Cultural Rights (15): Crimea and the Ethics of Secession

I’m afraid I’m one of those people who can’t remain silent when everyone else is talking about something. So, a few words about the situation in Crimea. The Russian government and some of the Russians in Crimea are making the argument for secession on the basis of national self-determination and the rights of Russian speakers in the region. It may be useful to have a look at the moral merits of that argument, first in a general and theoretical sense and then applied to the specific case of Crimea. (I’m not discussing the legal merits here).

Ideally, the right to secession shouldn’t exist. An ideal state grants individuals and cultural or ethnic groups all the rights they require, including (limited) self-government and self-determination. Even a very large and diverse state could – and probably should – do that. That is why the right to secession can only have a place in non-ideal theory. But what place? I believe it won’t be among the priorities. In the non-ideal world – the current one – the right to secession should not be the first option, mainly because other, less risky means to realize certain rights would often be available. For example: devolution, agitation, representation etc.

Secession is, most of the time, a one-sided decision that doesn’t have the approval of the state from which a territory wants to secede. Hence the risk of violent conflict, and this risk should be balanced against the possible benefits of secession, especially when non-secessionist and therefore less risky means can yield the same benefits. But even if we’re dealing with a mutual decision, secession may not be the optimal solution because the seceding entity can become the kind of state that doesn’t guarantees all the rights of the new minorities living within its new borders. I wouldn’t even call a mutually agreed separation a secession, by the way.

Of course, there will be cases of extreme oppression that warrant unilateral secession on the grounds that other, less risky means are simply unavailable. For example, it’s difficult to make the case that a secession of part of the territory of North Korea – even one that turns violent and deadly – is not the right thing to do, morally speaking. Both the specific right to self-determination of the seceding Koreans and their other rights would seem to warrant a certain cost.

So what are the reasons that make secession the morally right thing to do? If we agree to limit the concept of secession to a one-sided decision then a secession is justified when:

  1. the purpose is the realization of the human rights of a group of people – including their right to self-government – and this realization is impossible by any other, less risky means within their current state (secession for the purpose of a power grab is then not justified);
  2. the new political entity will most likely grant a higher level of protection of human rights within its territory, including the rights of the new minorities;
  3. and the secession decision is approved by a majority – or perhaps a super majority – of the seceding group. (Self-government is one of the rights that may justify secession, and so it can’t be violated by the act of secession itself).

There may be more necessary preconditions for secession to be ethical, but I believe the combined presence of these 3 are a bare minimum. (The same preconditions would have to be present in the case of bilaterally agreed “secession”, with perhaps the added condition that also a majority of the remaining state should agree. But I’m not sure about that).

The problem, of course, is that much of this is by definition unknown beforehand. The group that wants to secede knows the rights violations it now endures, but doesn’t know the possible effectiveness of non-secessionist means or the possible risks of secession. The nature of the future government of the new political entity is unknown as well, and it’s therefore uncertain how that government will perform regarding the rights of both the new minorities and the majority.

Let’s now return to the case of Crimea. I’m obviously not an expert on the region, but as far as I can tell, none of the three conditions for justified secession are present. It’s clear that the Russian speaking majority in Crimea (if it is a majority) has (or had?) at its disposal other non-secessionist means to further its cause. The upheavals in Kiev did not make long term improvements regarding the rights of the Russian speaking majority in Crimea impossible. There was no reason to believe that the new government of the Ukraine would engage in massive rights violations in Crimea. And, in any case, it’s not clear that the inhabitants of the Crimea – including the non-Russians – will have a higher level of rights protection in the Russian state or in a separate, new state under the tutelage of Russia. If anything, the opposite is more likely. (If Ukraine were to become a member of the EU, that would mean even better prospects for the rights of all Ukrainian citizens).

The second condition for justified secession is equally absent. Whether Crimea will become part of Russia or a separate state in Russia’s sphere of influence, past experience with minority rights in Russia or its dependencies isn’t reassuring.

And with regard to the third condition, we can all agree that the referendum was a sham. Under the circumstances, it’s impossible to know whether or not a majority of the inhabitants of Crimea are genuinely in favor of secession from Ukraine. A rushed referendum under the threat of violence doesn’t tell us anything apart from the fact that even Putin craves the appearance of democratic legitimacy. Perhaps a year ago we could have known. But not anymore.

