The Ethics of Human Rights (69): Democratic Transition Caught Between the Rights of Past and Future Generations

Here are some general observations inspired by the recent talk of a possible amnesty for Assad as a means to convince him to give up power in Syria.

Imagine a country in which roughly 20% of the population ruled the other 80% during several decades or even centuries. The members of the ruling class owned the land and controlled much of the economy, are of a different social class (perhaps even race) and made sure that the rest of the population lived in constant poverty, oppression and discrimination.

The combination of an internal uprising and external intervention produced a successful transition to a fully democratic form of government. A strong and independent judiciary is now in place, able to effectively enforce a constitution that includes a wide array of human rights.

How should this new democracy deal with the horrors of the past and the rights violations of the now defunct regime? There are two seemingly incompatible needs: victims of rights violations in the past now demand justice, but the society as a whole may be better off without justice, at least in the short run immediately after the democratic transition (and later it may be too late to bring the perpetrators to justice because they’re all dead). Justice can make it more difficult to integrate the old ruling class into the new state. Given that most of the members of that class were heavily implicated in the horrors of the past, justice can’t be a simple matter of punishing a few key perpetrators. And punishing large groups of people will alienate those people, with potentially fatal consequences for the stability of the new state. It may even be the case that one can identify a few key perpetrators, but that those are still quite important for stability even though they’re not very numerous. For example, it’s likely that the military was implicated in past injustices, but the military – especially the top brass – is very important for stability and the new state can’t risk alienating this group, even if it’s not very large. An internally divided society is not at peace with itself and risks upheaval.

However, failure to pursue justice will also divide society. Failure to do something about past injustices will result in impunity and will undermine the moral authority of the new state. Also, what would that imply for future respect for human rights? Why respect rights when past disrespect was without consequences? And if only new rights violations are prosecuted, then there will be a feeling of injustice because of double standards.

A solution to this dilemma can perhaps be found in the fact that there are degrees and different kinds of justice. Justice doesn’t have to be penal or focused on retribution or revenge. Better perhaps to emphasize truth, also a traditional element of justice. Truth, as in the so-called truth commissions, can foster repentance, forgiveness and reconciliation. Judicial prosecutions can still play a part, but their potential divisiveness can be softened by measures such as amnesty, pardon or limited punishments, on the condition that the defendants cooperate in truth commissions. It’s often the case that truth is more important to victims than retribution.

Of course, some major perpetrators may still have to be punished and perhaps even severely punished. Some types of responsibility are simply to heavy to warrant amnesty. It may be impossible for a society to exist given the presence of monsters continuing their lives as if nothing happened. It’s not necessary to “buy” the allegiance of every single individual in society, not even individuals who still have a broad base of support. In addition, we have to avoid coerced amnesty: perpetrators can blackmail the new state by threatening large-scale unrest or upheaval.

So we need to balance the needs of the past and the future. Both needs should be acknowledged and neither should be sacrificed for the other. Of course, that’s easy to say and very hard to do.

More on the rights of past and future generations here, here, here and here. More on transitional justice here. More on the prerequisites for a transition to democracy is here.

The Causes of Human Rights Violations (46): Justificational Reasoning

People act in all sorts of dubious ways, but they often justify their behavior after the event using imaginary motives or reasons, and then they come to believe those motives and reasons themselves. It’s a kind of cognitive failure and self-deception which, when it occurs in the field of human rights, makes it hard to do something about rights violations. If people can’t even admit to themselves what the real reasons are for their bad behavior – rights violations in this case – then it becomes very difficult – for others and for themselves – to do something about those reasons and to prevent future occurrences of the behavior.

As long as we – and, as a result, others as well – believe that we were motivated by ethical justifications which we in fact constructed and invented after the facts rather than by the often more suspicious justifications that really drove our actions, then we have less reasons to avoid those actions in the future. True, well-intentioned rights violations do exist and good intentions don’t make remedies more difficult – often it’s enough that we become aware of the possible dangers of good intentions. But when bad intentions masquerade as good ones, even to the person having the intentions, then things become more difficult. It’s always good to know the exact and true causes of something if you want to avoid it in the future. When people really know what motivates them but choose to present themselves in another way – perhaps because of shame -we can still try to pierce their cover. But when people fool even themselves, then there’s very little we can do. And it seems that people are indeed frequently unaware of the real causes of their own behavior.

An innocent example of justificational reasoning to begin with:

[M]ale students [were asked] to choose between two specially created sports magazines. One had more articles, but the other featured more sports. When a participant was asked to rate a magazine, one of two magazines happened to be a special swimsuit issue, featuring beautiful women in bikinis.

When the swimsuit issue was the magazine with more articles, the guys said they valued having more articles to read and chose that one. When the bikini babes appeared in the publication with more sports, they said wider coverage was more important and chose that issue. (source, source)

A more harmful case from another experiment:

Managers … have been found to favour male applicants at hypothetical job interviews by claiming that they were searching for a candidate with either greater education or greater experience, depending on the attribute with which the man could trump the woman. (source)

And it’s not easy to imagine the same thing going on in even more harmful actions.

There’s a kind of cognitive dissonance behind justificational reasoning: we want others to think that were are good people and we want to think of ourselves this way. When the facts contradict this belief, we change the facts.

Other posts in this series are here.

The Causes of Human Rights Violations (44): Corruption

Corruption, or “the misuse of public office for private gain”, is immoral and bad in numerous ways, but it’s not a human rights violation. At least not as such. To my knowledge, human rights law doesn’t contain an explicit right not to suffer the consequences of corruption. However, it is the case that corruption causes various rights violations. For example, it can often be viewed as a form of theft and hence a violation of the right to private property. And in the case of corruption in the justice system, the right to a fair trial is violated.

Moreover, corruption has a negative impact on GDP – mainly because it’s a tax on investment – and hence also on poverty reduction (given the correlation between GDP and poverty reduction). And there is a right not to suffer poverty. Corruption also has an impact on poverty on the level of individuals rather than countries. It’s obvious that individuals – especially those who are poor or near the poverty line – can make better use of the funds that they have to spend on bribes.

Furthermore, corruption eats away at the rule of law. Even in the most corrupt countries, corruption is usually illegal. If illegal activity becomes normal practice, the rule of law is obviously undermined, with possible consequences for judicial protection in general, including protection of human rights. The rule of law is also harmed directly by corruption, namely by corruption inside the judiciary and the police force, and this has an immediate impact on human rights. Even more seriously, corruption is associated with political instability since it tends to reduce citizens’ trust and faith in institutions. It can therefore destroy democracy, and democracy is both a human right and a means to protect human rights in general.

So, if we can agree that corruption is a cause of various human rights violations, then the question is: who is responsible for corruption and hence for the rights violations occurring because of it? I would say that it’s the government officials taking bribes (and possibly the banks safeguarding the proceeds) rather than the private persons or companies paying the bribes, at least in general. The latter would presumably prefer not to pay bribes and often find themselves in situations in which they have no choice.

Now, you could say that some corrupt officials, especially those at the lower levels of government, don’t have a choice either: without the proceeds of corruption they may well end up in poverty. Demanding bribes is then the alternative for a failed economy and a failed state. However, I think it’s fair to claim that they still have, in general, a wider set of options than many of those having to pay bribes. If you’re stopped by the police and they ask you for a bribe, it seems that your options are more constrained than the options of the police asking for the bribe. It seems easier for the police to find additional non-corrupt sources of income than it is for you to escape the demands of the police. Of course, this isn’t the case in all types of corruption. For example, a large multinational company may find it relatively easy to pay a bribe, and may have more options than the official who’s asking the bribe (and it may very well solicit the payment of the bribe in the first place as a way to outsmart competitor companies).

Next question: what to do about it? Everyone agrees that corruption is bad, and many believe that it’s bad for human rights, but almost no one seems to know how to stop it. And it is, indeed, a problem that is as old as history. One thing we could do is spell out the issue of corruption more clearly in terms of human rights. However, human rights claims by the victims of corruption are probably not very effective, since one consequence of corruption is the weakening or destruction of the judicial institutions necessary for the enforcement of human rights. In that sense, linking corruption and human rights may seem futile or at least of limited practical use.

