refugees outside its territorial waters. And of course this is now the common European practice in the Mediterranean Sea.

The US, Europe but also Australia are moving their border enforcement efforts beyond their national borders into the high sea. But that’s only a first step in the extraterritorialization of immigration control. Immigration restrictions are now being implemented in the territories of countries wherefrom migrants try to reach the West.The policy is to have agreements with the countries of origin and important transit countries. These countries agree to control people departing from or transiting through their territories.

The word “control” can mean different things here: for example police patrols carried out in cooperation with the authorities of Western countries; no-go buffer-zones if the origin or transit countries share a border with the destination countries; destination countries funding detention facilities abroad etc. Cooperation agreements like these aren’t always mutually voluntary. In some cases, Western countries make development funding, visa-allotment and other goodies conditional upon acceptance of said agreements.

Here’s a visual representation of the increasing importance of remote border controls.

This is the outsourcing of immigration control, and I’m sure we’ve only seen the beginning of it. In truly Orwellian style, Western governments use the supposed wellbeing of (potential) migrants as a justification of remote border controls. Better to stop them before they depart for the West than to allow them to put themselves at risk during an often dangerous journey. Better also to stop them than to send them back on the same dangerous journey. As if it’s not the immigration restrictions that make the journey dangerous and that force a good deal of successful immigrants to make the same journey back.

If you believe that immigration restrictions are morally acceptable, then I guess remote borders controls are OK. This type of immigration restriction isn’t necessarily more harmful to potential migrant than more traditional restrictions at the border or in the territory of destination countries. It can indeed be less harmful, sparing a lot of people a lot of trouble and risk. But my point is of course that immigration restrictions are not morally acceptable. If I’m correct, then more restrictions mean more immorality. Why do I think immigration restrictions are not morally acceptable? Because I believe there are good reasons based on human rights to allow people to move across borders, even people who want to move for purely “economic” reasons (meaning that they want to move in order to escape starvation and crippling poverty). I’ve set out these reasons here and won’t repeat them now.

I do realize that I’m occupying a minority position here. Much less controversial is the right of refugees and asylum seekers to move across borders. The Refugee Convention is very clear about the rights of people migrating in order to escape persecution. One of these rights is non-refoulement. This is a principle of international law that forbids the rendering of a victim of persecution to his or her persecutor.

Article 33 of the Convention states:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Even if you think it’s OK to have remote border controls for economic migrants, the same controls will unavoidably trap some refugees in the countries that want to kill or imprison them. It’s only abroad that they can get a fair hearing of their asylum claims, but this is made impossible by remote border controls. So let’s get rid of it, and not only for the sake of refugees.

More posts in this series here.

Why Do We Need Human Rights? (34): Which Are the Best Anti-Human-Rights Theories?

Those of us who believe human rights are important have an intellectual duty to engage with the best critics of human rights. “Engage” may be too big a word for this blog post, but what I’ll do here is list some of the best anti-rights theories and link to previous posts where I’ve dealt with them in some more detail.

By “best” I obviously don’t mean “convincing”. If I was convinced by any (or all) of these theories I wouldn’t be writing this blog. None of the theories I list here, or any other anti-rights theories for that matter, are even remotely convincing on close inspection. I won’t provide that close inspection in this post. In most cases I’ve done so before, and I’ll therefore take the luxury of linking back to older posts.

Utilitarianism

Utilitarianism comes in many shapes, but the most basic form of the theory is evidently opposed to human rights. Human rights limit the things that can be done to maximize aggregate utility, and the efforts to maximize aggregate utility often – in some forms of utilitarianism – justify harm done to individuals if that harm is necessary for greater gains elsewhere in society.

Of course, there is such a thing as rule utilitarianism which claims that respect for rules (e.g. human rights) usually maximizes utility or is the best proxy for utility in the absence of detailed knowledge about consequences of specific actions. Read more here and here about the link between utilitarianism and human rights.

Cultural relativism

Cultural relativism doesn’t reject human rights as such, but only their universal applicability and desirability. According to this theory, different cultures have developed their own moral codes, adapted to their own identity, circumstances and history, and moral diversity is therefore something valuable that needs to be protected. Efforts to universalize human rights will destroy moral diversity and non-western cultural identities, and are in fact exercises in cultural imperialism and cultural genocide.

Read more here, here and here about cultural relativism and human rights.

Empire

A related criticism views human rights as a tool in outright power imperialism. Human rights talk only serves to justify violent interventions in so-called “rogue states” or other countries that provide a selfish and imperial benefit to the U.S. (but also Europe). The violent interventions in Kosovo/Serbia, Iraq, Afghanistan etc. have all been partially justified by human rights talk but were, according to some, primarily motivated by the strategic interests of the intervening powers. More here.

The economic case against human rights

It’s often argued that economic growth is enhanced by certain policies and actions that imply violations of human rights. The Chinese government in particular is quick to use this argument. And the whole “Asian values” debate – somewhat outdated now – was based on it. Especially developing countries supposedly can’t afford the luxury of human rights. They need discipline and organization in production and consumption, not freedom. Read more here, here and here.

Legal positivism

Legal positivism doesn’t claim that there are no rights, simply that there are no human rights. Rights exist only if they are part of the law. Human rights in the abstract, as something that human beings possess independently of their country’s laws, is simply idle talk. It seems I still have to make the case against legal positivism…

Marxism

According to Marx, human rights are the rights of the egoistic man, separated from his fellow men and from the community. They are the rights of man as an isolated, inward looking, self-centered creature and they are designed to protect the wealthy from the poor. More here, here and here.

More posts in this series are here.

The Causes of Human Rights Violations (47): Globalization

Human history is often viewed as a widening circle of moral concern. In the olden days, the claim goes, people cared only about their siblings and tribe. Then they started to care about their class, their nation, their religious community, their civilization, and ultimately their shared humanity. Cosmopolitanism, or the equal respect for all human beings whatever their affiliation or location, is then the end-state of morality (although some want to go further and include animals or even inanimate objects in the circle of moral concern). This end-state dovetails with human rights concerns because human rights are also the rights of all humans, whatever country, class or culture they belong to.

The widening of moral concern – if it indeed occurred as described – went in tandem with other and more familiar globalization processes, such as increased international trade, integration of different economies, the development of international law, increased communication through the internet, easier transportation, intercultural dialogue, migration etc. And all these different processes interact: communication and transportation foster trade, trade fosters communication, communication widens the circle of moral concern etc.

This story implies that globalization – of any kind – is always or unequivocally beneficial from the point of view of human rights. However, that may not be true. Let’s look at some of the pros and cons of different types of globalization.

Pros

  • Increased migration is almost without exception beneficial to the prosperity and freedom of all parties involved, although the migrants obviously benefit most.
  • Intercultural dialogue promotes tolerance and agreement on human rights, and this dialogue is not only fostered by new technologies but also by international trade. Better communication as well makes people care more about what happens in the world and makes it more difficult for oppressive regimes to hide their oppression. In this sense, communication and trade drive the widening circle of moral concern.
  • Economic interdependence between countries creates a self-interested incentive for governments to promote rights and democracy elsewhere in the world and makes it more likely that international law can impose itself over concerns about national sovereignty. Global economic collaboration requires international regulation, and economic regulation can open the door for other types of regulation, including rights regulation. Countries that depend economically on an international institutional and regulatory system, will have a much harder time invoking their sovereignty when faced with accusations of rights violations, since they already lost a huge chunk of their sovereignty due to economic integration.
  • The increasing importance of multinational companies makes it easier for consumers in one part of the world to lobby for corporate responsibility elsewhere in the world.

Cons

  • Outsourcing, a commonly cited aspect of globalization, can result in people losing their jobs, and the threat of outsourcing can force people to accept lower wages or inferior labor conditions. And work is a human right.
  • The threat of cheap foreign labor and cheap foreign products can lead to protectionism and immigration restrictions, two major causes of poverty in developing countries.
  • Globalization may erode the welfare state because a large part of the tax base – corporations, financial intermediaries and skilled workers – become internationally mobile and can thereby avoid to pay the taxes that governments need to finance their welfare systems. The tax base can also decrease because governments cut taxes in an effort to maintain the competitiveness of local businesses.
  • The previous three phenomena – outsourcing, labor and product competition and pressure on the welfare state – may not only lead to restrictions on international trade and migration, but can also counteract the widening circle of moral concern: politicians and local businesses can and often do use these threats to stir up xenophobia. A xenophobic public is more likely to vote in favor of trade and immigrations restrictions. On the other hand, there’s some evidence that people’s circle of moral concern is wider in countries that are more affected by globalization.
  • Globalization implies a certain degree of power deflation: states lose power vis-à-vis the market, multinationals, international institutions and each other. This in turn means that decisions affecting the well-being of people are taken by outside forces. Democratic self-government – which is a human right – is then threatened.
  • The interconnectedness of international financial markets increases the likelihood that a local financial or economic crisis spreads to the rest of the world.
  • A higher number of increasingly globalized multinational companies also means a higher risk that some of those threaten indigenous cultures, exploit poor workers etc.

On balance, however, I believe that globalization is good for human rights, even though I can’t quantify the pros and cons.

What is Totalitarianism?

It sounds like a somewhat antiquated concept and it may very well be true that it’s useless as a descriptive device for current politics. However, I believe that it remains a necessary tool for the correct understanding of 20th century history. Nazi Germany, Soviet Russia and Mao-era China were very different countries and very different political regimes, but it can be argued that what they had in common was more important than what separated them. And what they had in common separated them from all other authoritarian governments before and after them. (Hannah Arendt was one of the first to notice this). That is the reasoning behind the concept of totalitarian government. Those three governments – and perhaps a few others – can be described as totalitarian states and were therefore instances of a separate type of government, like oligarchy or democracy. They were not just particularly brutal forms of dictatorship. We’re not talking about a difference in degree. Of course, some of the elements of totalitarian rule which I describe below can be found in other dictatorial governments as well, but other elements can’t. (Just like some elements of democracy can be found in non-democracies). And what certainly can’t be found elsewhere is the combination of all those elements.

Totalitarian government is a post-democratic form of government. It couldn’t exist in the era before mass democracy. It’s post-democratic in the sense that it is an outgrowth of modern democratic traditions. Political parties, party ideologies, mass movements and mass mobilization, the pseudo-popular legitimacy of rigged elections and referenda, the mass idolatry, the personality cults, mass indoctrination, propaganda, Potemkin constitutions, show trials etc. all show the totalitarian debt to democracy. The same is true for the focus on re-education and rectification of thought when some parts of the popular will are considered to be deviant: this is proof of the importance of popular consent (when consent is absent, it’s fabricated).

Contrary to older forms of despotism, totalitarianism admits that the state is no longer the natural property of a ruling class, the private tool of a sovereign or a gift of God. It is the expression of the will of the people. Not, as in a democracy, of a divided people or of a people who’s identity fluctuates over time as a consequence of public debate. The will of the people under totalitarian government is permanently defined as a unified whole. The people are defined as a race or a class. The people have a homogeneous project, namely racial supremacy or the liberation of the proletariat. The will of the people, which is also the basis of democracy but which is always kept vague, heterogeneous and fluctuating in a democracy, now becomes a singular, clear and permanent will. All individuals and individual projects or interests are identified with a collective project. Everything which is in accord with this project, is part of the people; everything else is not – is foreign, alien, “entartet”, bourgeois or capitalist – and must be destroyed. If it’s the whole of the people that works towards a certain project, then those with another opinion are enemies of the people and have to be destroyed to protect the people and its project.

That is the origin of the genocidal nature of all totalitarian governments but also of their less extreme forms of exclusion of the other. Every internal division is seen as external. The other is not part of the people. Society isn’t divided but is divided from its enemies. Every sign of internal division is externalized: dissidents are foreign spies, the other is a member of the international jewish conspiracy, a tool of international capitalism, the fifth column etc. For example, long after it was clear that the attack on Hitler in 1939 was the work of a single German individual (Georg Elser) the nazis maintained that the British secret service was to blame. The other attack by von Stauffenberg in 1944 was framed as the work of aristocratic officers who were alienated from the German people. This division between internal and external is consciously cultivated because it confirms the image of the people as a unified whole. If real foreign spies or class enemies can’t be found then they are created. and duly suppressed. Hence everyone can become the enemy, even the most loyal followers.

The fixed will of the people is subsequently represented by the party and the state. The party doesn’t represent a majority, but the people. Hence, other parties have no reason to exist. All people and the whole of the people are represented by a single party. And since this party perfectly represents a perfectly clear and unified popular will, it can infiltrate all parts of society: school, church, labor union, factory, the press, the judiciary, the arts and all other social organizations cease to be independent. The party is everywhere and submits every organization to its will. It believes it can do so because its will is the will of the people. And the party uses the means of the state to be everywhere: the secret service, the department of communications, the police… As a result, the state is also everywhere. Totalitarian government simultaneously bans people to the private sphere – all free and deviant public actions and expressions are forbidden – and destroys the private sphere, to the point that people can’t even trust their friends and family. All private actions are potentially public. Wiretapping, surveillance, public confessions… Even the most private things of all, your own thoughts, are attacked by way of propaganda and indoctrination. Totalitarianism strives for total control of private and public life. All spontaneous and independent individual or social projects are doomed unless they are completely trivial. They can only survive when they are part of the common project, because they make sense only when they are part. When they are not, they are potentially in opposition to the common project.

But we should understand that the identification of the party with the state is only temporary. The state in fact is bound to disappear. That becomes clear when we consider the imperialism that is typical of totalitarianism (to a lesser degree in the case of China). By definition, the projects of totalitarian governments – racial supremacy or a classless society – go beyond the borders of a state. Aryans aren’t only meant to rule within the borders of Germany. They deserve global supremacy in part because they are the best race and in part because the Jews are a worldwide threat. And the classless society can’t exist when it is surrounded by a capitalist world; the proletariat in other countries also deserves to rule.

Totalitarianism is a form of rule that goes beyond the state. A particular state is just a convenient tool for a certain stage in the popular project. The people as well is a concept that goes beyond the group of citizens of a given state. There are also Aryans and workers in other states. In non-totalitarian dictatorships, political rule is essentially tied to the state. A normal dictator may attack other countries, but will do so while enhancing his state or expanding his country. His rule will never go beyond the rule of a state, suitably redefined if necessary. If necessary he’ll redraw the boundaries of the state, but he will never go beyond the state as such. Totalitarian rule, on the other hand, is ultimately larger than the state. It’s the rule of a race or a class, on a potentially global level.

As the people and the state are subject to the rule of the party, so the party is subject to the rule of one individual. The leader makes sure that the party remains unified, because a divided party can’t claim to represent a unified people. So there’s a series of identifications going on: the people is identified with a class or a race; this unified people is then identified with the party that represents it; the party in turn identifies itself with the state because it (temporarily) needs the tools of the state to realize its project (class rule or race rule); the state then takes over society and identifies with it; and ultimately a single leader takes over everything in order to guarantee unity.

The people are like a collective individual, a body with a head controlling all its coordinated movements. State terror and genocide can then be seen as the body removing sickness and parasites. The other is often explicitly identified as parasitical or infectious. Violence and oppression are medicines used to safeguard the integrity of the body of the people and their purpose. The Great Purge wasn’t called a purge by accident. The Jews weren’t depicted as pestilent rats for no reason.

The image of the body also means prophylaxis: why wait with punishment until the crime is committed? We know that certain persons are enemies of the people. Crime in the sense of opposition to the project of the people is a fatality for them, sooner or later. There may be good Jews, but we can’t take the risk that they marry an Aryan and defile the race. And some capitalists may be less harmful than others, but why wait until their presence undermines collectivization or until they betray the country and invite an invasion?

Totalitarian government isn’t like a normal lawless and arbitrary dictatorship. Of course, the laws under totalitarian government are regularly broken or changed to serve certain goals. But there are deeper laws that the totalitarian government has to protect, namely the laws of nature (in the case of Nazism, and more specifically the laws of natural selection) and the laws of history (in the case of communism, more specifically the laws that say that economic and industrial development will necessarily destroy capitalism and inaugurate communist production). Those “deeper” laws aren’t human laws; they are historical laws that drive mankind towards the realization of the project that animates totalitarianism. Totalitarian government serves to facilitate and fasten the operation of those deeper laws. Jews are exterminated because that promotes the ultimate and inevitable supremacy of Aryans. Capitalists, bourgeois, kulaks etc. are exterminated (or reeducated in order to become communists) because that promotes the ultimate and inevitable supremacy of the proletariat (the proletariat is doomed to rule given the evolution of capitalism, but its rule can be hastened).

There is no “regis voluntas suprema lex” as in previous forms of despotism. The legal lawlessness covers a deeper lawfulness. Legal laws have to be adapted to best serve the deeper laws. If terror and violence are required for the realization and hastening of the evolution postulated by the deeper laws, then the legal laws will mandate and require terror and violence. Terror and violence don’t only serve to intimidate, destroy opposition, isolate people from one another and coerce compliance. They serve the project of the people.

I think all this justifies grouping Nazi Germany, Soviet Russia and Mao-era China under a separate form of government. That doesn’t mean that everything about those regimes was new and typical only of totalitarian government. Obviously, genocides, terror, show trials etc. have occurred before and since. Those are not inventions of Hitler, Stalin or Mao. There are historical parallels, just as there are parallels between contemporary art and ancient art, but still we prefer to distinguish these two forms of art. We have to look beyond the phenomenology of despotic regimes throughout history, and identify the particular logic of different forms of despotism.

Human Rights and International Law (23): The Dilemma of Treaty Ratification Rates

In the case of human rights treaties, we face a tough choice: should we aim at universal/near-universal acceptance and ratification, or should we instead limit ourselves to the goal of “real” or meaningful acceptance and ratification? The problem with human rights treaties is that ratification is almost costless. A country can ratify them even if it has no intention of respecting their provisions, because it knows that lack of respect will not result in any serious harm. The same is not true for other types of treaties: a country ratifying a military collaboration treaty, a fishery treaty etc. knows that non-respect of the treaty provisions can lead to harmful retaliation by other treaty signatories or fines imposed by some international institution.

The relative costlessness of human rights treaties means that most if not all countries will readily accept them. They can only gain: signaling support for human rights by way of treaty ratification can even reduce outside pressure for better rights protection. After all, a country that signals willingness to respect human rights should have more leeway than a country that openly and willingly violates those rights.

