Tag Archives: human rights

“I confini del mio linguaggio significano i confini del mio mondo”. Riflessioni filosofiche sul tema del confine

12/02/2024Conference paper (multiple non-blind peer review)Borges, Fantozzi, Leonardo da Vinci, Suárez, Varzi, Zeno, border studies, borders, human rights, logic, mereology, ontology, paradoxes, topologyGiorgio Baruchello

Invitato a offrire alcune riflessioni di carattere filosofico sul tema del confine, o dei confini al plurale—per il quale invito ringrazio nuovamente gli organizzatori dell’evento odierno—le prime idee ed impressioni che incominciarono a girarmi per la testa erano tanto personali quanto prosaiche.[1] Spero quindi che non Vi dispiaccia troppo se do l’avvio al mio intervento condividendole con Voi senza alcun pudore. Anzi, mi auguro sinceramente che siano di Vostro gradimento. Mi saprete dire, alla fine del mio racconto iniziale, se così sarà stato o meno.

Le idee ed impressioni in questione non sono altro che delle lontanissime e, oramai, quasi mitologiche memorie d’infanzia. Anche i professori di filosofia, benché baffuti, barbuti e ancor più spesso barbosi, sono stati bambini. Era il secolo scorso. Nato a Genova e cresciuto in Liguria, ero solito trascorrere le vacanze estive ad Andora, nella Riviera di Ponente; il Comune più occidentale della provincia di Savona, per intenderci. Più volte, un mio carissimo zio portava me, mio fratello e i nostri due cugini rivieraschi a visitare Nizza e Montecarlo, dove c’era un bell’acquario, nonché museo del mare, ben prima che ne venisse costruito uno ancora più voluminoso e, mi permetto di dire, famoso, in quel di Genova nel 1992, in occasione del cinquecentenario della scoperta dell’America da parte di Cristoforo Colombo. (Notate bene che, quale cittadino islandese, sono ora tenuto a riferire in questa sede che gli islandesi ritengono d’aver scoperto loro l’America. Al contempo, le popolazioni indigene dell’America del Nord sono ancora di un’altra opinione. Lascio a Voi dirimere la faccenda.)

Ma torniamo a me bambino. Ricordo tuttora l’emozione che mi prendeva quando arrivavamo a Ventimiglia—nota ai più oramai e, devo aggiungere, ahimè, per ben più tristi vicende legate ai difficili flussi migratori che avvengono all’interno dell’Unione Europea. Eccola là: la frontiera. Il confine italo-francese. Per me bambino, era un po’ come il Far West di Tex Willer o Sergio Leone. Le occhiatacce da parte degli ufficiali, armati e in uniforme, e i documenti d’identità da esibire, se e quando richiesti, erano di rigore. Il Trattato di Maastricht non esisteva ancora. L’essere cittadini europei, formalmente liberi di passare da uno Stato all’altro senza controlli di nessun genere, era ancora un pio ideale, un po’ come doveva esserlo all’epoca della Giovine Europa di Giuseppe Mazzini, anch’egli genovese come me, ovverosia negli anni ‘30 del XIX secolo. Ogni volta che si raggiungeva la frontiera, chissà perché, temevo che non ci facessero passare.

La memoria più strana era che ci si fermava prima ad un casello per fare i controlli del caso con gli agenti italiani. Non ricordo se fosse sempre e solo la Guardia di Finanza a farli o la Polizia di Stato. Se non addirittura i Carabinieri. Poco dopo, sempre che la memoria non mi inganni, si ripeteva la stessa cosa con quelli della gendarmerie francese. Dove si trovava il confine, esattamente, mi chiedevo: presso gli agenti italiani, presso quelli francesi, a metà strada, o in qualche altro punto tra i due estremi?

In chiave minore, la stessa domanda mi sorgeva in mente da bambino quando osservavo i cartelli situati lungo un’altra autostrada che annunciavano la fine della Liguria e l’inizio del Piemonte. Sì, lo so bene, di solito il percorso ce lo si immagina al contrario, a causa dei tanti turisti che vanno a trascorrere le vacanze al mare, accolti dall’amorevole e calorosa ospitalità tipica della gente della mia regione d’origine. Nel mio caso, tuttavia, si faceva il percorso opposto, soprattutto per andare a fare la settimana bianca sulle Alpi insieme ad altre famiglie di amici genovesi. Roba degna di Paolo Villaggio e Gigi Reder, in tutta onestà.

Crescendo, ho poi scoperto che questo genere di domanda, apparentemente stravagante se non addirittura stupida, aveva stuzzicato l’interesse di svariati studiosi. In particolare, il tema del confine o del limite estremo di un’entità sembrava avere attirato l’attenzione degli esperti in alcuni campi di ricerca dai nomi bizzarri, se non esoterici e, come i severi doganieri, anche un po’ minacciosi—senza volerlo fare apposta—ovverosia:

la topologia,
la mereologia e
l’ontologia.

La prima disciplina non è lo studio dei ratti, anch’essi creature di degno pedigree fantozziano, ma quella branca della matematica che, grossomodo, si occupa delle figure geometriche le cui proprietà e relazioni precipue non dipendono dalla nozione di misura, ma bensì da operazioni di deformazione nello spazio logico-matematico. La seconda, invece, è la branca della logica formale che studia le relazioni e le proprietà relative al tutto e alle sue parti, o a un intero e le sue parti, e viceversa. La terza, la quale dal punto di vista lessicale è forse leggermente più nota rispetto alle altre due, è la branca della filosofia che studia l’essere o l’esistere degli enti nelle sue molteplici varietà.

Indipendentemente dai nomi un po’ curiosi di queste tre discipline, tutti e tre coniati o affermatisi in secoli relativamente recenti, la questione che mi ponevo da bambino, ovvero di dove si trovasse precisamente il confine o il limite tra due entità adiacenti, ha radici ben più antiche. Questo, almeno, per quel che riguarda la filosofia occidentale, la quale si è sempre divertita a osservare le realtà più ovvie e apparentemente banali dalle prospettive più insolite e sorprendenti, un po’ come fatto anche dalla poesia, dal teatro o dall’umorismo. Il grande Luigi Pirandello, in maniera quasi sintomatica, mescolava assieme tutte e quattro queste modalità della creatività umana con maestria straordinaria.

È probabile che molti tra di voi abbiano incontrato una sorta di parente stretto di queste antiche radici filosofiche ai tempi del liceo, studiando i paradossi della cosiddetta Scuola Eleatica e di uno dei suoi membri più importanti, Zenone. In particolare, mi riferisco al paradosso di Achille e la tartaruga, che vi illustro così come fu reso dal grande scrittore e saggista argentino Jorge Luis Borges (vd. ivi):

Achille, simbolo di rapidità, deve raggiungere la tartaruga, simbolo di lentezza. Achille corre dieci volte più svelto della tartaruga e le concede dieci metri di vantaggio. Achille corre quei dieci metri e la tartaruga percorre un metro; Achille percorre quel metro, la tartaruga percorre un decimetro; Achille percorre quel decimetro, la tartaruga percorre un centimetro; Achille percorre quel centimetro, la tartaruga percorre un millimetro; Achille percorre quel millimetro, la tartaruga percorre un decimo di millimetro, e così via all’infinito; di modo che Achille può correre per sempre senza raggiungerla.

Nel caso dei confini geografici, i due punti di riferimento non sono in movimento relativo. Achille e la tartaruga—la seconda dei quali con grande calma e ammirevole aplomb—si spostano invece nello spazio l’uno rispetto all’altra. Il caso di Ventimiglia, pertanto, è solamente analogo al loro, e di certo non identico. Tuttavia, ed è ciò che importa per noi al momento, il problema della divisibilità infinita tra due punti di riferimento nello spazio sussiste in entrambi i casi. In altre parole, se possiamo dividere all’infinito lo spazio che separa la guardia di finanza dell’imperiese—o polizia che fosse—dalla gendarmerie del nizzardo, quando e come, esattamente, possiamo dire di essere passati da un punto all’altro, ossia dall’Italia alla Francia, dalla Riviera di Ponente alla Costa Azzurra? O, ufficiali in divisa e mare a parte, dalla Liguria al Piemonte?

Non è necessario avere una striscia o un lembo di terra perché si ponga questa tipologia di problemi logico-matematici e filosofici. Leonardo da Vinci, per esempio, si chiedeva nei suoi Quaderni che cosa fosse ciò che separa l’aria dall’acqua: aria o acqua?[2] Suárez nelle sue Disputazioni di metafisica del 1597 si domandava di che colore fosse la linea di demarcazione che si trova tra una macchia nera e il suo sfondo bianco: nero o bianco?[3]

Lo stesso problema si può presentare anche in chiave temporale. Nel dialogo intitolato al fondatore della Scuola Eleatica, Parmenide, Platone si interrogava sul quesito seguente. Quando un oggetto inizia a muoversi, o un oggetto in movimento si ferma, è esso in movimento o è fermo?[4] Più tardi, Aristotele si trovò a riflettere su se e come il presente, che è il confine sia del passato sia del futuro, debba essere per necessità uno e il medesimo con essi, perché se i due confini estremi fossero delle entità costitutivamente diverse, allora l’una non potrebbe succedere all’altra.[5] E tutto questo per non tornare ai paradossi logici cari a Zenone, il quale si divertiva a dividere all’infinito anche il tempo, così da dimostrare che il moto non esiste.

Nella storia della filosofia e della scienza si sono andate accumulando le risposte più varie a questo tipo di quesiti.

C’è chi ha sostenuto che il confine tra due entità distinte non appartenga a nessuna delle due. Leonardo da Vinci, per esempio, sembrava favorire questa soluzione. L’Italia e la Francia, da questo punto di vista, non coprirebbero tutto il territorio europeo di loro competenza, perché il loro confine sfuggirebbe, per così dire, a entrambi gli Stati. Sarebbe un po’ come quei confini tra orti o pascoli che appartengono a due contadini diversi. Visto che nessuno dei due ci mette mano, si riempiono di erbacce e di piante selvatiche.
C’è chi ha suggerito che il confine appartenga invece a una entità piuttosto che all’altra, sebbene a volte, o addirittura tutte le volte, noi non siamo in grado di determinare con esattezza a quale delle due. Di chi è il confine tra l’Italia e la Francia, allora? Boh? E chi lo decide? E su quali basi? È un mistero. Ho qualche sospetto, però, riguardo a quale soluzione piacerebbe di più al presidente francese Macron. O a Giorgia Meloni, se per quello.
C’è chi ha concluso che il confine appartenga a entrambe le entità. L’Italia e la Francia, quindi, condividerebbero il confine. Sovrapposizione reciproca. Comunione e unione. Pace e amore. Il che può piacere dal punto di vista giuridico e morale, o persino da quello politico e religioso; ma è probabilmente meno convincente sotto quello cromatico, almeno per quel che riguarda il paradosso in discussione nella versione offerta da Suárez alla fine del ‘500. Il confine tra il punto nero e lo sfondo bianco dovrebbe essere infatti sia bianco che nero, violando così il principio logico di non contraddizione.
C’è infine chi ha pensato che ci siano in effetti due confini, o due estremi, ossia uno per ciascuna entità, i quali, tuttavia, coincidono perfettamente. Ancora una volta, pertanto, comunione e unione, pace e amore, ma in tal caso quale perfetta ed equipollente collocazione spaziale. Contatto senza sovrapposizione. Possibile? Forse in matematica. Suárez, benedetto metafisico, ci causerebbe un altro grattacapo. Una linea bianca che coincide con una nera, infatti, dovrebbe produrre qualcosa di grigio. La psicologia è concorde. Le illusioni ottiche studiate dai membri della cosiddetta scuola della Gestalt nel secolo scorso hanno approfittato a piene mani di queste aree grigie che noi percepiamo per il solo fatto che due oggetti neri in campo bianco siano molto vicini, così come tutti i buontemponi che ripropongono le loro illusioni ottiche su Instagram o altri social media.

Non chiedetemi di risolvere tutte queste stramberie. Se non ci sono riusciti fior di logici e matematici negli ultimi duemila anni, non c’è speranza che ci riesca io in venti minuti. Piuttosto, mi limito semplicemente a far notare che, benché queste quattro linee di pensiero si escludano l’un l’altra, non è affatto detto che ciascuna di esse possa o debba risolvere da sola tutti i casi possibili o concepibili. Difatti, anche se tutti i casi citati sono classificabili come “confini”, non tutti i confini devono per forza essere identici sotto tutti o la maggior parte dei punti di vista. (Il perché e il come qualcosa possa essere al contempo una cosa e molte cose è un altro classico dilemma della metafisica antica e moderna. Meglio lasciarlo perdere, per il momento.)

Così, tanto per capirci, possiamo distinguere tra:

confini artificiali (ad es. quello tra l’Italia e la Francia) e confini naturali (ad es. quello tra l’aria del cielo e l’acqua del mare sottostante);
confini ben definiti (ad es. lo spazio logico-matematico compreso all’interno di una circonferenza e quello esterno ad essa) e confini vaghi (ad es. quello tra l’aria e l’acqua, se e quando studiati a un livello di analisi subatomico); nonché
confini incorporei (ad es. quelli comunemente postulati in geometria) e confini corporei (ad es. quelli dei solidi opachi studiati dagli psicologi della percezione).