More on cultural rights here.

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

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

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

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

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

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

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

Which cultural rights?

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

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

Justifications of cultural rights

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

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

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

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

Criticism of cultural rights

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

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

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

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

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

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

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

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

Actionability of cultural rights

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

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

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

Realization of cultural rights

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

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

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

What is Freedom? (2): A Right to Self-Ownership?

Libertarians stress the importance of the right to self-ownership. I would argue that it’s an interesting and useful right in the context of human rights more generally, but also one that is a bit of a problem. When we say that people have a right to self-ownership we mean that they own themselves in just the same way that they can own objects. It follows that people have the same rights over themselves and their bodies as they have over objects:

  • they are free to use their bodies as they please
  • they can claim that others, including the government, refrain from using it
  • they can use the government to protect themselves against others trying to use it
  • and they can transfer property rights to others.

Self-ownership rights understood in this sense are the core of libertarian philosophy and are believed to justify standard libertarian policy recommendations such as the elimination or reduction of taxation, the freedom to sell organs, use drugs, engage in all forms of consensual sex etc. And indeed, self-ownership can be an attractive right to non-libertarians as well: it can be used to justify the prohibition of slavery and rape, to protect people’s rights to euthanasia and assisted suicide, to solve the forced transplant dilemma, to support the rejection of capital punishment on the basis of a theory of non-instrumentalization etc.

However, useful as the right to self-ownership can be, it’s not without drawbacks. The right can, and in the minds of most libertarians does imply a denial of the obligation to help others in need (apart from an obligation based on prior wrongdoing and assistance based on voluntary agreement). Such an obligation would be a form of slavery. It would mean the forced use of our bodies and labor power for the benefit of others. Libertarians often reject taxation for the same reason. All this seems needlessly selfish and contrary to moral intuition.

It also seems incoherent. Most if not all libertarians accept taxation for the funding of some collective goods such as highways and the police force. It’s not clear how they can accept a limitation of the right to self-ownership for the sake of some types of taxation but not others. Taxation is always the non-consensual use of persons for the benefit of others, whatever its purpose.

If you view the right to self-ownership as an absolute right – or axiomatic – you may wind up accepting some absurd conclusions: you’ll have to claim that it’s impermissible to gently push the arm of a driver holding his steering wheel and heading towards of group of school children, because that would mean using the body of the driver without his consent to aid others in need. Self-ownership therefore can’t be an absolute right, at least not in a non-solipsistic world. Minimally, it should be limited for the sake of the self-ownership rights of others: imprisoning murderers or slave holders means limiting their self-ownership rights for the sake of the same rights of their potential victims. And, on top of that, it’s probably also necessary to limit self-ownership rights for the sake of certain other values. The problem is that it’s difficult to think about a limited right to self-ownership: every limit to that right seems to destroy it completely. Either you own yourself or you don’t.

There are, I think, three ways to react to these problems with the right to self-ownership.

  • You can bite the bullet and maintain that the right to self-ownership is the fundamental right and should be absolute whatever the consequences.
  • Or you can hold on to the right but only as one value amidst others, and to be balanced against others.
  • Or you can abandon it, claiming that it only has a rhetorical value, and that it’s better to focus on the “derivative” rights – such a the right not to suffer slavery – and try to justify those derivative rights independently (e.g. an anti-slavery movement doesn’t need the concept of self-ownership in order to be effective).

As a good value pluralist, I prefer the second option. The rhetorical and unifying force of the right to self-ownership should not be underestimated. If we manage to prune its extreme libertarian outgrowths (such as selfishness and extreme marketization in the form of organ sales or the “right” to sell yourself into slavery), we’re left with a powerful concept that can be of great value in the struggle for individual liberty (which isn’t a libertarian monopoly by the way). But it can’t guarantee liberty by itself. It depends on and is only meaningful together with a theory of ownership of the rest of the world. Imagine that one other person owns the entirety of the world, minus yourself (i.e. you only have self-ownership). That means that when you want to eat you’re a thief, and when you want to move about you’re trespassing. That’s hardly freedom. Self-ownership without a theory about how the rest of the world is owned can be utterly meaningless.