Hence, near-universal ratification rates are a natural outcome in the case of human rights treaties. Some argue that instead of pursuing the commonly accepted goal of near-universal ratification of human rights treaties, we should instead aim for “real” and meaningful acceptance; in other words, acceptance only by states that do intend to implement the treaties’ provisions. States that would sign the treaties simply to signal a positive attitude towards human rights and to relieve outside pressure should therefore be excluded from ratification.

Exclusion means raising the cost of ratification – for example by way of preconditions for acceptance incorporated into the treaties or by way of effective sanctions in case of non-respect. This in turn means that treaty ratification rates will be brought down.

All of this sounds reasonable at first sight, but it does create a dilemma. Treaty ratification, even if it is at first mere signaling by an authoritarian state that doesn’t have any intention of respecting the treaty, can have beneficial effects over time. By making “fake” or “shallow” ratification more difficult we would also destroy those beneficial effects. What kind of effects am I talking about? Well, for instance, a treaty can promote a human rights culture. When a state accepts a treaty, even if only for the purpose of international signaling, it also signals, inadvertently, to its own population: it signals that human rights are becoming universal moral norms. The state therefore can’t help but increasing the legitimacy and salience of human rights, and its oppressed population can use this fact: it can wield the language of human rights in a more effective way than before, both against the state and in order to rally support.

Hence, we may see an effect of treaty ratification going in two opposite directions: shallow ratification my reduce outside pressure against the ratifying state, but may also increase inside pressure.

So it’s not obvious what we should do. Should we aim at near-universal ratification, or at meaningful ratification? Both strategies have pros and cons. Near-universal ratification may reduce the meaning of human rights – if even the worst dictator can ratify a human rights treaty without any significant cost, then human rights will lose their appeal. We may even increase the number and severity of human rights violations because states that signal adherence to human rights will see a reduction of international pressure. On the other hand, making ratification more costly will reduce the number of ratifications, which in turn will reduce the moral stature of human rights and will make it more difficult to argue that human rights are universal.

I’m not ashamed to say that I can’t see an easy way out.

More posts on this series are here.

Why Do We Need Human Rights? (31): Or Maybe We Don’t? – Exploring the “Dark Side” of Human Rights

Do human rights have a “dark side“? There are some specific complaints about the nefarious or even evil consequences of certain particular human rights, and there are complaints about the harmful consequences of human rights in general. The former complaints are a lot easier to deal with, and I’ll start with those.

Complaints about particular human rights

Freedom of expression is believed to be harmful because it protects pornography, which in turn leads to gender based violence and gender discrimination. Furthermore, it implies the free dissemination and reproduction of hate and it therefore fosters violence, racism and different kinds of “phobias”. And, finally, it allows blasphemy and hence it encourages religious tensions and violence.

Those human rights that guarantee a fair trial, and more particularly the rights of defendants, make it more difficult to have an effective criminal justice system. As a result, it becomes more likely that dangerous criminals return to society. Also, the right to life makes it harder to justify capital punishment, with the same result.

The right to privacy can support gender subordination and make it more difficult to tackle domestic violence.

Some human rights can even bring us to the edge of destruction (a ban on torture makes it impossible to deal with ticking time bomb terrorists).

Such specific complaints against particular human rights can be countered rather easily. Most if not all of the harmful consequences of rights are violations of other rights. If we grant that rights are limited by other rights, then we can balance rights against each other. Or one can argue that the supposed harmful consequences of some rights will (almost) never occur, or that they aren’t really harmful at all. For example, if we don’t torture we won’t make terrorism more likely. And some forms of pornography or hate speech aren’t really very dangerous.

Complaints about human rights in general

A lot harder to answer is the challenge that there’s something wrong, not with particular human rights, but with human rights as such. This challenge can take different forms.

Human rights are supposed to be the fig leaf of international intervention and modern imperialism. The anti-Taliban intervention in Afghanistan, for instance, was partly a reaction to 9-11 but it was also justified by reference to the brutal rule of the Taliban. It may be a meager defense, but if we were to reject everything that can be abused we wouldn’t have much left. The question then becomes one of degree: are human rights more likely to be abused for imperialist reasons, or more likely to serve the beneficial goals for which they are intended? And what is the probable balance of good and bad that will result from those different uses of human rights? I think the good that comes from human rights clearly outweighs the bad, and that the bad will happen anyway, whether or not people use the excuse of human rights while making it happen.

There’s a similar claim about the inherent cultural imperialism in human rights. Human rights, even when they’re not used to justify war, military intervention or territorial occupation, are still imperialist because they imply the imposition of western values on other cultures. Human rights are then believed to be a form of cultural aggression and part of a neocolonial effort to extend the individualist, secular and modern culture of the West elsewhere in the world, destroying the indigenous cultures in the process. This claim, however, is based on some rather shaky foundations: that human rights can only be found in the West, that intercultural transmission is necessarily aggressive, one-sided and involuntary, that human rights express a culture, that human rights are individualist etc.

Then there’s the claim that the abstract nature of human rights removes the personal and the specific from cases, and removes therefore the things that make us care about cases. I dealt with this complaint before, so I won’t repeat myself. The core of the reply would be that one approach – an abstract one – doesn’t exclude a more contextualized and specific one. For instance, one can talk about the abstract desirability of the right not to be tortured and about the errors in reasoning of those arguing for exceptions to this right, and at the same time one can talk about specific cases of torture.

Another complaint is the classic marxist one: the individualism of human rights spills over into egoism and capitalist greed. Again, I refer to an older post for a detailed reply. Suffice it to say that human rights as claims on others can indeed lead to divisiveness and a lack of social harmony, and that human rights as claims for your rights can promote selfishness. These tendencies, however, are canceled by the more communitarian nature of other uses of rights (religious liberty, tolerance, freedom of association etc.).

Still another complaint is about the victimization inherent in human rights. Focusing on people’s human rights violations means focusing on their status as victims, and talking about people as victims is somewhat infantilizing. Human rights activists do indeed often view non-whites, non-males and non-westerners as passive victims, incapable of agency, waiting to be rescued by do-gooders. This obviously reinforces their subordination. (More on self-defeating human rights policies here). This complaint is more about the way people act when trying to promote human rights than about human rights as such.

A final complaint about human rights is that they give people false hope, at least those people in the poorest countries of the world. What is the point of having a right when you don’t have the means to realize that right, when there’s no way of securing the things you have a right to? For billions of people all over the world, the right not to suffer ill health, poverty or homelessness is just a sick joke. Why should we have rights when there’s no way to make them real? Good luck going to a judge in a famine infested country and asking him to respect your right to food. And even if we can make our rights real, it’s better to use politics, science and economics than abstract rights that don’t tell us how to move forward. The reply to this complaint would focus on the benefits of having rather ambitious goals, even if the complete realization of those goals is not yet possible. At least one can measure progress. And it would also focus on the realistic nature of most human rights goals. For example, it’s simply not true that poverty eradication is utopian.

More posts in this series here.

Human Rights and International Law (22): The Usefulness of Retroactive Laws

George Steiner, in his magnificent novel about the fate of an escaped Adolf Hitler in post-war South America, describes rights as an ontological totality, or, in other words, a reality that encompasses the whole world and all phenomena in it. Rights are not just a set of local commands, only valid in some corner of the world or at some moment in history, or only applicable to a certain class of people. It would be unacceptable to have one part of reality – either a part of the world or a part of time – that is free from the moral power of rights.

The Israeli secret agents who, in Steiner’s book, captured the old Hitler in the forests of South America rightly believed that he could be tried by their makeshift jungle court and that their present-day norms dealing with genocide and persecution could be used to judge him, even though these norms did not exist at the time when Hitler committed his crimes or in the places where he committed them.

Human rights are therefore an exception to the otherwise very sensible rule that laws should not be applied retroactively or “ex post facto”. Certain actions that take place in a certain country at a certain moment in time, and that are not illegal in the context of the law as it is valid in the country and at the time, may afterwards – after the facts – be judged as violations of human rights, even if human rights were not part of positive law at the time. Otherwise, a tyrannical legislator such as Hitler may make it forever impossible to judge his deeds of oppression and to punish him, even after he and his regime are defeated. We shouldn’t be willing to accept an absolute definition of the prohibition on retroactive laws that leads to impunity. If violations of human rights can only be punished according to the laws that are in force in the country in which the violations occur, and that are in force at the moment that they occur, then a bit of creative legislation will lead to total freedom of action for the most brutal dictators. And no change of regime or military defeat will ever harm them. They will have a life-long insurance against justice.

However, the prohibition on retroactive laws is an important achievement, and is even part of the internationally accepted corpus of human rights. See for example article 15 of the International Covenant on Civil and Political Rights:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.

The fact that human rights laws are an exception to the general rule is justifiable on two grounds:

  • First, it would be unreasonable to require that the system of human rights contain the seeds of its own destruction. Requiring the system to incorporate an absolute prohibition on retroactive laws, one that also makes retroactive human rights laws impossible, would mean introducing one rule in the system that can undo all other human rights rules. The absolute rule on retroactive laws would allow malevolent legislators to neutralize all other human rights rules in the system.
  • Second, the main rationale for the rule on retroactive laws is the fact that we must be able to know in advance whether our actions are or are not permitted by the law. Otherwise we are unable to plan our actions in a manner that is appropriate for law-abiding citizens and we run the risk of inadvertently violating the law. A law that is unknown to citizens is plainly absurd, and retroactive laws are by definition unknown before they are introduced. If laws are enacted that punish actions after they have occurred, then we risk being harmed by the unknown penal consequences of our actions, actions that we believe are legal. However, this rationale is absent in the case of human rights. Even if human rights are not part of existing law, most people will not inadvertently violate human rights. Human rights, even if they are not part of the law, are known to most citizens, and those who violate them know that even if their law allows them to do so, they can one day be held to account. Punishing someone on the basis of human rights that were not part of the law when the punishable act was committed, is clearly not the same thing as punishing someone for driving in a pedestrian zone when this zone was accessible for cars at the moment of the “infraction”.

Rights violations must always be punishable, even if the law that makes them punishable only comes into force after the violations have occurred, for example after the overthrow of a dictatorship or after the military defeat of the violators. All other acts that do not imply a violation of human rights, can only be punishable if they are a crime according to the law at the moment that these acts are committed. Generally, one cannot punish someone for an act that is not a crime and only becomes a crime afterwards, because otherwise this person is unable to know whether his act is legal or illegal and is unable to plan his actions in a way that fits a law-abiding citizen.

The exception to the general rule – this general rule being itself a particular case of the even more general rule of “nullum crimen sine lege“, no crime without a law – was introduced by the Nuremberg Tribunal.

[C]rimes against humanity were made punishable even if perpetrated in accordance with domestic laws … In so doing, it [the tribunal] indubitably applied ex post facto law; in other words it applied international law retroactively”. A. Cassese, International Law in a Divided World, p. 291-292.

[C]rimes against humanity … were defined in the Tribunal’s Charter as follows: “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”. In some respects, crimes against humanity are wider than war crimes; they can be committed before a war as well as during a war, and they can be directed against “any civilian population”, including the wrongdoing state’s own population. The prohibition of “crimes against humanity” thus constituted an exception to the old rule that a state was entitled to treat its nationals as it pleased; and it is fairly clear that this prohibition was not accepted as part of international law before 1945″. M. Akehurst, A Modern Introduction to International Law, p. 278-279.

Why do I discuss all this? The obvious temporal aspect of retroactive laws can have spatial consequences. If we are not bound by the rule on retroactive laws where human rights are concerned – which is, I admit, a somewhat stretched interpretation of the Nuremberg exception that only mentions some types of rights violation – then we can do as if human rights are law and we can always punish rights violations, even if these violations were not illegal at the moment that they were committed. We can apply this principle in a spatial dimension rather than a temporal dimension. If we can act as if human rights were law in a previous period of history in which they evidently were not law, then we can also act as if they are law in another place in the world, a place in which they are not yet part of the local law.

This way we can elude the perpetual discussions about the application of international law, about the force of human rights treaties in domestic law, about the role of reservations, about the priority or superiority of international law, about the extent to which some or all human rights are part of international customary law, about whether human rights are part of ius cogens etc. For me, this is no fundamental modification of the Nuremberg-principle, but it has far-reaching consequences. And it is not as farfetched as it may seem at first glance. Most people will agree that it would be wrong to judge someone solely by the laws of his country. Laws, after all, can be incomplete or even immoral.

Cultural Rights (13): Their Place in the System of Human Rights

I know I’ve neglected cultural rights on this blog. That’s not because I think they should be neglected. Cultural rights are indeed important and they deserve a thorough discussion. First, what are they? Cultural rights are the rights of

  • indigenous peoples,
  • ethnic, racial or linguistics minorities or “nationalities”,
  • immigrants
  • and perhaps also other marginalized groups.

In certain circumstance, some such groups can legitimately claim cultural rights because without these rights they will be unable to preserve, experience and act in accordance with their cultural identity. This cultural identity includes institutions, beliefs, practices, a way of life, a language etc., all of which can be under pressure from another, dominant culture or from some other hostile forces (e.g. globalization, capitalism etc.). Other, more commonly accepted human rights such as religious liberty, non-discrimination etc. are of course helpful as well but sometimes insufficient for this purpose. For example, a state can’t help but to impose an official language, and the users of this official language have therefore an unfair educational, economic and political advantage. Minority groups can then claim that they need the cultural right to receive education in their own language. Non-cultural human rights won’t be much help.

The background assumption of cultural rights is the equal value of all cultures. All cultures have an equal right to survival and all groups have an equal right to preserve their cultural way of life. The pressures that threaten cultures can take various forms, going from genocide (or ethnocide, or cultural genocide) at one extreme to milder forms of acculturation at the other extreme. Some typical forms of pressure are:

  • reducing birthrates through forced sterilization
  • forcibly transferring children to other groups
  • relocating entire groups
  • interfering with education or the transmission of culture to future generations of a group
  • forced conversion
  • erasing the group’s existence or practices from the historical record
  • attacking a culture’s resource base (e.g. deforestation)
  • etc.

The concept of cultural rights should be distinguished from related concerns about economic or political domination. Marginalized cultures can indeed suffer cultural as well as other types of oppression simultaneously, and depriving a culture of its economic base can be as lethal as a direct attack on its identity. However, I think it’s useful to isolate the cultural and identity issues. So I’ll focus on those, and I’ll also deliberately sideline the thorny question of the definition of “culture”, a notoriously overbroad concept: which groups can legitimately claim to be a “culture” deserving of cultural rights? Are cultures really distinct and self-contained? Let’s just assume that there are some such groups, and that some of those are threatened.

Which cultural rights?

Apart from the general right to cultural survival, it’s not very clear which are the more specific rights that are bundled together under the general right, and it’s commonly accepted that the concrete realization of cultural rights depends on the circumstances. In some cases cultural rights can imply a right to some form of affirmative action, in other cases a right to regional self-determination etc.

Article 27 of the International Covenant on Economic, Social and Cultural Rights only mentions a right of groups to enjoy and practice their own culture. The UN Declaration on the Rights of Indigenous Peoples is somewhat more precise, but only somewhat. Hence, cultural rights are often attacked for a double vagueness: vagueness about the specific rights involved, and vagueness about the beneficiaries (which groups qualify as a “culture”?). However, we’ll see below that a more fundamental criticism of those rights is also possible.

Justifications of cultural rights

And yet, I do believe that cultural rights are an important addition to the body of human rights. The justification for these rights is based on two things:

  • the importance of culture for individuals, and perhaps also some vaguer notion of the general importance of cultural diversity and the “heritage of humanity” (in which case cultural rights are important for everyone and not just for members of threatened cultures)
  • the failure of more traditional human rights to protect culture in all cases.

People need a cultural life, a life in a community that transcends time. They want to belong to a group and share a traditional identity. These human values can only be enjoyed collectively and are often neglected in more individualist and liberal theories of rights. Individual human rights such as freedom of religion and association, anti-discrimination laws, tolerance, democratic pluralism etc. are helpful for the preservation of culture and other collective values (such as religion), but not in all circumstances. Take the example I gave before: the simple fact of an official state language and school language puts some minorities in a disadvantaged position, not just culturally but also economically and politically. And indeed there’s nothing that ordinary human rights or tolerance can do about that.

Another justification of cultural rights can be based, not on the value of culture, but on the need for reparations for past injustices. For example, indigenous people can claim that respect for their cultural rights is due to them because of the injustices perpetrated by past generations of the dominant culture, even if there are no present-day threats to their culture.

Criticism of cultural rights

Contrary to the more traditional, individual human rights, cultural rights don’t require the recognition of individuals as equal human beings, equally deserving of respect in spite of their differences. They demand, on the contrary, the recognition of differences and respect for those differences, and differences between groups of individuals rather than differences between individuals. Common identity, group difference and recognition are the keywords behind the notion of cultural rights.

This explains why these rights are often criticized in liberal democracies. Liberalism focuses on the individual. It recognizes group interests but those are typically understood as cooperative, associational and interest based. People, according to liberalism, voluntarily join groups in order to advance their interests. Groups are defined by shared goals and interests, not by the shared identity of the members. Individuals are there first, and groups are secondary. From this point of view, cultural rights can be seen as essentialist: they reduce the identity of members to the identity of the group to which they belong.

This essentialism can indeed be detrimental to individual group members. Because cultural rights are rights aimed at the preservation of cultures, there may be a temptation to use these rights in order to discipline members who deviate from the cultural orthodoxy. Such deviations can be viewed as a threat to the group’s identity and survival. In that case, cultural identity becomes a goal in itself rather than a good for the members. Ideally, cultural rights are valuable because the members of the cultural groups in question value cultural identity, cultural practices and language and can use these rights to protect what they value. It’s those members who have an interest in cultural preservation, not the cultures themselves. (Will Kymlicka has developed this argument). This means that when members lose this interest, they should be free to do so, and cultural rights should not be used to impose an identity, practices or a language. Individual members should be free to evaluate their culture and to reject it if that is what they decide.

It follows that cultural rights should not grant groups power or priority over individuals or over individual rights. If an individual member of a group decides to use her freedom of religion to change her religion, her freedom of movement and residence to physically leave the cultural group, her freedom of expression to decide to start speaking another language etc., then there’s nothing the group can do. The group’s cultural rights can’t trump the individual’s rights. And if individual rights are threatened by cultural rights, the latter should give way. For instance, if a religious group claims the right to oppress its female members or sacrifice its children, that group can’t claim cultural rights as means to protect those practices.