Ma le stramberie non finiscono qui. Come detto, d’altra parte, la filosofia non è poi così remota rispetto all’umorismo. Sentite: C’è persino chi sostiene che i confini non esistano in sé e per sé. La cosa può sembrare folle, oltre che ridicola. Lo so. Di che diavolo abbiamo parlato sino a questo punto? E che cosa ci facevano i finanzieri a Ventimiglia? Prendevano il sole?

Per quanto questa idea appaia stralunata, o probabilmente lo sia, la si può concepire per davvero, anche se in maniera astratta, se non astrusa. E mi riferisco alla non-esistenza dei confini. Non ai doganieri che si abbronzano. Pensiamo, per analogia, ai buchi. Esistono i buchi? Pescatori, muratori e formaggiai potrebbero rispondere immediatamente di sì. I buchi sono importanti nei loro ambiti di lavoro. Qualche fisico o esperto di ontologia, però, potrebbe suggerire che esistono in effetti solo solidi o cose bucate, non buchi. O ancora: Esistono i colori? Pittori, stilisti e razzisti direbbero probabilmente di sì. Nuovamente, un fisico o un filosofo potrebbero sostenere che esistono in realtà solo solidi o cose colorate. I confini, di conseguenza, si ridurrebbero ad entità confinate, se non confinanti—come la Francia e l’Italia, appunto.

Tutti questi arzigogoli teorici e lessicali nascondono un aspetto concreto di non poco conto. I confini potrebbero essere un’invenzione della mente umana, almeno in una qualche misura significativa, piuttosto che una realtà oggettiva, ovvero del tutto indipendente da noi.[6] Nel caso di Ventimiglia, il confine italo-francese non sarebbe altro che una delle tante creature del diritto e della politica. Sparissero gli esseri umani, sparirebbero il diritto e la politica, e quindi sparirebbe anche il confine che tanto colpiva la mia immaginazione da bambino.

Non che questa sia una qualche critica. Se parliamo, pensiamo e viviamo le nostre vite in termini di “confini”, se cioè noi umani li abbiamo creati o accresciuti attraverso le nostre culture, i nostri apparati cognitivi, o la nostra immaginazione, allora detti confini avranno probabilmente avuto una qualche funzione da svolgere. Forse ce l’hanno ancora. Diritto e politica, d’altra parte, possono essere strumenti utilissimi, tanto quanto la fisica o la matematica.

Tuttavia, concedendo anche solo in chiave ipotetica che i confini possano davvero essere delle semplici creazioni umane, piuttosto che delle condizioni oggettive, nude e crude, del reale o, peggio ancora, delle divinità eterne e spietate, allora si può iniziare a non coglierli più quali aspetti rigidi del nostro universo, ovvi e immutabili, o perfino sacri e assoluti; ma, piuttosto e come detto, quali strumenti. Come le reti dei pescatori, i coltellacci dei formaggiai o i martelli pneumatici dei muratori, i confini sarebbero degli attrezzi che noi usiamo per determinati scopi e che, pertanto, ammettono usi positivi e usi negativi, potenziali o attuali che siano. Ed è qui la sola perla di saggezza che mi sento di poter fornire questa sera, se posso ardire a tanto.

Troppo spesso si discute di confini sì e confini no, di difendere i confini o abolire i confini, di erigere muri o abbatterli, accogliere o respingere. Piuttosto, io penserei a come distinguere tra confini buoni e confini cattivi. Così come si può distinguere tra muri buoni e muri cattivi. I muri possono infatti separare due gruppi di esseri umani, condannandone uno alla miseria perpetua e l’altro alla paura perpetua, ed entrambi all’odio. I muri, però, possono servire ugualmente a sorreggere un ampio tetto che, per esempio, protegge sia l’uno che l’altro gruppo. E, data la quantità di pioggia e di neve che ci dobbiamo sorbire qui in Islanda, credetemi: Un buon tetto è di fondamentale importanza.

Ma che cosa esattamente deve dirsi “buono” o “cattivo”? Non bisogna andare in Parlamento per sentire le opinioni più disparate sul tema. Fate un giro sui profili Facebook dei vostri amici, andate al bar all’angolo e porgete orecchio alle conversazioni che vi si tengono, od organizzate una cena con i vostri parenti—soprattutto quelli che sopportate di meno. La faccenda è chiara. Qualcuno dovrà scegliere tra le tante opzioni e decidere per il bene di tutti. E qui si rischia di nuovo il patatrac. Chi mai può decidere ciò che è buono e ciò che è cattivo: il Papa, il Presidente della Repubblica, il Sindaco, mia suocera, il capo dei Carabinieri, un qualche megadirettore galattico?

La questione è spinosa. È un’altra magagna che il pensiero occidentale discute senza requie dai tempi di Socrate. Chi ha studiato diritto può sicuramente richiamare alla mente i dibattiti tra giusnaturalisti e positivisti. Continuano ancora oggi. Gli antropologi possono pensare al tema del relativismo culturale. Sempre vivo. Gli economisti a quelli dell’ordinalismo e dell’ofelimità. Sempre intuibili. Nuovamente, non posso offrire una soluzione semplice e definitiva.

Tuttavia, dati i miei studi in un campo della filosofia che porta un altro nome fantasmagorico, l’assiologia—ovverosia la teoria dei valori—mi permetto di condividere un modestissimo esercizio mentale che, a mio avviso, può essere d’aiuto quando si vuole distinguere il bene dal male. Di fronte a uno strumento umano, tangibile o intangibile, e ai suoi possibili utilizzi, individuali o collettivi, chiedetevi: quale uso massimizzerà il benessere fisico, quello psichico e la capacità di pensiero di tutte le persone coinvolte, presenti e future? Di fronte a un muro, una barriera, un confine, chiedetevi: come lo si può utilizzare in maniera tale che la salute, la serenità e il livello d’istruzione delle persone da entrambe le sue parti ne traggano il massimo beneficio?

Siamo forse di fronte a un’altra curiosa finzione filosofica? O a un’astratta utopia? No, non credo. È l’approccio indicato nel XXI secolo dall’UNESCO nella sua Enciclopedia dei sistemi di supporto vitale,[7] nonché dalle convenzioni dell’ONU del XX secolo sui diritti civili, politici, sociali, economici e culturali.[8] Non abbiamo tempo per discuterne in dettaglio, ma vale sempre la pena ricordare come i rappresentanti dei popoli della Terra abbiano già firmato e ratificato accordi internazionali che contengono indicazioni copiose, sofisticate e articolate su ciò che si può dire “buono” o “cattivo”, nonostante il fiorire di molteplici relativismi in tante altre aree della vita umana. Non so se questo appunto finale conti come un’altra perla di saggezza, ma mi pareva quanto meno saggio concludere con un concetto carico di speranza. Grazie mille.[9]

Note

[1] Il titolo cita Ludwig Wittgenstein, Trattato logico-filosofico (proposizione 5.6; vd. ivi).

[2] Vd. The Notebooks; selected Eng. trans. by E. MacCurdy, London: Reynal & Hitchock, 1938: 75–76.

[3] Vd. Disputationes metaphysicae; in Francisci Suarez Opera Omnia, voll. 25–26, Paris: Vivès, 1861, 40, V, §58.

[4] 156c–e.

[5] Fisica, VI, 234a5–6.

[6] Euclide, nel libro primo degli Elementi, definiva “termine” come “ciò che è estremo di qualcosa”, e “figura” come “ciò che è compreso da uno o più termini” (definizioni 13 e 14; vd. ivi).

[7] Vd. “Philosophy and World Problems” in EOLSS (dal 2002).

[8] Vd., ad es., Baruchello & Johnstone, “Rights and Value”, Studies in Social Justice 5:1 (2011), ivi.

[9] La fonte principale per questo mio intervento è la seguente: Varzi, Achille, “Boundary”, The Stanford Encyclopedia of Philosophy (Fall 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), ivi. Il prof. Varzi, da anni docente negli Stati Uniti, visitò la mia alma mater genuate ai tempi dei miei primi studi di filosofia, ove svolse una relazione sull’ontologia dei buchi organizzata dal compianto professore di psicologia cognitiva e informatica, Giuseppe Spinelli. È quindi una grande-piccola gioia poter rievocare quei tempi e quegli spunti, nonché i nomi di entrambi gli accademici testé citati, a così tanti anni di distanza.

The Sex Offenders Public Registry of the Republic of Poland: Problems that Require Solutions

08/02/2024Conference paper (multiple non-blind peer review)Poland, comparative studies, criminal law, criminal responsibility for sexual crimes, criminology, human rights, publicly available registries of sexual offendersGeorgii Sibirtsev

Introduction: A history of offender registries in Europe and the USA

The last decade can be characterised by the relevance improving of the topics of data privacy protection. Problems of data flow regulation during crime prevention activities have attracted substantially bigger attention due to the current legislative novelisations in the European Union in 2016-2018. Worth mentioning here is that the Polish criminal registry of sexual offenders seems to be the only public registry of offenders not only in the European Union but in whole European region as well. Simultaneously, despite its uniqueness, it is not well-known not only internationally but even in Poland. It seems justified to say that registry remains an inherently controversial topic in social consciousness and due to that fact, very few substantial researches have been conducted in this field. But before we will proceed to the main topic of the current paper, it seems highly beneficial to analyse the history of sexual offender registries in the world.

Undoubtedly, the longest history of publicly available registries of criminals can be found in the United States of America. So it’s not surprising that the American experience inspired the Polish government to provide similar institutions into the Polish legislative system (we can find multiple comments on that of the former minister of Justice Z. Ziobro)^[1]. In academic papers, it is also often mentioned that similar institutions exist in France and Germany^[2], but we would need to emphasise here that those registries don’t have public character.

Registries of sexual offenders in the United States of America began to appear in the early 1930s^[3]. Initially, they were the prerogative of local legislations (cities and counties); later, they began to be available on the level of states (Florida, since 1937). Registration was conducted, as a rule, at a police station, convicts were photographed and fingerprinted. The personal data of criminals with the indication of the place of residence after release were entered into the registry. The local authorities hoped that the registration requirement would make the stay of convicts on the territory of the city or district undesirable which is supposed to positively influence the criminal situation in a state^[4].

The first regional registry of sex offenders was established in 1947 in California, and after the next 20 years, in five states (Alabama, Arizona, Florida, Nevada, Ohio). They reflected the addresses of the place of residence of persons convicted of sexual crimes, but they were not publicly disclosed and were used only by law enforcement agencies and courts^[5].

Intensive development of the Institute of the Registry of Sex Offenders in the United States occurred in the 1990s^[6]. After several cases of sexual crimes against children were actively discussed in the media and became the subject of high interest of the publicity. The social expectations of Americans were focused on the guarantees of the best protection of potential victims. In 1994, Washington state began community notification of its most dangerous sex offenders, making it the first state to ever make any sex offender information publicly available^[7]. Prior to 1994, only a few states required convicted sex offenders to register their addresses with local law enforcement.

But those registries were either not publicly available or were provided in a restricted area of one municipality. The first publicly available federal registry appeared only in 2005 – the National Sex Offender Public Registry (NSOPR) which, due to the inaction of The Adam Walsh Child Protection and Safety Act,^[8] was renamed in honor of 22-year-old college student Dru Sjodin of Grand Forks, North Dakota, a young woman who was kidnapped and murdered. The Registry introduces a system for classifying sex offenders into three groups based on the legal qualification of the committed crime:

First of all, coercion to have sexual intercourse under threat of violence against a person who is in a helpless state; inducement to have sexual intercourse or commit other sexual acts with a person under the age of 12:
Second-level criminal cases (tier II) include the production and distribution of child pornography; the involvement of minors in prostitution; sexual intercourse with a minor over 13 years old.
Those guilty of other “minor sexual crimes”, who face up to a year in prison, belong to the category of first-degree sex offenders (tier I) (this is possession of child pornography or committing other sexual acts with a person over the age of 13 and under the age of majority).

If a person commits a similar act during the period of public recording, it automatically falls into a more serious category^[9].

Criminological assessment of the sex offender registry system in the USA.

In the USA, the sex offender registry covers about 900 thousand convicts (0.28% of all citizens), and this figure has been consistently increasing in last several years^[10].

Many researchers question the impact of the registry on reducing sexual crime in general and reducing the rate of recidivism of sex offenders in particular^[11]. When comparing the level of responsibility among adults and minors in the commission of similar sexual crimes, it was found that there were no statistical differences between registered persons and those who evaded this duty.

It is often argued that similar state legislation is based on false notions, although popular in societal assumptions and presumptions regarding the nature of sexual criminality. Society has come to believe, firstly, that sex offenders are more prone to recidivism than other categories of offenders. Secondly, there is an opinion that the majority of sex offenders are strangers, unfamiliar to the victims. Thirdly, society attributes to perpetrators of sexual crimes a tendency to kill their victims, especially children.

Official statistics do not confirm these theses. The average rate of recidivism of all US criminals released from prison from 2014 to 2019 is 36%, of which only 13-14% commit a similar type of a crime. Also, statistics confirms that most of the sexual crimes are committed a first time and display no recidivism^[12].

Most of the victims of sexual crimes knew the attacker earlier, and the courts found guilty mainly the victim’s friends or relatives. According to one study, only 9% of perpetrators of child sexual abuse and 28% of perpetrators of adult sexual exploitation were previously unfamiliar with the victims, especially when sexually motivated murders of adults and children occurred^[13].

It is difficult to get a clearer picture, due to the inclusion in statistics of data not only of criminal cases against sexual integrity but also of crimes related to non-fulfillment of registration obligations. Some investigators claim that this is precisely the violation of the registration responsibilities of criminals the reason why the recidivism of American sex offenders is most often statistically reduced.