However, human rights claims aren’t just legal claims that depend on functioning and non-corrupt institutions to be enforced. They are also moral claims and they can have some effect as such. They can be used to denounce widespread systems of corruption and thereby help to change a culture and a mentality, especially over the long run. But moral claims will not destroy endemic corruption by themselves. Countries that suffer high degrees of corruption probably need external help in institution building. Also, economic development will probably reduce corruption, given the correlation cited above between low levels of GDP and high levels of corruption. Helping countries to develop will then also help them to fight corruption.

This is an interesting talk about ways to fight corruption (the relevant part starts around the 5th minute):

More on corruption. More posts in this series.

Types of Human Rights Violations (8): Active and Passive Violations

You can violate someone’s rights, or you can let violations occur. You can kill, or you can let someone die. Someone’s rights are violated either because you did something, or because you didn’t do something; either because of what you did, or because you refrained from doing something; either because you acted, or because you omitted certain actions; either because you caused this violation, or because you allowed this violation to happen.

All these phrases say the same thing: you either actively or passively violate someone’s rights. I agree that these are two distinct types of rights violations. The distinction is similar to the distinction between negative and positive duties. Active rights violations imply a negative duty to forbear or refrain from doing what would otherwise cause a rights violation; passive rights violations imply a positive duty to do something so that a rights violation does not occur.

The distinction is often understood as entailing different levels of moral blameworthiness, but I think this can be misleading. In criminal law, for example, the punishment for killing is often more severe than the punishment for letting someone die. However, the difference in blameworthiness is hard to see in many cases. Take the following example: one man A poisons his wife B, and another man C fails to take his wife D, who has taken poison by accident, to the hospital. (I’m stealing this example from Jonathan Bennett). If this is all the information we have, I guess many of us would not say that C is less blameworthy than A. Letting die is equivalent to killing, at least in this case.

When people argue for a moral difference between committing and omitting, it’s not the difference between types of actions – positive/negative, causing/allowing etc. – that counts, but intention. A probably had the intention of killing, while C may simply have been confused or in panic. If we attribute the same intention to both A and C – A gives the poison to B because he hates her, and C fails to take D to the hospital because he hates her and profits from the occasion – then the difference between the cases disappears, as does the difference in blameworthiness – and the difference between active and passive violations.

Arguments for a difference between committing and omitting can be based on intention, but then it’s intention that makes the difference, not the types of actions. After all, A may have poisoned B unintentionally, while C may have intentionally refrained from assisting D. The distinction between types of actions – positive and negative – doesn’t therefore seem to carry much weight.

Perhaps it can be rescued by looking at the cost element. Active violations are often judged more immoral than passive violations because it’s generally easier and less costly to refrain from acting than it is to help. Hence, failure to refrain – i.e. actively doing something – is more blameworthy than failure to help – i.e. remaining passive. And yet, this is not always true. Let’s take the same example and modify it a bit. If A poisons B and wants to do this, and C involuntarily fails to help D who’s taken poison accidentally, then it’s true that A is more blameworthy than C: A could have easily refrained from giving B the poison, whereas C would have had to overcome his panic, carry D down the stairs, drag her into his car etc. C may even be forgiven altogether for his failure to help. However, what if A killed B because B had threatened to kill his mother, and C let D die because he hated her? The cost to A of refraining would have been very high, higher than the cost to C of not letting D die.

Again, like in the case of intention, cost can be used to differentiate blame, but it’s cost and not type of action that differentiates.

To conclude: the distinction between active and passive types of rights violations is real, but one should be careful when attaching different levels of blameworthiness to these types.

More posts in this series are here.

The Causes of Human Rights Violations (22): Utopia

Die wirkliche Genesis ist nicht am Anfang, sondern am Ende. Ernst Bloch

You could view the struggle for human rights as a “utopian” one. We’ll never live in a world that respects human rights completely and universally. The only thing we can hope for is an incremental improvement. And there are many reasons for this limitation: people always come up with new ways to violate human rights (“ah, the Internet! let’s make a Great Firewall!”), and people always come up with new human rights as a way to redress newly discovered wrongs. And even if we hope for incremental improvement, we can’t be sure that things are going as we hope, given the lousy measurement systems.

And yet, if you scratch the surface a bit and look at the deeper meaning of the word “utopian”, you’ll discover that utopian thought is fundamentally inimical to human rights. In fact, there’s perhaps no better way to violate human rights than to be utopian. Both the struggle for utopia and life within utopia are necessarily detrimental to human rights. That may seem paradoxical, but it’s easy to see how the struggle for an ideal can lead to disaster. The road to hell is, after all, paved with good intentions. We’ve seen many examples of this in recent history. But not only the struggle for utopia leads to rights violations; utopia itself does the same. Strange perhaps, since utopia is the ideal world. How can there be rights violations in an ideal world? And yet, no matter how it is envisaged, utopia violates human rights.

Utopia, where there is no war, strife, exploitation or scarcity, does not allow contestation, change or diversity. What’s there to contest if society has reached perfection? Why change when you can’t improve? Why have diversity, since diversity means different points of view about goals. If there are different points of view, some of them must be wrong. When people advocate wrong views, you have hardly reached perfection, and you’re likely to have conflict, violence etc. You can already see why people would believe that human rights are useless in such a world. Why would you need free speech if there is unanimity? Now, if there really is unanimity, human rights are indeed superfluous. No reason to express your views and to have rules to protect that expression if everyone has the same views. However, unanimity will probably always be something that has to be enforced because even in utopia some people will not freely understand their own wrongness or give up their own vision of perfection. Only a radically new but also radically improbable type of human being would populate a unanimous society. This enforcement of unanimity is necessarily a violation of human rights, which is why such violations would have to occur in utopian societies.

If you look at historical utopian thought, you’ll see that utopia is typically a highly centralized and planned world. It’s one big organization, a megamachine. Streets are geometrically designed. People’s movements are directed and controlled in order to avoid clashes and inefficiencies. Every detail is planned beforehand. Everything is rational. One hospital per square kilometer, one school, and one church. The organic growth of real cities is suboptimal because it hasn’t been planned beforehand. Real cities aren’t rational, orderly or efficient because no one has designed them. Hence, what is required is a tabula rasa. That means kicking people out of their houses and demolishing their houses. It means centrally allocating jobs so that the people don’t start a career that wouldn’t be the best one for them and for the whole of society. The structure of utopia is designed to enforce a certain behavior that promotes efficiency. Movement, habitation, work and all other aspects of life are planned and organized. The consequences of this aren’t limited to evils such as boredom, repetition, the absence of creativity and of the unexpected, or the feeling of being stuck in the present (the past is gone because that’s just the history of imperfection, and there is no future either because the future is here). The evils will be a lot worse than that: massive violations of rights, limitations of freedom and invasions of privacy are inevitable in utopia. Utopia is necessarily dystopia.

Of course, utopia can be a useful theoretical construct. I don’t want to trash every type of utopian thinking. A utopian vision is typically the current world put upside down. It is a tool that makes criticism of the current world possible, and it may provide a driving force for incremental change. It can motivate people to work for a slightly better world. It’s like you only know how troubling poverty is when you know what it would mean to be rich. But this realization shouldn’t make you desire a world of only rich people; a world without poverty suffices. Utopia, in this sense, is not a blueprint for the future, but merely a kick in the gut. That is also why many utopian fantasies were not located in the country the writer lived in, but in a far away place, an island or a mountain top. And that’s where they should remain. They are a means, not a goal. And true Genesis is neither at the beginning nor at the end; it’s ongoing. We daily remake our world and we’ll most likely never finish.

Why Do We Need Human Rights? (18): The Economic Case Against Human Rights

Some more comments following two previous posts on the topic (see <a href="http://here and here).