That doesn’t mean a group can never legitimately limit the individual rights of its members. It can, as long as it guarantees a realistic exit right. Individuals can waive their individual rights if they think the rules and practices of their group are more important than their individual rights. This exit right, however, should be realistic and not just formal. There should be no indoctrination and alternatives should not be cut off. For example, Muslim communities should be allowed to discriminate against their female members as long as these members have a realistic right to go elsewhere, realistic meaning that going elsewhere shouldn’t imply abandoning their religion, their family etc., meaning also that they have a real choice and haven’t been indoctrinated into submission (more here).

The priority of individual rights over cultural rights does not force us to adopt an extreme individualist philosophy in which the individual is always prior to the community or in which the community doesn’t count at all. This priority of individual rights is compatible with a communitarian stance. Cultures and cultural rights are important, and they are important for communitarian reasons, but they are not so important that they can trump individual rights. Cultures or other groups have value only in so far as they are of value for the individual members. They can’t have intrinsic value. In other words, they can’t have value for themselves.

The problem of enforced internal orthodoxy within cultural groups, which I mentioned above, may be exacerbated by the possible recognition of cultural rights. Group leaders may believe that they need to enforce orthodoxy and silence “minorities within minorities” in order to present a united culture. Presenting a united culture can make it more likely that the wider society recognizes cultural rights for the minority culture. For example, a leader (or leading class) of an indigenous group may believe that it’s necessary to emphasize the distinctive nature of the group by reviving traditional practices. This revival makes the group seem more valuable from a cultural point of view, and that’s something which will make it more likely that special recognition and special rights are forthcoming. Leaders may even have a personal and selfish interests in those rights, for example their personal leading role may be cemented after the recognition of those rights or during the struggle for recognition. However, some of these traditional practices can be harmful to the individual rights of certain members (e.g. gender discrimination, polygamy etc.) or can go against one particular current of belief within the minority group which is subsequently repressed.

So cultural rights may harm individual rights and may promote internal orthodoxy before they are recognized – and as a means to achieve recognition – as well as after they are recognized – for example, regional autonomy can imply restrictions on intervention by the central authority in the case of rights violations occurring within the regional group. It’s relatively easy to make the granting of cultural rights conditional on respect for individual rights within the group demanding cultural rights (and withdraw those rights when they result in violations of individual rights), but it’s a lot more difficult to avoid the dynamic of groups violating individual rights and suppressing internal dissent in the process of a struggle for cultural rights.

Actionability of cultural rights

Individual rights trump cultural rights, but this raises the question of the actionability of cultural rights: when exactly can they be used to protect cultures? They can’t if a culture’s preservation is in danger because individual members decide to leave, for example through voluntary assimilation into other groups, or decide to fashion the group’s identity differently. Neither can they be actionable when a culture dies because of low fertility rates for instance. Artificially propping up fertility rates for the sake of cultural preservation would harm the rights of individuals in a manner which few would accept. A culture that can’t gain the uncoerced adherence of its members or promote the vitality necessary for the reproduction of its members at replacement rates, doesn’t seem to be worth preserving. Again, cultures are important for individuals. And if individuals lose their interest or change their minds, there’s not much one can do.

If one were to limit individual rights in order to prop up a culture, one would violate the principle that culture are important because they are important for individuals. One would have to adopt the unlikely view that cultures are important in themselves whatever people believe, and that they have an intrinsic value even if no one wants to be a member. Of course, it’s sad when a language dies or when some cultural practices disappear, but this sadness isn’t enough to give cultures the right to force people to do something against their will. Even if it would be somehow morally OK to force people, it would be pointless. One may succeed in getting people to speak a language, take part in rituals etc., but that would happen for the wrong reasons. A culture has to come from within. It shouldn’t be an externally imposed duty.

Perhaps cultural rights become actionable when the preservation of a culture is threatened, not by the free choices of individual members, but by economic forces, migration patterns or political oppression. Indeed, it’s not entirely unreasonable for the French government for instance to subsidize French language cinema in order to protect it against the “onslaught” of Hollywood. Or for the Tibetans to complain of Chinese “demographic aggression”. (Similar talk about Eurabia seems a lot less reasonable). Or for native Indians in the U.S. to resist forced resettlement.

Realization of cultural rights

And when we decide that cultural rights are actionable in certain cases, we still don’t know which actions short of violations of individual rights we can take to protect them. Some possibilities:

  • An obvious policy could be some kind of federalism and limited self-government, primarily but not exclusively when the minority cultures are geographically isolated and when they haven’t voluntarily chosen to live within a larger political unity (e.g. tribal sovereignty for indigenous peoples).
  • Maybe some quota systems in representative bodies could also help to give culture a voice.
  • Affirmative action.
  • Reparations.
  • Special educational provisions (for example the provision of some hours of education in a native language) or other types of assistance to do things that the majority takes for granted (e.g. multilingual ballots).
  • Certain veto powers (for example, the right of indigenous people to veto the use of land).
  • Some group-based exceptions to general laws (such as an exemption to the rule forcing drivers to wear a crash helmet).
  • Granting jurisdiction over family law to religious or tribal courts.
  • A politics of recognition (e.g. teaching black history in U.S. schools).
  • And perhaps even a right to separate from the political community if nothing else works or if the claim to authority of the central state is weak (as in the case of colonies).

It’s clear from this that cultural rights can in some cases restrict the rights of non-members. For example, the use of English is restricted in Quebec; affirmative action restricts the rights of non-group members; veto-powers over land use restrict the property rights of outsiders etc. However, it’s not the case that cultural rights necessarily restrict the rights of outsiders. Subsidies or regional autonomy for example do not, by definition, involve such restrictions. But if they do restrict some of the rights of outsiders, then we should be very careful. As stated above, cultural rights don’t trump individual rights; the opposite is true. But this general priority of individual rights doesn’t mean that there will never be cases in which it’s better to give priority to cultural rights (the good this will allow us to do may sometimes far outweigh the harm to some people’s individual rights). The general priority of individual rights over group rights doesn’t mean that there can’t be specific cases where the balance goes the other way.

Human Rights and International Law (21): Human Rights and the Irrelevance of the Law

If you want to promote respect for human rights you’re likely to turn to the law, and not just any law: human rights are usually if not always included in constitutions and in the human rights treaties that countries have accepted. They are, in other works, part of the basic law. You hope and expect that those in charge of verifying respect for the law and enforcing this respect when it’s absent will see that the case you bring before them is a clear violation of human rights – clear on the basis of the evidence you present – and will use their legal monopoly of violence in order to force the violators to stop, to respect the law and to remedy the harm that is done to you or to those you represent. Judicial courts, including international courts, and enforcement agencies such as the police force, the military, peacekeepers and such, are believed to be the institutions that are best placed to promote respect for human rights law.

You may have many good reasons for this belief: there’s the authority of the law as a special kind of rule, stronger and more commonly accepted than rules of morality, and there’s the possibility to use violence as a means to coerce. You may also have good reasons to believe that these legal and enforcement institutions will never be perfect: there can be perjury, judges may be incapable, suspects can escape, the police may be corrupt, laws can be counterproductive etc. Still, you strongly believe that the law is the best you can hope for in a world of imperfect humans, and certainly better than self-defense or persuasion.

Many of us will recognize our own beliefs in this description. However, one could easily call these beliefs naive. Look at the Supreme Court in the U.S. for instance. Would there be so much bickering over the nomination of new Justices by acting Presidents, if the judicial protection of rights was the quasi-mechanical process that I just described? Or is this bickering not proof of the fact that the political affiliation of the Justices determines to a large degree their rulings? Why would the other political party systematically object to the Justices proposed by the President if the politics of those Justices don’t make a lot of difference in the way they rule? But if those politics do make a lot of difference, what is left of the credibility of the system of law as a means to enforce respect for rights?

Some of this skepticism is the basis of the theory of legal indeterminacy. This theory states that laws have nothing to do with how judicial cases come out; that lawyers and judges can manipulate laws and the legal system in order to justify any decision they please; and that any possible result in any legal dispute can be justified as the legally correct outcome. If laws do not determine or – according to a more moderate form of the theory – do not significantly constrain judicial decisions, then it’s often futile or even risky to ask a judge to rule on a supposed rights violation. You may get the result you want, but only if the judges share your moral, political or religious outlook. In the worst case, your tormentor is vindicated, which will only encourage him and others like him.

The theory of indeterminacy is corroborated by the historical shifts in rulings based on the same texts. Take for example the death penalty in the U.S., which has been ruled both constitutional and unconstitutional. Of course, the indeterminacy of the law is not always the fault of judges, lawyers or prosecutors. The legislators also have a role to play. Laws have to be clear and unequivocal.

On the other hand, it’s impossible to require strict determinacy: no law, however carefully crafted, will produce one and the same legally acceptable type of outcome over decades. There will always be so-called hard cases that require interpretation and choices. And because beliefs and opinions change over time, interpretations and choice will also change. Still, in all legal systems in the world, there seems to be much more indeterminacy than what most of us believe would be optimal.

Take another example: international criminal justice. Here as well it’s clear that the equal application of the law is just a sick joke. Security Council Resolutions – which can be seen as quasi-judicial – are notoriously inconsistent, and their application is even more inconsistent. The International Criminal Court, one of the best international legal institutions around, only manages to prosecute the worst violators in the poorest and geopolitically irrelevant parts of Africa. China merely has to hint at possible economic consequences and all human rights talk about China – let alone action against China – stops instantly. Never mind the fact that China has accepted human rights treaties. Russia is part of the Council of Europe and has therefore accepted the jurisdiction of the most powerful international human rights court in the world. And yet, we all know< that human rights in Russia are far from safe. International human rights law clearly suffers from collective action problems, perverse incentives, competing priorities and double standards.

So, if it's naive to rely only on the law, which other means do we have in order to promote respect for human rights? The two major alternatives to law are story-telling and honor. Read more about those here and here respectively.

Terrorism and Human Rights (39): Targeted Killing and Democratic Peace

Democratic peace theory states that democracies are less likely to engage in war with each other, for a variety of reasons. One of those reasons is the fact that in a democracy, the people vote, and the people are also those who shoulder the cost of war. In a regime in which the people can influence the decision to go to war, such a decision will only be taken very reluctantly. Conversely, a regime that doesn’t need to listen to its people can easily impose the cost of war.

What’s the link with targeted killings of terrorists? Let’s limit the discussion to drone attacks in the context of a war. Killing terrorists in any other context amounts to extrajudicial execution, since those terrorists are criminals rather than combatants and therefore have a right to a trial (unless killing them is the only way to stop an imminent attack). In the context of a war, targeted killings carried out by unmanned drone aircraft are supposed to have certain advantages compared to “normal” military engagement with the enemy. Two of those advantages are that

  • drone attacks are said to be more precise and hence less likely to result in civilian casualties, and that
  • you can avoid putting your own soldiers in harms way.

The supposed precision of drone attacks is contested, since it’s often difficult to judge from thousands of miles away whether the target is real, whether the informants on the ground are reliable and whether there’s no risk to innocent bystanders. There have been reports of civilian casualties resulting from drone attacks, although the true extent of this problem is difficult to measure since there’s no public information on those attacks.

In some cases, troops on the ground may be better able to judge these things. It’s also not commonly accepted that it’s ethical to focus on troop safety over and above the risk of civilian casualties. This focus is, of course, understandable in the case of a democracy engaging in a war. Public opinion is powerful in a democracy and doesn’t like it when troops are put in harms way – that’s one of the origins of the democratic peace theory. (It’s sometimes called the body bag syndrome). Hence, a democracy may be particularly tempted to use drone attacks and targeted killings, since a more traditional war is difficult to sell to a powerful public opinion.

If indeed a democracy is tempted to use targeted killings, then the price to pay may be the loss of democratic peace. Targeted killings remove one of the most powerful causes of democratic peace: the high cost of war. By making war less costly on the party initiating the war, targeted killings make war more likely.

[T]o me the reason to prefer human to robotic war is a cold and brutal one: because it brings war home to the citizenry in the form of the dead and wounded, and the citizenry may then be less likely to support future wars except out of clear necessity. (source)

More on targeted killings here.

Self-Defeating Human Rights Policies (8): Modern Slave Redemption and Swords-to-Plowshares

“Slave redemption” is an effort to buy the freedom of women trafficked into prostitution, coerced domestic servants and other modern slaves. In essence, you offer to pay the slave-holder (the pimp for example) a price for the slave that exceeds his or her present and future value.

It’s a very controversial policy. Any individual who acquires his or her freedom in this way is obviously better off, but the policy may set up a self-defeating process:

When you have people running around buying up slaves, you help create a market demand for more slaves… It’s like paying the burglar for the television set he just stole. … The slave traders end up with more money, buying more guns and hiring more thugs to go out and take more slaves. (source)

A very similar process may take hold of another, more recent initiative. Fonderie47 is an

organization that buys AK-47s at above-market-prices in conflict zones and turns them into extremely expensive accessories, all in the name of helping Africa. Apparently, the logic is that this will increase the price of AK-47s, thereby decreasing their pervasive presence in conflict zones. (source)

Of course, and again, the very opposite is likely to occur. Gun dealers will just take in larger stocks of AK-47s – like the traffickers enslave more people – because of demand expectations and higher prices. Then they’ll find out that the guns-to-jewelry initiative can’t follow suit – and perhaps turns out to be a hype – after which the excess guns are dumped in war zones. Furthermore, even if the initiative keeps going and succeeds in bringing down the numbers of AK-47s in war zones, the dealers will just buy other weapons with the extra funds they now have thanks to the initiative.

You can read such stories in two ways, according to your pre-existing biases: either the stories teach us that marketization doesn’t solve everything and that we should tackle such problems with the use of force; or they teach us that we shouldn’t intervene in the market. What I personally learned from them is that people are very creative and human rights advocates are no exception. That’s a good thing, of course, but it’s often no substitute for structural solutions that aim for the root causes of problems.

More posts in this series here.

Self-Defeating Human Rights Policies (7): Qaddafi and the ICC

Another example of good intentions going wrong:

One of the many puzzles surrounding Muammar Qaddafi was his refusal to go into exile. Once NATO intervened on behalf of the rebels and Tripoli fell, Qaddafi must have known that he would eventually lose the war and that this would mean death. Instead of leaving the country, he decided to stay.

Why? One surprising answer has to do with the International Criminal Court. It used to be that exile was an attractive long-term option for dictators to take. Rather than stay and fight, they could live their lives in wealth and comfort in beautiful and stable places such as Paris or the Bahamas.

This changed as more and more countries ratified the Rome Statute of the ICC. Now seeking asylum is no longer easy or particularly attractive. Dictators can try to convince countries such as France, Britain, Venezuela, Mexico or Spain to let them settle in their capital cities or along their coastlines. But since all have ratified Rome, moving there is tantamount to turning oneself in to be prosecuted for war crimes. Qaddafi could seek refuge in countries that have not yet ratified Rome, such as the United States or Cuba or Zimbabwe or Sudan or Saudi Arabia. But those countries are either unwilling to accept him (the U.S. and Saudi Arabia) or unable to credibly commit to protecting him over time (Cuba, Zimbabwe, Sudan). How long could Qaddafi trust that the current regime in Cuba or Zimbabwe will remain in power to protect him? …

What Qaddafi’s behavior reveals is a potentially unexpected and unfortunate side-effect of an increasingly successful ICC. By limiting the options nasty dictators have to seek exile, it is increasingly forcing them to stay. And by forcing them to stay, it could, inadvertently, be encouraging war. (source)

More on the ICC here. More self-defeating human rights policies here.

Why Do Countries Become/Remain Democracies? Or Don’t? (18): External Triggers

In the previous posts in this blog series, I only discussed internal reasons why a particular country moves towards or away from democracy. But of course, no country stands on its own, unaffected by what happens in the rest of the world. Democratization is hardly ever a purely domestic event or the sole result of internal democratic forces. There are and have been important external triggers, both helping and impeding the transition to democracy.

The fall of the Soviet Block in 1989 and the defeat of the Axis powers after WWII were global events that led to the overthrow of a whole series of authoritarian governments. On the other hand, the Cold War meant that authoritarian leaders everywhere in the world were buttressed or installed as a buffer against communism or capitalist imperialism (“he’s a son of a bitch, but he’s our son of a bitch“). Furthermore, the economic interests of powerful countries often convinced them and sometimes still convince them to support dictators in oil-rich countries (Saudi Arabia for instance). And besides oil there are other strategic interests that may make it “necessary” to support dictators in other countries (for example, concern for the security of Israel led the US to support Mubarak in Egypt).

Sometimes, powerful countries decide that they should use their military to directly intervene in a country and install democracy by force (Grenada may be an example, and people sure try hard in Afghanistan and Iraq and perhaps also in Libya). Another form of intervention intended to support democracy is conditional aid: wealthy countries or international institutions often tie aid to “good governance” requirements.

And a final external trigger for democracy development is the dominance of the West in the international entertainment industry. When people in authoritarian countries consume western entertainment, they learn to associate democracy with prosperity and freedom.

Of course, external triggers alone won’t produce an enduring democracy, and certainly not when those triggers don’t encourage domestic aspirations. For example, it’s futile to force a country to hold elections through the use of conditional aid or military intervention when the rule of law isn’t in place, when there’s sharp polarization between groups or when a democratic culture isn’t in place. Democracy depends on internal support. People have to believe in democracy and participate, and the institutional structure has to be in place. However, the appetite can come while eating: a certain amount of experience with democracy may be required for institutions and mentalities to grow. Hence, it’s just as futile to wait with external triggers until all the preconditions for democracy are in place.

More posts in this series are here.

The Ethics of Human Rights (44): Human Rights Between Cosmopolitanism and Partiality

Cosmopolitanism and partiality (or parochialism if you don’t mean it in a negative sense) are two very strong and yet contradictory moral intuitions. Let’s start with the former. Most of us have a strong sense of the arbitrariness of national borders. The accident of being born on one or the other side of a border – just like the accident of being born black or female – shouldn’t have any moral weight and shouldn’t determine one’s life prospects, as it unfortunately does.

As a result of this intuition, we believe that all people have the same moral worth, and this in turn convinces us that we shouldn’t condone the notion that the suffering or oppression of a fellow-citizen is more urgent or more important than the equal suffering of someone far away. There is something like humanity and all members of the human species have equal value. Being partial and favoring the alleviation of the suffering of some over the alleviation of the suffering of others, just doesn’t sound like the right thing to do. We should help people because they are human beings, not because they are compatriots. If I see a compatriot and a foreigner drowning in a pool I have no reason to save one before the other.