The study of the effectiveness of the registry institute should be distinguished from the perception of this institution by society and practicing lawyers. Society is very supportive of the registry, considering it as an effective tool to combat sexual crime. About 4/5 of ordinary American citizens have a positive attitude towards the registry, and there is unanimity among politicians and judges^[14].

A different, more critical attitude towards the registry could be found amongst those who maintain the registry, as well as amongst those who are engaged in the rehabilitation and treatment of sexual offenders^[15]. Researchers who are engaged into the mandatory treatment of sex offenders, usually disapprove of the requirement to publish data on sexual offenders. In practice, 1/4 to 1/3 of adult Americans visited the resource at least once; hence, for the biggest part of society, it remains unused.

However, the usefulness of the registry for law enforcement agencies and society is substantially reduced by the incompleteness and irrelevance of the data contained in it. Most often, violations relate to the place of residence of sex offenders, that is, information that is most important from the point of view of the purposes of the registry.

The problem is based on the shortage of personnel servicing registries, underfunding, and plain mistakes, including those made by convicts themselves when they intentionally do not perform registration duties. Some of them proceed from the fact that failure to fulfill registration obligations is a minor violation compared to the consequences of prolonged use in a publicly accessible registry, which causes problems with finding a place of work or residence.

It is officially estimated that about 5-6% of the criminals included in the register have disappeared, 18.5% have been re-imprisoned, 8.9% live outside the registration state and even 0.2% of the persons died while their information is still available in the registry. An interesting fact is that the victims of sexual crimes support mandatory treatment of sex offenders, but disapprove the requirement to publish data on sex offenders^16].

it can be concluded that the registry creates a false sense of security, while at the same time it increases the feeling of fear in society. It is difficult to imagine the negative emotions of a person who has discovered that a sex offender lives in their neighborhood.

The Polish public registry of the sexual offenders: General overview.

Polish sex offenders registry and GDPR regulation

The efficiency of such a method of crime prevention remains highly controversial. Still, a new registry of sex offenders came into force in 2017 in Poland. Now after we’ve discussed the experience that was taken into consideration towards the legislative novelisation in the Republic of Poland it seems to be logical to proceed with the main topic of the article.

First of all, it is worth mentioning that the Polish Sex Offenders Registry consists of two modules, whereby the first is a register with limited access, and the second one is a public register.

The register with restricted access is a database that contains information about perpetrators of sexual crimes. The basis for placing data in the Register is the act of 13 May 2016 on countering threats of sexual crime. Following Article 12 of the act, everyone has the right to find out whether his / her data is in the register.

In turn, the public register is a publicly available database, which contains information about the most dangerous perpetrators of sexual crimes. These are, above all, data on people who have committed child (minors up to 13 years old) rapes and rapes committed with particular cruelty.

Unlike the American prototype, the Polish registry also provides the sentences information to the public access (amount of the years of imprisonment, committed crime, date of the sentence, and court which stated the sentence).

Firstly it supposed that the convicted perpetrators could request their data not be included in the public Registry up until the first of October of 2017 but after the statement of the High Court of the Republic of Poland that such regulation would be non-constitutional and would violate the fundamental principle of “Lex retro non agit“, i.e., all information about the convictions before the inaction of the registry were erased in its final version^[17].

The registry was supposed to be supplemented with a publicly available map of sexual crime threats, which includes the places of sexual offenses and the places of residence of offenders, but this option wasn’t included in the final version.

Access to the Public Register is unlimited. There is no fee for providing information from the Sex Offenders Register. Also, simultaneously with the launch of the Register, the regulation (EU) 2016/679 of the European Parliament on 27 of April 2016 on the protection of individuals and information privacy in the European Union (EU) and the European Economic Area (EEA). commonly known as the GDPR, entered into force.

This regulation has been valid throughout the European Union, including the Republic of Poland, since May 25, 2018, and has revolutionized the perception of issues related to the protection of personal data. Individuals have acquired a number of new rights, the meaning of which is largely to intensify their protection, more broadly understood as the so-called right to privacy. An important innovation is the introduction in Article 17 (1) of the GDPR of the so-called “right to be forgotten”, also called the “right to delete data”, which from the very first moments of the GDPR has aroused particular interest of individuals, and therefore it can be estimated that sooner or later it will also draw the attention of convicted persons.

This leads us to the question: can the former offenders ask for the data erasure after it has been uploaded to the registry? Or, in a more simple way: does the internal Polish regulation violate the requirements of the GDPR?

First, what should be mentioned here is that, according to the GDPR Art.2 “the Regulation does not apply to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security”^[18].

This clause, in our opinion, excludes any possibility of using the GDPR requirements in the topic of crime prevention activities provided by any member State of the European Union. Which also allows us to conclude that such registries could be shortly implemented in other European countries as well. Hence, the answer for the second question should be a negative one.

This attitude is reflected by the Art. 86 of GDPR which states that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation^[19].

Despite this fact, many researches confirmed that there is some kind of a discrepancy between the GDPR regulation and the Act of 13 May 2016 on countering threats of sexual crime. The legislator first has considered the right to influence the content of the Register to the perpetrators and the courts. The principle is that the cancelation of the conviction, that is, in fact, “forgetting the act of the offender” occurs by law after the expiry of the periods provided in Article 107 of the Criminal Code of the Republic of Poland, and only on demand of the convicted person.

According to this provision, the court may decide the conviction to be cancelled after the expiry of 5 years at the earliest. The convicted person should also not commit any other crimes or other violations of law during this period while, at the same time, the sentence was not more than 3 years of imprisonment^[20]. This provides us with a direct discrepancy with the GDPR requirements which openly guarantee the right to erasure of information from public access straight after the demand of the person to whom this data is connected.

Conclusions

The topic of the public registry’s effectiveness wasn’t properly analysed in Polish academic papers and in most of the published articles it received positive feedback^[21]. Often, these papers speculate on other offender registries in European countries such as VISOR in the UK or FIJAIS in France, forgetting to mention that these registries are not publicly available^[22]. On the other hand, The Helsinki Foundation for Human Rights claims that “a public registry is not an effective instrument against the risk of sex crimes.” The HFHR is not against introducing into Polish law a mechanism that would register sex offenders but the publicly available source is openly criticized^[23].

Also, current police statistics regarding sexual crimes didn’t show significant changes in the amount of the committed crimes (e.g., the amount of committed rapes in 2017 in the whole country was 1262; in 2019 was 1354 and in 2021 total amount of registered rapes was 1088). Simultaneously, the percentage of the solved rape crimes has been getting higher every year after the registry was enacted. According to official data percentage of rape crimes where the offender was found rose from 82.7% in 2017 to 85% in 2019 and 88% in 2021^[24]. Hence, the registry could be hardly seen as a method of crime prevention, but rather as an additional instrument for police investigation. It should be also mentioned that topics of criminological effectiveness of the registry is often complicated, due to the high stigmatization of sexual crimes.

The provided official novelization should be criticized due to the lack of preciseness. Only after two years did the High Court of the Republic of Poland actually exclude the “Lex post factum” uncertainty as regards offenders of relevant sexual crimes (e.g., the proviso whereby even those violations which were committed before the Act of 13 May 2016 on countering threats of sexual crime should be automatically included Ito the registry).

I hope that this publication will raise awareness of the current lacunae in the European legislation and will help to avoid similar deficient registries’ applications in other Member States of the Europen Union.

References

A. Legal acts

1. USTAWA z dnia 13 maja 2016 r. [o przeciwdziałaniu zagrożeniom przestępczością na tle seksualnym]Dru Sjodin webpage of the Public sexual offenders registry https://www.nsopw.gov/about-nsopw

2. GDPR/ General Data Protection Regulation: https://gdpr-info.eu/art-2-gdpr/1. Carpenter C, Beverlin A. The evolution of unconstitutionality in sex offender registration laws. Hastings Law Journal. 2012;63:1071-133. (In Eng.)

B. Literature

Banasik, K. Istota zatarcia skazania. Wojskowy Przegląd Prawniczy, (2017). p. 36–49. (In Pol.)
Grzelak. A. RODO Ogólne Rozporządzenie o Ochronie Danych Komentarz. Warszawa: Wydawnictwo Wolters Kluwer. (2022). p. 1034. (in Pol.)
Harris A, Levenson J, Ackerman A. Registered sex offenders in the United States. Behind the numbers, crime & delinquency. (2014). p.4-33. (In Eng.)
Letourneau E. Effects of South Carolina’s sex offender registration and notification policy on deterrence of adult sex crimes. Criminal justice and behavior. (2010). p.35-52. (In Eng.)
Levenson J, D’amora D, Hern A. Megan’s Law and its impact on community re-entry for sex offenders. Behavioral Sciences and the Law. (2007). p. 587-602. (In Eng.)
Lussier P, Beauregard E, Criminal Justice Policies. The intended and unintended consequences of monitoring individuals convicted of sex crimes. Sexual offending. A criminological perspective. New York; (2018). p. 63-83. (In Eng.)
Marshall W, Marshall L, Serran G, Fernandez Y. Treating sexual offenders. An integrated approach. New York; (2006). p. 10-27. (In Eng.)
Richmond C, Richmond M. The future of sex offender courts. How expanding specialized sex offense courts can help reduce recidivism and improve victim reporting. Cardozo Journal of Law & Gender. (2015). p. 12-10. (In Eng.)
Rose J. Where sex offender registration laws miss the point. Why a return to an individualized approach and a restoration of judicial discretion in sentencing will better serve the governmental goals of registration and protect individual liberties from unnecessary encroachments. Mitchell Hamline Law Journal of Public Policy and Practice. (2017).p. 6-57. (In Eng.)
Ryter J. Rejestr sprawców przestępstw na tle seksualnym a prawo do prywatności i prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych (RODO), Dyrektywy Parlamentu Europejskiego i Rady (UE) 2016/680/ Probacja (2018). p.177-195. (In Eng.)
Tewksbury R. Sex offender registries as a tool for public safety. Views from registered offenders. Western Criminology Abstract. (2006). P.1-8. (In Eng.)
Thomas T. The registration and monitoring of sex offenders. A comparative study. Hoboken; 2012. p. 3-41. (In Eng.)
Vandiver D, Braithwaite J, Stafford M. Sex crimes and sex offenders. Research and realities. New York; 2017. (In Eng.)
Ключников А.Ю. Об институте реестра сексуальных преступников Lex Russica, (2020) . p. 140-150. (in Rus.)

C. Internet resources

Ziobro wypowiada wojnę zboczeńcom: “Ustala się szczególne środki ochrony obywateli przed przestępczością na tle seksualnym” Polityka opublikowano: 18 grudnia 2015, URL: https://wpolityce.pl/polityka/275542-ziobro-wypowiada-wojne-zboczencom-ustala-sie-szczegolne-srodki-ochrony-obywateli-przed-przestepczoscia-na-tle-seksualnym?strona=1
https://www.liberties.eu/en/stories/public-registry-of-sex-crime-offenders-in-poland/7358 https://statystyka.policja.pl/st/przestepstwa-ogolem/przestepstwa-kryminalne/zgwalcenie/122293,Zgwalcenie.html
Dru Sjodin webpage of the Public sexual offenders registry, https://www.nsopw.gov/about-nsopw

Endnotes

^[1] Ziobro wypowiada wojnę zboczeńcom: “Ustala się szczególne środki ochrony obywateli przed przestępczością na tle seksualnym” Polityka opublikowano: 18 grudnia 2015, URL: https://wpolityce.pl/polityka/275542-ziobro-wypowiada-wojne-zboczencom-ustala-sie-szczegolne-srodki-ochrony-obywateli-przed-przestepczoscia-na-tle-seksualnym?strona=1

^[2] Justyna Ryter, Erwin Ryter, Rejestr sprawców przestępstw na tle seksualnym a prawo do prywatności i prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych (RODO), Dyrektywy Parlamentu Europejskiego i Rady (UE) 2016/680/ Probacja 2018; 4 : 177-195

^[3] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 141

^[4] Thomas T. The Registration and Monitoring of Sex Offenders. A Comparative Study. Hoboken, 2012. Р. 28—29

^[5] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 140-150

^[6] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 141

^[7] Dru Sjodin webpage of the Public sexual offenders registry, https://www.nsopw.gov/about-nsopw

^[8] The act was named after one of the victims of the violent crimes, six-year old boy who was kidnapped from the a Sears department store at the Hollywood Mall in Hollywood, Florida, on July 27, 1981.

^[9] Dru Sjodin webpage of the Public sexual offenders registry, https://www.nsopw.gov/about-nsopw

^[10] Criminal Justice Policies. The Intended and Unintended Consequences of Monitoring Individuals Convicted of Sex Crimes / red. P. Lussier, E. Beauregard. New York, 2018. Pp. 63—83

^[11] Ключников А.Ю. (2020) Об институте реестра сексуальных преступников Lex Russica, № 3 (73). С. 146

^[12] Tewksbury R. Sex offender registries as a tool for public safety. Views from registered offenders // Western Criminology Review. 2006. Vol. 7. No 1. P. 2

^[13] Letourneau E. Effects of South Carolina’s Sex Offender Registration and Notification Policy on Deterrence of Adult Sex Crimes // Criminal Justice and Behavior. 2010. Vol. 37. P. 550.