Do human rights promote or depress economic growth and prosperity? (I’ll focus on non-political rights for the moment because political rights – i.e. democracy – have very specific effects on the economy). The economic case against human rights could go something like this. Economic growth would be enhanced by different policies and actions that imply violations of human rights. E.g.

  • Killing criminals instead of incarcerating them would make substantial resources available for more productive investments.
  • The same is true for the resource that go into running legal and criminal judiciary systems that correspond to human rights requirements (e.g. high burden of proof, appeals systems, legal representation etc.).
  • Human rights, and specifically those regulating the judiciary, make it more likely that suspects who have indeed committed a crime are set free, which imposes an economic cost on society.
  • Killing the poor, the sick and the elderly rather than helping them would likewise liberate resources for more productive use.
  • Less extremely, assisting the poor, the sick and the elderly means creating a large government and a heavy tax and regulatory burden. These are detrimental to entrepreneurship and business because they are disincentives for wealth creators. When wealth creators are burdened, prosperity suffers.
  • Social and economic human rights such as a right to strike, to a decent wage, limited working hours etc. undermine productivity and hence prosperity.
  • Etc.

Let’s assume, for the sake of argument, that all these effects are real and not compensated by

  • positive economic effects of respect for human rights
  • other, negative economic effects of violations of human rights, or
  • long term disadvantages following the possible short term advantages of rights violations (the fear, distrust and uncertainty resulting from some if not all of the claimed economic advantages of the rights violations that I just cited would likely harm long term prosperity).

Then you still don’t have a watertight case against human rights because people may still be willing to pay the economic price for respect for human rights. They may prefer to have their rights respected even if that has economic costs.

But, of course, that assumption doesn’t hold. The possible economic benefits of rights violations are easily offset by their costs and by the benefits of respect for human rights. Ultimately, the question of the effect of respect for human rights on the economy is an empirically verifiable hypothesis: we have data on economic performance, and – to some extent – on rights performance. It’s just a matter of linking the two. There’s an interesting paper here trying to do just that. The conclusion:

Our results show that high degrees of human rights are conducive to economic growth and welfare in a significant manner.

Through which channels is this effect supposed to operate? There are a few candidates:

  • Physical security is a necessary precondition for the productive use of one’s resources and property.
  • Property rights and the rule of law – both are human rights – are necessary for the effective operation of free markets, and free markets promote growth. Neither the rule of law nor property rights are safe in authoritarian regimes: why would a government that imposes physical harm respect property rights?
  • Countries don’t attract Foreign Direct Investments (FDI) when they have a poor human rights record, rampant insecurity, ineffective rule of law and protection of property rights, poor labor conditions and the worker unrest that it implies etc. Stability, predictability, peace and calm lead to investment. Investment in rights abusing countries can also harm companies domestically when consumers revolt against the foreign conduct of their national companies.
  • Education is a human right, and investments – especially FDI – usually follow the trail of education. Education is typically considered growth enhancing.

The discussion should separate between growth and levels of prosperity. There is an obvious correlation between respect for rights and levels of prosperity: the most prosperous countries in the world are also those where respect for rights has achieved a higher level. The case that growth rather than level of prosperity is also correlated with respect for human rights seems a lot harder to make, given the high growth levels of countries such as China. The argument could be that respect for rights promotes but is not a necessary condition for growth. Or it could be that authoritarian countries with high growth rates would have had still higher rates had they respected rights to a higher degree. Such a counterfactual is of course very hard to measure.

So, it’s not just that richer countries can start to afford human rights (to some extent that’s true, because rights cost money); it’s also the case that respect for human rights leads to higher wealth. There’s a two-way causation at work here.

The Causes of Human Rights Violations (16)

We usually distinguish between three different origins of human rights violations:

  • The state. States commit rights violations for different reasons. Rulers may believe that such violations are necessary in order to maintain power, undermine or destroy the opposition, and impose some world view or economic organization of society. Or they may think that some types of violations are necessary evils when faced with certain risks. For example, torture or indefinite detention can appear to be a reasonable price to pay in order to reduce the risk of terrorism. States can also violate human rights unintentionally: lawmakers can draft a legal system that unnecessarily encroaches on private freedom (e.g. the “nanny state”). And, finally, a state can violate rights, not – as in the previous cases – by doing something it shouldn’t do, but by failing to do what it should do: a state that doesn’t provide an efficient judiciary or police force will be unable to protect the rights of its citizens and will be an accessory to rights violations.
  • Selfishness. In the case of economic human rights – such as the right not to suffer poverty – it’s often greed, lack of compassion or generosity, or the absence of sufficient and adequate aid and intervention that causes rights violations. Selfishness can cause both individuals and states to violate rights. States, for example, can uphold international trade structure or protectionist legal systems that favor the local economy at the expense of relatively poor exporters elsewhere.
  • Culture. Some say that certain elements of cultures and religions lead to practices that violate human rights. And then usually we get a mention of Islam, Shari’a, muslim misogyny etc. Here as well, we see that both states and individuals can use culture as a reason to violate rights.

Regarding the last point, there’s an interesting paper here (or here) claiming that it’s not Islam but oil that causes gender discrimination in Muslim countries.

Oil production reduces the number of women in the labor force, which in turn reduces their political influence. As a result, oil-producing states are left with atypically strong patriarchal norms, laws, and political institutions. I support this argument with global data on oil production, female work patterns, and female political representation, and by comparing oil-rich Algeria to oil-poor Morocco and Tunisia. Michael Ross

Oil production and export crowd out other exports, and hence artificially restrict the manufacturing sector. Compared to oil production, manufacturing uses relatively large numbers of low wage workers, which is why manufacturing has always and everywhere been a booster for female labor participation. Female labor participation in turn has always and everywhere promoted female political representation and women’s rights. The paper shows that, in the Middle East, countries without much oil (like Morocco and Tunisia) do relatively well on gender equality, compared to oil-rich countries. The same is true when comparing oil-poor and oil-rich countries outside the Middle East.

If that’s correct, then it’s still cultural and religious practices and beliefs that cause gender discrimination, but these beliefs are themselves caused by or at least promoted by economic fundamentals. Sounds quite Marxian to me (which doesn’t mean it’s wrong!).

Papers looking into the cultural and religion causes of gender discrimination can be found here and here (thanks to the Monkey Cage for the pointer).

Religion and Human Rights (21): The Attractiveness of Religious Liberty to Those Who Hate it

Religious extremism

This post examines the relationship between religious liberty and religious extremism. The expression, “religious extremism”, does not only or even mainly refer to terrorism, jihad or sectarianism. Those are only the more flagrant instances of religiously inspired human rights violations.  All religiously inspired human rights violations are covered here by the concept of religious extremism.

Two other remarks may help to avoid misunderstandings. First, this post by no means focuses exclusively on Islam. Although most news stories about religious extremism nowadays tend to highlight rights abuses in Islamic countries or Islamic terrorism, history shows that none of this is the monopoly of any religion.

Second, the existence of religiously inspired human rights violations does not prove that religion as such is necessarily incompatible with human rights. This post does not make that claim. We should be well aware that rights abuses can be inspired by many different ideologies, religious and secular. Moreover, there is ample evidence that the historic evolution of human rights was and still is underpinned by religious motivation. The incompatibility of religion and human rights is the exception. It is limited to some interpretations of some practices of religions. Religion is above all a matter of conviction and belief, and only then a matter of practice. And conviction and belief can never harm human rights, which is why they benefit from absolute protection by human rights.

Religious liberty

Regarding the concept of religious liberty: what is it and why is it so important? Religious liberty is a human right among other human rights. It contains the freedom of belief, the freedom to practice and promote a freely chosen belief, both in private and in public. It is also the freedom to change belief and the freedom to have no belief at all (the freedom to be non-religious, or the freedom from religion).

Here’s the way it’s formulated in the Universal Declaration, article 18:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Religious liberty is in general words the right to be protected against religious coercion and persecution. Of course, one can and does discuss this definition. There is a lot of literature about the precise meaning of religious liberty. I just assume that we can use the definition given here as a working definition for the purpose of this post.