So the question then turns to the way in which nonhuman things and beings should be owned and distributed. Who can own what? Libertarians would claim that self-ownership provides a basis for ownership in general, and they use Locke’s theory of property to argue for that claim (I own myself, therefore also my labor, therefore also the fruits of my labor – since hardly anything in the world today hasn’t been touched by human labor, almost everything can be said to be owned by someone).

However, I argued elsewhere that this is a difficult if not impossible move. Hence, ownership should be justified independently from self-ownership, and should probably include the notion of a “fair share”, whatever that means. Perhaps this notion can be based on another element in Locke’s theory, namely the “Lockean proviso” that we should leave enough and as good for others, or on some form of sufficientarianism (meaning that all should have enough resources for basic subsistence, for a decent life, for a life worth living etc.). Or it could be based on the persuasive claim that the earth is the common ownership of all, regardless of the labor some have put into it. But I’ve already discussed those issues here and here respectively.

Lies, Damned Lies, and Statistics (29): How (Not) to Frame Survey Questions, Ctd.

Here’s a nice example of the way in which small modifications in survey questions can radically change survey results:

Our survey asked the following familiar question concerning the “right to die”: “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?”

57 percent said “doctors should be allowed,” and 42 percent said “doctors should not be allowed.” As Joshua Green and Matthew Jarvis explore in their chapter in our book, the response patterns to euthanasia questions will often differ based on framing. Framing that refers to “severe pain” and “physicians” will often lead to higher support for ending the patient’s life, while including the word “suicide” will dramatically lower support. (source)

Similarly, seniors are willing to pay considerably more for “medications” than for “drugs” or “medicine” (source). Yet another example involves the use of “Wall Street”: there’s greater public support for banking reform when the issue is more specifically framed as regulating “Wall Street banks”.

What’s the cause of this sensitivity? Difficult to tell. Cognitive bias probably has some effect, and the psychology of associations (“suicide” brings up images of blood and pain, whereas “physicians” brings up images of control; similarly “homosexual” evokes sleazy bars, “gay” evokes art and design types). Maybe the willingness not to offend the person asking the question. Anyway, the conclusion is that pollsters should be very careful when framing questions. One tactic could be to use as many different words and synonyms as possible in order to avoid a bias created by one particular word.

Gender Discrimination (21): The Politics of the Body

The politics of the body, or “body politics”, is a concept, originally used by early feminists I believe, to describe government policies or laws and cultural or social practices used by society to regulate and control the human body. Feminists focus on the female body but the case can be made that society controls both the female and the male body, obviously not always in the same way. The concept is also used to describe the opposite: the struggle against the social and political powers that try to control the body and the act of reclaiming bodily self-control, or corporal self-determination. Body politics has therefore a positive and a negative meaning: it’s both subordination and emancipation.

Corporal self-determination is obviously an important value. People should, in general, be able to do with their body what they want, free from interference by the state, by individuals or by groups in society.

Here are some examples of body politics:

Abortion

Whether or not you believe that abortion should be allowed, you have to accept that legal prohibition and moral dissuasion of abortion are examples of body politics. In both cases, women who want an abortion lose their power to decide autonomously what to do with their bodies; society imposes rules on what individuals are allowed to do with their bodies; and power – legal or moral – is used to enforce these rules. You may believe that these rules are necessary in order to protect an overriding value that trumps the value of self-determination, in this case probably the value of the life of the unborn infant, or perhaps even the right to self-determination of the unborn infant. But you can’t dispute that you engage in body politics.

Organ trade

Similarly, legislation or social taboos prohibiting the free trade of organs (see also here) impose restrictions on the things people can do with their bodies. However, the analogy with abortion isn’t perfect, because proponents of restrictions can arguably claim that the sale of organs isn’t an expression of self-determination but of the lack of it: it’s typically poor people who are driven to the extreme of organ sale as a means to stay alive, while the richer you are the easier it is to get an abortion. Organ sale is then not an expression of the freedom to do with your body what you like, without paternalistic interference, but an expression of necessity and lack of freedom. Whatever the merits of this argument, restrictions on organ trade are clearly an example of body politics.