^[14] Ibidem;

^[15] Levenson J., D’Amora D., Hern A. Megan’s Law and its Impact on Community Re-Entry for Sex Offenders // Behavioral Sciences and the Law. 2007. Vol. 25. No 4. P. 596

^[16] Levenson J., D’Amora D., Hern A. Megan’s Law and its Impact on Community Re-Entry for Sex Offenders // Behavioral Sciences and the Law. 2007. Vol. 25. No 4. P. 596

^[17] See http://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/v%20kk%209-19.docx.html.Przedstawiona analiza prowadzi do wniosku, że ustawa z dnia 13 maja 2016 r. o przeciwdziałaniu zagrożeniom przestępczością na tle seksualnym (tj. Dz. U. z 2018 r., poz. 405 ze zm.) w zakresie, w jakim nakazuje umieszczać w Rejestrze publicznym dane o osobach, które popełniły przed wejściem w życie tego aktu prawnego określone w nim przestępstwa, nie spełnia wymogu zgodności z zasadami lex retro non agit oraz nullum crimen (nulla poena) sine lege anteriori, określonymi w art. 1 § 1 k.k. Takich wątpliwości nie nasuwa umieszczenie danych wskazanych osób w Rejestrze z dostępem ograniczonym, z uwagi na jego niepubliczny charakter, który pozwala na przyjęcie, że taki wpis nie jest równoważny ze stosowaniem środka represji karnej

^[18] GDPR/General Data Protection Regulation: https://gdpr-info.eu/art-2-gdpr/

^[19] Ibidem

^[20] Justyna Ryter, Erwin Ryter, Rejestr sprawców przestępstw na tle seksualnym a prawo do prywatności i prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych (RODO), Dyrektywy Parlamentu Europejskiego i Rady (UE) 2016/680/ Probacja 2018; 4 : 177-195

^[21] Justyna Ryter, Erwin Ryter, Rejestr sprawców przestępstw na tle seksualnym a prawo do prywatności i prawo do bycia zapomnianym w świetle ogólnego rozporządzenia o ochronie danych osobowych (RODO), Dyrektywy Parlamentu Europejskiego i Rady (UE) 2016/680/ Probacja 2018; 4 : 177-195

^[22] W Wielkiej Brytanii (Pobrane z: https://www.ms.gov.pl/pl/informa- cje/news,9806,ruszyl-rejestr-sprawcow-przestepstw-na-tle.html, Dnia (2018, 12, 04)) utworzono rejestr sprawców przestępstw z użyciem prze- mocy i przestępstw seksualnych (VISOR). Z kolei we Francji (Pobrane z: https://www.ms.gov.pl/pl/informa- cje/news,9806,ruszyl-rejestr-sprawcow-przestepstw-na-tle.html, Dnia (2018, 12, 04)) został utworzony tzw. zautomatyzowany rejestr sądowy sprawców przestępstw seksualnych (FIJAIS). Stanowi on osobowy rejestr sądowy, podobnie jak zautomatyzowany rejestr odcisków palców, krajowy rejestr śladów genetycznych i krajowy rejestr karny

^[23] See https://www.liberties.eu/en/stories/public-registry-of-sex-crime-offenders-in-poland/7358

^[24] See https://statystyka.policja.pl/st/przestepstwa-ogolem/przestepstwa-kryminalne/zgwalcenie/122293,Zgwalcenie.html

The War in Tigray and the Challenges Faced by the United Nations

26/12/2020Other contribution (editorial review)Eritrea, Ethiopia, Italian colonialism, Tigray, UN, crimes against humanity, genocide, human rights, war crimesEyassu Gayim

1. Introduction

The war in Tigray and the consequent humanitarian catastrophe are being closely followed by prominent global news outlets. According to the United Nations the lives of 4.5 million Tigrayans (Tegaru) are already endangered by the war and the dislocation it has caused. UN representatives, aid agencies and states have repeatedly urged the Government of Ethiopia to restore the supply of electricity and other public services and to establish a humanitarian corridor for the delivery of aid. The response of the Ethiopian Government has not been encouraging. Many fear that a genocide is already underway, probably on an even larger scale than that seen in Rwanda in 1994, since Tigray has been deliberately cut off from the outside world for more than one hundred days. UN offices and officials have highlighted the magnitude of this crisis time and again. Unfortunately, the political response, especially from the Security Council, has so far been disappointing. This study shines a light on the nature of this war, how it is perceived by others, and what the challenges facing the United Nations are.

Tigray is one of the eight states of Ethiopia. It is surrounded by Eritrea to the north, Sudan to the west, and the Ethiopian states of Amhara and Afar to the south and east, respectively. Around 97% of Tigrayans are adherents of Coptic Christian Orthodox religion. Tigrayans are also, more or less, united by a common language (Tigrigna), culture, tradition and psychological make-up, very much like most European nations. Their territory has deep history, and considered by the inhabitants as the sacred ground of their ancestors, better known as the Axumites. Prior to the expansion of Islam, the Christian Kingdom of Axum was one of the four great powers of the world. Its army not only subdued Arabia Felix, across the Red Sea, but would even march all the way north to the frontiers of Egypt, when necessary. It was this Axumite power, and the common interest to defend Christianity, which made the kings of Axum and the Roman Emperors, such as, Constantine and Justinian, allies against Persia.

Leaving history behind, from 1991 until the end of November 2020, when Ethiopian Federal troops occupied the capital of Tigray, Mekelle, this State was ruled by the Tigray People’s Liberation Front (TPLF). This front had also occupied a dominant position in the Federal Government led by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), from 1991 until 2018. Thereafter, Ethiopia was led by a new Prime Minister, Abiy Ahmed Ali (hereafter referred to as Abiy, Abiy Ahmed or Mr. Ahmed). Mr. Ahmed changed the ruling method used previously by EPRDF by his own political party, known as the Prosperity Party. The TPLF refused to join, leaving Tigray as unrepresented in the current Government.

Abiy Ahmed justified the present ‘military operation’ in Tigray as a response to the TPLF’s attack of November 4 on the Federal Government’s Northern Defense Forces which was stationed on the border of Tigray facing Eritrea. The aim, according to him, was to ensure law and order by bringing those responsible for the attack to justice. He clarified this, on November 12, by stating:

“The Federal Government had every right to deploy Federal Security Forces and use force in order to apprehend those implicated in massive corruption and gross human rights violation”. (1)

Yet, it is well known for all that relations between the Central Government in Addis Ababa and the TPLF Government in Mekelle had been deteriorating throughout 2019, especially after Ahmed postponed the national election by using the present pandemic as a pretext. Those who are familiar with the history of this region know too well that this conflict has deeper roots linked to the past cycle of wars, dominance, repression, and retribution, the political rivalry between the Amhara and Tigrayan political leaders (and their supporters) as well as that between the TPLF and the Eritrean leader, Isaias Afeworki.

From the beginning, the present military operation was directed at both military and civilian targets by resorting to systematic and deliberate bombardment of churches, a hydroelectric dam, factories, plundering and civilian atrocities. Later, the occupying army broadened the kinds of atrocities that were committed by expanding the robbery, rape and looting of homes, shops, hospitals, clinics, pharmacies and the distant monasteries. Even after the Federal Government formally declared that the military operation was over, on 28 November, these atrocities only intensified. They were systematic in that they were widespread, while revealing the same pattern, as if they are carefully designed. The occupying force is composed of Eritrean soldiers, Amhara militias and members of Federal Army. The latter was expected to protect the civilians from harm. Yet, the Government either does not fully acknowledge that atrocities were and are committed or belittles them when the evidence is widely circulated. Even the presence of Eritrean soldiers is still not officially admitted, although increasing numbers of senior Ethiopian military and administrative officials are now speaking about it and as raising serious problems.

Like many other human rights organizations, the Human Rights Watch has followed what is happening in Tigray very closely:- including registering the crimes that were and are committed, and the times and places and who is responsible. Recently, it has released reports which were prepared after conducting interviews and assessing the available satellite imagery, photographs and videos, and reports of forensic experts, journalists and aid workers. These reports list the cities where civilians were killed and injured in violation of the rules governing military operations. One of them mentions the places where the Ethiopian forces have “fired artillery into Tigray’s urban areas in an apparently indiscriminate manner that was bound to cause civilian casualties and property damage”, displacing “thousands of people.” The cities of Mekelle, Humera, Shire and Axum are all said to have been attacked in similar ways. This report states further that “[M]any of the artillery attacks did not appear aimed at specific military targets but struck generalized populated areas.” One of the consequences of these kinds of indiscriminate attack is that well over “200,000 people are internally displaced, while tens of thousands have also fled to neighboring Sudan”. Compounding the problem facing those who remained in their homes is the lack of “adequate access to food, fuel, water, and medicines … [and the] widespread abuses, including apparent extrajudicial killings, pillage, and arbitrary detention by Ethiopian federal forces and special forces and youth militia known as ‘Fano’ from the neighboring Amhara region” as well as by Eritrean forces. (2)

The present humanitarian catastrophe is directly linked to the deliberate destruction of farms and factories, the collapse of markets, the disruption of electricity and water supplies, banking and other services, the absence of employment, or pay for services given and the overall fear and insecurity that prevails. “The situation is extremely grave in Tigray” stated the February 5 update of the United Nations Secretary General, “and hundreds of thousands of people need life-saving assistance.” (3)

The UN and other international aid agencies have shown both the eagerness and readiness to save lives in Tigray by delivering the desperately needed humanitarian assistance if they are allowed to enter this territory. Unfortunately, the regime of Mr. Ahmed has not been keen or willing to cooperate. “Three months into the conflict in Tigray in northern Ethiopia the humanitarian response remains severely constrained and inadequate”, explained the above report of the UN Secretary General, “and the main reason for that is simply that we cannot reach the people in deed and also that we have not received the clearances yet to move the necessary staff into Tigray in the first place.”(4)

As expected, it is members of vulnerable groups, such as, infants, pregnant women, the elderly, young girls, refugees, those with illness and persons with disability that are seriously affected in times of wars. UNICEF’s report of 12 February, entitled “Children in Tigray in acute need of protection and assistance”, describes “troubling picture” which reveals the presence of “severe and ongoing harm to children”. The UNCEF team, which was allowed to visit Shire and a few other cities, observed bank services that were not operational, “damaged or looted” clinics, halted immunization programs, damaged stock of vaccines due to power cuts, and “severe acute malnutrition – which is potentially life-threatening”. They saw internally displaced people taking shelter in schools that were not equipped with drinking water supplies, showers or properly functioning toilets. They found unaccompanied children, separated from their families, many showing symptoms of deep psychosocial distress. “The very real risk of disease outbreak, coupled with poor access of water, sanitation, hygiene and health services, rising food insecurity and inflation in food prices,” concluded the report, “poses grave threats for malnourished children.”(5)

The on-going gender-based sexual violence is so widespread even senior Ethiopian military officers are now speaking out openly about the seriousness of this problem. In one of the meetings held in the capital, which was aired live on the Ethiopian state channel (EBC) one of the senior officers is seen expressing his anger by asking “Why does a woman get raped in Mekelle city? It wouldn’t be shocking if it happened during the war … But women were raped yesterday and today when the local police and federal police are around”.(6) The answer is obvious. Women and young girls too are the targets of this war, for degradation and all forms of abuse.

The UN Special Representative of the Secretary-General on Sexual Violence in Conflict, Pramila Pattern expressed her abhorrence about the kind of sexual violence which Tigrayan girls and women are exposed to. She singled out the “disturbing reports of individuals allegedly forced to rape members of their own family, under threats of imminent violence”, the practices of soldiers who demand “to have sex in exchange for basic commodities …{and} sexual violence against women and girls in a number of refugee camps.”. Ms. Pattern, underscored the importance of extending to these victims medical and psychosocial assistance, including “emergency contraception and testing for sexually transmitted infections (STIs)… to ensure that those who have been forced from their homes due to violence are not placed at further risk of sexual violence within the camps” and to help those “sleeping in an open field with no water or food.”(7)

The 96,000 Eritrean refugees that were sheltered in the four UN administered refugee camps prior to this war; i.e., in Mai Aini, Adi Harush, Shimelba and Hitsats, were not just trapped, but were directly targeted for attack by the occupying Eritrean soldiers. UN High Commissioner for Refugees, Filippo Grand described what is now seen in some of these camps as a serious violation of international law. The Commissioner has repeatedly urged the Ethiopian Government to protect these refugees and to enable his office to visit all four refugee camps so that they may receive humanitarian assistance, but all in vain. In his statement of January 14, the Commissioner reiterated his previous concerns by underscoring that he was “extremely troubled by the humanitarian situation in the Tigray (and) …very worried for the safety and well-being of Eritrean refugees.” Mr. Grandi was also alarmed by the reports his office was receiving concerning the “ongoing insecurity and allegations of grave and distressing human rights abuses, including killings, targeted abductions and forced return of refugees to Eritrea … satellite imagery showing new fires burning and other fresh signs of destruction at the two camps … [all revealing] major violations of international law.”(8)

Similar concern was echoed by the UN Secretary General, who was alarmed by the attacks on the refugee camps. He denounced the forceful abduction the refugees, and the claims that some of them were sent back to Eritrea by the Eritrean soldiers stationed around the refugee camps. The Secretary General also raised concerns by claims that some of refugees that escaped from the camps “have resorted to eating leaves because there was no other food available.”(9)

It is apparent that the state of emergency which the Ethiopian Federal Government declared when the war broke out has provided a legal cover to disguise the atrocities that are committed by the soldiers against civilians. This law suspended basic human rights and freedoms that are guaranteed by international human rights law and the Ethiopian Constitution and permitted the agents of the Government and soldiers to take measures that would not be allowed under normal conditions. Using this cover, these soldiers and militiamen would stop and search any person, anywhere or apprehend that person. They would also enter homes they wished to search and do whatever they wished once inside. The 6 p.m. curfew exposes everyone to these soldiers and militiamen who are free to enter their homes under the pretext of ‘searching for weapons or persons of interest’. Reports after reports now tell similar stories of how these soldiers enter homes to abuse those living inside and to steal anything they find; jewelry, clothes, computers and phones. Any resistance or refusal to comply can lead to summary execution on the spot.