By protecting people against religious coercion, the right to religious liberty promotes a diverse and plural society, even beyond the field of religion. If there can be diversity and debate in something as important as religion, why not in other fields? So religious liberty functions as an example and a benchmark. It promotes diversity and debate in general, and hence it promotes other human rights – such as freedom of speech – which can occupy the free public space created by religious freedom. Religious liberty, in the same manner, promotes tolerance. If people can be tolerant – or, better, can be forced to be tolerant – in religious matters, it will be easier to enforce tolerance in other fields.

As a consequence, religious liberty is of importance to everyone, including non-religious persons, and not only because it protects them against the imposition of a religion. It also allows them, and everyone else, to live in a world of diversity, tolerance and human rights. Religious liberty is therefore an integral part of the system of human rights and of crucial importance to a plural world. It is a prerequisite for the whole system of human rights, but also vice versa. Freedoms of speech, of assembly and of association are religious freedoms as well and are prerequisites for religious liberty strictu sensu.

The attitude of religious extremists towards religious liberty

The relationship between religious liberty and religious extremism is ambivalent. On the one hand, we see that religious extremists, especially those living in democracies, use or better abuse religious liberty to justify certain religious practices and norms which violate human rights. On the other hand, and more generally, religious extremists do not like religious liberty. They are universalists. They want to impose their norms on others and do not want others to enjoy religious liberty. Unbelievers do not deserve freedom because they oppose the laws of God, the only God and the God of all human beings. Man does not have the freedom to violate the laws of God.

Religious universalists naturally try to take over the machinery of the state, because then they can use the law, the police, the judiciary, state education, etc, to bring back the “lost sheep”, against their will if necessary.

[R]eligiously wrong – a motive of legislation which can never be too earnestly protested against.  Deorum injuriae Diis curae.  Injustices to the gods are the concern of the gods.  It remains to be proved that society or any of its officers holds a commission from on high to avenge any supposed offense to Omnipotence which is not also a wrong to our fellow creatures.

The notion that it is one man’s duty that another should be religious was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them.  […] a determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor’s religion.  It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested. John Stuart Mill in On Liberty

Universalism is of course inherent in most major religions (perhaps not in Judaism). However, religious extremists go beyond the normal religious tendency of promoting universality by persuasion and voluntary conversion. They try to achieve universality by taking away the religious liberty and other human rights of their opponents. They use force and violence, sometimes even terror and war. Even the members of their own groups often suffer rights abuse because of the objective of universality (for example, punishment for apostasy).

(By the way, universalism is not an exclusively religious phenomenon. We can also find it in many non-religious worldviews such as capitalism and communism. We can observe that these other worldviews also tend to violate human rights if they take their universalism too seriously. One could even claim that the ideology of human rights is a kind of universalism. Fortunately, this ideology cannot permit itself to violate human rights for the sake of its universalism, because that would be self-destructive).

First-level protection against rights violations by religious extremists

I’ve mentioned above that there is a two-way causation, unity and interdependence in the system of human rights (by the way, this is a recurrent feature in the system, even in parts of it unconnected to religious liberty). This unity can help to solve the problem of the violation of religious liberty by religious extremists and the violation of other human rights justified by religious liberty. Religious extremists can violate human rights in two ways:

  • either internally in their own groups, again in two ways:
    • for example, certain religious practices such as gender discrimination, forced circumcision, etc). These practices are often justified as falling under the protection of religious liberty;
    • or by prohibiting exit-attempts (apostasy) – which often occur as a consequence of the previous type of violation – and taking away the freedom of religion in the sense of the freedom to change one’s religion;
  • or externally, in their practices directed at outsiders (for example, forced conversion, terrorism, holy war, etc). These practices can violate only the freedom of religion of outsiders, or also their other human rights.

Now, all these practices cannot and should not benefit from the protection offered by religious liberty. No single human right, including the freedom of religion, can justify human rights violations. Human rights have to be balanced against each other and must be limited when they produce human rights violations. Limiting rights for the sake of other rights or the rights of others is a normal practice in the system of human rights. This system is not a harmonious whole. Rights can be contradictory. Take the right of privacy of a public figure trumping the right of freedom of expression of a journalist. Or the right to life of people in a crowd trumping the freedom of speech of one of them wanting to yell “FIRE!” without good reason.

In the case of religious liberty: one could argue that the right to equal treatment and non-discrimination of women, the right to life of apostates and the religious freedom of adherents of other religions trump the right to some religious practices which would normally enjoy protection under the religious liberty articles.

Second-level protection against rights violations by religious extremists

This first-level protection implies, of course, the enforcement, often by force, of human rights against the will of religious extremists. A better protection would be based not on external force but on internal motivation. The central thesis of this post is the following: notwithstanding the hostility shown by extremists with regard to religious liberty and other human rights, they can be persuaded that they have tactical reasons to accept religious liberty and human rights in general, even if their religious views tell them otherwise. This thesis is based on the force of self-interest as a universal human motivation. It therefore excludes the ultra-extremists who blow themselves up for their religion. They have forsaken self-interest and cannot be convinced to take a course of action based on self-interest. However, they are a minority even among extremists (some of them probably have not forsaken self-interest but are forced to do what they do). So let us concentrate on the other extremists.

There is reason to believe that societies are becoming more and more diverse, culturally and religiously. As a consequence of migration and globalization, states are becoming collections of religious sub-communities. This increased diversity of societies means that religious sub-communities need the protection of religious liberty and other human rights. Even the extremists among them, those who want to coerce, can one day, when the demography has changed, be coerced by the opposing extremists. Therefore, they can be tempted to adopt religious liberty and human rights for their own long-term protection even if these contradict their religious beliefs and practices and their universalist claims. At first sight, a universalist religious extremist may not consider religious liberty and the freedom and equality of all religions as being in his self-interest, or even in the self-interest of the adherents of the other religions. On the contrary, it is in his interest that a maximum number of people convert to his religion. From the point of view of salvation, this is also in the unconscious interest of the people to be converted. He may claim that the latter not only should lose their religious liberty, but also their other rights, and perhaps even their life.

But rejecting the religious liberty and other rights of others means destroying the state mechanisms which he may one day need to defend himself against other extremists who immigrate or become stronger through other means. After all, globalization means that everyone can become a minority everywhere.

It makes sense for a strong majority with universalist claims to reject the rights of minorities, but only in the short-term. In the long term, it’s much more rational to keep the human rights protection mechanisms intact, if not out of conviction, then tactically in order not to cut off the branch one may need to sit on in the future.

Even the protection of human rights internally in a group makes tactical sense. Here it’s not a question of counting on reciprocal respect, if necessary enforced by your own reluctant example or by enforcement mechanisms kept intact by your own groups’ respect for them. Respect for the rights of the members of your own group also helps to maintain a rights enforcing state which can help protect you against other groups.

Of course, this reasoning requires rationality and objective analysis of self-interest on the part of religious extremists, which is perhaps utopian.

Inclusive and exclusive norms

We can put all this in another way by making the distinction between inclusive and exclusive norms. Inclusive norms are norms such as tolerance, freedom of speech, etc. They try to protect plurality and hold different people with different convictions together.

Exclusive norms try to win a competitive struggle with other norms and try to exclude difference. For example, homosexuality is a sin. Religious norms are often exclusive norms, but not always (think of charity for instance) and many exclusive norms are not religious at all (racism for example).

Someone who is attached to an exclusive norm will try to change people, to persuade, convert, perhaps even impose or force. (To stay with my example on homosexuality: there are “clubs”, if you can call them that, in the US where people help homosexuals to “convert” to heterosexuality). So, exclusive norms may lead to rights violations or violations of inclusive norms.  In that case, inclusive norms should, in my view, take precedence. However, for religious people, the commands of God clearly trump human rights. It’s easier to protect inclusive norms against exclusive norms if religious communities have internalized inclusive norms and only promote, rather than impose, their exclusive norms. In doing so they guarantee that the inclusive norms are alive and well when the exclusive norms of other sub-communities start to manifest themselves. Even extremists may be convinced that this is a rational approach.