That’s the cosmopolitan intuition. On the other hand, there’s an equally strong intuition favoring some level of partiality. A father watching his daughter and her friend drown in a pool is allowed to save his daughter first if he can save only one. People care more about their friends and family than about strangers, and that’s completely uncontroversial. A bit less uncontroversial but perfectly common is the fact that citizens of a country – through their tax payments – typically provide relatively generous social security and welfare to their fellow-citizens and much less development aid, even though the beneficiaries of development aid are much less well off than many of the beneficiaries of the welfare state. Countries also impose immigration restrictions as a means to protect the prosperity of their reasonably well off citizenry, even if doing so means condemning foreigners to poverty. And finally, states generally enforce the other human rights of their citizens (poverty is a human rights violation) much more rigorously than the rights of foreigners.

Without staking out my position regarding these two contradictory intuitions, I would argue that imposing strict immigration and aid restrictions means taking partiality too far and that we should have more migration, more global redistribution and more international intervention aimed at the protection of human rights. However, you can demand this and still favor some level of partiality over strict cosmopolitanism.

So, the conclusions people draw from the partiality intuition aren’t always morally defensible, but the intuition itself is. And the same is true for the cosmopolitan intuition. In what follows I will ignore those who draw extreme conclusions from either intuition because they tend thereby to ignore the other intuition. Extreme nationalists, chauvinist patriots, racists, “ethical egoists” à la Rand etc. on one side, and the much less numerous “uprooted” citizens of the world and the corporate or non-governmental “modern nomads” who ridicule origins and meaningful national affiliations on the other side. It’s generally not a good idea to deny strong moral intuitions, and certainly not in this case. So I’ll focus on those who recognize the two intuitions and somehow try to juggle them.

How do people do that? Some choose one as the most important and believe that the other can only be followed in addition. Others just accept this as a case of irreconcilable value pluralism and believe that we can’t solve the dilemma. And still others deny that there’s always a conflict between the two intuitions.

Let’s look at those who favor the priority of partiality, see what reasons they have, and how those who favor cosmopolitanism respond. Many of those who favor the partiality intuition agree that we can and should do more to help others in distant places, but they also claim that we shouldn’t do as much for the billions of poor and oppressed people in the world as we do for our local charity, our relatives and friends and even our compatriots. They believe that once we’ve provided a minimum of care and aid to humanity in general, we’re allowed to focus our attention on a partial group or a limited circle of people that have a special meaning to us. They may provide different reasons for this claim. Let’s look at a few and at the ways in which cosmopolitans can reply:

  • Parochialists may argue that we need global institutions similar to national ones in order to provide the same amount and quality of care and aid to humanity as a whole. For example, you need a global welfare state to provide social security to everyone, and an effective global judiciary to punish gross violations of human rights in despotic regimes elsewhere in the world. We can call this the institutional objection to cosmopolitanism. Cosmopolitans could point to the progress in international criminal justice that has already been made, and could also argue that international redistribution of resources doesn’t necessarily require a global welfare state.
  • Parochialist can defend their limited partiality by claiming that relatively small groups of people are best placed to help each other, and that long distance help isn’t the most effective. For example, local judiciaries are better placed to judge local human rights violations than “ivory tower” international institutions, and small groups of people are better able and more motivated to give each other material assistance. Closeness means that you can do more, and if you can do more you should do more. It also means that appeals to help will be better heard and be more persuasive. People far away simply don’t have the necessary information or motivation to help effectively. We can call this the effectiveness and motivational objection to cosmopolitanism. Cosmopolitans could reply that there’s a certain circularity in this argument and that globalization has eroded much of the salience of closeness. I can go to an internet site and donate money to a specific person thousands of miles away. And the modern media have made the suffering of such a person much more salient and motivating.
  • Parochialists can argue that relatively small groups of people are not only best placed to help each other, but have a right to help each other and should be allowed to do so before the international humanitarians come barging in. This is akin to arguments about self-determination and cultural relativism. Caring about other places on the globe means wanting to intervene in those places in order to promote human rights and alleviate suffering. Such intervention may amount to cultural aggression. We can call this the cultural objection to cosmopolitanism. I’ve argued against cultural relativism elsewhere so I won’t repeat myself here.
  • Parochialists may claim that partiality is the result of the importance of community membership. People want to belong to communities. This belonging is important for many reasons, notably for personal identity. In order to maintain a community, there have to be special duties towards fellow members. We can call this the community objection to cosmopolitanism. The cosmopolitan could argue that those special duties are different from the global duties imposed on us by human rights and humanitarianism and don’t diminish or replace those global duties.
  • Parochialists can argue that global duties and a global morality are meaningless concepts. Perhaps a real understanding of what a moral duty is can only arise from the communal traditions and language of a particular culture. Morality is then culturally situated, embedded and determined. Moral impartiality and global justice are then oxymorons. This objection to cosmopolitanism is related to the cultural objection, and we can call it the meta-ethical objection. A cosmopolitan could reply that this is a rather strange conception of morality. It’s not uncommon for people to be influenced by moralities from far away. Hence, it’s wrong to claim that morality is completely embedded in culture.
  • Parochialists can argue that cosmopolitanism and the need to treat everyone equally imply the imposition of excessive burdens on the wealthier members of humanity and would therefore be both unrealistic and unfair. Treating everyone equally would leave them with little for themselves and for their partial circle of care. None of them would still wear expensive watches or clothes, go on vacations or give their children an expensive education. We can call this the feasibility objection to cosmopolitanism. The cosmopolitan could answer in different ways. First, things aren’t entirely zero-sum as the parochialist seems to believe. For example, a well-educated child can more effectively help humanity. Hence, the two intuitions don’t have to cancel each other out and people don’t always have to choose. Love for humanity and love for certain people don’t necessarily clash. Secondly, even if it’s not feasible to help everyone, that doesn’t mean we have to be partial. The moral equality of all human beings may require that we select a random group of people to help, rather than our inner circle. Such a random choice would guarantee that we help strangers just as much as relatives, friends and compatriots, even though we can’t help everyone equally. The problem with such a random choice is that you need to know about people in order to be able to help (see the effectiveness objection above). The cosmopolitan could reply that random selection isn’t really necessary and that we can help a lot of people a lot more than we may think, without completely undermining our own wellbeing. It’s not absolutely clear that the world doesn’t hold enough resource to give everyone a decent life.

Human Rights and International Law (20): Ratifying the Convention Against Torture With the Express Purpose of Torturing Anyway

There’s an interesting paper here arguing

that torturing regimes may deliberately sign the Convention Against Torture intending to violate it, in order to signal to domestic opponents that they are so determined to hold on to power they will torture them in spite of the cost they incur for treaty violations. … “Messrs Hollyer and Rosendorff believe the intent [of signing the treaty] is to show how dedicated the regime is to maintaining power, how much it will sacrifice. But there is another possible signal: the regime shows its opponents that it knows international pressure cannot disturb its grip on power in the slightest”. (source)

[A] regime that tortures its opponents and refuses to sign the Convention Against Torture shows that it fears international opprobrium. A regime that tortures its opponents and blithely signs the Convention Against Torture anyway shows that it fears nothing. (source)

This is the proper occasion to link back to an older post of mine on the difference between normative universality and real universality.

Why Do Countries Become/Remain Democracies? Or Don’t? (12): Arab Democracy, an Oxymoron?

When people look for reasons why countries haven’t made the transition from authoritarian government to democracy, they often mention economic development or culture, or both. And culture usually means religion more specifically. And religion usually means Islam. Now it’s true that if you look at the largest Muslim region, the Arab world (roughly North Africa plus the Arab Peninsula), you won’t find a single democracy. You can check the most common democracy indexes, Freedom House and Polity IV. That’s an anomaly: no other large region in the world is similarly devoid of democratic governance.

The question is of course: why? In our post-9/11 world the obvious answer is Islam, which is believed to be a religion that is particularly incompatible with democratic principles such as separation of state and church, pluralism, rule of law, human rights etc. Some even say that there will never be democracies in the Arab world as long as Islam remains an important force.

However, sometimes the obvious answer is also the wrong one. Some Muslim countries outside the Arab world have reasonably well developed democratic systems of government (Albania, Indonesia, Malaysia, Senegal, Turkey etc.) and are doing much better than some non-Muslim dictatorships out there.

But then, if it’s not religion, what is the reason for the absence of democracy in the Arab world? In an interesting new paper, Larry Diamond has a look at some possible reasons. He focuses on the so-called resource-curse and the correlated lack of accountability (accountability only emerges in countries that have to tax their people), but I think he’s wrong there. Lack of economic development could be a cause, but he rightly dismisses it. If you compare economic development in Arab and non-Arab countries, you see that per capita GDP of Kuwait is on the same level as Norway, Bahrain compares to France, and Saudi Arabia is on a par with South Korea. Conversely, you’ll be able to find non-Arab democracies that are much less developed than the average Arab country.

A more promising explanation of enduring Arab authoritarianism is FOTA: fear of the alternative. moderate opposition groups in Arab countries tend to accept their authoritarian governments. Their dislike of “modern pharaohs” is topped by their dislike of radical Islamist groups that could profit from free elections. Rather than the principle “one person, one vote, one time” followed by theocracy, they settle for the relatively mild yoke of secular Arab dictatorship. Something similar happened before in Latin America, when the feared alternative was communist rule.

Another explanation for the lack of Arab democracy is the large proportion of GDP spent on the security apparatus, and the relative efficiency of Arab security forces. This is probably linked to the support these countries receive from the West, which is another reason for their longevity. And finally, the Arab-Israeli conflict is a very convenient diversion: it allows public frustration to discharge outwards, without internal consequences.

As you can see, none of these causes condemn Arab countries to dictatorship. Compared to religion, these are things that can be changed quite easily, if the will is there. The FOTA is self-fulfilling: it’s likely that radical Islamist movements are encouraged by authoritarian rule, as much as they are restrained by it. So better give it up. And the West could use its leverage, resulting from decades of support, to push for reforms.

Why Do Countries Become/Remain Democracies? Or Don’t? (11): The Relative Cost of Freedom and Dictatorship

When dictatorial governments come under international pressure to improve the human rights situation in their countries, they often react by stating that they govern developing countries and don’t have the resources that are necessary to make improvements. Such statements have some plausibility. A judiciary, a well-trained police force, a functioning system of political representation etc. all require funding.

However, to some extent this explanation is no more than an excuse: you don’t need money to stop persecution of dissidents, to lift restrictions on the media, to allow demonstrations etc. On the contrary, you save money by doing so. You don’t need a large police force or paramilitary force; you don’t need strong government controls of every aspect of society and the economy; you don’t need to bride your citizens into acceptance of the state etc. But obviously the goal of dictators isn’t to save money and make the country better off by investing that money in the economy.

On the other hand, it remains true that the adequate defense of freedom, rights and democracy requires money, which is probably why rich countries usually score higher in freedom indexes. And, consequently, governments can save money by limiting freedom and by oppressing people.

So, both oppression and freedom cost money, and both a reduction of oppression and a reduction freedom save money. The question is then: what is, overall, the cheapest? A dictatorship or a democracy? And how can we know? Well, one possible indicator could be government spending as a percentage of GDP. If democracies have a systematically higher percentage, one could say that freedom costs more than oppression (on the condition that there isn’t a third variable explaining why democracies spend more).

However, one look at the data tells you that there isn’t much of a correlation between freedom and government spending, or between oppression and government spending. There are some countries that oppress a lot with not a lot of money – “not a lot” in relative terms compared to GDP. China and Saudi Arabia for example. And there are others that do need a lot of money (a large share of the economy) to keep the bosses in place. Cuba and Zimbabwe for example. But perhaps that is because their GDP is so low, not because they need a lot of money to oppress. In other cases, such as Saudi Arabia we may think they don’t spend a lot on oppression but we are fooled because their GDP is relatively high. And anyway, even dictatorships use some part of their state budget for things that aren’t quite so bad.

Likewise for freedom: freedom comes “cheap” in the U.S., and is “expensive” in Sweden. Between quotation marks because government spending over GDP is a very imprecise measure of the cost of freedom or oppression, for the reasons just given. It’s not because a country’s GDP doubles thanks to higher oil prices that the cost of freedom also doubles. Freedom (like oppression) costs money but not money as a fixed percentage of GDP.

Alternatively, you can also look at the tax burden. Here, the data show that countries that impose the highest taxes are also the ones that are most free (Scandinavia obviously ranks high on both accounts). But is that because freedom costs so much more than oppression? Perhaps the answer is “yes” if you include in “freedom” the things that make freedom possible, such as good healthcare, education etc.

But perhaps a more interesting and useful question would be: what cost considerations or economic incentives would produce a move towards democracy or away from democracy? It’s clear that a crisis of some sort – 9/11, a war, or, more appropriately in the current context, an economic recession or depression (see the Roosevelt cartoon below) – encourages democratic leaders to abridge certain rights, freedoms and democratic procedures. In the case of an economic crisis, the claim is that freedom and proper democratic procedures are just too expensive economically. A swift resolution of the crisis requires strong centralized intervention.

It’s also widely accepted that one of the causes of the demise of the Soviet Union was the unbearable cost of oppression. I think it’s better foreign policy to try to make oppression as costly as possible, rather than trying to make freedom as cheap as possible. Freedom tends not to be very cheap, I guess. And when it is, it’s probably not really freedom.

Why Do We Need Human Rights? (12): The Economic Case against Human Rights and Democracy, Ctd.

After completing my older post on the topic – in which I argued that the case is very weak – I found this quote by Bill Easterly which I thought would illustrate my point:

Democracy doesn’t attract as much love as it deserves in aid and development circles. Many wonder if benevolent autocrats might be better for development than messy elections, even though there is no evidence to support benevolent autocracy. There is a strong positive association between democracy and LEVEL of per capita income, which at least some authors argue is causal. (It’s true there is no robust association between democracy and GROWTH of income, but then there is no robust association between GROWTH and ANYTHING.) But even if there had been SOME material payoff to autocracy, why don’t we care more about democracy as a good thing in itself? (source)

My argument for democracy is usually instrumental (see here) and prosperity is one of the values that can and should be promoted by instrumental democracy. But I’ve also written about democracy as a good thing in itself. Go here if you care about that sort of argument.

Limiting Free Speech (39): From Hate Speech to Hate Crime, the Case of Rwanda

Although I take human rights, and especially freedom of expression, very seriously (I wouldn’t be writing this blog otherwise), I also believe that hate speech can produce hate crime. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. This is called incitement to violence. I do understand the problems with this justification of limits on freedom of speech: it can be abused by those who want to muzzle their opponents. If people react violently to criticism, ridicule or insults, then they may claim – wrongly in my view – that the responsibility for the violent acts lies with those making “incendiary remarks”. You can read my objections against this type of argument here.

Nevertheless, I think there are other cases in which hateful words can turn into hateful crimes. The classic example is Radio Mille Collines, the Rwandan hate radio that called for the extermination of the Tutsi ethnic minority population before and during the 1994 Rwanda Genocide (it infamously swept up the Hutu’s to start a “final war” to “exterminate the cockroaches”):

During the 1994 Rwandan genocide, Radio Télévision Libre des Mille Collines (RTLM) broadcast anti-Tutsi propaganda and called for violence against Tutsis, which many experts believe significantly contributed to the violence. An interesting new job-market paper by David Yanagizawa seeks to determine the precise role that RTLM played in the genocide. Yanagizawa relies on “arguably exogenous variation in radio coverage generated by hills in the line-of-sight between radio transmitters and village” to determine the causal effects of RTLM. He finds that RTLM played a significant role in the genocide: full village radio coverage increased violence by 65 percent to 77 percent. The effects are larger in villages with a large Hutu majority and in villages without access to other information sources i.e. villages with lower literacy rates. In total, Yanagizawa calculates that the radio station’s broadcasts explain 45,000 deaths (or 9 percent of the total death toll). (source)

If this is correct, it’s difficult to maintain the doctrinal position that freedom of speech is always and absolutely beneficial and worthy of protection without exception. Unless of course you claim that freedom of speech is more important than the right to life. I refer to an older post on balancing different human rights.

Don’t get me wrong, freedom of speech is absolutely vital, for many different reasons (some as fundamental as thought itself, see here), and no regular reader of this blog can say that I’m ambivalent about it. But what I do object to is the school of thought that believes free speech is the uppermost value, trumping all others in all cases and all circumstances. Maybe this quote from Isaiah Berlin can help to get my point across:

I came to the conclusion that there is a plurality of ideals, as there is a plurality of cultures and of temperaments. I am not a relativist; I do not say “I like my coffee with milk and you like it without; I am in favor of kindness and you prefer concentration camps” — each of us with his own values, which cannot be overcome or integrated. This I believe to be false. But I do believe that there is a plurality of values which men can and do seek, and that these values differ. There is not an infinity of them: the number of human values, of values that I can pursue while maintaining my human semblance, my human character, is finite — let us say 74, or perhaps 122, or 26, but finite, whatever it may be. (source)

This description of Berlin’s value pluralism is from the Stanford Encyclopedia of Philosophy:

According to Berlin’s pluralism, genuine values are many, and may—and often do—come into conflict with one another. When two or more values clash, it does not mean that one or another has been misunderstood; nor can it be said, a priori, that any one value is always more important than another. Liberty can conflict with equality or with public order; mercy with justice; love with impartiality and fairness; social and moral commitment with the disinterested pursuit of truth or beauty; … knowledge with happiness; spontaneity and free-spiritedness with dependability and responsibility. Conflicts of values are “an intrinsic, irremovable part of human life”; the idea of total human fulfillment is a chimera. “These collisions of values are of the essence of what they are and what we are”; a world in which such conflicts are resolved is not the world we know or understand. … “we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others”.

What is Democracy? (50): The I-Did-It-My-Way Syndrome

In discussions about the promotion of democracy in those parts of the world where it hasn’t been (firmly) established yet, the skeptical side of the argument usually advances either or both of the following positions:

  • Democracy is a political form typical of the West and undesirable or impossible elsewhere.
  • Democracy is a political concept which is defined in different ways according to the culture in which it is applied. When promoting democratic government in certain places, we are in fact promoting standard Western democracy when we should in fact be promoting something quite different.