Robbery is so widespread there are even reports that claim to have seen televisions, cooking stoves and refrigerators being loaded on to cars parked outside homes, and pictures that show tanks and camels carrying all forms of stolen private properties. When car thefts started to multiply some car owners began to respond by letting down the tires of their cars to make it difficult for the robbers to move them.

Young girls and women are raped, sometimes repeatedly, inside their homes and in the most despicable ways. The interviews which are broadcasted by some foreign media include accounts of husbands being forced to kneel and watch as their wives are raped by several soldiers, and of family members being told to rape their family members. One of the girls that was interviewed stated that she was shot several times for refusing to comply with an order to have sex with her grandfather. The latter too was shot to die, but survived. The fact that these kinds of atrocities are widely committed in different cities suggests that rape is systematically perpetrated to achieve political goals, i.e. to destroy the minds of civilians.

In the latest press release the United States State Department made it clear that:

“The United States is gravely concerned by reported atrocities and the overall deteriorating situation in the Tigray region of Ethiopia. We strongly condemn the killings, forced removals and displacements, sexual assaults, and other extremely serious human rights violations and abuses by several parties that multiple organizations have reported in Tigray. We are also deeply concerned by the worsening humanitarian crisis.”(10)

After visiting Ethiopia, Finland’s Foreign Minister, Pekka Haavisto, who was sent by the European Union on a fact-finding mission for EU foreign policy concluded that the situation in Tigray is now “militarily and human rights-wise, humanitarian-wise very out of control”, a situation where “we do not see the end”.(11) This strengthens the fears the European Union had about the dangers posed by this conflict and its concern over “the humanitarian situation, as well as allegations of human rights violations and ethnic targeting.”(12)

2. The Public Outrage Over the War

What is particularly worrisome for those who are following this tragic war closely but from far away is that this is not ‘a policing operation’ which is linked to one unfortunate incident on the Ethio-Eritrean border on November 4 as the Ethiopian Government claimed: i.e., to arrest individuals to ensure law and order for attacking the Ethiopian Defense Forces. There is no doubt that what is going on is a major war, rather than ‘a policing operation’, and one whose targets include civilians. This is why Grahman Romanes, an Australian scholar with a very long record of working for humanitarian agencies called it, “nothing short of genocide.”(13)

Similar views were expressed during the debate in the British House of Lords, only three weeks after Abiy Ahmed launched the military operation. Lord Triesman was convinced that what the Tigrayans face is “ethnic purges which may be on the edge of genocide”. Lord Alton of Liverpool, who shared this position, asked what the plans of the British Government was to discharge its “duties under the Genocide Convention to prevent, to protect and to punish” those responsible, in order “to avert yet more death, more carnage, more instability, and more refugees”.(14) Underscoring the urgency of taking measures Lord Viscount Waverly wondered how the political world would respond to what is taking place. “My Lords,” he said, “is the world going to stand by, yet again, knowing that mayhem is seemingly set to unfold, do nothing and having to then deal with the added consequences of regional instability?”(15)

Speaking before the European Parliament, Irish representative Mick Wallace called the Ethiopian leader, Abiy Ahmed “a war criminal” who should be charged by the International Criminal Court since his government “has done everything under its power to prevent humanitarian aid reaching the people of Tigray… used hunger as a weapon… deliberately burn[ed] fields of crops in Tigray [and]…caused[ing] suffering and death on its citizens”.(16)

Belgian representative Assita Kanko also asked fellow European Parliamentarians to consider why millions of Tigrayan civilians had been driven from their homes, lost their harvests to arson and are forced to abandon their fields. “It seems that the Ethiopian government is deliberately withholding food in order to starve people”, she concluded “central and eastern Tigray are on the brink of famine … There are continued reports of violations of international humanitarian law, such as the deliberate shelling of civilian targets, extra judicial executions and widespread looting.” She advised the Ethiopian leader to return the Peace Prize which he received from the Norwegian Peace Committee since such a prestigious prize was not meant for a person like him.(17)

Professor Martin Plaut, a South African expert on the Horn of Africa at London University expert on Horn of Africa, had difficulties in understanding the “intolerable suffering that people are required to put up with … the destruction …the looting, the discretion, the removal of religious artifacts”.(18) Helen Clark, the former Prime Minister of New Zealand described what is taking place inside Tigray as “shocking”, where all kinds of human rights abuses are in full display, “including accounts of rape & other forms of torture and inhumane & degrading treatment; arbitrary execution; destruction of health & other facilities.”(19)

The executive director of the World Peace Foundation, Professor Alex de Waal, had no doubt that the people of Tigray is facing now “unspeakable tragedy” with “uncounted numbers of people in Tigray who are in mourning for their loved ones, including many friends and family who perished in war, of hunger and disease or at the hands of cold-hearted killers”, those who do not know what is coming tomorrow. (20) This is also why four former American Ambassadors of the United States to Ethiopia, namely, Ambassador Aurelia Brazeal, David Shinn, Vicki Huddleston and Patricia Haslach, were forced to write an open letter to the Ethiopian leader expressing concern over what is going on Tigray. They wrote:

“We have watched the conflict in Tigray with gave unease as, according to the United Nations, nearly 60,000 refugees have fled to Sudan, 2.2 million people have been displaced, 4.5 million people need emergency assistance, many of whom are without adequate food. We are also worried about the reported presence of Eritrean troops in Tigray, which could jeopardize Ethiopia’s territorial integrity”. (21)

As if anticipating what was forthcoming, Pope Francis of the Vatican asked the world to pray for Tigray on November 27.(22) On January 26 the Vatican News reiterated the same concern, by appealing “for comfort for the ordinary citizens of Tigray who are paying with their lives, isolated from the world in a situation of anguish, threatened by violence and terror”. The report expresses fears that “lack of communication may be screening ongoing atrocities”. Particularly disturbing to the Vatican are the news which reveal the “possible murder of 750 people in an assault on the Orthodox Church of St Mary of Zion in Aksum last November… a series of killings and attacks on innocent people in many parts of Tigray … shops, schools, churches, convents and homes … looted and destroyed …two million … displaced … some 60,000 fleeing to Sudan …others (are) reportedly seeking refuge in remote areas in the mountains, without water or access to food”.(23)

Church leaders in Africa too have raised their concern by condemning what is taking place in Tigray. As the press release of the South African Anglican Church Archbishop, Thabo Makgoba, on 23 February, 2021, stated:

“The plight of the Tigrayan people in northern Ethiopia tears at my heart. Over and above the coronavirus which threatens us all in Africa, tens of thousands of people in the region have been forced from their homes, millions need humanitarian aid and there are shocking reports of war crimes in the form of attacks against civilians… indiscriminate shelling of urban areas, striking homes, hospitals, schools, and markets…The level of ethnic hatred which has emerged on social media around this conflict is deeply disturbing. … What is happening in Tigray must not be allowed to deteriorate even further…Pray for justice and peace for the people of Tigray”. (24)

Sad as it may sound, it is rare to see street protests against this war inside Ethiopia itself. Even the religious leaders (outside Tigray) have not denounced the war when monasteries, churches and mosques are deliberately attacked and damaged and religious leaders are murdered in large numbers. As if he was concerned about this, Kjetil Tronvoll, a Norwegian Professor and an expert on Ethiopian politics, felt very sad to see tragedies of this magnitude ignored at the time when local solidarity matters most. He wished more and more people had stood up in defense of higher causes of morality:

“To fight for humanity, to stand for humanity and to stand for that whoever is the victim is the victim of all of us; that it should not be segregated into that victim belongs to that group so that I don’t need to care about. Any people killed in Ethiopia today is a loss to all of Ethiopia, and I see that sentiment is not coming to the surface sufficiently enough, and that I think is very sad.” (25)

A handful Ethiopian opposition politicians are now seen expressing concern over this war and showing sympathy for the victims. After all, the victims which are traumatized are citizens who are neither fighters nor armed. Furthermore, the crimes which the militias and soldiers (including foreign ones) that are committed against these innocent civilians are egregious in kind. Mr. Ledetu Ayelew, the leader of the opposition Ethiopian Democratic Party, and a few Oromo opposition political leaders are examples of this. There are also a few journalists who are now seen taking risks in uncovering the kinds of horrific crimes that are committed against citizens, e.g., Awlo Media and Ethio Forum, including by identifying the failure of the Government to protect women, children and properties. The Oromo and Eritrean diaspora have been seen in large number denouncing the war from the outset. In particular, the latter continue to show up in large numbers when Tigrayans march in Western streets protesting the war and in denouncing the Eritrean involvement. As more and more people oppose this genocidal war, the domestic public opinion is bound to swing from supporting Abiy Ahmed to calling for an end to this war. Until this happens, Abiy Ahmed will only intensify what he has been doing during the past months.

3. The Nature of the War and its Outcomes

3.1. The key actors

Prior to the military operation in Tigray there were four political actors that were seen maneuvering to shape the political course of the Ethiopian state, broadly speaking, and that of Tigray, in particular. In Addis Ababa, Prime Minister Abiy Ahmed was desperately struggling to consolidate his power by discrediting the TPLF and its supporters. The political leaders in the Amhara state, in Gondar, were preparing their own militia forces to protect the Amhara interests and pressuring Abiy Ahmed to use force against the TPLF as soon as possible. The Eritrean President, in Asmara, was also showing openly his hatred of the TPLF and his eagerness to see its demise. Ever since his enemy was defeated in the 1998-2000 border war by the TPLF-dominated Ethiopian Government of EPDRF, the Eritrean President was working hard to undermine the TPLF including by providing military training to its opponents. The TPLF, which was encircled by these three political actors, was mobilizing to defend itself and rallying other Ethiopian opposition groups under the banner of protecting the Federal system and its constitution which Abiy Ahmed and the Amhara political establishment wanted to change. Before their adversaries consolidated their positions, Abiy and his allies moved faster to destroy the TPLF its state.

This, in short, is why we still see the abovementioned four key distinct military forces operating in the theatre of war inside Tigray; – namely the Federal Government, the Eritrean army, the militia (and police) force of the Ethiopian state of Amhara and the Tigrayan Defense Force. The former two use their military capacity in full, including with their mechanized forces and air forces. Tigray relies on its militia force. The State of Amhara has intervened with two militia forces, known as the Fano and Fotta Lebash, mainly to secure its territorial claims. The Federal Government also secured additional militia forces from the Ethiopian States of Afar and Oromia by promising them that they too can obtain territorial gains. Besides Eritrea, two other foreign actors are also said to have intervened, namely the United Arab Emirates (UAE) with drones and Somalia which is believed to have sent between 3000 or 4000 soldiers, or perhaps even more. The latter sent this contribution to Eritrea for training for deployment later in the war zones of Tigray.

The Ethiopian Government categorically denies that it has invited external actors for this war. This may well be due to the fact that admitting to the presence of foreign forces would reveal the military weakness of the Federal Army and/or because this violates the constitution of the country. Yet, this foreign involvement can hardly be kept in the dark for too long when the facts on the ground reveals their presence. The head of the newly appointed Provisional Administration of Tigray has already confessed that the Federal Army does not even have the power to force Eritrean soldiers to leave. This is also why the United States and other Western countries have informed the Eritrean government to withdraw its forces immediately.

3.2. The war theatre

The zones of operation used by the above forces can be, more or less, identified. Eritrean soldier have occupied the disputed border regions which led to the 1998–2000 border war. Prime Minister Abiy Ahmed claims that that is where they are stationed. However, reports and after reports have indicated that they are all over the major cities of Tigray, in remote villages and around the four refugee camps where the 96,000 Eritrean refugees were sheltered prior to the war.

The Amhara militia forces have already controlled western and southern Tigray, and are seen making occasional forays into other areas. The Federal army claims to know clearly what is taking place in the regions which are controlled by the Amhara militias and the Amhara police force. Tigrayan sources claim that the Federal soldiers watch in silence as the Amhara and Eritrean soldiers loot Tigrayan properties. In any case, they too are accused of doing the same. Despite this partition of areas of interest, these forces also band together when they are threatened by the Tigrayan forces. Along the eastern frontiers of Tigray facing the Afar State, the latter has deployed its of own militia and has started to extend its influence in and control of eastern Tigray.

The forces of Tigray are believed to be all around the countryside, although this is denied by the Ethiopian Government. Although the latter claims its Provisional Administrative Authority in Tigray has full control of all of Tigray, some of the officials in this Administration admit experiencing problems in enforcing decisions at the local level. In a recording of a phone call that was sent to online platform Ethio-Forum, and aired on February 4, some of the senior officials of this Authority are heard confessing their inability to control even half of Tigray. They have also stated recently that they are unable to trace the whereabout of one million Tigrayans from western Tigray alone, and that they prefer to see the departure of both the Eritrean soldiers and the Amhara militia from Tigray. In short, the state of Tigray which exists under the Federal Constitution, and which had existed for nearly two thousand years, is now a war zone whose regions are administered by different occupying forces including one foreign state, Eritrea.