Capital punishment, corporal punishment, imprisonment

The state uses power in order to enforce or enact criminal punishment, and this is often power directed against the body of the convicted criminal and eliminating the criminal’s corporal self-determination. There’s also the quasi-institutional practice of prison rape.

Sex trafficking and slavery, sexual violence, arranged marriages

Cultural norms regarding the acceptability of sexual violence (e.g. rape as a form of punishment and female genital mutilation), of arranged marriages (which can be labeled a form of sexual violence), of the sale of children or wives for the purpose of prostitution are also examples of body politics. The women and children in question obviously lose their corporal self-determination.

Gender discrimination

Gender discrimination, the inferior treatment of women, and the imposition of gender roles, whether legally sanctioned or not, are other examples, although with a twist. Gender discrimination can remove the power of corporal self-determination of the women who fall victim to it – e.g. in the case of gender discrimination as expressed in sexual violence or in rules restricting the freedom of movement of women. But it doesn’t have to. For example, gender discrimination in wages (the wage gap) doesn’t affect corporal self-determination.

The body politics inherent in gender discrimination is more evident in the origins of discrimination than in the results. Gender roles, which often result in gender discrimination, are based on certain convictions regarding the physical inferiority of women (e.g. their lack of physical strength), or on the belief that the female body is made for specific tasks, and is perhaps even better than the male body for these tasks.

Likewise, rules that discriminate against women and restrict the things they can do, are generally based on dubious theories regarding the nature of the female body. Women are said to promote carnal lust, and their equal participation in life would have disrupting and destructive consequences.

Homophobia

Similarly, legislation or social taboos against homosexual relationships remove corporal self-determination and are based on certain beliefs about the nature of the human body.

Clearly, this isn’t a complete list of all possible cases of body politics, but it can serve the purpose of illustration (other examples could include rules prohibiting interracial marriage, bestiality taboos, legislation against assisted suicide etc.). What is also clear is that every case isn’t equally detrimental for self-determination. Some cases can even be justifiable from a liberal perspective. Self-determination, after all, isn’t the only value, and neither is it a value that necessarily trumps other values.

The Ethics of Human Rights (25): Free Organ Trade and the Commodification of the Body

The case for allowing free organ trade seems like a no-brainer. Many countries, including the U.S., now forbid the sale and purchase of most organs, and, as a consequence, sick people die because of organ shortages, and poor people stay poor because they can’t “monetize” their organs. Poor people suffer a “double injustice”:

[We say] to a poor person: “You can’t have what most other people have and we are not going to let you do what you want to have those things”. (source, source)

However, when organs are freely tradable, many extremely poor people, especially those struggling to survive, will be tempted and even forced to sells parts of their bodies. Moreover, the rich will be able to benefit disproportionately from the market because prices will be high, given that demand will outstrip supply in an ageing society. The most obvious means to balance supply and demand, and to force down prices and allow the less than wealthy patients to participate in and benefit from the market, is to create a global market without trade restrictions, an organ-GATT if you want. This will bring in the masses of poor people from Africa and Asia, pushing up supply of organs and hence bringing down prices. This will supposedly benefit both the less than wealthy patients and the very poor donors. The latter will benefit even with prices for organs falling because of increased supply, because they start at extremely low levels of income. Even the sale of a cheap kidney can mean years of income for them.

The problem with this global market is that organ extraction will take place in sub-optimal medical conditions, creating risks for donors (if you can still call them that), also in the case of renewable tissue donation. Paradoxically, the poor are driven to risk their lives in the process of saving their lives. Even in the best healthcare systems in the world, organ extraction is often very risky. In the U.S., the extraction of a section of the liver, for example, carries a risk to the donor’s life of almost 1 percent (source). That’s not negligible. I doubt anyone would cross a street if that were the odds of getting hit by a car.

I’m convinced that an opt-out regulation for cadaveric donors (meaning that everyone’s a donor after death unless an explicit opt-out), combined with non-financial encouragement of voluntary pre-death donation, is the best way to solve the organ shortage problem. A free organ market will obviously also solve the organ shortage problem, but will create new problems instead.