The first position often includes references to cultural or religious preconditions for democracy which are claimed to be absent in certain countries (notably Muslim countries, which supposedly have a hard time accepting the separation of state and religion, the rule of law, gender equality and other elements of democracy). Or it includes arguments about economic preconditions which are absent (democracy being OK for the wealthy West, but not for countries which have other, more urgent economic concerns). And, finally, the size of countries, or their ethnic mix, is said to make democracy very difficult to achieve, or to make it an element which can undermine national harmony and stability. Democracy is viewed as something which reinforces communal or tribal antagonism because the different political parties tend to be formed along ethnic or tribal dividing lines. As a consequence, these parties see it as their role to defend the communal interest and nothing else, and once they are in power they tend to do so by discriminating against other communities. In such countries, democracy degenerates into an ethnic census.

The second position doesn’t reject the possibility or desirability of democracy in certain countries, but claims that the western definition of democracy can’t and shouldn’t be imposed outside of the West without taking into account the local, cultural, historical and social circumstances. There should be different models of democracy for different parts of the world. The western model is not a panacea and is not adapted to all circumstances.

Needless to say that this second position tends to collapse into the first one: if democracy is a very open concept that can include very different procedures, rules and institutions, then it can also exclude elements of democracy which we normally see as essential parts of democracy. An “African democracy” or “Asian democracy” or whatever, may turn out to be not very democratic. Indeed, such concepts are often mere smokescreens used by dictators weary of rejecting democracy altogether.

However, there is some element of truth in both positions. Democracy is undoubtedly tied to certain preconditions, and is impossible without those. And, in certain specific circumstances, such as a war or a national emergency, democracy – or full democracy – may be – temporarily – undesirable. Moreover, countries have to be able to follow their own path and to organize their societies according to their own views and traditions, and not according to those of the West. The Western model isn’t by definition the only desirable one, or the best one. It is not up to the West to decide what is and what is not politically acceptable in countries with entirely different traditions. Democracy can take different forms. Even among Western countries, there are vast differences between the types of democracy that are applied.

It’s wrong to copy the specifically Western view of democracy “à la lettre” in the rest of the world. Within certain limits, we have to take local and cultural aspects into consideration and we have to be flexible where we can. But there are limits. A democracy can’t be just anything. Otherwise we would be defending nihilism. If some elements are missing – such as freedom of speech, association and assembly, regular, fair and free elections, the rule of law etc. – then we can hardly speak of democracy.

What is Democracy? (49): An Export Product?

I strongly believe that democracy is a universal value and the best possible form of government for any country in the world (which doesn’t mean that democracy should necessarily take the same form everywhere). This is based on another belief, namely that democracy promotes favorable outcomes (such as prosperity, economic growth, quality of governance, respect for human rights etc.) and is also a good in itself.

However, democracy promotion poses some logical, moral and practical problems. I want to focus on the logical and moral ones here.

Shortly after the French Revolution in 1789, Napoleon Bonaparte propelled his armies across Europe on behalf of the universal principles of liberty, equality and fraternity, somewhat in the style of the U.S. forces now deployed in Iraq and Afghanistan. Napoleon’s armies occupied Europe because they wanted to export French principles and French civilization. Everybody had to follow the French lead and had to enact a “French” Revolution, assisted by France if necessary. France was the advance guard of the struggle of humanity for freedom and against old-style authoritarianism.

A military type of democratic imperialism in the style of Napoleon is of course only one of many ways to promote democracy abroad and certainly not the best one. Attacking, conquering and occupying other countries, even with the purpose of liberating these countries from oppression and archaic authoritarian forms of government, seems to be highly illogical and self-contradictory. It’s incompatible with the very principles of democracy (democracy is self-determination). This is shown by the fact that, in most cases, the democratic crusade of the French failed to produce democracy in the “backward” countries of destination. On the contrary, it created resentment. The occupied countries, quite understandably, rejected France, and hence rejected its principles as well, perhaps for no other reason than the fact that it were principles of a hostile and conquering country. Traditional and often non-democratic political practices were reinvigorated by feelings of national pride that came with the struggle against France. Grave consequences followed, especially in 20th century Germany. Perhaps something similar can be said of current attempts at military-backed “nation-building”.

Other, non-military means to promote democracy around the world are not without problems either. If you want to liberate the world, then you will tend to see yourself as a model, superior to the rest and more “civilized” than the rest. This kind of megalomania will cause a reaction: people will stress their difference. It will, in other words, create the opposite of what is intended.

If people want to have democracy, then it is of course possible and acceptable, maybe even necessary to assist them and to help them in their struggle against their government. But can we promote democracy if the people of a country do not want to have a democracy? Is it not undemocratic to force someone to be democratic? On the one hand, democracy implies respect for the will, the choice and the consent of the people. But, on the other hand, if we want to create democracy with undemocratic means, we have the analogy that peace is not always restored with peaceful means either.

If, as this analogy suggests, you are allowed to impose democracy from the outside and without the agreement of the people, then you obviously give the appearance of incoherence. You don’t act in a democratic way because you’re not interested in the will of the people (the will of the state is of no importance here, although in most cases it is this will rather than the will of the people which hinders democratization). The question is: are we allowed to impose or enforce democracy in an authoritarian way? Or do the people have a right to reject democracy? Does democracy not imply the right of the people to decide against democracy and to choose something else?

There are several problems with this kind of question.

  • First, it forces a system to be self-destructive (it forces democracy to respect the will of the people in all cases, even when this means respecting the choice of the people against democracy), which is clearly an unreasonable requirement.
  • The second problem is that the question reduces democracy to a system of popular choice and obscures all other functions of democracy.
  • Thirdly, those castigating democracy promotion because it doesn’t respect the anti-democratic will of a people suffer from a paradox of their own: choosing something other than democracy is choosing a system in which you cannot choose. It is difficult to call this a choice. The decision not to decide cannot be called a decision either. A people who choose against democracy contradict themselves and are at odds with their own opinions, in the same way as the democrat forcing democracy down the throat of the same unwilling people.
  • Finally, a people can only choose for or against a democracy when they already live in a democracy. In a non-democratic regime, their choice is of no importance; it is not taken into account and often even impossible to determine.

In spite of all this, however, it’s possible that there is a tentative understanding that a certain people living in a certain dictatorship do in fact make the illogical choice of not being able to choose. So the question remains: are we allowed to impose democracy against the choice of those concerned? Or, in other words, are we allowed to promote democracy with undemocratic means? If we say that peace is not always promoted with peaceful means either, then Stalin could reply that he tried to liberate the Russians from barbarism by using barbaric means. There is not much difference between Stalin’s statement and the statement that we can liberate nations from undemocratic regimes by using undemocratic means. So we must be careful with this kind of reasoning.

The important thing here is the difference between the imposition of democracy on an unwilling (or seemingly unwilling) people, and simple democracy promotion. There’s no contradiction in trying to convince people to choose for democracy.

[I]t is difficult to see on what principles but those of tyranny [a people] can … be prevented from living … under what laws they please, provided they commit no aggression on other nations and allow perfect freedom of departure to those who are dissatisfied with their ways …

So long as the sufferers by the bad law do not invoke assistance from other communities, I cannot admit that persons entirely unconnected with them ought to step in and require that a condition of things with which all who are directly interested appear to be satisfied should be put an end to because it is a scandal to persons some thousands of miles distant who have no part or concern in it. Let them send missionaries, if they please, to preach against it; and let them, by any fair means (of which silencing the teachers is not one), oppose the progress of similar doctrines among their own people. John Stuart Mill in On Liberty

There is, however, an error is this argument, pointed out by the same author. The reason why we do not meddle with the free choice of someone else, is precisely his or her freedom. By choosing to submit to a tyrant, this person alienates his or her freedom. One free choice makes all other free choices impossible.

He therefore defeats … the very purpose which is the justification of allowing him to dispose of himself … The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom. John Stuart Mill in On Liberty.

The Ethics of Human Rights (23): Cultural Relativism, Challenging the Universality of Human Rights

There is no universal agreement on the universal applicability, validity and desirability of human rights. This post focuses on what I believe is a particularly strong attack on the universality of human rights, namely cultural relativism (henceforth CR). I’ll describe it, and then I’ll try to poke a few holes in it.

It’s a strong attack because it’s a moral one. It’s not just about things like national sovereignty, non-intervention or the supposed economic necessity of authoritarian government. Why is it moral? Because it’s about the importance of culture for people and for people’s identity, and because it’s about safeguarding cultural diversity. These are obviously important concerns, but not – as defenders of CR assume – the only or most important concerns (see here). It’s not obvious that concerns about culture, identity and diversity have – automatically and in all cases – priority over other moral concerns, e.g. those inherent in human rights. Yet that is the claim of CR.

CR is therefore a one-dimensional moral theory, or one that fails to take into account different values and different moral concerns. It is also a conservative moral theory: it wants to protect cultures and cultural or national identities against externally imposed change. It’s true that the universality of human rights, and human rights promotion that is based on this notion of universality, sometimes require the modification or abandonment of certain cultural practices. Think for example of FGM. We can limit the possible impact of CR on human rights by stating that this is the exception and that human rights in general targets distinctly non-cultural practices (e.g. corruption, state violence, disappearances, torture, arbitrary arrest, terrorism etc.).

However, let’s assume – for the moment and for the sake of argument – that CR has a residual impact, namely with regard to those cases in which human rights promotion requires modifications in cultural practices. CR draws an analogy between those cases and the experience of western colonialism. Human rights promotion is, according to CR, neo-colonialism. Like colonialism, it destroys cultural identities and cultural diversity. When cultural practices that violate human rights are eliminated following outside pressure, the ultimate result is that all cultures become like the culture of the West. Human rights promotion is the export of western culture, exactly the same thing that happened during colonialism. (I should say that this view defines only one type of CR. Other types argue that human rights promotion harms cultures but not necessarily imposes the culture of the West). The reason for this is that human rights aren’t just legal or moral rules; they are an expression of the individualism and antagonism that is typical of the West and incompatible with the collectivism, harmony and respect for authority that can be found in many other cultures.

I have at least 3 objections to CR.

  • Human rights don’t, by nature, promote individualism or antagonism. Many rights are designed to protect communities, bind them together, and allow them to co-exist with other communities (religious freedom, assembly, tolerance etc.). So if we accept that the West is individualistic and antagonistic, compared to other cultures (which I don’t accept), human rights promotion cannot be the imposition of the culture of the West. On the contrary, under this hypothesis, human rights are rather more typical of other, more communitarian cultures. And indeed we see that some of the values inherent in human rights can be found in different cultures. Also, the fact that human rights are regularly violated in the West (as elsewhere) is an indication that these rights are probably not central elements of the culture of the West (if there is such a thing as “a culture of the West”). The struggle for human rights is more a struggle between different parts of a culture than a struggle between cultures.
  • Another problem is the understanding of change. The cultural change required by human rights doesn’t imply the destruction of culture. It’s just a certain limited number of cultural practices that have to be modified, not the culture as a whole. Most elements of most cultures are not incompatible with human rights, and can even profit from them.
  • And finally, why should the protection of culture be the supreme value? Why should culture always have priority over everything, even human rights? Culture is important to people, but their rights are as well. Accepting rights violations for the sake of culture means that this culture is considered to be more important than the people that are a part of it. Let’s not forget that culture is there for people, not the other way around.

The Ethics of Human Rights (22): Caring for What Happens in the World vs Moral Indifference or Moral Apathy

I guess we all have, now and again, the feeling that it’s strange that we go about our business as usual, being content or even happy, when at exactly the same time in countless other places in the world, someone is suffering, being tortured, killed, raped or whatever. Normally, we don’t think about these facts, because that would make our lives impossible. Thinking about it causes feelings of guilt and unease. Even though we’re often not directly responsible for what happens to these people, there’s always the lingering thought that there may be something we can do to help. And probably there is something we can do, especially if we invested some more effort in associating with others. (Individually we may indeed be powerless).

And there’s an even more unsettling thought lurking deeper in the backs of our minds, namely that we are responsible to some extent, even for the suffering of people thousands of miles away, people we don’t know and will never know. Thomas Pogge for instance has claimed – correctly in my view – that in our globalized world we all contribute, to some extent,  to institutions, rules and processes that violate human rights. For example, we buy clothes from companies that use child labor or ban trade unions; we still profit from colonial exploitation that happened more than a century ago; we acquiesce in democratically enacted laws that exclude poor producers from our markets etc.

The existing global trading regime contributes to the perpetuation of poverty through the asymmetrical market opening that took place in the 1990s. Poor countries still do not enjoy unfettered access to our markets and are still hampered by anti-dumping duties, quotas and very high subsidies, for instance on agricultural products and textiles. Not only do these subsidies make poor countries’ products uncompetitive on rich countries’ markets. They also hamper poor countries’ products in other markets because they allow the rich countries to undersell these products everywhere. By upholding a global economic order that grandfathers the rich countries’ right to impose such protectionist measures into the global trading system, the rich countries greatly contribute to the persistence of the world poverty problem. Thomas Pogge (source)

By the way, Pogge’s argument can be used to counter the claim that “poverty human rights” are substantially different from “normal human rights” such as the right to free speech etc. (are perhaps not even “real human rights” at all), because they impose positive duties instead of merely negative duties, duties to help instead of merely duties not to interfere. For Pogge, poverty is a negative duty: people aren’t poor because we fail to help them but because we actively – albeit often unconsciously – contribute to their poverty. Rather than focusing our efforts on how we can help the poor, we should focus on how we hurt them. This is reminiscent of recent debates on the continued usefulness of development aid.

OK, back to the main point. It’s all very well to encourage “caring”, and possibly also “helping”, but thinking about what we could call the “synchronicity of heaven and hell” makes it very difficult to get on with our lives. Hence we tend to suppress such thoughts. It’s a survival strategy, and quite understandable as such, but the consequence of not thinking is not helping. We know in the back of our minds that while we’re doing fine, elsewhere it’s hell, but we just don’t think about it too much. Only when we watch the news, donate something, or sit in the park and have nothing else to do. And then we’re amazed at how cold-hearted we can be. But at the same time and unconsciously, we continue to function in structures, institutions and sets of rules that underpin the problems that occasionally make us angry. And then we return to our normal mode of moral indifference. Much like the people in the “Fall of Icarus” by Breughel, a painting commented upon in a poem by WH Auden:

… In Breughel’s Icarus, for instance: how everything turns away
Quite leisurely from the disaster; the ploughman may
Have heard the splash, the forsaken cry,
But for him it was not an important failure; the sun shone
As it had to on the white legs disappearing into the green
Water; and the expensive delicate ship that must have seen
Something amazing, a boy falling out of the sky,
had somewhere to get to and sailed calmly on. (full text here)

Also like the father figure in the “Elf King” poem by Goethe, ignoring the suffering and anxiety of his own sun until it’s too late. We can try to rationalize our moral indifference in several ways. First, we may reject the claim that we have any part in the problems that occur far away. We may believe that poverty and dictatorship are home-grown, and not supported by globalization or our own countries’ involvement. Perhaps we believe that individuals failures are the only cause of their problems. Instead of being a bleeding heart Atlas supporting the misery of the world (as in the poem by Heinrich Heine below), we should simply “shrug“.

Ich unglücksel’ger Atlas! Eine Welt,
Die ganze Welt der Schmerzen muß ich tragen,
Ich trage Unerträgliches, und brechen
Will mir das Herz im Leibe.
Du stolzes Herz, du hast es ja gewollt!
Du wolltest glücklich sein, unendlich glücklich,
Oder unendlich elend, stolzes Herz,
Und jetzo bist du elend.

We also rationalize our inaction and moral indifference by pointing to the distance between us and those who suffer. This distance makes action on our part difficult, we believe, and makes it more likely that actions by others who are closer and more familiar with what’s happening will be more successful. While it’s generally correct to state that closeness is a factor in the ability to help, that’s not always the case. Sometimes, the causes of problems are very distant indeed, and hence the solutions have to be distant as well.

Human Rights and International Law (18): Responsibility to Protect (R2P)

The “Responsibility to Protect“, or R2P in U.N.-speak, is a humanitarian principle that aims to stop mass murder, genocide, ethnic cleansing, war crimes and crimes against humanity. It refers initially to the responsibility of states to their own citizens, but in case states can’t or won’t protect their own citizens, other states can step in, respecting the Security Council procedures. However, this is a last resort, especially if the intervention is of a military nature.

The concept is closely linked to, if not indistinguishable from, humanitarian intervention. Often it’s also called the principle of non-indifference, a sarcastic pun on the principle of non-intervention. Some for whom national sovereignty and non-intervention is still the main and overriding rule in international affairs, see R2P as an excuse for Western interference. Noam Chomsky is a notable if unsurprising example. You can read his arguments here. He is joined by a number of governments that risk being a future target.

However, most in the West aren’t jumping the queue to enter into a legal obligation that can force them to undertake expensive and risky interventions in the name of humanity. The fact that these interventions aren’t only expensive and risky but often also without collateral benefits, doesn’t help either. R2P is not yet a legal rule, more a quasi-legal rule. Some legal or quasi-legal texts include the concept. The Constitutive Act of the African Union includes “the right of the Union to intervene in a member state pursuant to a decision of the African Union assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. The same is true for the Security Council of the UN. The concept was endorsed unanimously by heads of state during the World Summit of 2005, so it can be argued that the principle is part of international common law (i.e. international law established by coherent and unanimous state practice).

The Ethics of Human Rights (19): The Universality of Human Rights vs. the Importance of Culture

Is it appropriate, desirable and coherent to impose human rights law and norms on cultures when these cultures have adopted norms and practices that violate human rights? Such an imposition would clearly upset and perhaps even destroy cultural arrangements and traditions, something which would in turn have numerous adverse consequences for people’s well-being and sense of identity (not to mention the consequences for human diversity, humanity’s heritage etc.). Add to that the likelihood that “imposition” usually means “violence”, and you can rest your case.