3.3. The nature of the war

The Ethiopian Federal Government has consistently denied the presence of war or civil war in Tigray. Instead, it calls it ‘policing operation’ which is aimed at bringing to justice the leaders of the TPLF who are responsible for the attack on the Northern Defense Forces on November 4. Tigrayans consider it mayhem and a war of genocide, which is unleashed to obliterate Tigray and its inhabitants. In their view, this war has nothing to do with the incident of November 4. It was started two years earlier when the anti-Tigrayans mobilization dislocated thousands of Tigrayans from the different cities of Ethiopia, after they were attacked and their properties were damaged or looted. The neighboring Amhara State too was using road-blocs to prevent goods, supplies and food from reaching Tigray to starve Tigrayans. The calls by the government of Tigray and the Tigrayan representatives in the Ethiopian Parliament asking the Federal Government to take action to protect these federal roads fell on deaf ears. The Federal Government has even refused to release the budget of Tigray and to assist in combatting combat Covid-19 (e.g., by sending face masks) and the locust swarms. The country has spray planes to combat locust swarms and used them in the States neighboring Tigray. When they reach the airspace of Tigray they were returning back to Addis Ababa. Tigrayans also claim that the regime of Ahmed has refused to allow Tigray to get the drones were sent by the Tigrayan diaspora from Israel for this purpose.

This paper rejects Abiy Ahmed’s description of the on-going military operation in Tigray as ‘a policing measures’ taken to ensure ‘law and order’ because of the incident of November 4. What is seen in Tigray, according to this writer, is carnage and an internationalized war which is intended to destroy the State of Tigray and its people. If this was about ‘policing operation’, how did western and southern Tigray end up being administered by the Amhara state and what are Eritrean soldiers doing in the major cities of Tigray several months after the Federal Government has proclaimed the defeat of the TPLF? Why are the economic enterprises of Tigray, churches, monasteries and farms targeted for attack and plundering in the most barbaric ways? And why is the Federal Government not protecting the victims of rape or the civilian properties and institutions?

Again, if the military measures of Abiy was prompted by the TPLF’s attack of November 4 on the National Defense Forces, why did the delegation of the European Union visit Addis Ababa and Mekelle a few days before the war broke out, if it was not to diffuse the escalating tension, and how was it possible for the Federal army, the Eritrean army, the Amhara militias and the drones of the United Arab Emirates able to launch their offensive simultaneously, without adequate preparation and coordination? Abere Adamu, the police commissioner of the Amhara state, has answered this question when he confessed how well prepared the Amhara militias were prior to November 4, and how they crossed the borders of Tigray that day the same hour the Federal army began its military offensive. If this was how the Amhara militia, as well as the Eritrean army joined hands, when they attacked Tigray, apparently this war is not about ‘policing’ or ‘law and order operation’ since the latter two have no legitimate mandate to be involved in ‘policing activities’ outside their jurisdiction. The fact that both of them have now gained political and economic advantages inside Tigray after invading it tells us that there were other hidden designs which have nothing to do with the November 4 incident. The latter is merely exploited by Abiy Ahmed as the pretext for unleashing the cruel and dirty war.

Even if the Northern Defense Forces were not attacked, on November 4 by the TPLF, it is hard to imagine how this military operation could have been averted. This is because the preparation for launching the offensive was progress for several months prior to November 4 for all to see, including when the Ethiopian and Eritrean leaders were seen visiting each other’s military establishments. These are sensitive places which are supposed to be off limit for the citizens, let alone to the leaders of states. Apparently, there were important reasons for these two leaders for seeing these establishments from close range. The Eritrean leader was also vocal in threatening the TPLF militarily eight months before this war was launched, as will be explained in the next section.

Long before November 4 the Tigrayan and Federal authorities were also seen denouncing each other and classifying one another illegitimate, especially after the national election was postponed by Abiy Ahmed and the TPLF conducted its own election. Two days before the military operation was launched, the Ethiopian leader has asked the Sudanese military head, Lt-General Abdel Fattah Abdelrahman Burhan, to protect the borders in the days ahead. That same day, the President of the state of Tigray, Debretsion Gebremichael, has informed his people to expect military attack at any moment because the Ethiopian and Eritrean armies were placed on a standby for this operation. As far as the government of Tigrayan is concerned its move on the Northern Front was in self-defense since there were other military operations which were seen elsewhere. Whether this is true or whether what took place on November 4 was a pre-emptive attack only an independent investigatory commission can answer that question by assessing the facts on the ground.

The nature and features of this war are covered in greater details in the reports of human rights organizations, such as – Amnesty International and Human Rights Watch. Some of the major Western medias, e.g., The New York Times, CNN and Washington Post too provide coverage of the kinds of serious human rights abuses which are seen in this state. Tigray Media House offers daily update on what is happening. The Governments of the United States, the United Kingdom and the European Union also issue statements about the developments in Tigray by relying on credible reports, when they denounce the serious violations of human rights and humanitarian laws.

If what is reported by these and many other sources are true, and most of them come from credible sources and complement one another, what is taking place in Tigray can only be described as a total war since both the governments of Ethiopia and Eritrea are using their full military force. What their forces, and that of the Amhara militias, have attacked is not confined to military sites, installations and the soldiers of the TPLF. Monasteries, churches, farms, industries, universities and hospitals were/are also targeted. As if this is not enough, killing civilians, raping women and abusing children and the elderly is also all too common. The manner in which these atrocities are committed when they are killed, raped and abused too is repulsive and savage. This is why the some of the foreign humanitarian workers and reporters who follow the development are disturbed by the kind of carnage and the cruelty which the innocent civilians are exposed to in the cities of Tigray.

The leaders of three Tigrayan political parties (Baitona, Third Woyane and Tigray Independence) claim that 52,000 civilians have already been killed, 4.8 million livestock were looted or killed and crops are constantly plundered or set ablaze in many parts of Tigray. According to their estimate, the lives of 8.6 million people is now endangered. The United Nations maintains that 4.5 million people are in need of humanitarian assistance.

The occupying soldiers claim that their fight is against the TPLF (or Woyane). Since 2.7 Tigrayans have voted in support of this Front at the last state election, this raises the number of the enemy to millions. Even TPLF veterans are not exempt, as the arrest of Aboy Sebhat Nega, the 87-year old veteran of the TPLF, who now faces charges before court in Addis Ababa shows. Added to this is the family members of the TPLF supporters who are targeted either out of revenge or in the pretext of obtaining information relating to the whereabouts of the enemy or to know what they owned or possessed earlier. When all this is taken into consideration the number of the victimized civilian population balloons to well over 5 million. This speaks a lot about the genocidal features of a brutal war which is aimed at terrorizing and destroying a people, in part or wholly. The crimes against humanity, war crimes, ethnic cleansing and aggression which are being reported are the means used to that end.

Even if the international community manages to save 3 million out of the 4.5 million endangered people, the final body count could be more than double the numbers of lives lost in the genocide in Rwanda. It is important to note that this is still a raging war, and that the Ethiopian government continues to drag its feet in restoring electricity and water supplies or in facilitating the delivery of humanitarian assistance freely where it is needed most. Electricity was restored in few areas only to be disrupted again and again. The limited humanitarian aid that reached Tigray after months of delays is said to have been largely looted by the soldiers or diverted to the Amhara state.

The kinds of atrocities that are reported by the media, human rights organizations, the Tigrayan sources (such as Tigray Media House) and by Eritrean opposition medias (e.g., Assena TV) are horrific. They include accounts of wanton destruction of refugee camps, villages (e.g., the 508 homes in Gijet) and farms and widespread civilian massacre in both the urban and rural places. Examples include the killing of around 1,000 in Mai Kadra, more than 300 in Wukro, nearly 800 church followers in Mariam Tsion church, 164 in Maria Denelt church, and 45 in the town of Edi Arbi. According to one interview which Assena TV held with one priest by phone from inside Tigray only recently 162 church followers were executed in the town of Bora, around 100 in the village of Samre mi woyni, 20 kids in Adi Gudem, 10 in Edaga Hamus and 30 Maichew. This priest also mentioned the presence of widespread looting and abuses of the villagers as routine practices.(26) Children, it is said, are killed in large numbers inside their own homes in front of their parents, and in streets, even from moving cars. There are even reports of dead bodies seen without head, bodies being dragged by cars in Western Tigray, family members that are prevented from burying decomposing corpses of family members and soldiers bragging that they do not shoot on children below 7 years of age.

Women and girls are the favorite prey of the soldiers and militiamen everywhere. In particular, the wives, children and relatives of TPLF members are targeted for revenge. Rape-revenge also follows after the occupying soldiers are attacked by the Tigrayan forces in the battle fields. There are also reports which describe how the soldiers use rape as a means of ‘entertaining’ themselves, including taking sex videos. They leave behind traumatized victims, most likely infected with venereal diseases and possibly also with the Covid-19 virus, and with no possibility of getting medical attention. Even going to a clinic, hospital or pharmacy is risky because it is not uncommon for these victims to be abducted again from streets.

The fact that this gender-based violence is now out of control and perpetrated in horrific ways reveal the presence of sinister and evil mind, which is designed and encouraged from above since the rapists are not punished. The reason for saying this is because, by and large, these atrocities are committed mainly out hatred to demoralize the Tigrayan society at large and women in particular. After all, this is not about ‘love-making’ in any sense but to penalize mothers for having given birth to the enemy (‘Woyane’) and to damage the womb of younger girls who will produce the future enemy. Seen from this perspective, it did not come as a surprise to hear that some of these rapists have left stones, nails and soil inside the womb of their rape victims or have told their victims to be grateful for being ‘Amharanized’ through rape, as one CNN reporter was told by one of the victims.

Robbery, by the armed forces and Amhara militias, is very common and committed to demand money, jewelry, mobile phones, computers and other private belongings. This takes place on streets, at homes, in shops or outside banks. According to one Tigrayan girl who managed to leave the country because of her foreign citizenship, her home was visited at four different times by soldiers, who demanded money or other valuables. In short, the prevailing political disorder under occupation is best described as barbarism or utmost savagery. Having said this, it is equally important to underscore the point that there should be an independent investigation to determine clearly whether these allegations are true or not, and if they are, to establish who did what, where and when.

3.4. Outcomes and other effects

The State of Tigray is the obvious loser, for now, since it is totally devastated. It is tempting to ask whether the Government of Tigray was adequately prepared to confront its adversaries, even if the timing of the invasion was decided by them. Still, the question is of interest because the invading forces were seen mobilizing since the middle of 2018, especially after Abiy Ahmed and Isaias Afeworki toured each other’s sensitive military establishments. They were even releasing statements suggesting that the TPLF could be targeted for an attack. For instance, the night Isaias was warmly by welcomed by Abiy at the Millennium Hall on 15 July 2018, in Addis Ababa, there were a lot of talk about the coming to an end of the past ‘dark decades’ and the emergence of a new promising era under the leadership of Abiy and Isaias. Without mentioning the TPLF or EPRDF, Isaias blamed the frozen relationship between Eritrea and Ethiopia on the past regime and assured the cheering crowd that he will not stand by if his partnership with Abiy is thwarted by any force. The latter too told the excited guests to rest assured that those who deserve punishment for their past deeds should expect to get this sooner or later.

Although there is no doubt that Tigray is now in ruin, this is not the end of the story. Wars have many rounds, and what looks like a loss at one point can end up being an important gain later. A case in point is the sympathy which the victimized civilians are now getting from the outside world, which can be exploited politically. That said, there is no doubt that the occupying army has already destroyed Tigray by and large, and that its military strength has been degraded. During the initial phase of the military operations alone, the drones of the UAE were said to have neutralized the tanks, missiles, rocket launchers, heavy artilleries and fuel storages of the Tigrayan Defense forces.

Since the first week of November, the people of Tigray have lived under a reign of terror. Although there is no military conflict in the urban centers, the city-dwellers are constantly abused by the soldiers in the streets, public offices and inside their own homes. ‘Normal days’ in Tigray now resemble very much like those long before the Middle Ages: with no electricity, internet or phone services, mothers dying or developing health problems from giving birth at home without professional assistance, sick people suffering due to the absence or shortage of medical facilities, pharmacy products or shortage of food and clean water. This fact and the news concerning the daily execution, rape, robbery, and destruction of farms and factories as well as the abuses have contributed to widespread fear and insecurity. Soldiers and police are seen everywhere: not to protect civilian life or property or to promote the interests of the state of Tigray but for the opposite reasons. Their responsibility is to promote and protect outside interests at the cost of Tigray and its residents. This is why the economic infrastructure of Tigray was and is looted or deliberately destroyed and Tigray’s western and southern arm and leg were amputated. Apparently, the Tigrayans were caught by surprise by the determination and speed used by their enemies to destroy them.

When the invading troops entered the cities and villages of Tigray, hundreds of thousands of supporters of the TPLF left their homes, families, neighbors and friends in search of safety in the countryside. There, they had to beg for food and shelter or ended up staying in abandoned structures, churches, monasteries or inside school compounds. The ‘shelters’ which they occupied are ill-equipped to handle proper accommodation, with rooms, kitchens, water, beds, mattresses, blankets, clothing, functioning showers, toilets, etc. Survival under these unhealthy and primitive conditions posed a serious challenge, especially to vulnerable groups, such as, pregnant women and persons with disabilities or health issues. No one knows, for sure, how many people are seriously ill, injured, killed or are in the process of dying due to hunger, disease, shortages of medicines and other problems.