The distinction between renewable tissue such as bone marrow, and non-renewable organs such as kidneys, eyes, etc. is a relevant one. If the donation of renewable tissue can take place in medically safe conditions, I can’t see a problem with being allowed to trade, on the condition that poor patients have the same opportunity and power to buy as rich ones (and that’s a pretty big “if”). The needs of the sick or disabled who risk dying or suffering because of a lack of available organ, clearly outweigh any remaining concerns.

One of those remaining concerns is the problem of the commodification of the body. Organ trade is obviously commodification, and commodification is dehumanization. I don’t want to imply that organ trade liberalization necessarily results in “organ farms”, dystopian places where people are “cultivated” solely for the harvesting of their organs – although the Chinese criminal justice and capital punishment system for instance comes awfully close. (I sometimes wonder if deterrent and punishment is the real goal of executions in China). But people can commodify and dehumanize themselves. And although we should normally respect people’s self-regarding choices, what looks like a choice may not always be a true choices.

The logic of economics tends to overtake all other domains of life, even those where it doesn’t belong and can do serious harm. Why is it so evident to so many that body parts are something that it supposed to be tradable? Even the most outspoken proponents of organ trade draw the line somewhere: they won’t allow people to sell parts of their brains, I guess, or their children and wives, or the parts of aborted fetuses (perhaps fetuses specially conceived and “harvested” for their parts), not even if this would fill a great social need. And yet they accept as natural that non-vital body parts should be tradable and seem to forget that irreplaceable body parts form our body and that we can hardly exist without our body. If we allow total freedom of organ trade, we will have to accept the case in which a poor father decides to sell off every single one of his organs for the survival of his family. After all, he is the master of his own body, he has a right to self-determination, and the government has no right to limit what masters of their own bodies should be allowed to do with it. If you don’t accept the legitimacy of this extreme case, you accept limitations on the freedom to trade organs. Since most opponents of organ trade also accept certain types of trade – e.g. renewable organs such as bone marrow and skin – the disagreement isn’t a principled one but one about degree.

Underlying the argument in favor of organ trade is the fiction of a market populated by free, equal and self-determining individuals who make free and rational economic decisions and agreements on what to sell and buy, free from government interference. The reality is of course that organ trade isn’t an expression of self-determination or autonomy but rather of the absence of it. And that organ trade, just like a lot of other trade, is radically asymmetrical: some are forced to sell in order to survive, especially if the price and hence the reward is very high, as it will be relatively speaking for the poor. And others will sell without rationally examining the benefits for or risks to their interests (absence of informed consent). It’s beyond my powers of comprehension that all this can be denied:

It’s true that I don’t find any of the arguments about the coercive effects of money on peoples’ decisions particularly compelling.  Megan McArdle (source)

Any potential paid organ donor is always free to decline the transaction, and is left no worse off than before. What next, will you tell me that I “coerced” Apple into sending me a Macbook? (source)

This seems to me to be more correct, or at least less outrageous:

Talk of individual rights and autonomy is hollow if those with no options must “choose” to sell their organs to purchase life’s basic necessities. … Choice requires information, options and some degree of freedom. (source)

Of course, some would say: if someone is forced by poverty to sell her organs, would you stop her and make her worse off by imposing legal restrictions on her autonomy and “reducing her resources”? That’s again the myth that markets always make things better. What if she does get some money, has a better life in the short run, but gets sick because of the operation (or do we also assume the myth of perfect healthcare for the world’s poor?) or because of the lack of an organ? Who would make her worse off? The one allowing her to sell, or the one stopping her? And anyway, there are better ways to protect the poor than to allow them to harvest their organs.

So, if we’re afraid that free organ trade might be exploitative for the poor, why not allow free trade but exclude the poor from selling? Because the poor will be, in general, the only ones tempted to sell. A wealthy person has no incentive to sell organs. Hence a free trade system restricted in this way will not solve the shortage problem, the main concern of proponents of free trade.