Types of Human Rights Violations (4): Boomerang Human Rights Violations

We usually see human rights violations are zero-sum: a rights violation is a harm inflicted by one person on another, for the benefit of the former. I mentioned before that this isn’t always the correct way of viewing rights violations, but it’s adequate in most cases. One case in which it’s only superficially adequate is what I would call the boomerang human rights violation: you think that violating someone’s rights may produce some benefit for you, and it does so initially, but the actual and final results mean that you become worse off. There’s the obvious and uninteresting example of the dictator using extreme oppression and causing revolt, but here are some other, more intriguing examples. The first one has to do with the right to work.

Gene Marks is … a small business owner (he sells customer relationship management tools), who is attempting to speak to other small business owners, all of whom, presumably, are also delighted that the potential hiring pool is so chock full of talent desperate to be exploited right now. But one wonders who exactly is supposed to purchase all those products and services from the small businesses of the world, if unemployment creeps up to the 10 percent mark or higher? High unemployment means low consumer demand. Which usually means small businesses end up going out of business, or at the very least, laying off more employees, who push the unemployment rate even higher. And so on. (source)

If, as a “capitalist” (i.e. employer), you want to take advantage of unemployment – or the risk of unemployment – to put downward pressure on wages and workers benefits – and thereby violate workers’ rights (a fair wage is a human right, as are favorable working conditions) – you’ll end up shooting yourself in the foot because neither hard working laborers who don’t earn a lot nor the unemployed will consume many of your products or services. I can see the appeal of the statement that generous unemployment benefits discourage people from finding a job, but such benefits do have advantages that go beyond the mere self-interest of the direct beneficiaries.

An ideal policy … would allow people to collect unemployment insurance indefinitely, and let the unemployed borrow or save money. This way, unemployment insurance would not merely be a financial band-aid letting people take risks on the job market and endure some jobless spells, but a critical source of “liquidity,” allowing the unemployed to keep spending reasonable amounts of money — which in turn helps create demand, something sorely lacking from the economy at the moment. (source)

And here’s another example, related to gender discrimination. In many countries, there’s a son preference: male offspring is considered more valuable than female offspring, for reasons to do with gender discrimination and social, cultural or religious views regarding the proper role of women in society. One of the consequences is the “missing girls” phenomenon. The sex ratios in many countries – India and China stand out – are out of balance. Some estimates say that 90 million women are “missing” worldwide. In somewhat overwrought rhetoric this is called gendercide. Girls are often aborted in selective abortions (a one child policy can make this even more widespread), and young girls are often prejudiced against when it comes to nutrition and health care resulting in higher mortality rates. The son preference and the missing girls phenomenon have their roots mainly in cultural beliefs, but economic considerations also play a role. Some professions are open only to men; girls marry “into” other families and hence can’t continue the family business; there’s the dowry problem etc. However, these economic considerations don’t stand on their own and are often the result of discriminatory cultural beliefs. When we accept that gender discrimination and the will to sustain patriarchy is the cause of the son preference and the missing girls phenomenon, then we are dealing with a human rights violation. And also this rights violation can come back to haunt those responsible for it.

A societal preference for boys here has become an unlikely source of power for Indian women. The abortion of female fetuses in favor of sons — an illegal but widespread practice — means there are more eligible bachelors than potential brides, allowing women and their parents to be more selective when arranging a match. (source)

Rather than cementing patriarchy, the son preference and the resulting unbalanced sex ratios give women more bargaining power. These and other boomerang rights violations are variants of what I’ve called self-inflicted rights violations: people violate other people’s rights, and in so doing they ultimately violate their own rights.

Measuring Human Rights (9): When “Worse” Doesn’t Necessarily Mean “Worse”

I discussed in this older post some of the problems related to the measurement of human rights violations, and to the assessment of progress or deterioration. One of the problems I mentioned is caused by improvements in measurement methods. Such improvements can in fact result in a statistic showing increasing numbers of rights violations, whereas in reality the numbers may not be increasing, and perhaps even decreasing. Better measurement means that you now compare current data that are more complete and better measured, with older numbers of rights violations that were simply incomplete.

The example I gave was about rape statistics: better statistical and reporting methods used by the police, combined with less social stigma etc. result in statistics showing a rising number of rapes, but this increase was due to the measurement methods (and other effects), not to what happened in real life.

I now came across another example. Collateral damage – or the unintentional killing of civilians during wars – seems to be higher now than a century ago (source). This may also be the result of better monitoring hiding a totally different trend. We all know that civilian deaths are much less acceptable now than they used to be, and that journalism and war reporting are probably much better (given better communication technology). Hence, people may now believe that it’s more important to count civilian deaths, and have better means to do so. As a result, the numbers of civilian deaths showing up in statistics will rise compared to older periods, but perhaps the real numbers don’t rise at all.

Of course, the increase of collateral damage may be the result of something else than better measurement: perhaps the lower level of acceptability of civilian deaths forces the army to classify some of those deaths as unintentional, even if they’re not (and then we have worse rather than better measurement). Or perhaps the relatively recent development of precision-guided munition has made the use of munition more widespread so that there are more victims: more bombs, even more precise bombs, can make more victims than less yet more imprecise bombs. Or perhaps the current form of warfare, with guerilla troops hiding among populations, does indeed produce more civilian deaths.

Still, I think my point stands: better measurement of human rights violations can give the wrong impression. Things may look as if they’re getting worse, but they’re not.

The Causes of Poverty (25): The Matthew Effect

The Matthew Effect – a concept invented by sociologist Robert K. Merton – is based on the following extract of the Gospel of Matthew:

For to all those who have, more will be given, and they will have an abundance; but from those who have nothing, even what they have will be taken away.

This statement is intuitively convincing. Those who already have economic resources can use these to acquire even more of them, often if not by definition at the expense of those who don’t have them. It’s easy to see how wealthy people have better information to use their wealth in such a way that they can increase it. How they know the right people, how they can use the education system to their advantage (and to the advantage of their offspring), how they can use the political system to their advantage etc. Conversely, poor people are often stuck in a poverty trap: their poverty makes them sick, and their sickness even more poor; their poverty makes it hard to access education, and their lack of education makes them more poor etc.

You can see at once how this is relevant to the issue of human rights. While income or wealth inequality as such isn’t a human rights violation, it does have implications for human rights. And poverty is a human rights violation. But the Matthew Effect can be observed in other human rights as well. Take for instance the wiretapping that is used in the war on terror. Initially, wiretapping is targeted towards individuals who are suspected of plotting an attack. However, it seems inevitable that those who are authorized to use wiretapping expand the field of their authority. Instead of targeted wiretapping, they go on fishing expeditions: throwing out the nets as wide as possible and see which fishes end up in it. They start to use data-mining, for instance, checking private information of entire populations in order to filter out suspect individuals.

Another example of the Matthew Effect in human rights can be found in hate speech laws. The laws may initially impose limits on the freedom of speech that crack down on cases of hate speech that may cause violence and riots. However, once certain exceptions on the freedom of speech are legal and legitimate, the boundaries may move towards more restrictions. Maybe speech that doesn’t pose an imminent threat of violence but perhaps a longterm threat to the stability of a multicultural society – such as derogatory speech, or blasphemous speech – should also be prohibited. And then you may find yourself on a slippery slope.

I can also mention what I called “searchlight human rights violations” (see this previous post): for example, a certain level of sexual violence against women in a particular society, can teach young men a certain culture, mentality and value system that automatically leads to a wider use of violence.

However, I don’t believe things are as simple as this. While the Matthew Effect is certainly a force that is driving human rights violations, I don’t think there is anything inevitable or mechanical about it. There are other forces at play as well, and some of them go in the other direction. If that wouldn’t be the case, then the Matthew Effect would have landed us in a place where respect for human rights is non-existent, and would have done so a long time ago.