The economic fabric of Tigray, which were radiating around the 5,000 or so enterprises (commercial, banking, industrial, agricultural and other business activities), are now shattered. As stated earlier, farms, factories, hospitals, pharmacies and universities are, by and large, destroyed, plundered or taken elsewhere. Schools too are mostly closed and some of them are used as accommodation by soldiers to shelter internally displayed people (IDP). From western Tigray alone more than one million Tigrayans have arrived to the bigger cities, e.g., Mekelle and Shire. The challenges facing the IDP is not only about how to make it for the day and beyond but also how to overcome the painful traumatic experience of the past months without any professional help. Dismayed by what is happening and the fear of what tomorrow brings, the Tigrayan youth is now forced to choose between joining the fighters or remaining in the cities where they could be killed or abused any day.

This dire situation has strengthened the drive to struggle for higher cause. There is no shortage of recruits and their fighters have started to harass the occupying forces by resorting to guerilla fighting. Most of the country-side is already under their control. Since the war is waged in their own homeland, they have the upper hand. They are familiar with the terrain and can count on the full support of the local people for information and food. However, it is their adversaries that are well equipped with tanks, planes, drones, ambulances and hospitals, and that are able to get the replacements for their losses. Above all, they can easily get external military, economic and logistic support by using the state finance or through loan. Because of this and because more time leads to more looting and civilian suffering, it would be wiser to speed up the liberation struggle, especially before the rainy winter season (July-August) comes since mobility and securing ‘warmer shelter’ will be more difficult when it is cold and wet.

The Amhara State is a clear winner, so far, since its leaders have achieved their political, economic and social objectives, thanks to the full cooperation of Abiy Ahmed and Isaias Afeworki. They see the former as their ‘secretary general’ and the latter as their general and hero. The Amhara nationalists and the Eritrean leader started developing closer relations after the 1998-2000 border war when Isaias launched military offensive inside Tigray. After he lost that war, he gave Safe Haven to the opponents of the TPLF, and even provided them military training. Nearly all of them are now inside or around the regime of Abiy Ahmed. When the Amhara political elites want to assure their citizens about the genuine nature of their relations with Isaias they add the fact that even his grandfather was buried inside their state, a fact which was also acknowledged by him during his visit there.

Although the Amhara leaders were on record in denouncing the ethnic-based federation of Ethiopia, they ended up absorbing western and southern Tigray into their state by using the ethnic factor. This illegal land grab has given their state significant political and economic benefits. The vast and rich rural farms in these regions, with their crops, cattle, tractors, homes and private cars, and the urban private homes and cars, businesses, shops and other economically beneficial enterprises now have new Amhara owners and users. The only exception to this property grab was that which Abiy Ahmed made to enable the Federal Government to take full control of the important enterprises and properties formerly belonging to the State of Tigray.

After western and southern Tigray came under the control of the Amhara state, the official language (for schools, courts, the administration, etc.) was changed from Tigrigna to Amharic. Speaking Tigrigna, as before, in streets and shops has suddenly become risky. It is also said that the Amhara and Eritrean leaders have come to terms on the demarcation of their new borders. Satisfied by all these gains, the Amhara leaders now claim that order and justice has already restored in the newly acquired regions and that life is back to normal. All that remains, according to them, to sanction legally what is gained by amending the constitution.

After taking western and southern Tigray the Amhara State extended its jurisdiction over these Tigrayan religious sites, entities, establishments and their properties. This has brought religion and history closer to the minefield of politics. It should be recalled that since religious places and institutions were deemed to ‘sacred and protected’ in the past these entities, establishments and place were used as custodians for the ancient Tigrayan treasures, religious writings, large golden, copper or silver crosses, unique gifts from political and religious leaders and undisclosed wealth and treasures. Now that they are placed under the Amhara ‘protection’, Tigrayans see this as robbery and the plundering of their rich religious and historical heritages and properties, which were preserved since the Axumite era. According to some of the Tigrayan religious figures which are interviewed by Tigray Media House, this is nothing short of ‘a religious war’. To strengthen this viewpoint they provided the statistics which shows the number of churches and monasteries that were attacked after November 4, the priests and church followers that were either executed or injured and monks that were expelled from the monasteries without showing any regard on how they will survive in cities where there is no food and shelters.

Needless to say, this land grab will bring significant change with obvious advantages and disadvantages. To the Amhara religious and political authorities as well as to the Federal Government this opens the door for ensuring social and political control over the inhabitants of western and southern Tigray. This is because the decisions which the higher Amhara religious authorities make will not be implemented easily at the lower level by using the local priests and church administrators. In regions like Tigray, where church attendance is extremely high, and half of the year is designated for celebrating religious figures (as the Day of Saint Mary, Saint Paul, Saint Michael, Saint Gabriel, etc.) and related festivities (like Christmas, Baptism, Easter, etc.) priests play important roles in facilitating and monitoring such activities and in reporting back to the higher authorities on the lives of their followers. These reports can be politically exploited. While priests do not want to be perceived as political agents they are also trapped by the obligation to follow superior order. These orders require them to send feedback about the facts on the ground as well as to lead the mass as directed such as what to include in their teaching, to promote forgiveness and to pray, bless or support the political authorities.

These priests are also told about who is not entitled to get religious services linked to wedding, baptism and funeral. Consider, for instance, the situation of what can follow if the TPLF was to be formally classified by the Federal Government as a terrorist organization. That would mean that its members, as well as who sympathize with it and contribute for it would be punished. Even the failure to share information with the government relating to the known members and supporters can lead to punishment. The fact the person who has failed to comply with this law was a priest would not matter. This being the legal situation, if the government classifies the TPLF as a terrorist organization religious authorities will be expected to reciprocate by issuing their respective directives instructing their priests to cooperate with the law. The more Churches are sucked into this political world in this way, the more their followers could see them as being politically corrupted. Obviously, there will be members who will choose to distance themselves from politics since they can’t imagine life without their church leaders. Others may defy them and this can create a rift between the two sides poisoning the social and spiritual atmosphere in the same community. This scenario will benefit the political leaders.

The Amhara political elites are now seen rejoicing because the TPLF is no longer in power. They also like the fact that Tigrayans are removed from government offices in the capital city and that their state is, for all practical purposes, in ruins politically, economically and militarily. This is why it is very rare to see or hear of opposition to the war in Tigray inside the Amhara state, even sympathy to the sufferings of the Tigrayan civilians affected by this war. After all, for nearly three decades the Amhara political elites and the intellectuals in the diaspora were vocal in denouncing the Tigrayan dominance of the Ethiopian state. They can rest in peace, in feeling that the Tigrayan dominance of Ethiopia is now part of history. Although this ‘dominance’ actually ended way back in April 2018, the ant-Tigrayan mobilization still continues even after Tigray was destroyed. This suggests that this war was/is more about a vendetta, or ‘justice’ as some of them call it, and making sure on preventing Tigrayans from rising up in the future. This is why their property was/is plundered and all kinds of crimes are perpetrated against their women and the youth. But if the intention behind all these was to break their dignity and moral, it has backfired. Tigrayan nationalism is now fully ignited, and the talk about creating separate state is in the air.

The Eritrean Government has still not admitted that it has intervened in this war. This could be because of the realization that it is illegal to send military force in the territory of another country without being invited formally or to avoid taking responsibility for the conduct of its soldiers. Since the TPLF has launched missiles around the airport of the Eritrean capital, Asmara, on 14 November one may wonder if the Eritrean invasion was motivated by self-defense or in retaliation. Yet, this was not officially stated by the Eritrean Government. This too could be because the missiles were launched after the Eritrean army had already invaded Tigray and was seen in the major cities of Tigray. Furthermore no one would believe this defense when the Eritrean President had made it clear way back on February 8, 2020 and February 17, 2021, in his televised interview on Eritrean Television, that the TPLF is an enemy that should be confronted sooner or later. In 1998, the Eritrean leader even sent his army to Tigray to destroy TPLF in the pretext of a border dispute. At the time, when he was asked when his army will be withdrawn from the occupied border areas, he said that is very much like expecting that the sun will not set.

In the abovementioned two televised interviews Isaias Afeworki gave two main reasons why the TPLF is an enemy. The first was the obstacles which it created in resolving the 1998-2000 border dispute. The second one was the ethnic-based federal formula which it has used to govern Ethiopia for the sake of ensuring its own political dominance by applying the strategy of divide and rule. This bothered him because it can have spillover effect on Eritrea. The TPLF was also described as a poisonous political organization because it was undermining the authority of the new Ethiopian leader. In light of this, there is no other option other than defending and strengthening the regime of Abiy Ahmed. Failure to do this or to postpone it would enable the TPLF to take power in Ethiopia again.

There is one other important reason why Isaias deeply resented the TPLF, which is not mentioned in the above two interviews. It concerns his disappointment over the refusal of the TPLF to entertain his idea of enabling him to secure political position in a political scheme which would link Eritrea with Ethiopia. This exchange took place before the TPLF took power in Addis Ababa. According to the former TPLF leader, Aboy Sebhat Nega, the reason why the TPLF did not appreciate this idea was because it is wrong to proceed with such an idea before consulting the Eritrean people on whether they want to abandon the goal of independence which they have struggled for. Mesfin Hagos, one the former Defense Ministers of Eritrea, also recalled during one of the interviews given by Assena TV, that Isaias did bring this idea of linking Ethiopia and Eritrea in one of their meetings prior to Eritrea’s independence but that it was not acceptable to the nationalists.

Whether the rebuff of the TPLF to accommodate Isaias Afeworki in shaping the post-1991 political order of Ethiopia and that of the Horn of Africa was motivated by respect for the will of Eritrean people or whether this was based on fears of opening the door which could enable Isaias to zig-zag up the ladder of power, thereby dominating the TPLF, no one knows. What is clear is that the TPLF did not want to take that risk, knowing too well that he was a skillful, ambitious and ruthless leader with a large and disciplined army at that time. In passing, it is also worth recalling that there is one rumor which is well known, which links the forefathers of Isaias to the Emperor Johannes IV of Ethiopia (a Tigrayan). They ended up in Eritrea with the permission of the Italian colonial administration because of their conflict (war) with the ruling circle of Tigray (with Ras Alula). If there is truth to this, one can understand why the TPLF would prefer to shape the political order of Ethiopia and the Horn of Africa without him. Isaias never forgave the TPLF for blocking his ambitions, after he has cooperated with this front militarily during the liberation struggle. The fact that the TPLF has the solid support of Tigrayans after three decades of rule has also left Isaias to feel that he has no chance to win the support of Tigrayans (and other Ethiopians) in any future scheme which links Eritrea with Ethiopia since he will not be accepted as the leader as long as the TPLF and its power-base is left untouched.

Leaving the resentment of Isaias over the TPLF aside, nationalist Ethiopians, who are opposed to the policies of Abiy Ahmed, are concerned about Isaias’s interventions in the Ethiopian domestic affairs, especially after he said it is “game over” for the TPLF, eight months before Abiy launched his military operation.(27) If Isaias is left free to use force against the TPLF, they argued, what will stop him from doing the same to crush the other Ethiopian opposition groups? This is worrisome because he has well trained young and vast army. This was one of the reasons why Ledetu Ayelew, the leader of the opposition Ethiopian Democratic Party, called Isaias Afeworki as the number one enemy of the Ethiopian people. Two days before Abiy launched the military operation the Oromo Liberation Front too issued a statement expressing concern over the military campaign and called for a peaceful solution to the dispute before the situation gets out of control.

Although both the Ethiopian and Eritrean Governments deny the Eritrean intervention in the war in Tigray, Western powers and the UN are now telling the Eritrean Government to withdraw its force immediately. The interviews which were conducted by journalists and NGOs with some of the local witnesses all indicate that Eritrean soldiers are not only seen in the cities of Tigray, such as, Adwa, Humera, Adigrat, Axum, Zelambassa and even Mekelle, but that in some of these cities, e.g., in Adwa, they remained there for more than two months, acting very much like the forces of a legitimate government. The leaders of the Baitona party, one of the Tigrayan political parties, have gone a step further in stating that even senior Federal military officers are now seen taking orders from Eritrean generals. This suggests that the Eritrean Government is more than intervening and even sharing the sovereign power (temporarily) over Tigray, if the Ethiopian authorities are really subordinated to the Eritrean generals. This dominant role which the Eritrean President plays in shaping the political development of Tigray boosts his political image by giving the impression that he is above Abiy Ahmed when it comes to how the political developments of Tigray are now shaped.

If Abiy Ahmed has not permitted the Eritrean State to intervene militarily, as he is now saying, and the Eritrean army has occupied Tigray, as Western Powers now claim, then the norm of non-use of force in international relations (Article 2 Paragraph 4 of the UN Charter) has been violated by the Government of Isaias Afeworki. This clearly makes Eritrea an aggressor. It follows, from this, that the state if Eritrea would be liable to compensate the victims for the damages caused by its army in the illegally occupied territory. Unless Abiy Ahmed changes his position on this matter and assumes responsibility for the damages caused by the intervening external force, Eritrea cannot escape from the responsibility to the damages caused by its forces. Meanwhile, the leaders of the Provisional Administration of Tigray and some of the senior military leaders of the Federal army continue to express concern over the atrocities which the Eritrean soldiers are committing. Proceeding from this premise as established facts, let us draw conclusions concerning what was achieved by the Eritrean leader from his intervention.