I’ve stated before that government interference can promote rather than restrict freedom. In the case of organ trade and donation, two specific types of interference can help:

  • Restricting the freedom to trade non-renewable organs, as well as renewable organs in circumstances in which extraction poses a health risk to donors, will protect the freedom of the poor. Not their freedom to sell organs obviously – which isn’t freedom for them anyway but compulsion – but the freedom to live a healthy live.
  • Imposing default cadaveric donation with an opt-out clause will protect the freedom to live a healthy live of patients in need of replacement organs. Of course, if it’s the case that for some organs cadaveric donation isn’t possible medically, I’m willing to accept an exception.

How about allowing people to sell their organs after death? This would evidently remove the health risks for donors. It could be considered a kind of life insurance for the deceased’s family. That would indeed remove all the concerns from the donor side. (The counter-argument that such a system would encourage families to kill their members for the “insurance money” seems a bit weak, and just as weak as the similar counter-argument against generalized organ trade liberalization, namely that people would murder in order to sell organs; I guess they already do).

But assume that we would allow free post-mortem trade: what would happen with the organs? They would be sold of course, but to whom? The most wealthy first, and hence we still have our problem on the beneficiary side: wealth yields better health. Of course, that’s already the case in healthcare in general: rich people also have better dental care etc. But do we want to add to the existing injustice by allowing wealth to determine who gets an organ?

If we allow limited organ trade of deceased’s organs, we’ll have to do something on the beneficiary side in order to neutralize the effects of wealth. A lottery system could be an option. Or subsidies for the poor, or price caps etc.

Why Do We Need Human Rights? (10): Why Do We Need Democracy?

Regular readers will know that I see democracy as a human rights issue. The standard human rights texts (declarations, treaties and constitutions) all provide a right of the people of a nation to take part in the government, choose representatives in free elections etc. As with human rights in general, many people are in favor of democracy, but are unable to say why, or are unable to agree on the reasons why they are in favor. Some people may not have a particular reason to favor democracy, apart from a pragmatic one: it has worked quite well, especially compared to other forms of government that have been tried before, and it’s such a fuss to change.

Those who have reasons can be divided into two “camps”: those who view democracy as the best means to an independently valuable  goal, and those who view democracy as intrinsically valuable. The former group is the most numerous (and includes me). An instrumental justification of democracy can take many different forms, depending on the ultimate goal that is supposed to be promoted by democracy. The most common forms are:

  • Democracy promotes prosperity, economic growth and poverty reduction.
  • Democracy promotes peace (internally and externally).
  • Democracy leads to better political decisions.
  • Democracy leads to less repression and more respect for human rights.

I believe all of these statements are very persuasive, and taken together they form a very powerful justification of democracy (although we may need to agree on a very specific definition of democracy in order to be convinced by these statements – but that’s another discussion).

The non-instrumental justification, the one that says that democracy is good, not because of what it produces, but because of what it is, is also very interesting and persuasive. It focuses on what happens to people when they participate in government, what happens when democracy takes place, not what happens after it has taken place. So instead of pointing to beneficial consequences of democracy – more prosperity, more peace etc. – it points to the benefits of community, association, participation, self-government, self-determination etc. and how these things improve people’s characters, virtues and happiness. Read more here.

The only problem I have with this non-instrumental approach in which democracy is an end in itself, is that it tends to collapse into the instrumental approach: if democracy improves people’s character, then it’s also instrumental. It’s only an end in itself in the sense that it’s product doesn’t appear afterwards (like peace follows from democratic rule), but is simultaneous with it (people’s characters and virtues improve because of democracy, but only as long as democracy “happens”).

However, often it’s quite irrelevant which type of justification of democracy we prefer, and how successful (or not) the chosen justification is. Such exercises can be no more than “preaching to the choir”, intellectually interesting but practically irrelevant. People who already accept democracy don’t need a philosophical explanation of why democracy is so wonderful. And people who don’t accept democracy are often immune to rational justifications or to philosophy in general. Good luck approaching the Taliban with a philosophy paper on the benefits of democracy… (In fact, good luck approaching them at all).