Regarding the particular case of wealth inequality, a simple application of the Matthew Effect would require a vision of the world with limited resources. And although some – important – resources are indeed limited, others – equally important ones – are not. It’s not because one person receives a good education, that another one must receive less education. And when one person accumulates riches, this can benefit others (his or her employees for example).

Types of Human Rights Violations (3): Lighthouse Violations and Searchlight Violations

I think it may be helpful to distinguish two types of human rights violations. Or, to be more precise: two types of effects of human rights violations, because many violations will show characteristics of the two types. I’ll call the two types “lighthouse violations” and “searchlight violations”. To clarify these weird sounding names, I have an example.

In the UK, about 85.000 women were raped in 2006. In the US, during the same year, 92.455 rapes were reported. Real numbers are much higher, of course, because there are many unreported cases. In South Africa, one in four men admits to having raped someone. One in 8 more than once. Rape, as well as other types of violence against women (but not only women), is obviously a wide-spread social practice and not merely acts of sick individuals.

As with any case of widespread rights violations, one can understand this in two ways. One can believe that these violations are what I call lighthouse rights violations. In our example, the very fact that rape is a widespread phenomenon makes women aware of the dangers and forces them to adapt their behavior so that they limit the risks. (I talked about human rights and risk here). So the optimist view would be that there are certain automatic restrictions operating in order to limit the number of human rights violations.

The other, more pessimist view, would call widespread human rights violations searchlight violations. If we take the same example, the widespread occurrence of rape can give (certain) men the impression that the practice is normal and acceptable. As a result, the practice becomes even more widespread. Moreover, the practice not only benefits those men who actively engage in it, but men in general because it creates uneven gender relationships, female subjugation, inferiority complexes in women etc. Hence, also women who are not directly victimized by rape tend to be harmed by the practice. Rape shapes cultures, mentalities, gender roles etc.

This is of course a “glass half full or half empty” thing. Rape is both a lighthouse and a searchlight human rights violation. However, I think the more optimist view is probably more correct. If not, we would have to see ever increasing numbers of rights violations, which isn’t the case (at least that’s the intuitive conclusion; human rights measurement is still not a very sophisticated field of research).

Types of Human Rights Violations (2): Self-Inflicted Human Rights Violations

We usually think of human rights violations as a harm inflicted by one person on another, by the state on some of its citizens, by companies on citizens etc. And that’s indeed the natural way to think of them. But there is also something we can call self-inflicted human rights violations.

Self-inflicted human rights violations can be classified into different subgroups: involuntary self-inflicted human rights violations, voluntary ones, mixed cases or unclear cases, cases similar to risk taking, cases involving individual and their rights, and cases involving groups and the rights of their members.

Involuntary self-inflicted human rights violations

Some people make mistakes, or act in a self-destructive way or in a way that causes involuntary harm to themselves. For example, while poverty has many causes, some people are poor because of their own actions or omissions. Hence they violate their own right to a certain living standard (art. 25 of the Universal Declaration). Other people act in such a way that they make it very hard on themselves to find a job, violating their own right to work.

Voluntary self-inflicted human rights violations

Some people just decide to give up some of their rights voluntarily. They may decide that these rights are not important, or less important than something else, e.g. their religion or culture. Some examples: the participants in certain reality TV shows such as Big Brother, forfeiting their right to privacy; people choosing euthanasia or (assisted) suicide; people choosing to be unemployed etc. As long as these people don’t cause harm to anyone else, it’s difficult to see how one can disapprove of them. After all, it’s their life and their rights, so they alone can decide what to do with them.

Between voluntary and involuntary

It starts to become difficult when the involuntary masquerades as the voluntary. And there are indeed many cases that are mixed or where it’s not clear if we’re dealing with voluntary or involuntary self-inflicted rights violations. Take the school drop-out for example. At first sight, one can say that someone who decides not to finish school takes a voluntary decision to do so, and that we can’t label this an involuntary self-inflicted violation of the right to education. However, is such a choice really voluntary? Remember we’re often dealing with children in these cases. Voluntary means that there is a choice. And a choice implies knowledge of alternatives, as well as knowledge of the different consequences of different choices. Without these two types of knowledge, we can hardly say that there is a choice. This knowledge assumes that there has been education, and hence that we are dealing with an educated grown-up, not a teenage drop-out.

Another example: Muslim girls or women who voluntarily accept the restrictions imposed on their gender by their religion, hence violating their own right to equal treatment and non-discrimination. Again, no problem if it’s really voluntary. But is it? Didn’t their education and social environment condition them in believing that a certain interpretation of their religion is more important than their human rights? Possibly so.

Risk

I talked about risk and human rights before, albeit in another context. Risk is relevant here because it can lead to self-inflicted human rights violations. People who do not voluntarily violate their own rights, or who don’t make mistakes that cause violations of their own rights, may nevertheless act in such a way that they take a conscious risk that their actions will lead to violations of their own rights. Take the criminal for instance. He takes the risk that his actions will cause him to end up in prison, in which case he has violated his own right to free movement, and possibly other rights as well.

Such a risk is also on the borderline between voluntary and involuntary. If you take a risk, it has to do with risking certain consequences you want to avoid. You don’t want these consequences, so if they occur the situation can be said to be involuntary. On the other hand, the fact that you take the risk of these consequences occurring, indicates some level of acceptance of these consequences, but not full acceptance (otherwise it would be silly to speak about a “risk”). And acceptance equals voluntary. To take the same example: the convicted criminal did not enter prison voluntarily, but the fact that he took the risk of ending up in prison indicates that his predicament is to some extent voluntary. He could also not have taken the risk.

The rights of group members rather than individuals

There’s a difference between individuals giving up or violating their own rights, and groups doing the same for their members. Take the example of the Roma minorities in parts of Europe. Many of the Roma parents don’t register their children at birth. Without a birth certificate, it’s hard to receive benefits or access to schools. When girls reach the age of 14 or 15, they are taken out of school and they enter into arranged marriages. Such actions cause serious harm to children’s education, and are a major cause of the continuing poverty of many Roma communities.

Types of Human Rights Violations (1): Fake Zero-Sum Human Rights Violations

We usually, and correctly, think of human rights violations as a zero-sum game (although the word “game” is hardly appropriate here). A rights violation is a harm inflicted by one person on another, for the benefit of the former. And although the benefits for the violator do not always equal the harm for the victim in a quantitative sense, we can safely call it zero-sum. In fact, neither the harm nor the benefits that result from rights violations can always be quantified.

I have represented these harms and benefits in the table below (just look at row number 1 for the moment): a plus sign for “violator value” means that he or she receives some benefits from the violations (otherwise there probably wouldn’t be a violation); a minus for “victim value” means a harm done to him or her. And indeed this is the usual case. But you can see in the table that other combinations of values and signs are possible. But more on that in a moment.

The usual case – number 1 – is what we could call the typical human right violation. It’s zero-sum: the thief who steals from me gains what I lose; the oppressive government that limits my right to free speech or movement or assembly or organization, gains stability and regime security while I lose freedom. In case number 1, the violator always wins, and the person(s) whose rights are violated always lose(s), in roughly the same proportion (if proportions are at all relevant here).

The second, more exceptional case, occurs when not only the victim of the violations loses out, but also the perpetrator. Examples: the suicide bomber (except when he or she is right about Paradise, which I doubt); the use of torture, invasion, drone attacks etc. by the U.S. in its “war on terror” (tactics which may create more terrorists than they eliminate).

The third case is still more exceptional, unfortunately, because it is really a win-win situation, disguised as zero-sum. Two examples. Take the development of the economies of India and China. It can be argued that these economies “take jobs away” from the developed countries, and that in a sense the right to work of many people in the West are violated because of it (the fact that none of this is intentional isn’t sufficient to claim that no rights are violated). However, as these developing countries increase the size of their economies, they will provide valuable and relatively cheap goods and services to businesses and households in developed countries, stimulating the economies there, and boosting disposable income, which reduces poverty in developed countries. As developing countries develop, they will also start to consume more western goods and services, with the same result. Again, no guarantee of course that the gains of one will equal the gains of the other, but at least it’s win-win and not zero-sum.