Or can you? Is it really a no-brainer that culture should by definition have priority and preferential treatment compared to the universality of human rights? I’m very receptive to the requirements of culture and I accept that cultural imperialism and neocolonialism are real problems. But I also believe that the culture-universality problem is contaminated by a long list of mistakes and misunderstandings, making the choice between culture and universality a lot less obvious. Here’s a short list:

  • Cultures need human rights. Especially in today’s multicultural world, cultures need freedom of religion, tolerance, freedom of association and assembly etc. in order to survive. Sacrificing human rights on the altar of culture ultimately means sacrificing culture as well. So cultures at least have a strategic reason to adopt human rights, even if this means giving up certain of their more cruel and barbaric practices and norms.
  • Cultures change. With or without the prodding of human rights activists, governments or international institutions. So why not promote change in the good direction, meaning in the direction of human rights? Cultures are not, and should not be, untouchable. Changing parts of them – i.e. certain norms and practices – doesn’t necessarily mean destroying them.
  • “Culture” is often a tool in the hands of oppressors. They are all too willing to dress up their tyranny in the clothes of culture, giving themselves an aura of respectability and inevitability. Many of the rights violations that are supposedly “cultural” are nothing of the sort.
  • Cultures aren’t monolithic. They are complicated and self-contradictory. While some elements of a culture generate rights violations, other elements of the same culture prohibit those violations. In fact, most if not all cultures have elements that can back up human rights protection, although often this is implicit rather than explicit. Giving priority to elements of a culture that violate human rights is just one specific interpretation of a culture, and possibly a self-interested one if it’s done by those in power. When human rights and culture contradict each other, often the problem can be solved, not by ditching human rights but by favoring another interpretation of the culture. In the words of Charles Taylor, different cultures will travel different routes to the same goal of universality of rights, each culture finding within itself the resources to justify and ground human rights.
  • Linked to this: who can decide what is a truly cultural practice or norm? Ideally it’s the people making up the culture, not some self-interested spokesperson. The people, however, rarely if ever get to decide this. One can assume that, if they would be able to decide, they wouldn’t favor an interpretation that harms their rights. Also, and importantly, if they would be allowed to decide, they would need human rights to do so.
  • An assumption of those granting automatic priority to culture is that imposing something on a culture, or coercing a culture to evolve in a certain direction, is by definition wrong. They assume that this is a dogma of post-colonialism. However, nobody worries about coercion of domestic practices that violate the law, not even if these practices can justifiably be labeled as “cultural”. We don’t allow “mafia culture” to flourish, or certain violent forms of macho culture or whatever. States pride themselves on the uniform application of domestic law, no matter how diverse their citizenry. And international human rights law is law as well, and also merits uniform application. Why is coercion in one case allowed but not in the other? By the way: many authoritarian countries that claim the right to violate human rights as a means to protect “their” culture (or what they claim is their culture) impose a dominant culture domestically at the expense of minority cultures.
  • The charge of cultural imperialism and the analogy with colonialism imply that human rights advocacy equals the attempt to impose western culture on the rest of the world. That human rights promotion is cultural export, a crusade or a holy war. However, human rights aren’t western rights, not by a long shot. The West violates human rights just as much as anyone else. And other cultures can find human rights within their traditions. Unlike the crusades, human rights promotion doesn’t attempt to impose a worldview, a morality or a religion. If it imposes something, it imposes diversity and plurality.
  • Finally, their is the relativity of relativism. If all values are based on culture and there are no universal values that can take precedence, than that’s true as well of cultural relativism. Why would the rule that all culture can decide for themselves be the only universal and non-cultural rule?

Human Rights and International Law (16): In Defense of Universal Jurisdiction

Universal jurisdiction, according to Wikipedia, is:

a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. (source)

Universal jurisdiction departs from the standard principle that there should be some kind of connection between an act and the state asserting jurisdiction over it. In other words, the normal rule is that states exercise justice in relation to crimes committed on their territory or crimes committed by their nationals abroad. Indeed, this departure is the main criticism of universal jurisdiction: by allowing a state to prosecute individuals who are not its citizens, and who have committed crimes in other states, against people who are citizens of other states, we in fact allow this state to violate the right to self-determination of other states.

However, universal jurisdiction is nothing new, and most countries accept some kinds of universal jurisdiction. For example, few now oppose the right of Israel to judge Adolph Eichmann. The discussion, therefore, centers on the proper extent of universal jurisdiction. Human rights activists claim that states should be able to exercise universal jurisdiction in cases of genocide, crimes against humanity, torture, war crimes and slavery.

The reason behind this list is also the main justification of universal jurisdiction. These crimes affect all of us, the whole of humanity, and not just the immediate victims. Those who commit these offenses are hostis humani generis, enemies of humanity. And this has to be taken literally: these crimes are attacks on humanity, not just on individual human beings. The torturer dehumanizes his victim, but also himself. And he infects the society in which he operates. A society that allows torturers in its midst, can no longer be called a society. The same can be said of genocide and the other crimes in the list.

Universal jurisdiction is the act of reclaiming humanity. It is a statement by different parts of the world community, claiming that humanity does not accept such crimes. It is, therefore, an expression of humanity against those who attack humanity. And it’s a powerful expression of humanity precisely because it emerges from different parts of humanity, different countries and nations which all have an interest in the preservation of humanity.

I can imagine that some would object to all of this and would insist that crimes are committed against individuals, and not against an abstract entity such as “humanity”. But then I would invite those people to explain how they differentiate between a single anti-semitic murder and the holocaust. Or between a single case of an individual torturing another individual, and a case of state organized torture. I do believe that the concept of “crimes against humanity” makes sense, and that universal jurisdiction is a good way to respond to those crimes, maybe not from a purely legal point of view (universal jurisdiction isn’t the most effective jurisdiction) but from a human point of view.

Why Do Countries Become/Remain Democracies? Or Don’t? (6)

Democracy is a human right. If we want to promote universal respect for this right, we have to know how societies have achieved the transition from authoritarian forms of government to more democratic ones, and how democracies have avoided the opposite transition. Once we know this, we can promote the future emergence of democracies, and we can counteract the breakdown of existing ones.

Unfortunately, this is a very murky area of political science. The only thing that’s clear is that there is no silver bullet. There isn’t one thing we can do to transform societies once and for all into democracies. Things aren’t easy or simple. A huge number of factors have been identified as causes of or obstacles to democratic transitions, and existing democracies need constant nurturing and protection. A few of the factors that have been named as either promoting or inhibiting democracy are:

  • economic growth or GDP per capita
  • protestant culture versus catholic culture (a catholic culture is believed to be more hierarchical)
  • levels of education and literacy
  • income or wealth inequality (in very unequal societies, the wealthy have a lot to lose with democracy)
  • levels of employment in agriculture versus industry (industrial societies are believed to more more urban and less attached to traditional and authoritarian social relationships)
  • the presence/absence of neighboring democracies
  • export diversity (countries with one major export product such as oil tend to be “resource cursed”)
  • is a country a former U.K. colony or not? (former U.K. colonies are believed to be more sympathetic to democracy given their British colonial heritage)
  • is there a large middle class or not?
  • etc.

Statistical analysis to pinpoint which ones of these many variables really determine democracy – and which ones are merely guesses – has yielded contradictory results, not surprisingly given the low numbers of observations (societies or countries don’t change their political systems very often) and the relative lack of long time series (most classifications of regime types haven’t started earlier than a couple of decades ago). One interesting analysis is here.

So don’t expect me to have an opinion here. What I wanted to focus on in this post is the first in the list. There are two radically opposing views on the effect of economic development on democracy. One view is called modernization theory. Basically, the idea is that as countries develop economically, people will switch to other, higher needs, such as self-government, self-control, and political activity in general. Poverty, on the contrary, forces people to focus on survival and makes democracy seem like a luxury.

However, the opposite view is also persuasive. Countries that do well economically are less likely to become democratic because the population is quite pleased with how things are going and will not revolt. The authoritarian rulers can claim that it’s thanks to them that things are going well. It’s not unlikely that economic collapse rather than success causes authoritarian regimes to break down.

So even if you isolate one of dozens of possible factors causing regime transition, things aren’t very clear. Should we starve dictatorships, or help them develop economically? As a result of this lack of clarity, it’s very difficult to frame foreign policy in such a way that it favors the development of democracies around the world. This may go some way to explain the traditional lack of ambition in diplomatic circles.

Human Rights and International Law (14): Human Rights vs. Humanitarianism?

In this post, I want to look at some of the differences – and perhaps conflicts – between human rights activism and humanitarian action (or humanitarian intervention). Obviously, some definitions to start with. There’ve been enough discussions on the definition of human rights on this blog, so I’ll focus now on humanitarianism. (Note: I’m leaving aside the more problematic issue of armed humanitarianism).

Definition of humanitarianism

According to Wikipedia,

humanitarianism is an ethic of kindness, benevolence and sympathy extended universally and impartially to all human beings. No distinction is to be made in the face of human suffering or abuse on grounds of tribal, caste, religious or national divisions.

However, the concept of humanitarianism has become more precise and restrictive over the last decades. In fact, it is now generally understood to be shorthand for “international humanitarian action“, which in turn means international emergency action to alleviate widespread human suffering resulting from war, civil war, famine, drought, natural disasters and other humanitarian crises representing

a critical threat to the health, safety, security or wellbeing of a community or other large group of people, usually over a wide area. (source)

When you think about humanitarianism, you think about the Red Cross, the UNHCR, MSF, WFP etc. The focus is on the alleviation of widespread suffering and the saving of lives.

Hence, there is a close link between humanitarianism and human rights activism. Humanitarianism deals with rights violations. The absence of suffering is a human right, as is life. Of course, human rights are about much more than that. Free speech, democracy, religious liberty etc. are not about suffering or death, at least not normally). Nevertheless, humanitarianism shares its goals and ideals with part of the human rights agenda, and can therefore be understood as a subset of human rights activism.

Differences between humanitarianism and human rights activism

This link doesn’t mean that there are no differences between the two approaches. I’ll try to mention a few of them here. Apart from the more narrow scope of humanitarianism, compared to human rights activism, the main differences are:

Short term and urgency

Humanitarian agencies such as those mentioned above are by definition engaged in conflict zones or disaster zones. Their only objective is the protection of civilians against immediate harm resulting from war, famine etc. Hence, they are focused on the very short term future: making sure people survive, have enough to eat and are physically secure. Human rights activism, on the contrary, will also look at longer term results and less urgent needs, such as education, institutionalized (as opposed to emergency) healthcare, poverty etc.

Forward looking

Humanitarianism is mainly forward looking, whereas human rights activism reserves a lot of its attention to the past, and more specifically to justice for past human rights violations (including criminal justice).

Immediate causes

Humanitarianism also looks at the immediate causes of suffering, e.g. a war, a disaster etc., whereas human rights activism will tend to identify the root causes behind these immediate causes, e.g. bad governance, poverty, discrimination and other “structural injustices” which surpass the timeframe and the tools of the humanitarian.

Unconditional

Humanitarianism means unconditional action. Given the urgency of the suffering they want to alleviate, agencies will go in, no matter what. The war can still be going on, the disaster can be unfolding… The human rights activist, however, will often point to prerequisites which have to be present before some specific human right can be realized, and without which action is futile (e.g. the removal of a dictator as a prerequisite for freedom of the press). A related point: humanitarianism takes a few human rights in isolation, and works on those only. A human rights activist will look at the whole system of human rights, and stress the interdependence of all human rights.

Political neutrality

Humanitarianism tries to be neutral. It doesn’t take sides in a conflict or in a (civil) war. All suffering is viewed as equally deserving of alleviation, whether it is the suffering of the victim or the suffering of the aggressor (“a universal duty to act in the face of human suffering”). This isn’t moral relativism, but a practical necessity in many cases. If the humanitarian agencies want to have access to the people who are suffering, they often don’t have the luxury of criticizing any of the parties in the conflict, of outspoken public advocacy, and of “naming and shaming”.

The human rights activist, on the contrary, has to take a stand. Human rights aren’t politically neutral. They require, to a certain extent, democratic government, and non-democratic government is often a root cause of many rights violations.

The Ethics of Human Rights (14): Is Morality Linked to Culture and Culturally Relative?

Is morality linked to culture? Or, in other words, is morality culturally relative? Does every culture have its own moral rules? This is relevant from a human rights perspective because human rights can be seen as moral rules for humanity. However, if morality is culturally relative, then this is a problem. Universality of moral rules then seems to be impossible and without universal moral rules it is difficult if not impossible to judge the practices of another culture. These practices may seem morally wrong from the viewpoint of the culture of the West for example, but the rules of the West, i.e. human rights, only apply within the morality of the West. Other cultures have their own rules and can only be judged by their own rules. One cannot apply the rules of American football to European soccer or vice versa.

As is often the case, the truth is probably somewhere in the middle. Whereas some moral rules are obviously very specific to particular cultures, other rules are globally accepted (which doesn’t mean respected). It follows that both extremes, imperialism and isolationism, are wrong. Human rights promoters should not go about and destroy cultural diversity, but cultural diversity is not the ultimate goal either. Cultures should not be isolated from human rights criticism. Individual rights matter just as much, if not more, than the rights of cultures. After all, if culture is important, it’s because it’s important for individuals.

The Cognitive Evolution Laboratory of Harvard University has started a project aimed at showing that morality is in essence universal. It has created a moral sense test which everyone can fill in (it’s available here, and takes less than 10 minutes to fill in; you’ll help these people by doing it).

Human Rights and International Law (11): International Law Between Protecting and Obstructing Human Rights; The Rules on Immunity and Intervention

When human rights are violated by people who represent a state – such as a head of state who orders rights violations or carries them out himself – it often happens that the national rights protection mechanisms, such as the courts and the police, do not assume their responsibility to protect. The individuals who have committed rights violations are not prosecuted by their own states, because they represent the state. They have control over the agencies that normally (should) prosecute rights violations.

This is de facto immunity. And this can extend even to the period after they have left power. Maybe they managed to make some kind of amnesty deal with the new democracy, or they just use their influence and their friends in order to pervert the justice system and the division of powers and to escape punishment.

But often these people – even when they have left power, such as former heads of state – enjoy not only de facto but also de juri immunity in national or even international law. Whatever the merits of the rules on immunity in international law, this can never be justified in cases involving rights violations. The theory of immunity says that heads of state or leading functionaries are not responsible for their actions. They represent their states and all their actions are “acts of state,” and therefore the state is responsible for these acts. Lower ranking officials are not responsible either because they can always hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible.

Only by transcending the principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment). This has been the main achievement of the Nuremberg Tribunal. The Charter of the Tribunal clearly states that individuals have international obligations that go beyond their national obligations or commands. Since Nuremberg, it is no longer possible to claim that international law only deals with “acts of state” and that individuals cannot be punished for the acts they commit as representatives of their state or as executives carrying out orders. Nuremberg has given individuals criminal responsibility in international law.

Citizens are no longer at the mercy of powerful individuals within their states. It has become more difficult for individuals to shed their responsibility and to hide behind their functions, immunities, privileges, or hierarchy. Individuals can be made internationally accountable for their actions if these actions are crimes under international law. The fact that national law is not applied, is silent in the matter, or even explicitly approves or imposes the actions does not guarantee an escape from justice.

One of the characteristics of international law is its priority over national law. Human rights especially, as far as they have become part of international law, have priority over national law. Violations of rights that are not punished by national law or that are explicitly ordered by national law can be crimes under international law, in which case international law has priority. Individuals or states can be sentenced and condemned by organs representative of the international community.

But this immediately raises the legal problem of international intervention, as does the right of international institutions to hear complaints by individuals whose rights are violated and who can’t find redress in their national courts, and the right of international institutions to monitor the human rights situation inside individual states. Intervention is forbidden under international law, and this prohibition is a part of international law which, like the rule on immunity, obstructs human rights. The Charter of the UN, although it mentions human rights as one of its aims, specifically prohibits intervention in so-called internal affairs of member states, in the intra-national relationships between states and their citizens (this is the infamous article 2, paragraph 7:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.

This article is often used against attempts to intervene for the sake of human rights. Even merely verbal criticism of rights violations is often supposed to be the type of “intervention” prohibited by article 2, paragraph 7. The “matters” referred to in the article are never precisely defined, so that every state is free to define them. Hence, intervention becomes practically impossible.

However, some acts clearly do not belong to these “matters”: violations of international law; attacks on international peace; and, according to some, systematic and extreme violations of human rights if these violations threaten international peace. Chapter VII of the Charter allows intervention in these cases following a decision by the Security Council, and article 2 explicitly provides an exception for this kind of intervention.

This is important for human rights, and today’s consensus on the definition of “matters” may even include grave violations that do not result in threats to peace. Some “internal matters,” which at first sight can benefit from article 2, paragraph 7, are clearly violations of other provisions of the Charter, e.g., structural violations of human rights such as apartheid (in particular article 55). In that case, some believe that the UN may take measures under Chapter VII (sanctions or even military intervention). Chapter VII can override article 2, paragraph 7, and is perhaps an instrument to enforce certain human rights in certain cases.

Self-determination and sovereignty are very important, but it is obvious that these concepts can easily be used to counter criticism of rights violations. The protection of states requires the doctrine of non-intervention and of the equality of sovereign states. Unfortunately, what is necessary for the protection of states is often harmful to human rights.

Although the views today are perhaps a bit more shaded, it is tradition to assume that the only legitimate enforcement actions of the UN agencies (so-called “collective measures” and “preventive or enforcement action” under Chapter VII) are actions directed at the protection or enforcement of international peace. This is important enough also for human rights, but it only includes actions necessary to enforce respect for human rights when those human rights are directly violated as a consequence of the absence of peace or when their violation may lead to breaches of peace.

Human Rights and International Law (10): Why Do Human Rights Need International Law?

Human rights law has globalized during the last decades. And it has done so in two ways:

  • human rights have become part of most national constitutions
  • and have been enshrined in widely accepted international treaties.

In this post, I will look at the relative usefulness of these two movements. The conclusion will be that ideally human rights protection should be a national matter, but in an imperfect world, with failing national protection, international human rights protection is a necessary alternative for human rights protection.

Originally an invention of the French and American revolutions in the eighteenth century, human rights have now become part of a global legal consensus. Although there are many violations of human rights and some philosophical, ideological, cultural, or religious objections to some human rights, the fact is that these rights are part of internationally recognized legal documents (mostly treaties) accepted by the overwhelming majorities of countries. At the same time, they are included in nearly all municipal legal systems (mostly in constitutions). Human rights are the law of mankind, even though they are widely violated. They have been enshrined in the law because they need the law to be adequately protected.

Why do human rights need international law? Isn’t national law enough? These questions may seem strange and perhaps even somewhat useless. Is not the immense effort that has been invested in international human rights law during the last fifty or sixty years proof enough of its utility? I’m not convinced because there is a strong argument in favor of the assertion that the protection of human rights should be first and foremost a matter of national law and national judiciaries.