Migration and Human Rights (21): China’s Demographic Aggression and Provocation of Racism, The Cases of Tibet and Xinjiang

If only Han Chinese inhabit Tibet, what is the meaning of autonomy? Dalai Lama (source)

The recent protests and violence by Uighurs in China’s Xinjiang province are reminiscent of the March 2008 protests in Tibet. Like the Tibetans, the Uighurs believe that they are colonized by Han Chinese who have settled in the Tibetan and Uighur provinces in large numbers, and continue to do so. (92% of Chinese are Han). As a result, the ethnic Turkic Muslim Uighurs now make up less than half of the 20m population in their province, and probably less given the tendency of official Chinese statistics to underestimate internal migration flows. This is compared to 75% in 1949. (In Tibet, the indigenous population is still the majority according to official statistics, but this is likely to change with the new train link to the province).

It is widely accepted that these migration flows are part of official Chinese government policy. Populating border regions with Han Chinese is believed to lessen separatist tensions and demands for autonomy, and is handy when it comes to expropriating the local resources. The local populations however see this as demographic aggression and an attack on their culture. If their land is taken over, so will their culture, language, traditions and religion. In Xinjiang, evidence of this is the prohibition on headscarves, the languages used in schools etc.

Not surprisingly, these policies of demographic aggression – which the Dalai Lama has called a form of cultural genocide – combined with other authoritarian policies, provoke a reaction, and unfortunately, this reaction often takes the form of anti-Han racism. (Most victims of the recent clashes in Tibet and Xinjiang were Han, although – as usual – the victims of the government’s reaction don’t get mentioned).

Religion and Human Rights (18): Euthanasia

People own their own body. Their body is part of their private property. It is something that is theirs; it is the thing par excellence that is their own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination and therefore the right to die.

The Ethics of Human Rights (18): A Right to End Your Life

There’s currently some controversy over the Swiss Dignitas clinic where people can receive help in their attempt to end their own lives.  This is reminiscent of the controversy surrounding “Doctor Death”, Jack Kevorkian, in the U.S. some time ago, and the Oregon Death With Dignity Act.

The issue of assisted suicide or euthanasia usually arises in discussions on terminal illnes and suffering, but it is part of the wider problem of self-determination: do human beings have the right to determine and chose the time and the method of their own death, irrespective of health issues? And do other people have a right to assist them if they can’t execute their will themselves?

I’ll focus on the first question here, and I’ll avoid the legal issues for the time being, apart from this: in international human rights law, there is no right to end your life, hence no right to suicide, assisted or not, and hence no right to euthanasia (the differences between assisted suicide and euthanasia are negligable according to me).

Should there be such a right? I don’t know. I certainly support the moral right, based on some arguments which I’ll mention below. A legal right would remove some of the prohibitions on assisted suicide and euthanasia in some countries. In such countries, people have to travel abroad – to Switzerland for example – to end their lives, at least if they want to do it in a painless and guaranteed way. This means that there is discrimination: rich people have a painless way out (the Swiss ask a lot of money), whereas other people have to use painful or riskier methods or – worse – have to continue their lives involuntarily if their (medical) circumstances don’t make it possible for them to take matters into their own hands.

Why should there be a moral right to end your life? We own our own body. Our body is part of our private property. It is something that is ours; it is the thing par excellence that is our own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning our body means that we are the master of it. Other people have no say in the use of our body; they should not use it, hurt it or force us to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. But it also implies the right to self-determination, and therefore, the right to die. We should therefore be able to cimmit suicide without interference, at least as long as we are able to determine our will independently, and as long as our suicide doesn’t harm other people’s rights (e.g. if we throw ourselves in front of a moving car, or if we believe that our suicide leads us to heaven on the condition that we take a few infidels along with us in the grave).

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

Universal jurisdiction, according to Wikipedia, is:

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

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

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

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

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

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

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.

Cultural Rights (9): Ethnic Cleansing

Ethnic cleansing is the violent displacement of an ethnic group from a particular territory in order to create an ethnically “clean” unit, i.e. a territorial unit composed of only one ethnic group. The means used to achieve ethnic unity are:

  • direct military force
  • police brutality
  • genocide
  • the threat of force
  • intimidation
  • rape
  • pogrom
  • demolition of housing, places of worship, infrastructure
  • discriminatory legislation or policies
  • tribal politics
  • economic exclusion
  • hate speech, propaganda
  • rewriting of history, fabrication of historical resentment
  • a combination of the above.

