The Ethics of Human Rights (78): Our Duties to People in Other Countries

If we leave aside the minority view that we don’t have any moral duties to other people, as well as the somewhat more common view that we only have duties to a very limited group of people (our tribe, family or nation for example), then we end up accepting that we owe something to the rest of humanity. But what exactly? I don’t want to discuss whether we owe human beings in general the same as what we owe the people we know or the people we are associated with. What I’m interested in here is simply the nature of our obligations to “distant” people, and the basis or reasons of those obligations. Whether they’re stronger, weaker or just as strong as the obligations to “those nearer and dearer” is not the topic of this post (I have an older post about that).

1. What should we do? What are our obligations?

I think there are basically three types of obligations to distant others:

  • we have a duty to protect their human rights; this implies both abstaining from violating their rights and assisting them in the protection of their rights when those are violated (this is a legal duty)
  • we have a duty to create a more just global order (a duty of justice)
  • and we have a duty to act benevolently (a duty of beneficence).

1.1. Protect rights

This duty is in fact a set of different sub-duties:

  • A negative duty to stop violating rights ourselves. For example, if we apply a strict policy of closed borders, we violate certain rights of people in other countries (their freedom of movement, their right not to suffer poverty etc.). Our duties demand that we stop this policy.
  • A negative duty to stop assisting others who violate human rights. For example, the oppressive government of another country violates the rights of its citizens by means of weapons supplied by us (or by firms established in our country and exporting with our approval). Our duties demand that we stop assisting this government in this way.
  • A positive duty to intervene in order to stop human rights violations. For example, the West should have intervened when the Rwandan genocide was in progress.
  • A positive duty to intervene in order to prevent human rights violations. For example, the West should have intervened when it became clear that a genocide was about to occur in Rwanda.
  • A positive duty to intervene in order to create the preconditions for human rights. For example, when the institutions in other countries are dysfunctional or absent (in the case of failed or weak states) we have a duty to assist these countries’ efforts in institution building, so that they end up with institutions capable of protecting the rights of their citizens.
  • A positive duty to intervene in order to assist people’s efforts to overcome their poverty. Since poverty is a human rights violation, this is not really a separate duty: we shouldn’t create or aggravate poverty in other countries, we shouldn’t assist when others (e.g. foreign governments) create or aggravate poverty, and we have a duty to end and prevent poverty, and to create the institutions that make it possible to end and prevent poverty. However, I mention it separately because some of the specific means of intervention are peculiar to poverty, and don’t apply to other human rights (take for example development aid).

Our duties to intervene can cover

  • either only gross violations of some human rights (crimes against humanity, emergency action to alleviate widespread human suffering resulting from war, civil war, famine, drought, natural disasters or other humanitarian crises) – also called r2p
  • or violations of human rights in general.

Gross violations may warrant specific types of intervention that are not allowed for violations in general, for example military intervention. More mundane violations require other types of intervention, such as aid, conditional aid, diplomatic intervention, economic boycotts, universal jurisdiction etc. Intervention can also be either multilateral through the UN, or unilateral. Preferably it’s a legal form of intervention, but if necessary it can also be illegal – morality trumps law.

1.2. Create a just global order

Perhaps we should do more than just rid the world of human rights violations and extreme poverty. The world is a very unequal place, and will continue to be so even when all human rights are protected and poverty has been eliminated (given a certain definition of poverty). So maybe we also have a duty to create a more egalitarian distribution of wealth, resources and/or opportunities across countries.

However, this duty is much more controversial than the previous one (1.1). Contrary to human rights violations, there is also no legal standard prohibiting an unjust and grossly unequal global order. Hence, given the uncertainty about this second type of duty, it’s safe to argue that we should take it to be a negative duty at most. In other words, we should not make the world more unequal and more unjust than it already is, and we should try to remove or improve institutions that make the world order unequal and unjust. More specifically, we have to

  • remove unfair trade agreements or trade restrictions
  • remove the current system of national border restrictions and allow freedom of movement
  • pay reparations or otherwise correct the lingering effects of a violent and exploitative history
  • improve economic regimes that make it impossible to have equal and fair access to natural resources
  • improve international institutions, shaped by the wealthy countries to their advantage
  • etc.