International law is far removed from ordinary citizens, and if they want to complain about human rights violations they will most likely want to use their national law and their national judiciary. Their own judiciary is closer and hence more accessible and more able to understand and punish. The first responsibility of the international community, therefore, is not regulation or the administration of justice, but assisting countries to reform their national laws and judiciaries in order to make them more compatible with human rights.

However, what if this fails? National law and national judiciaries do not always effectively protect human rights, either because of the absence of adequate national laws or because of the ineffective protection and enforcement of national laws by judiciaries and/or executive powers. And outside assistance and pressure do not always succeed in solving this kind of problem. So, if there is international law protecting human rights, this law can step in when national law fails. Local judges can invoke international law at the expense of inadequate national law. And if not the national law but the national judges are inadequate, international human rights law also provides global mechanisms and institutions allowing citizens to complain about their state’s conduct.

Imagine that such institutions would not exist. That would mean that citizens could only complain to a national organ, an organ of their own state, an organ which may be ineffective, corrupt, incompetent, or perhaps even implicated in the rights violation. And even if these national organs are effective, they are quite useless if there are no international rules for them to apply in place of inadequate national ones. So there is a strong case in favor of international human rights law combined with international monitoring of national human rights situations, and with international complaints institutions to which citizens of a country can turn in order to denounce rights violations by their country.

Ideally, international human rights law and monitoring are unnecessary, and even undesirable, because human rights protection is best carried out on a national level by a state that can correct itself. But this implies the existence of an ideal state with a well-functioning national division of powers, a national “trias politica” in which one power can control and correct the mistakes (e.g., rights violations) of another. As long as not all states are ideal states some national judiciaries need the assistance of international law when their national human rights laws are insufficient or nonexistent, and some citizens need the assistance of international monitoring and enforcement institutions when their national division of powers is insufficient or nonexistent.

As long as we are some distance from Utopia, international law and international monitoring and enforcement institutions are necessary for the universal protection of human rights and should complement national rules and institutions. Countries should be encouraged or, if necessary, pressured to accept international human rights treaties so that citizens can invoke international laws in the absence of national ones. International human rights law traditionally includes the right to monitor and to complain about human rights violations internationally, and this means, in theory at least, that individuals or groups do not have to trust their own state to correct itself and to punish its own crimes. They can involve international monitoring and complaints institutions to further their cause when their national judges are incompetent, unwilling, or unable to implement national rules. Countries should therefore also be encouraged to accept the authority of such treaty institutions wherever this acceptance is voluntary.

Furthermore, the existence of international law makes it easier to reform national law. An international system of law makes it impossible for states to take the law into their own hands and to decide autonomously what is and what is not part of their law. International law is traditionally superior to national law and it can force national law to be compatible with it. It is therefore an additional means to ensure that human rights are part of the law everywhere. By improving national law, international law makes national protection mechanisms more effective. And when it is not the national law but the national protection mechanism and institutions which are defective, international law replaces these mechanisms with global ones, or at least tries to do so (the best global complaints and enforcement procedures are still less effective than the best national judiciaries).

The individual right to denounce violations before an international judicial or quasi-judicial institution gradually took root after World War II. Today, the treatment of citizens by their state is no longer the exclusive competence of the state in question. The days are gone when states could treat their citizens as they liked. Individuals now have a right to speak in the international community and they are no longer confined to national law. They have international law to help them and international stages to voice their protest. International organizations in turn have a right to poke their nose into national affairs and in some cases even to enforce respect for human rights.

This means that citizens are no longer at the mercy of their states and that they can look for outside help if their state does not respect their rights, does not control and correct itself, does not provide mechanisms to enforce their rights (such as laws and the division of powers), or does not make sure that these mechanisms function adequately in all cases.

Most violations of human rights are the consequence of state actions or of actions by representatives of the state. Unless there is a highly effective division of powers, it is unlikely that a state will prosecute itself or its representatives, and it is necessary to have international protection. But national protection within a highly effective system of division of powers must be the first choice. Ideally, national protection is close to the people, easily accessible, legitimate, acceptable, and knowledgeable of local circumstances. It is also close to the perpetrators, which is why effective punishment is more likely than in the case of protection by another country or by an international institution, which may even fail to see the perpetrators, let alone punish them.

National protection is the best option, but also the most difficult one. The perpetrator is often the state or its representatives, which is why national protection can only function within a highly effective system of division of powers. Unfortunately, but not accidentally, most of the more serious violations of rights take place in those states that do not have such a system. National protection can only protect us against relatively minor violations because it can only function in a country with a tradition of separated powers, rule of law, etc.; in a country, in other words, that is unlikely to suffer serious violations of human rights. But still, it is a model that should be used as a universal ideal, even or especially in those countries where it is as yet far from reality. In the meantime, international jurisdiction takes the place of the ineffective national jurisdiction.

The Ethics of Human Rights (10): Universality of Rights Through Dialogue

It’s true that most if not all human rights can be found, implicitly or explicitly, in all cultures and religions of the world. However, there’s also cruelty everywhere and universal respect for human rights requires more than simply looking for similarities and making the sum. Unity, consensus and universality will only be the result of hard-fought influence and difficult and prolingued processes of persuasion, not of the simple detection and addition of things that are equal and that exist, as such, independently of each other.

Persuasion, however, implies dialogue, intercultural dialogue for example. One culture or religion can discuss with others and try to convince others that something which is considers to be important is in fact important.This dialogue doesn’t have to be unconditional (dixit Obama) but too many conditions make it impossible. And progress can only be achieved through dialogue.

This kind of intercultural dialogue can engender universality or can at least bring universality somewhat closer, but then it has to be a dialogue between equals. Nobody is persuaded when one of the parties to the dialogue believes himself to be superior, speaks without listening, and considers the other to be “evil” (e.g. part of an “axis of evil” dixit Bush) and a legitimate target of a bombing campaign (dixit McCain).

It also has to be a dialogue where there is at least a possibility that one convinces the other – in both directions. A “dialogue de sourds” – a dialogue of the deaf – cannot create consensus. We must be open to the possibility that those whom we abhor may have something interesting to tell us. And anyway, we have to listen if we want to understand them, and to see why they act the way they act. Only then can we have a chance of changing them.

This means that extreme cultural relativism is not an option. Cultures have to be allowed to influence each other, to open themselves and to mix with each other. Sealing off cultures and keeping them out of each other’s way because of the protection of identities, makes a dialogue impossible. Being persuaded means changing certain elements of one’s identity.

The need to convince one another implies that no one should believe themselves to be in possession of the truth, and of the only correct and just system. It implies self-criticism, and also a certain degree of tolerance, freedom of expression etc. It seems as though the conclusion is implicit in the premises. The attempt to universalize human rights through intercultural dialogue already requires human rights. You cannot hold a dialogue with someone who is intolerant or who is not allowed to speak his or her mind.

A dialogue in this case is not a negotiation. There can be no negotiation on human rights. It is “take it or leave it”, even if one can accept a partial adoption of human rights for strategic reasons (the theory of basic human rights or rights minimalism). Something is not as good as everything, but it is better than nothing.

And an inter-cultural dialogue is even less a conversation, in which one culture needs to convince other cultures, as if some cultures need more convincing than other cultures. Persuasion is a two-way street and at least, as much an intra-cultural affair as an inter-cultural one.

What Are Human Rights? (18): Human Rights Minimalism and the Theory of Basic Human Rights

Many human rights theorists adopt a kind of human rights minimalism, in the sense that they focus on a subset of the internationally recognized set of human rights which they call basic rights. In most cases, they do so for practical, strategic or opportunistic reasons and not because they consider the rights that they leave out to be less important. An expression often used by rights minimalists is a “thin theory of human rights”.

Typically, a thin theory of rights on includes the following:

  • A right against killing
  • A right against bodily assault such as torture, rape, violence etc.
  • Freedom from slavery
  • Freedom of thought and conscience
  • A right to property
  • Freedom of expression, freedom of religion

Rights such as political participation, economic rights etc. are not included.

John Rawls in his The Law of Peoples makes a distinction between 3 kinds of “peoples” or nations: liberal ones, decent but not liberal ones, and outlaws or “societies burdened by unfavorable conditions”. The first two are “well-ordered” and deserve mutual respect.

Decent nations are not liberal in the sense that they respect all human rights and democratic principles. They may have state religions; they often do not allow adherents of minority faiths or other types of minorities to hold positions of power; they are very hierarchical; they organize political participation via informal consultation rather than elections etc. However, they respect “basic human rights”, and only the basic ones, otherwise they would be liberal.

Rawls considers all human rights to be important, but in non-ideal theory, where you have to deal with states which are more or less removed from the ideal, one has to find a modus vivendi with these states. It is indeed true that holding up a moral standard which is too demanding, may force them to retreat into their previous positions. Some midway point, given by basic human rights, can be a strategically smart move, as a way to get somewhere, but can perhaps also justify violations of other, “non-basic” rights, because “these are not basic and therefore less urgent and less important”, or because “the circumstances which burden us do not permit progress beyond basic rights”.

Michael Ignatieff similarly adopts a “basic rights” approach. His worry is that a wide human rights approach may be conceived as biased, as western ethnocentrism or imperialism. A narrow concept avoids this criticism because there is near universal agreement on the importance of life, bodily security, the avoidance of pain etc.

The problem with this and really any theory of “basic rights” is that a narrow interpretation of rights makes almost everyone “decent” and legitimate and that it robs the concept of rights of any critical force. They can do “no work” as they say.

Perhaps the strongest argument against any theory of basic rights is the interdependence of all human rights. Focusing on a small subset of so-called basic rights obscures the fact that even these rights depend on other, supposedly non-basic rights. Do you think Abu Ghraib would have come to light and would have been stopped in a country where freedom of expression isn’t protected? And how can people be protected against violence, rape and slavery when economic rights are not protected?

What is Democracy? (31): A Pathological Attention Seeker, Not an Inflatable Parliament

The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment. Robert M. Hutchins

Democracy is not being, it is becoming. It is easily lost, but never finally won. William Hastie

A democracy, contrary to any other form of government, requires continuous and massive popular attention. In other words, it requires a deep-rooted, strongly held, and widely shared democratic political culture. The large majority of the people have to believe in the moral, practical and theoretical value of democracy as a form of government. If this is not the case, then democracy inevitably dies. The people of a democracy may be divided on almost everything, but they must be united in the belief that democracy is the best way to resolve or contain their divisions; the best way to find the best and the most reasonable solutions to common problems, if such solutions are possible, and to avoid escalation of conflicts, if solutions are impossible.

Democracy has to be created and maintained everyday all over again. Every day, the voters have to control the government, to judge it, to take an interest in it. Democracy does not arise nor survive automatically and it’s not just inherited and passed on to the next generation without any effort. It has to be fought for, over and over again, against all kinds of internal and external elements, not the least of which is the fighters own fatigue and indifference. There is not a moment’s rest.

Democracy is first of all a conviction and a state of mind. Institutions such as elections or parliaments are relatively easy to install and even maintain. They will survive even when support dwindles. Institutions can even be imposed. It is much more difficult to create real political participation, because this implies the existence of political convictions and a democratic culture. This culture entails not only strong pro-democratic convictions and the willingness to actively participate in politics, but also respect for institutions that protect democracy, such as the rule of law, the judiciary and human rights.

The same is true when trying to promote democracy abroad. When engaging in such a project, the political culture is the most important thing to change. The effort to change political convictions should be directed in the first place at influential groups in society, such as the media, the military, the police, the judicial system, and the business class etc. It is very important that these people accept the values and institutions of democracy because they can do a lot of harm if they don’t. If they embrace a democratic political culture, then chances are high that the democratic institutions can function adequately and can help to generate a more widespread democratic culture.

But, ultimately, the large majority of the people has to be convinced, because democracy is the rule of the people, and the rule of the people is impossible without massive support. Elections can be imposed and can even be relatively fair – on the condition that the various elites have adopted the values of democracy – but the convictions and the support of the majority of the population cannot be imposed. This often requires a very long learning process and a process of discussion, persuasion, reform, education and construction.

The best way to create support is to guarantee the adequate functioning of democracy. Experience with a well-functioning democracy – even if it is a half-empty democracy – has a positive influence on the political views and behavior of the people.

Foreign intervention or imposition of “instant democracy” is indeed like “dropping an inflatable parliament (or pneumatic parliament) from a bomber plane”, in the words of Peter Sloterdijk. This will at best create an empty shell, a democracy which is indeed nothing but air. Democracy can only be the result of the will and activity of the people, although an empty shell is often better than nothing because it can create its own momentum. Democratic activity has a tendency to create its own support. Once there are democratic institutions, even institutions in which only a handful of people participate, we often see that people tend to be attracted by these institutions.

Of course, as indicated by the second quote above, democracy as attention seeker is an ideal. It’s never finished, not only in the sense that it has to be remade day by day, but also in the sense that citizen participation can always be improved. Many citizens don’t participate, even in the best existing democracies. Or they participate less than others and therefore have less and unequal influence.

Human Rights and International Law (8): Real and Normative Universality of Human Rights

No doubt the commitment of many countries to human rights is less than authentic and whole-hearted. Yet, the fact of the commitment, that it is enshrined in a constitution, and that it is confirmed in an international instrument are not to be dismissed lightly. Even hypocrisy may sometimes deserve one cheer for it confirms the value of the idea, and limits the scope and blatancy of violations. Louis Henkin

Even though human rights are violated virtually everywhere, the principle that they should be defended is asserted virtually everywhere. Virtually no one actually rejects the principle of defending human rights. Susan Mendus

The Vienna Declaration of 1993, accepted by almost all states of the world (more than 170), affirms that the universal nature of human rights is “beyond question” and that these rights are “the birthright of all human beings”. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – the two major treaties for the protection of human rights – have been signed by more than 140 countries (one of them is China). All of these countries have undertaken the legal obligation to respect human rights (including political and economic rights). The universality of human rights is a fact in positive law.

However, all we have is normative universality. Everybody or almost everybody agrees on the norm, but there is as yet, no actual universal application of the norm. Theory is one thing, but reality often struggles behind. Promises are not kept, declarations of good intent are outright lies and treaties are violated. Furthermore, it is very difficult to enforce treaties. There is no global police force or executive power and there is the principle of national sovereignty and non-interference in internal affairs.

However, theoretical or normative consensus is not useless. It means that evil is not almighty. Evil has to lie and cheat. Hypocrisy is always a compliment to virtue. There can be no hypocrisy, if virtue does not have at least some influence. Even though a declaration or a commitment often does not change reality immediately and substantially, it can be referred to when yet another dissident is put behind bars. If a state violates a treaty, it will have some difficulty explaining why it has done so, why its actions contradict its words, why the situation supposedly warrants exceptional measures deviating from a self-imposed rule, and why these “exceptional” measures are a part of everyday life for many citizens.

Human Rights and International Law (6): International Human Rights Law and Its National Effects

In the theory of international law one can find the terms monism and dualism. These are used to describe two different theories of the relationship between international law and national law.

1. Monism

Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal.[1] In states with a monist tradition, international law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules. Monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution. From a human rights point of view, for example, this has some advantages. Suppose a country has accepted a human rights treaty – the International Covenant on Civil and Political Rights for instance – but some of its national laws limit the freedom of the press. A citizen of that country, who is being prosecuted by his state for violating this national law, can invoke the human rights treaty in a national courtroom and can ask the judge to apply this treaty and to decide that the national law is invalid. He or she does not have to wait for national law that translates international law. His or her government can, after all, be negligent or even unwilling to translate. The treaty was perhaps only accepted for political reasons, in order to please donor-countries for example.

“So when someone in Holland feels his human rights are being violated he can go to a Dutch judge and the judge must apply the law of the Convention. He must apply international law even if it is not in conformity with Dutch law”.[2]

The American constitution of 1787 provides a similar rule:

“the treaties which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”.[3]

2. Dualism

Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.

“International law as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations”.[4]

The supremacy of international law is a rule in dualist systems as it is in monist systems. If international law is not directly applicable, as is the case in dualist systems, then it must be translated into national law, and existing national law that contradicts international law must be “translated away”. It must be modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.[5]

3. Examples

In some countries, such as the U.K. for instance, the dualist view is predominant. International law is only part of British national law once it is accepted in national law. A treaty

“has no effect in municipal law until an Act of Parliament is passed to give effect to it. In other countries this distinction tends to be blurred. In the vast majority of democratic countries outside the Commonwealth, the legislature, or part of the legislature, participates in the process of ratification, so that ratification becomes a legislative act, and the treaty becomes effective in international law and in municipal law simultaneously. For instance, the Constitution of the United States provides that the President ‘shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur’. Treaties ratified in accordance with the Constitution automatically become part of the municipal law of the U.S.”[6]

4. A matter of national legal tradition

International law does not determine which point of view is to be preferred, monism or dualism. Every state decides for itself, according to its legal traditions. International law only requires that its rules are respected, and states are free to decide on the manner in which they want to respect these rules and make them binding on its citizens and agencies.

“[T]he transformation of international norms into domestic law is not necessary from the point of view of international law – the necessity of transformation is a question of national, not of international law”.[7]

Both a monist state and a dualist state can comply with international law. All one can say is that a monist state is less at risk of violating international rules, because its judges can apply international law directly.[8] Negligence or unwillingness to translate international law, or delays of translation, or misinterpretation of international law in national law can only pose a problem in dualist states. States are free to choose the way in which they want to respect international law, but they are always accountable if they fail to adapt their national legal system in a way that they can respect international law. Either they adopt a constitution that implements a monist system so that international law can be applied directly and without transformation, or they do not. But then they have to translate all international law in national law. In a monist state, one relies only on the judges and not on the legislators, but judges can also be negligent and they can also make mistakes. If a judge in a monist states makes mistakes when applying international law, then the country violates international law just as much as a dualist country that, for one reason or another, does not allow its judges to apply international law directly and fails to translate or fails to translate correctly and effectively.[9] One reason for preferring dualism is precisely the fear that national judges are not familiar with international law – a highly complex field of law – and hence are liable to make mistakes.

5. The problem of “lex posterior”

In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be “translated away”. It must be modified or eliminated in order to conform to international law. However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail. In a dualist system, however, the original international law has been translated into national law – if all went well – but this national law can then be overridden by another national law on the principle of “lex posterior derogat legi priori”, the later law replaces the earlier one. This means that the country – willingly or unwillingly – violates international law.[10] A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.