Given these various “tools”, it is not correct to equate ethnic cleansing with genocide. There are more or less violent forms of ethnic cleansing, although all forms contain some kind of force, otherwise one would speak merely of voluntary migration. Deportation or displacement of a group, even if effected by force, is not necessarily equivalent to destruction of that group.

Given the element of force it is correct to denounce all forms of ethnic cleansing, not only on the grounds of some kind of ideal of multiculturalism, but also on the grounds of the self-determination of the people involved, of their right to settle where they want, their freedom of movement etc. It is defined as a crime against humanity.

The best known cases of ethnic cleansing are:

  • Bosnia and Herzegovina in the 1990s
  • Iraq during the Iraq war
  • India and Pakistan during their partition
  • The Georgian-Abkhaz conflict
  • Rwanda during the genocide
  • The relocation of Native American peoples from their traditional areas
  • The forced removals of non-white populations during the apartheid era
  • The Palestinian exodus
  • Central and Eastern Europe during and immediately after World War II
  • Darfur
  • etc.

However, it seems that this tactic has been known to humanity since a long time. Some even believe that the Neanderthals were victims of ethnic cleansing.

Some of the justifications given in defense of ethnic cleansing are:

  • To remove the conditions for potential and actual opposition. According to Mao Zedong, guerrillas among a civilian population are fish in water. By draining the water, one disables the fish.
  • To create a separate state for one ethnic group. A nationalist believes that a people or a nation can only have an autonomous and authentic existence, according to their own traditions, language, values and norms, in a state of their own. A multicultural nation can never be legitimate according to nationalism, because one assumes that in such a state it is inevitable that some groups are ruled by others and hence do not have an authentic and autonomous existence. The only way to have homogeneous territories in our multicultural and melting-pot world with no clear territorial separation of groups within states, is the use of force.
  • To redeem a society that is literally “unclean” and “sick” because of the presence of inferior humans.

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.

Cultural Rights (6): Self-Determination and Ethnic Cleansing

Self-determination is the essence of nationalism. A nationalist believes that a people or a nation can only have an autonomous and authentic existence, according to their own traditions, language, values and norms, in a state of their own. He often sees himself as a force for democracy. Self-determination, the national liberation of a nation that is captured in an alien state and that has to follow the decision of an external power, is indeed part of the struggle for democracy.

However, problems can arise from the desire to have a perfect match between state and nation. If every nation should have its state, then every state should comprise only one nation. A multicultural nation can never be legitimate according to nationalism, because in such a state it is inevitable that some nations or peoples are ruled by others and hence do not have an authentic and autonomous existence.

The problem that nationalism misses is that its policies lead to a homogeneous society and that diversity and multiculturalism can be attractive. Most problems of multiculturalism – a lack of integration, conflicts between communities, one group dominating another – can be solved by democracy (by tolerance, respect for religious freedom and individual rights, non-discrimination, institutional reforms, local autonomy etc.).

Nationalism solves the problems of multiculturalism by destroying it. It’s a kind of intellectual laziness to go immediately for the most extreme solutions. The only way to have homogeneous territories in our multicultural and melting pot world is the use of force. Homogenization often requires violent separation, civil war (because of the violent reaction of states that want to keep their territory intact), centrifugal forces (because of a lack of clarity: which group is a “nation” and has therefore a right to its own state?), forced relocation of members of other nations – also called “ethnic cleansing”, a method often used when there is no clear territorial separation of nations within a state – and, if really necessary, genocide.

If members of another nation have the misfortune of inhabiting parts of a territory that is claimed by the nationalist nation as the soil of its future state, and if these members do not leave the territory, give up their possession and abandon their graves voluntarily, then nationalism requires the elimination of these people. As long as they are present, the state will not be the representative of one nation. Democracy will require the representation of all nationalities and that is not the optimal situation for nationalists because it means that every nation is not able to rule itself. This is obviously a distorted and dangerous view on democracy.

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.