Obviously, many of these actions also remove human rights violations and are therefore covered by the first type of duty. However, even when they don’t they may be required by morality.

1.3. Act benevolently

The classic description of this duty is Peter Singer’s. He gives the example of a child drowning in a pool. We all believe that there’s a strong duty to save this child, even if there’s a certain cost to ourselves – e.g. it’ll ruin our expensive suit. The equivalent of the drowning child happens all the time in distant places, and there are systems in place that allow us to save people all over the world, at a cost that isn’t much higher than the price of a suit. In many cases, all we have to do is donate some money.

This duty to act benevolently can be interpreted more widely. It can involve more than the requirement to save people from disaster. Singer claims that it implies a radically egalitarian obligation: we ought to help others until the next increment of aid would do more good spent on ourselves than transferred to others. Practically, this means helping others until we are ourselves barely better off than the rest. This is extremely demanding, and very controversial, but the narrow interpretation of the duty of benevolence is widely shared.

Again, these three different duties are not always clearly different. There are overlaps. The duty to act benevolently is partly justified by the rights of the beneficiaries: a drowning child and a starving Ethiopian have a right to life. Creating a more just global order will improve respect for people’s rights, and improving respect for people’s rights will make the global order more just. Still, there are differences between these duties and it’s interesting for human rights activists to consider the possibility that people can appeal to moral obligations that go beyond respect for their human rights.

2. Why should we do what we should do? What is the basis of our obligations?

So, now that we stated what we should do, how can we explain why we should do those things? There may be different reasons why we have obligations to help other and distant people:

  • We may be responsible ourselves for their predicament (or at least partially): we may have violated their rights, helped others to violate their rights, or established and maintained an unjust international order (for example because we have been colonizers or because the international trade system that we have imposed is biased in our favor).
  • People have rights, and these rights by themselves create a duty for everyone else to respect and to promote respect for those rights. The duty to protect other people’s rights is not a duty only for those who are responsible for violating these rights. And neither is it a duty limited to those who have a special relationship with victims of rights violations or to those whose social duty it is to promote respect for rights (e.g. judges or police officers). We all have this duty, and we have it simply because others have rights. Hence, we pay taxes that fund the legal institutions that protect citizens against others who violate their rights, that fund schools and hospitals etc. There’s no reason to think that this does not apply globally as well.
  • We may have an obligation to help other and distant people not because their rights create a moral duty to assist, but because other moral values such as justice and/or benevolence or beneficence create such such a duty. If it is in our power to do something about suffering, injustice and inequality without too much of a sacrifice of our own interests and without violating some deontological demands (e.g. do not kill), then justice and/or benevolence may require that we do it.
  • Duties to help others can also be based on enlightened self-interest: national governments have a duty to protect the rights, security and prosperity of their own citizens, and in some cases this means protecting the rights, security and prosperity of people in other nations. The poor and oppressed may become refugees; civil wars may spread to other countries or may foster international terrorism; unstable economies may harm the global economic system and the environment etc. Conversely, free and prosperous nations benefit the rest of the world because of the gains of trade, cooperation in science and culture etc.

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.

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.

Cultural Rights (11): Genocide

 

Genocide is the deliberate, systematic and violent destruction of a group (an ethnic, racial, religious, national or political group). This destruction can take many forms:

  • the outright murder of (the majority of) the members of the group
  • inflicting conditions of life calculated to bring about destruction
  • measures intended to prevent births
  • systematic rape as a means of terror and a means to “dilute” the identity of the group
  • forcibly transferring children of the group to another group
  • destroying the (cultural) identity of the group (forceful assimilation; imposition of a language, religion etc.)

“Systematic” is important here. Short-term outburst or pogrom type actions will probably not amount to genocide.