References

1. Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994, p. 82.
2. G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.
3. in A. Cassese, op. cit., p. 19.
4. James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins, London, p. 45.
5. A. Cassese, op. cit., p. 15.
6. M. Akehurst, op. cit., p. 45.
7. A. Cassese, op. cit., p. 21-22.
8. P. Kooijmans, op. cit., p. 83.
9. ibidem, p. 83.
10. ibidem, p. 84.

Human Rights and International Law (5): Enforcement of Human Rights

Complaints, verdicts, judgments, condemnations and recommendations are not enough. Words do have some power. They may be able to influence those who violate rights or those who are unwilling to protect rights. And the language of rights is a tool that victims can use to recognize their predicament, to organize their struggles, to rally supporters and to protect themselves. It helps them to understand that their situation is not their fate; that their suffering is not a necessary contribution to the general welfare or to the course of history. Knowing that you have rights can already change a lot. Protest requires consciousness, and protest can sometimes be effective.

But words sometimes need to be followed by actions. Force and coercion, or an executive power, is often necessary. Law enforcement can require military force, policing, sanctions, interventions etc. The international community, or those who represent this community, need to be able to go against the will of individual states and force them in a certain direction.

The judiciary, according to Montesquieu, does not really have power. It depends on the executive for the execution of its judgments. However, in an international environment, it has always been very difficult to enforce law and judicial judgments. The independence of states, the right to self-determination and national sovereignty have always inhibited international coercion of individual states. These principles sometimes even inhibit effective monitoring. So, if you cannot even look and judge, it is obvious that it is even more difficult to enforce your judgment.

There are global monitoring institutions, but no world executive, no world government, no world police, no strong arm of the international law, and no global monopoly of violence. Perhaps the Security Council could become the world police, but it has to rely on the military force of member states and it has to deal with the veto system. Victims of rights violations are often left in the hands of their butchers.

Human Rights and International Law (4): Catch 22 of Human Rights Monitoring

To effectively control (or “monitor”) states’ respect for human rights one needs respect for human rights. Organizations, whether international organizations or private organizations (NGOs), must have some freedom to control, to engage in fact finding, to enter countries and move around, to investigate “in situ”, to denounce etc. Victims should have the freedom to speak out and to organize themselves in pressure groups. So we assume what we want to establish.

The more violations of human rights, the more difficult it is to monitor respect for human rights. The more oppressive the regime, the harder it is to establish the nature and severity of its crimes; and the harder it is to correct the situation.

However, we can establish that it is difficult to establish anything, which is proof enough of rights violations. Foreigners perhaps have somewhat more freedom than citizens of the countries in question. In the words of the French philosopher Cornelius Castoriadis:

How could one compose a free society unless free individuals are already available? And where could one find these individuals if they have not already been raised in freedom?

Human Rights and International Law (3): Humanitarian Intervention

This post focuses on one type of humanitarian intervention only, namely so-called armed humanitarian intervention (although I’ll drop the “armed” for easier reading). Humanitarian intervention is an armed intervention in one state by another state or states with the objective of ending gross violations of human rights, such as genocide or ethnic cleansing.

Whereas the moral case for such an intervention is very strong, it remains controversial because of the fact that violence is used and that the national sovereignty of the “receiving” state is violated. One could easily justify the breach of sovereignty since the fate of the victims is obviously more important than sovereignty. Furthermore, this breach is inherently temporary because neither annexation nor interference with territorial integrity is at stake. But the use of violence is more difficult to justify.

It seems that humanitarian intervention is only justified when certain conditions are met:

1. Legitimate authority

The states that act cannot unilaterally decide that intervention is necessary. There must be some kind of general conviction that the situation is serious and that some kind of forceful intervention is warranted. A Security Council resolution can be the authority.

If there is a general conviction that action is necessary but there is no explicit Security Council approval of intervention – because of the veto or because of other reasons – then we have to be careful. If states can unilaterally decide to intervene, even against world opinion, then we have international chaos. Everybody takes the law in his own hands, and states will quickly find human rights excuses to intervene wherever they want. Some legitimate authority must have expressed something close to a world opinion regarding the necessity of intervention. Individual actors cannot decide autonomously. An approval of the General Assembly may indicate that there is consensus, but a Security Council resolution is better because this will guarantee that the intervention will not cause superpower conflicts.

2. Collaboration

As an elaboration of the previous point, one must demand that the intervening states be as numerous as possible in order to avoid accusations of self-interest, partiality and power politics. Collaboration also increases the chance of success (see condition 4.)

3. Right intention or appropriate goal

The main goal of the intervention must be the protection of human rights. The accusations that often accompany US-led interventions are generally unhelpful, except of course when they are true.

4. Probability of success

There must be a real chance that the intervention can be successful.

5. Last resort

Other and more peaceful means must have been tried first, although the urgency of the matter can make immediate military action acceptable.

6. Proportionality

The intervention must be proportional to the evil it is meant to destroy. Not enough intervention can cause more harm than before without a real chance of solving the initial problem. Too much intervention will also cause more harm than before. The costs must not outweigh the benefits. We must prevent more harm than we cause, although one must be careful when making utilitarian calculations. Violence always results in rights violations. Hence the rights violations one is willing to accept as a consequence of violent intervention cannot outweigh the violations that originally caused the intervention. How many rights violations can one cause when fighting rights violations? Theoretically, one cannot sacrifice certain people’s rights – for example, the rights of innocent civilian victims of air bombardments – for the sake of other people’s rights – for example, the victims of the dictatorship that is the target of the bombardments. However, most of us believe that in extreme circumstances, it is acceptable to sacrifice some rights or the rights of some in order to protect many more rights or the rights of many more. This means that violence is only acceptable in extreme cases, namely when the rights of many or many rights are violated.

7. Ius in bello

The laws of warfare must be respected.

8. Peace

If there is a threat to international peace, then the intervention will have a stronger claim to legality. But this is not a necessary condition.

Human Rights and International Law (2): Universal Jurisdiction

Some countries have granted their courts so-called “universal jurisdiction” in certain matters. Traditionally, courts only have national jurisdiction and can only punish crimes committed on the national territory; crimes committed elsewhere should be handled by the courts of the country in question or by international courts. Laws of one country are also generally understood to be applicable in that country only. Universal jurisdiction in effect leads to extra-territoriality of the law. Some laws are valid outside the territory as well and national judiciaries can apply these laws to acts committed elsewhere.

Belgium, for instance, at one time allowed its courts to prosecute genocide, even if the crime of genocide was committed abroad and no Belgians were involved either as perpetrators or as victims. This was a commendable initiative from a moral point of view, but there are several reasons why universal jurisdiction is not very effective and cannot replace national and international law.

  1. The victims of genocide, or the representatives of these victims, if they already know that Belgian courts can possibly help them, will find it difficult to go to Belgium to plead their case. These people will probably live in some Third World country and will not have the financial means to start court proceedings in Belgium (where the hell is Belgium anyway?)
  2. The perpetrators are mostly not in Belgium and can therefore not be punished by the Belgian courts. If convicted, they will simply avoid Belgium and it is unlikely that they will be extradited by their home state since they generally occupy a leading function in the government of their state. The only tangible result is a number of diplomatic crises between Belgium and other states, sometimes traditionally friendly states.
  3. The Belgian courts quickly find themselves in the position of Atlas, carrying the whole burden of global suffering. There is no way in which these courts, already suffering serious delays, can handle all submitted cases.
  4. Political agitators will use the Belgian law to make publicity for their case. They will be tempted to file spurious charges against their political enemies. For example, friends of Saddam Hussein filed charges against President George W. Bush and some other leading members of his administration for waging war against Saddam. The Belgian courts, of course, could not refuse these charges without examination. So an investigation was launched, which deeply upset the Americans, who even threatened to move NATO headquarters out of Belgium, supposedly to protect American officials visiting these headquarters. After all, the Americans know that they are no saints and that Belgian courts can one day decide that there is a case to be made against some of their officials, and can try to arrest them.
  5. What if several states decide to start cases simultaneously against one and the same offender, each using its right to universal jurisdiction? That would create judicial uncertainty and many practical problems.

However, in the absence of effective national or international jurisdiction, universal jurisdiction may be the only alternative. And even if it’s not effective for the reasons given above, it sends a signal.

Human Rights and International Law (1): Boycotting the China Olympics Because of Human Rights Violations in China and Sudan/Darfur

Some time ago, there was a story in the press about Steven Spielberg canceling his decision to work for the China Olympics. As a consequence, the discussion about a possible boycott (comparable to the boycott of the USSR Olympics after the invasion of Afghanistan) got some more publicity. Here are some general words about sanctions for the sake of human rights.

Boycotts, embargoes and other international sanctions (economic sanctions for example or a ban on foreign direct investments or bank loans) are peaceful means, used by the international community, to convince a country to stop violating human rights or to stop assisting a third country that is violating rights.

A disadvantage of sanctions is that they are most effective against relatively weak states. They can only work when they are directed against countries that are vulnerable to outside pressure (that, for example, depend on imports of products which are not, or not sufficiently, produced at home) and when a critical mass of countries, especially large countries, join in. Moreover, sanctions are not very popular in the countries imposing them. They often hurt that country’s economy. Its businesses can no longer export to or invest in the target countries, and jobs may be lost.

Sanctions are allowed in international law when

“they are taken in consequence of a breach of international rules imposing duties erga omnes, hence conferring on any State a right to claim respect for the rules”. Antonio Cassese

These rules are, for example, human rights. However, even if every state is allowed to impose sanctions in these cases, it is better that the international community as a whole imposes the sanctions, and not only for efficiency reasons. Collective measures allow us to dismiss the charge of partiality and self-interest. They will also emphasise the symbolic value of the sanctions.

Sanctions have often been successful, for example in the Philippines and in Nicaragua, as well as in Argentina and Uruguay under the Carter administration. Sanctions can be successful when the aim is to weaken the industrial, technological and military powers of a state. Purely symbolic sanctions, such as a boycott of the Olympic Games, are probably less useful. Cultural sanctions are even worse, because they are harmful. They cut off the flow of information. It becomes very difficult to monitor rights violations, the opposition cannot contact the outside world and new ideas cannot take root. Perhaps even the rulers will start to see that other systems can be successful if they are allowed to communicate with the outside world.

It is advisable to impose selective sanctions rather than all-out embargoes that harm the population indiscriminately. Sometimes, it can be enough to stop arms deliveries or oil exports. Not all kinds of sanctions necessarily harm the civilian population.

It can never be the purpose to punish an entire population collectively. All-out embargoes are not only unjust, they are also counterproductive. They do not harm those who are supposed to be harmed, namely the rulers. On the contrary, they reinforce the rulers. The population will identify, not always without reason, the “foreigners” as those responsible for their predicament, a predicament which may be even worse than the one which caused the sanctions. They will rally behind their rulers because the sentiment of “we against the world” will spill over in virulent nationalism. Popular dissatisfaction will be directed to the outside world and away from the rulers. Sanctions are least effective in countries ruled by people who are insensitive to their population’s hardship, or, in other words, in countries where they are most needed.

And even if large-scale hardship caused by sanctions can persuade some rulers to step down or reform, it does not seem right to use or abuse the population in this way. Using people or punishing innocent people is perhaps the most serious violation of human rights.

If sanctions are imposed, then it is important to estimate the possibility of success. One should try to evaluate their efficiency beforehand. The imposition of sanctions and the choice of the kind of sanctions should be decided on the basis of, among other things:

  • the fact that less far-reaching measures have been tried and have failed
  • an evaluation of the type of adversary and the sorts of pressure he is unable to resist
  • the “collateral damage” that is likely to result from the imposition of sanctions
  • an evaluation of the stamina of those imposing the sanctions, their willingness to go ahead, and the number of countries that are willing to go ahead
  • an evaluation of the possible negative consequences for those imposing the sanctions and of the effect of these consequences on their stamina
  • an evaluation of the possibility to evade the sanctions
  • the possibility and the willingness to enforce the sanctions by way of a blockade, for example.

What Are Human Rights? (7): Universal Rights

I believe we should try to move away from the vocabulary and attitudes which shape the stereotyping of developed and developing country approaches to human rights issues. We are collective custodians of universal human rights standards, and any sense that we fall into camps of accuser and accused is absolutely corrosive of our joint purposes. The reality is that no group of countries has any grounds for complacency about its own human rights performance and no group of countries does itself justice by automatically slipping into the victim mode. Mary Robinson

The claim that the acceptance of human rights means the introduction of the culture of the West, can only be true if human rights are part of the essence of western culture and totally alien to other cultures. But this is obviously wrong. All cultures have values and principles that reflect the values embedded in human rights. And the West probably suffers just as many rights violations as any other culture. It has, for some centuries now, been struggling against certain of its own cultural practices which, from a rights point of view, are or were unacceptable.

If human rights policy is not the introduction of the culture of the West, then it cannot be criticised for being an expression of a belief in cultural supremacy and universality, at least not in principle. Some westerners may believe that human rights promotion is part of the promotion of western culture, the development of the underdeveloped, and the replacement of barbaric cultures with a superior one. But they are wrong. Only individual violators or certain kinds of practices may be barbaric, inferior or underdeveloped, and these violators and practices can be found everywhere, in every culture. A culture as such is never inferior and the equality between culture is something which human rights promoters must and do accept, first of all because violations occur in more or less equal measure in all cultures, and secondly because rights require equal tolerance and respect for diversity.

Cultural Rights (3): Self-Determination

The right to self-determination is, in the first instance, the right of a state and a people to be sovereign in their territory and the right not to suffer foreign intervention, occupation or aggression. This right is necessary for democracy and human rights, because intervention, occupation and aggression often go hand in hand with violations of human rights and democratic principles. Occupation is incompatible with democracy because the government does not result from the will of the people people. Conquest and consent cannot go together. A democracy can never conquer, because if it does, it ceases to be a democracy. If it conquers, it may of course remain a democracy in its original territory and it may even contribute to the development of democratic institutions in the conquered territories, voluntarily (as with the occupation of Japan by the U.S.) or involuntarily (as with the American colonies of the U.K.). However, even if the latter takes place – and there is no reason why it must take place – we will only see democracy arise in these territories if the people of these territories regain their independence or if they agree to become an equal part of the occupying country.

Of course, self-determination can be used as a shield by tyrants in order to perpetuate human rights violations. Then it has to give way.

Terrorism and Human Rights (1): “The U.S. Coming Home!”

“The date is October the 1st, 2011, exactly 20 days after the worst terrorist attack in US history, an attack in which Muslim extremists used nuclear bombs to inflict heavy damage on 3 American cities, embarrassing the security forces who were on high alert on the 10th anniversary of 9-11.

Today, the whole world was listening to President Obama’s first policy speech after the events. The most shocking announcement was undoubtedly the decision to no longer deploy US troops abroad. The President defended this Coming Home decision by the failure of 10 years of military actions in Afghanistan, Iraq, Iran, Somalia, the Middle East, Nigeria and Indonesia to bring about more security for the American people. Evidence has shown that US involvement abroad, even peaceful and objectively beneficial involvement, rather than promoting US security, actually fosters hate, resentment and fanaticism. The objects of American involvement, even if this involvement means billions of dollars of aid, seem to think that it is fundamentally a ploy to imperialize them, a crusade to take away their identity, religion and wealth. Independence, national pride and Allah is what counts for them.

It has also become clear that the US was wrong to think in terms of frontlines in its war with Muslim terrorists. The strategy to try to attack the enemy in their homelands, the first frontline, rather than wait till they get on American soil, has proven to be ineffective militarily, and possibly even counter-effective psychologically: it has provided fuel for anti-crusader and anti-colonialist rhetoric, convincing ever more young Muslim martyrs and extremist Muslim regimes of the anti-Muslim and hence satanic nature of the Christian unbelievers.

Unlike an enemy army in a classical 20th century war, this enemy cannot be defeated by an overpowering military attack. The strongest military in the world cannot defeat a relatively small group of undoubting and unthinking amateurs ready to die with a makeshift bomb in their hands. With every amateur it kills it only produces more evidence of the presence of Satan on holy soil. Hence, the more it tries to root out the enemy, the more enemies it creates. The President therefore, wisely in our view, decided to shift focus from the attack to the defensive. Bringing our boys back home to defend the American border, effectively turning the army into a super coastguard and border patrol, should not be viewed as giving in to the enemy, a retreat or a Last Stand. That would only be a return to an inadequate and outdated military logic, useless given the kind of enemy we are dealing with.

Together with measures to prevent homegrown terrorism ’96 which, fortunately, has been a limited phenomenon until now ’96 a relentless border control should indeed be able to offer protection. The borders must, of course, include the entrances of airplanes and ships heading for the US. In order to be independent from foreign security services, the President has asked for legislation allowing only US aircraft and ship to enter the US. If economically necessary, the US will acquire a larger fleet. Anyway, unnecessary travel to the US will be discouraged.

The economic drawbacks of rigorous border controls will be countered by technological innovations funded by army budgets which become available when budgets for overseas operations start to diminish. The President also asked the citizens to prepare for the possibility of a certain number of years of economic depression. Energy supplies may also suffer as a consequence of the US drawback. Traditional allies will be disappointed by their abandonment. The loss of US military assistance will even endanger the existence of some regimes. Those which are also oil suppliers will resent the US and will disrupt the supply. The President is conscious of the economic impact this will have but asks the scientific community to tackle the problem of oil dependence. Existing alternatives, including nuclear energy, will be developed. Repatriated nuclear warheads, if not necessary for domestic security, will be recycled in the energy industry.

Some allies which are important for the US domestically, such as Israel, will not be abandoned without continued support. Military equipment not necessary for border control and security on US soil, will be handed over to them after they lose the protective umbrella of a US presence in their region. Financial assistance will continue to be possible.

Because US troops will no longer be stationed abroad, US expats can become easy targets for terrorists. The President therefore advises them to make plans to return home as soon as possible. The government will establish funds to incite people to come home and to compensate for damages they will incur. US multinationals will be legally forced to employ local people only for their foreign affiliates. The US government will immediately cease to employ its citizens in development projects in Africa and elsewhere. To alleviate the economic shock this will produce in developing countries, the US will double its funds for development aid for a period of 5 years. These funds, however, will be spend entirely by third parties. No US agencies will be active abroad. The US will also withdraw from NATO, the UN, and all other international institutions.”

More on terrorism.