A second example, also to do with work: when a government withholds or stops unemployment benefits, it violates the rights of the unemployed. But when done under certain circumstances, this will encourage people to find work, and hence will make them better off in the end.

At first sight, these two examples look like typical zero-sum human rights violations, but not when look a bit closer.

The fourth case, where the victim of rights violations benefits from them, and the perpetrators lose out, is extremely exceptional, I guess. I could only come up with one example: the dictator becoming so oppressive that he creates revolt and ushers in his own downfall and the liberation of his people.

Human Rights and Risk

Obviously, we all run the risk of having our rights violated. Depending on where you live in the world, this risk may be big or small. For some, the risk always remains a risk, and their rights are always respected. But that’s the exception. Many people live with a more or less permanent fear that their rights will be violated. This fear is based on their previous experiences with rights violations, and/or on what they see happening around them.

I see at least two interesting questions regarding this kind of risk:

  • Is, as Nozick argued, the risk or probability of a rights violation a rights violation in itself? Do people have a right not to fear possible rights violations?
  • And, to what extent does this risk of rights violations lead to rights violations?

The first question is the hardest one, I think. It seems that the risk of suffering rights violations is there all of the time, although it may be very small for some of us. If there is a right not to live with this risk, then this right would be violated all of the time. What good is a right that is perpetually violated?

However, it would seem that in some circumstances, where the probability that rights are violated is very high, people do indeed suffer. Imagine that you live in a society in which there is a high probability that you are arbitrarily arrested by the police. Even if you are not actually arrested – and your rights are therefore not violated – you are living in fear. It would seem that a right not to live in fear of rights violations does have some use in these high-risk environments.

But if we limit the right not to risk rights violations to situations in which there is a high probability of rights violations, we will have to decide on a threshold: when, at what level of high probability of rights violations, does the right not to risk rights violations become effective? This means introducing arbitrariness.

And another problem: what if you don’t know about the risk? There may be at certain moments a high probability that your rights will be violated, but you don’t have to be aware of this. In that case, you don’t fear the rights violations, and hence there is no harm done to you. It’s difficult to conceive of a right when its violation doesn’t (always) cause harm of some kind, and hence the right not to risk rights violations seems impossible in this case.

The second question is more straightforward. Everyday we see how the risk of rights violations leads to actual rights violations. The perception of risk, and people’s counter-strategies designed to limit the risk of rights violations, makes them violate other rights. The war on terror is a classic example. Ticking bomb torture is another.

The objective of avoiding risk creates risks, namely the risks that our actions designed to avoid risk cause harm. We may have to learn (again) how to live with risk.

Human Rights and International Law (15): Human Rights and Business, and the Problem of Legally Enforceable “Corporate Social Responsibility”

Something more on the impact of businesses or companies on human rights.

What is “Corporate Social Responsibility”?

Companies, like any other human entity with the power to act and influence people’s lives, should respect human rights and should do all that is possible in order to avoid that its activities somehow violate human rights. This is part of “corporate social responsibility” (CSR). The concept of CSR describes the responsibilities of corporations or companies to the wider social environment in which they operate. These responsibilities go beyond the interests or needs of shareholders, workers, employees and customers, and include care for the natural environment and for the human rights of people who are affected in some way by the activities of companies.

Potentially, CSR is of a global nature, because a company can affect the environment of places far away, and the human rights of people in distant countries. Transnational companies (TNCs) especially may have such a global impact, but other kinds of companies as well. For example, an arms producer doesn’t have to be a TNC in order to be complicit in rights violations in different parts of the world.

How can companies violate human rights?

So, human rights are part of corporate social responsibility. The activities of companies can violate human rights in various ways. Just a few quick examples:

  • Workers and employees can be forced to accept labor conditions which violate the rights described in articles 23 and 24 of the Universal Declaration. These labor conditions can even amount to slavery (violating article 4) or child labor (violating article 26) and should include the labor conditions in the supply chain and in companies that work as subcontractors (including outsourcing).
  • A company’s products and services can be harmful to the health of its customers, violating articles 3 and 25.
  • Apart from directly violating human rights, a company can also be complicit in violations committed by others. It can, for example, sell arms and other commodities to authoritarian and dictatorial governments, or governments engaged in an unjust war.
  • Its economic activity in a country can be beneficial to a dictatorial government and can prop up this government (e.g. buying diamonds from a government exploiting its people).
  • Etc.

Making companies responsible for human rights violations?

Many companies have already adopted a code of conduct, voluntarily or forced by public opinion or consumer action (see here for an example). But others haven’t. And there are still numerous companies actively engaging in activities which they know contribute to rights violations. So the question has been raised if companies should be forced to respect human rights. Or, in other words, if corporate social responsibility in general and corporate responsibility for human rights in particular, should be made legally enforceable. And, if so, how this should be done.

Of course, many laws, including human rights laws, already apply to companies and can be used to force companies to respect human rights (for example laws on labor standards, safety, non-discrimination etc.). However, perhaps it would be better to say that many such laws apply to individuals within companies rather than to companies themselves. And that’s ok, because most of the time, human rights are violated by individuals. Someone, somewhere in a companies always decides to sell arms to a warlord, to invest in a dicatorship, to impose grossly inadequate labor conditions etc. So it’s possible to find someone who’s legally responsible. (The ICC, for example, can prosecute individuals acting in their capacities as directors, employees or agents of corporations).

Some problems and solutions

However, there are two problems with this kind of reasoning. One problem is that enforcement of laws is difficult in the case of TNCs or other companies with activities abroad. A company may have its headquarters in one country, which, as it happens, is a country with good laws and good enforcement mechanism. But it’s activities generate rights violations elsewhere in the world, in countries that cannot do much about it, either because they are afraid to scare away the TNCs, or because the governments there are complicit in the human rights violations. So there’s a problem of enforcement.

And the second problem: it may not be so easy to determine exactly which individual(s) within a company are responsible for the harmful activities of the company.

A few solutions to these two problems have been proposed.

  • The first is to use international law and international enforcement mechanisms (in the style of the ICC). I have no problem with that.
  • A second potentially useful solution is to include extra-territoriality in national legislation. Companies can then be prosecuted by the country in which they have their headquarters, and under the law of this country, even if the violations have occured elsewhere. (One can even imagine some kind of universal jurisdiction).
  • A third possible solution is more troublesome: make companies separate entities punishable by (international) law, like individuals and states already are. I see some problems with this one. It would allow individual perpetrators to hide behind their companies and escape responsibility. And it would mean, in some case, that people are punished for the misbehavior of their company. For example, if a company is held liable for rights violations, and forced to pay damages which lead to bankrupcy, the company’s employees would suffer, even though they carry no responsibility for the actions of the company (or for the actions of those in the company making the decisions). That would be collective punishment, which is a morally odious concept.

The Causes of Human Rights Violations (14): The Influence of Democracy on Human Rights

I believe human rights and democracy are interdependent and cannot be properly understood if they are separated from one another. A democracy without human rights, without for example the freedom to speak and to organize, is not really a democracy, and the system of human rights is incomplete when political rights – i.e. rights which ground democracy – are left out. Rights and democracy are prerequisites for each other. What use is the right to vote if people don’t have the right to speak, to have an education etc.? And what use is the right to speak if you’re not allowed to vote? There’s a dynamic aspect to this: a certain level of protection for human rights will lead to the development of (a stronger) democracy; and, vice versa, a certain level of development of democracy leads to better protection of human rights. It’s the latter point that I want to deal with in the current post.