The “intent to destroy” is also crucial when labeling actions or campaigns as genocidal. The destruction, however, doesn’t have to be physical (i.e. large-scale murder). As is obvious from the list above, cultural destruction or destruction of the groups’ separate identity is also genocide.

Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide states that genocide is

“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group…”

The “in part” bit has led to some confusion. When is the part of the group that is being destroyed big enough to warrant the label of genocide? There is still some discussion about absolute numbers of victims, percentages of the total population of the group, degree of killing in the territory controlled by the killers etc.

Of all the generally recognized genocides that have taken place throughout human history, the most infamous ones occured in the 20th century (the Holocaust, Rwanda, Armenia, Cambodia, Stalin’s forced famines, Mao’s Great Leap Forward etc.).

Before a genocide is actually carried out, the perpetrators usually take a number of “preparatory” steps:

  • dehumanization of a group (vermin, insects or diseases…)
  • promotion of narratives of “us and them
  • hate propaganda, polarization
  • criminalization of a group (group has to be eliminated “in order that we may live”; them or us)
  • identification of victims (“yellow star”)
  • concentration of victims (ghettos)
  • mobilization of large numbers of perpetrators
  • state support and logistical organization (arms, transport, training of militias etc.)

The causes of genocide are often hard to pin down. They include:

  • long-lasting tensions
  • imbalances in political power
  • imbalances in wealth or economic power
  • scarcity
  • religious incompatibilities
  • indoctrination and propaganda
  • civil war
  • ideals of cultural purity and autonomy
  • ethnological constructs (e.g. the creation of “hutuness” in Rwanda) which get a life of their own
  • colonial heritage
  • outside indifference
  • etc.

Why Do We Need Human Rights? (8): The Harm Principle and the Freedom to Damn Yourself

The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. John Stuart Mill

This is the so-called “harm principle“, for which Mill has become famous. In other words, people have the right to “damn themselves”, as long as they don’t hurt others in the process. If being an alcoholic or drug addict is part of a person’s vision of the good life, and if it doesn’t make him beat his wife or children, steal from others etc., then no government should intervene.

Obviously, this is limited to people who act rationally and are sane. Who, in other words, know the consequences of their actions, and then primarily the consequences for themselves. In some cases it must be possible to ignore someone’s desires for the sake of his or her own well-being. Some people have to be coerced for their own good because they fail to understand and to pursue their good or their interest autonomously. I’m thinking of children for example. No one would sincerely believe that we would hurt their freedom if we allowed them to engage in unsafe sex or to abandon their studies. They cannot assess the consequences of their actions and the harm they inflict on themselves.

In general, however, we should allow people to decide for themselves, to determine their own way of life and their own interests, as long as their choices don’t impact other people. We should do so even if we believe that the people in question have chosen a wrong, inferior or offensive way of life and harm themselves as a consequence of the way in which they understand their interests.

We can, of course, advise people and try to convince them, but we should be very careful if we want to impose a way of life on people, no matter how reasonable and beneficial this way of life seems to us. What is best for me is not necessarily best for everybody. Most people value the possibility to decide for themselves. It is much more dangerous to enact laws that only deal with people’s own lives than it is to enact laws that deal with social relations.

Even if the state can encourage or force people to pursue the most valuable ways of life, it cannot get people to pursue them for the right reasons. Someone who changes their lifestyle in order to avoid state punishment, or to gain state subsidies, is not guided by an understanding of the genuine value of the new activity. … We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. A perfectionist policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka

That is why we can only propose the “good way of life” (if we have an idea of what it is) and argue for it (and we need democracy and human rights to do that). Except in very exceptional cases, we should not impose this way of life and we should accept other ways of life, not because these ways of life are better, but because they are other people’s autonomous choices. The good way of life should be led from the inside. It should be a choice, a conviction, not something that is imposed from the outside. If your life is not your choice, it can never be good.

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 (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 (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.

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.