Why do I assume that more democracy leads to better human rights protection? For several reasons. Democratic rulers know that they can’t get away with repression. They’ll be voted out if they try, or, worse, they’ll suffer the consequences of the rule of law, imposed on them by other branches of power in a system of checks and balances and separation of powers. Democracies also have powerful non-violent mechanisms for dispute settlement. And, finally, democracies need human rights to function adequately, so they have an added incentive to respect them.

However, all this isn’t just my personal assumption. Most of the political science literature supports the statement that democratic political systems decrease rights violations and repression (see here for an overview). What the literature doesn’t agree on is the pattern of the influence of democracy on rights. There are mainly 3 models doing the rounds: a linear one, an inverted u-shape model, and a threshold model.

1. Linear model

This model, which is the most popular one, states that every step towards democracy is a step away from repression and rights violations (perhaps with “diminishing returns” for human rights once democracy has reached a certain – high – level of development, in which case the linear pattern would be slightly bended downwards).

2. Inverted U-shape model

This model states that well-developed democracies do indeed offer better protection of human rights, but it also states that very authoritarian regimes are also not characterized by high levels of repression since these regimes enjoy such a high level of regime security – perhaps through previous repression – that repression is no longer necessary. This model is also called MMM or “more murder in the middle”. Regimes in the middle are unstable, mixed, and perhaps in a transition to democracy or to strict authoritarianism, and therefore may feel it is necessary to use repression.

3. Threshold model

This model, contrary to the first one, states that not every step in the development of democracy improves the rights situation. Only after democracy has reached a certain level of maturity (a “tipping point”) will repression diminish.

Examples

Examples of model 1 are here and here. Other examples are cited here. Examples of model 2 are here and here. An example of model 3 is here.

Bottom-line?

So, which one is closest to reality? Difficult to say. Much depends on the data used, but still more on the definitions. All 3 models have some intuitive appeal, but only if use different definitions. Model 2 for example is convincing, but only if we limit “repression” and “rights violations” to attacks on physical integrity rights. A well-established and very authoritarian regime will probably not need to go to such extremes. On the other hand, a weak authoritarian regime, threatened by a strong internal (democratic) opposition will be more likely to use force and violence. But all other human rights, apart from the physical integrity rights, are still heavily violated in a “safe” authoritarian regime. So it’s a bit dubious to say that such regimes are not “repressive”.

What is Democracy? (42): A Luxury That Some Countries Can’t Afford?

Are some countries better off with a dictatorship? With a strong man able to make tough and unpopular decisions without fear for the next election? Are some populations willing to accept this and trade some political freedoms for more security and physical safety?

However, in what way is democracy deficient in delivering security? And is dictatorship better equipped? Let’s look at these two questions in turn.

Democracy and human rights are said to promote discord, chaos and even violence, especially in ethnically or religously divided countries. Indeed, rights such as free speech can be used to incite communal hostility and violence, and democratic elections cannot function if there is no division and contest between groups. The adversarial aspect of democratic elections often results in communal tension and even violence, especially in what we could call immature or imperfect democracies.

The argument for stability and security seems stronger when it is used against democracy than when it is used against human rights. It is evident that most groups that use violence do so because they feel that their rights are somehow violated; respect for human rights will therefore diminish rather than increase violence.

Regarding democracy, it is obviously adversarial and it does divide society into different, antagonistic groups. However, it does not push divisions to such an extreme that living together peacefully becomes impossible or undesirable. The unwillingness to live together is not caused by democracy but by fundamental convictions concerning religion, morality, justice etc. Democracy does not even enhance this unwillingness. On the contrary, it offers ways to bridge fundamental differences between groups (e.g. it offers places of discussion and negotiation) and it creates mechanisms which guarantee peaceful coexistence when it is impossible to bridge differences (such as federalism, power sharing, tolerance, religious freedom etc.).

We can see a two-way causation at work here: although democracy undoubtedly needs national unity, it is also a prerequisite for this unity. A group will question the national unity, will revolt, will cause violent conflicts or will try to separate only if it is discriminated against, if its human rights are violated, if it does not enjoy tolerance and respect for its difference, if it is excluded from power or if it is not granted local autonomy. If, in other words, it does not live in a democracy. National unity, the conviction of belonging to the same group and of sharing the same destiny whatever the differences, can only arise as a result of debate. Freedom of expression and elections can indeed be dangerous in a divided society, but without it, it is hard to see how divisions can be overcome or accommodated, as opposed to merely suppressed.

And this suppression is precisely the so-called major advantage of authoritarian regimes, compared to democracies. An authoritarian state is undoubtedly better equipped to suppress communal hostility. The ability to maintain communal peace is a classic argument in favor of authoritarian forms of government. Indeed, these forms of government seem to be able to separate warring factions, to avoid chaos, violence, separation and disintegration and to focus attention on loyalty, patriotism and the community. They limit the use of rights because rights are a means to incite or aggravate divisions. These regimes are able to violate rights if this is deemed necessary in order to keep antagonists apart.

However, what is the cost of authoritarian peace? Grave violations of human rights in the first place, and more violence than before. Rights violations often create more violence than the violence which was the initial reason to violate rights. Violating rights in order to suppress communal tensions is counterproductive in the long run. A strong hand always causes revolt and violence, the opposite therefore of what is intended. Rights violations, which are deemed necessary for the preservation of communal peace, cause violent opposition and revolt. They can lead to violent revolt even when they do not imply the use of violence. Without human rights, it is impossible to express claims and people who cannot claim something will resort to more extreme means in order to get what is theirs. Authoritarianism promotes the evil it wants to combat, although in the short run rights limitations and the use of violence may seem the only alternative.

Democracy is necessary in a divided society because the alternative – oppression – only reinvigorates what is tries to eliminate.

The Causes of Human Rights Violations (13): Rights Suffering Under the Law, The Problem of Legal Human Rights Violations

This post is about the law violating human rights. I understand that this is only one of many ways in which rights can be violated, and certainly not the most important one. Genocide, poverty, torture, war etc. are all major human rights violations, but only rarely if ever do they occur because a law instructs people to kill, maim or impoverish their fellow human beings. On the contrary, many human rights violations result from breaking the law, and the law has often been the last refuge for human rights.

So we have two different types of rights violations, illegal and legal violations.

1. Illegal violations

Illegal violations are acts that violate human rights and at the same time break laws that make these violations illegal. This type of rights violation always implies some kind of inefficiency in the national justice systems. These justice systems are supposed to prosecute illegal rights violations, but often fail to do so, for two possible reasons: inability or unwillingness. They may be grossly inefficient, or they may be corrupt and complicit with the rights violators. So illegal violations may be divided into two subtypes:

1.1. Illegal violations caused by government incompetence

These violations occur because of the government’s inability to stop them. An example would be robbery or murder.

1.2. Illegal violations caused by government complicity

These occur because of the governments unwillingness to stop them. The judicial and police systems are covering for the rights violators. An example could be torture in Guantanamo.

2. Legal violations

Legal violations, on the other hand, are rights violations that are condoned or imposed by the law and by the justice system. This type as well can be further divided into two subtypes:

2.1. Violations that are imposed by the law

Some examples: capital punishment, jim crow, some aspects of Islamic law, blasphemy laws, lèse majesté laws, homosexuality laws…

2.2. Violations that are not punished by the law

These are acts which are not illegal because the law remains silent on them, but which violate human rights. This type can be further divided. Violations are not punished by the law

  • either because it is believed that these violations should not be considered a crime (the contrary act is then often believed to be a crime) (case 2.2.1.)
  • or because it is difficult to determine the party responsible for the violations (case 2.2.2.).

Some examples of case 2.2.1.: in some countries there is no legal concept known as marital rape; other countries do not outlaw abortion (for those who agree that abortion is a human rights violation). Some examples of case 2.2.2.: poverty, famine…

One caveat, however. “Legal” in this setting means “legal according to national law”. One could justifiably claim that there is no such thing as legal human rights violations since international law makes all violations illegal and renders national laws condoning or imposing violations, null and void. However, this is theory. In practice, national legal systems continue to impose and enforce, sometimes quite effectively, laws which either condone or impose violations.