Bearing in mind what the Eritrean President stated in his interview of February 8, 2020 and February 17, 2021 on Eritrean Television, the war in Tigray must be viewed by him as one of vindication. Now that he has demonstrated practically his loyalty and commitment to protect the regime of Abiy Ahmed, the latter too has reciprocated by freeing Isaias from the political isolation and regimes of sanctions which were made earlier as demanded by the TPLF. What is more, his dream of getting the opportunity of shaping the politics of the Horn of Africa is now in the process of being realized. His enemy, the TPLF, has been removed from power, punished militarily and made financially bankrupt. Its supporters have been dispersed in the countryside and exposed to danger. They were forced to leave their comfortable city life because of fears of being arrested or killed. Their departure has even made it easier for the soldiers of Isaias to enter their homes and offices, to search for anything they want and take what they get as well as harm their relatives in their homes with impunity. The Tigrayan society as a whole is also punished collectively by his regime of terror.

Isaias Afeworki has also achieved other political aims. He has assisted and strengthened the Amhara political elites, by enabling them to incorporate western and southern Tigray into their Amhara State. He has punished the 96,000 Eritrean refugees that were sheltered inside the four UN administered refugee camps for having escaped to Tigray illegally. Their camps were, by and large, destroyed or plundered. The destruction in two of these camps was so extensive they are now permanently closed. Some of the refugees that were known for being critical of their government were executed on the spot and while others, numbering in thousands, more were taken back to Eritrea for punishment. The Eritrean refugees who live in Addis Ababa and other Ethiopian cities, numbering well over one hundred thousand, are closely monitored, harassed and some of them are rounded up by the Government of Abiy Ahmed to please Isaias Afeworki. The sheer size of these refugees (200,000) and the fact that most of them were militarily trained in the Sawa camps of Eritrea posed security risk to the regime of Isaias since they could be used by the TPLF to overthrown him Even if this was to be mere speculation, their presence in Ethiopia was itself an embarrassment since it shows how bad life in Eritrea is.

Isaias Afeworki’s army, which was kept in ‘isolation’ in the Eritrean countryside under the open-ended national service program (Sawa) is also now kept busy in Tigray. When ‘the peace’ deal between Isaias and Abiy was announced there were expectations that this will now enable the soldiers to lead normal life next to their relatives and friends by looking for employment, continuing higher studies and forming family and enjoying the recreational activities which the urban setting provides. But this was not the desire or plans of the regime. Perpetuating the military service scheme in the pretext of responding to national emergencies has always been its strategy, by constantly exploiting ‘incidents’ or finding new enemies and old enemies. This was why there were military conflicts in the past with Yemen, Djibouti, Sudan and with the TPLF.

Creating animosity between the two Tigrigna speaking communities of Eritrea and Tigray by committing atrocities in Tigray was the other aims of Isaias Afeworki. This was achieved partially. Tigrayans now resent by how they are/were abused by Eritrean soldiers. On the other hand, the Eritrean diaspora has, by and large, sympathized with how Tigrayans are abused, and the bond between the two groups in the Western countries has never been as good as it now is. The day the present regime of Eritrea is removed from power this ‘animosity’ between the two sides will weather away because the two sides have a lot in common. When the Ethio-Eritrean border was opened in 2018 the spontaneous celebrations that were seen in the frontier towns and fields was very emotional and uncontrollable, with people who do not even know each other embracing one another and tears of joy being shed everywhere. Thousands of Eritreans also took that opportunity to escape from Eritrea, which was why the border was closed shortly thereafter.

If the information which is circulating on Ethiopian and Eritrean opposition media circles is to be believed, Isaias Afeworki has also benefited economically. These reports claim that Abiy Ahmed has promised to pay the Eritrean leader US $1 billion, in cash and in kind, for the military cooperation, and assurances not to hinder his soldiers when they plunder Tigray. Eritrean soldiers are also said to be paid $15,000 Ethiopian Bir (US$350) which is much higher than what their Ethiopian counter-parts get.

Isaias has also been able to occupy the disputed border areas along the frontiers of Tigray as he sees fit. This means expanding his initial claims to the economically beneficial areas along the disputed area. But then again, if border dispute was the only and real cause for Isaias’s intervention, the demarcation of the borders would have been finalized by now. Instead, what Abiy is doing is to provide the cover for Isaias’s plans of subjugating and terrorizing Tigray. Isaias knows clearly that it is impossible to defeat the TPLF, and that as this war drags on, the Ethiopian military and Abiy will be considerably weakened. When that happens and Ethiopia is discredited and isolated internationally because of this dirty war, Abiy will be totally dependent on him. When that happens Isaias will easily dominate (or rule) Africa’s second most populous country which is rich with resources. He is already seen as a respected ‘savior of Ethiopia’ by destroying the TPLF which Ethiopians consider as their real enemy. Even Sudan which has occupied Ethiopia’s vast rich farmland is seen as a ‘friend’.

No less important economically speaking is the plundering Tigray’s industries, farms, universities, hospitals etc. which Eritrean soldiers are accused of and which was/is done with the permission and even cooperation of the Federal soldiers. Since what Isaias and Abiy have agreed upon is not clearly stated in written forms, the day Abiy Ahmed is replaced by a different leader there could be problems with the regime of Eritrea about some of these economic gains, since Tigrayans regard them as unacceptable.

The benefits which the Eritrean President has secured for himself are not necessarily benefits to the Eritrean society or to their country. The great majority of Eritreans do not like to see their sons, daughters, parents, relatives, neighbors, friends or citizens taken to Tigray. After all, this is neither voluntary nor for something positive, such as, tourism or to gain educational or work experience or to provide humanitarian services for Tigrayans. It is to kill and abuse innocent civilians, and destroy or plunder their belongings. They also well aware that there is the danger of being killed, injured, captured and traumatized. Since the Eritrean government does not officially acknowledge that it is intervening militarily, it does not inform the citizens about how many were killed, injured, captured and are lost. The death of selected senior military leaders is reported regularly on Eritrean TV because of the need celebrating their past lives when their funerals are arranged. But their death is always attributed to ‘health’ issues. Their families, relatives and friends know too well what the condition of their health was and where they were sent before they died. This means the regime is only fooling itself. But that does not matter for a regime that is not accountable.

Eritreans also resent hearing that their soldiers are implicated in the kind of horrific crimes that are committed in Tigray. The fact that the Eritrean refugees inside Tigray have been victimized and that those in the different cities of Ethiopia are now harassed and insecure is also of concern. Since both the Ethiopian and Eritrean Governments see these Eritrean refugees as security risk, the danger that they will be returned back to Eritrea by force is real and worrisome. Again, the destruction and looting of the Tigrayan monasteries and places of worship as well as the massacre of the religious leaders is not something Eritreans feel proud of. On the contrary, most Eritreans view these acts as if they they were committed inside Eritrea.

Last, but less important, most Eritreans do not see why their country involves itself in a war which promotes the political, economic and social interests of the Amhara state at the expense of the state of Tigray. After all, it was and still is the Tigrayans who have defended the independence of Eritrea, and not the Amhara State and its leaders. In fact, one of the reasons why the latter wanted to punish the TPLF and its supporters was because of the role it played in facilitating and recognizing the separation of Eritrea from Ethiopia. The Amhara leaders openly praise Isaias Afeworki for protecting their vital interests, by sacrificing Eritrean soldiers. They even expect him to work for the integration Eritrea to Ethiopia under their domination.

It is because of all these issues that the Eritrean diaspora is now seen in large numbers joining hands with Tigrayans when protests are held in many Western cities calling for an end to the on-going political adventure. As they see it, this war is aimed not only at destroying the State of Tigray and Tigrayans, but Eritreans and their state as well. The longer this war continues, the more Eritrea will bleed economically and militarily. By overstretching and exhausting itself the Eritrean defense force has already made the country vulnerable for external attack. The political image and prestige of the military too has already been stained by the kinds of crimes that are committed in Tigray. This discourages the Eritrean youth from joining the military in the future. They prefer to pursue careers that will not require them to engage in criminal conducts.

This assessment can be challenged by those who rely on the absence of opposition within Eritrea to the war in Tigray or Eritrea’s intervention. But this is because there is neither independent media nor tolerance for any form of opposition to the policies and actions of the government. Since the country became independent, in 1993, this Eritrean people have never been consulted about how they are to be governed. The leader does not use constitution, national assembly, an independent judiciary, budget or vice-president or believe in democracy. Those who called for the establishing democratic institutions, political parties and free press during the 1990s, and who opposed the 1998-2000 border wars still languish in jail, without court decisions. The whereabout of many celebrated Eritrean nationalists and x-fighters still remain to be unknown. If any person escapes from the country illegally, his/her family will be arrested or ordered to pay 50,000 Eritrean Nakfa (US$3,400). In short, Eritreans live under a tyrannical rule where there is no accountability. This is why Eritreans are not even told that their sons, daughters, fathers, mothers, friends etc. are sent to the war front in Tigray.

This being the fact, one should not expect Eritreans to speak out against the intervention of their government in this war. As some of the captured interviewed Eritrean soldiers have stated some of them did not even get the opportunity to say goodbye to their families when they were abducted from streets to be sent to Tigray. This is not always known by Tigrayans since they are often heard asking why Eritrean soldiers abuse them in cruel ways when they speak the same language, use the cultures and profess the same religion. To this, most Eritreans respond: “Sorry to see that you have been victimized by our soldiers. This is how they were behaving against their own people in Eritrea for three decades. They are also going after the 96,000 Eritrean refugees in Tigray and the other 100,000 refugees elsewhere in Ethiopia.” The longer the army of Isaias Afeworki remains in Tigray, the more Tigrayan women, girls, their youth, the educated people and religious establishments will be endangered. Tigrayans will also have difficulties in benefitting from external food aid or from their own natural resources and wealth. This being the simple truth, to shorten the pains and suffering of the people of Tigray it is important that Isaias will be forced to withdraw his army by the regime of Ethiopia or by other powers or international organizations.

The Federal Government is pleased by how the war in Tigray was executed and what was achieved, especially in rallying Ethiopians behind Abiy Ahmed. Since Prime Minister Ahmed lacked competence, experience and vision on how to move the country forward, the simplest way of deflecting public attention from the failure of his government was to rely on the ‘Tigrayan dominance’ rhetoric and their ‘bad records’. The statements which he was making before the parliament and that were aired in the tightly controlled media, including by strengthening them with ‘documentary programs’, were used to galvanize public support for this rhetoric and to enlist support for the war. This proved to be an effective strategy since three months after this war was launched, street protests against the war are still unheard of.

Abiy Ahmed benefited from this war personally because this has led to the removal of the TPLF from power in Tigray. Abiy saw the TPLF as a political threat and was also humiliated when this front defied his order not to proceed with the election which was postponed in the pretext of Covid-19. But now that Tigray is governed by Abiy through the Provisional Administration of Tigray which he established and controls, this surely pleases him. It is important not to forget that in the state election, which the TPLF arranged in Tigray, this Front was able to secure around 97% of the Tigrayan vote. This says a lot about the concerns of Abiy’s Prosperity Party in getting Tigrayan support if elections were to be carried out there. What is more, because the TPLF and its allies were in power in the central Government for more than a quarter of a century, they continue to pose a serious challenge to Abiy and his political party if and when the nation-wide election is held. In light of this, destroying the TPLF militarily clearly served the political interests of Abiy Ahmed since his ambition is to remain in power.

How long Abiy Ahmed will last as the Prime Minister is another question, since his political image abroad is now tarnished by the dirty war in Tigray. Very few observers now take Abiy’s claim that what was launched in Tigray was to ensure ‘law and order’, seriously. Even Ethiopians doubt that and worry why their government is not concerned with ‘law and order’ when serious atrocities are committed against the civilians inside Tigray, when places of worshiping, factories and hospitals are attacked. They know too well that Tigray, which was the most stable and peaceful state in the country prior to this war has been transformed to a lawless and destabilized state. They also follow with anxiety what foreign human rights activists, and states are saying and writing about the genocidal war in Tigray, and their call for Abiy Ahmed to step down and to account for the crimes which he is responsible for. The day warrant is issued against him by a special UN tribunal or the International Criminal Court issues , Ethiopians will abandon him since this war, which is waged with the support of foreign states, has embarrassed them. When this happens all the political gains which Abiy made by unleashing this war would be washed away.

Abiy Ahmed’s claim that ‘the military operation’ in Tigray was over on November 28, and that his government has secured full control of Tigray thereafter raises interesting legal questions. For instance, if Abiy is right and his government is monitoring what is happening inside Tigray, including the activities of the Amhara militias in western and southern Tigray then this regime is responsible for what the atrocities committed by the Amhara militias and police forces inside Tigray. The Ethiopian constitution requires the government to protect the life and property of the citizens, to punish criminal conducts and to provide justice to the victims. Yet, this is not what the government is doing.

If the regime of Abiy Ahmed was serious about ensuring respect for law and order and there are courts to apply laws, Tigrayans should have been compensated for their losses and sufferings. This is required by international human rights instruments which the Ethiopian state has ratified, such as the covenant on civil and political rights (Article 2{3}), the convention on the elimination of discrimination against women (Article 2{c}} and the convention against torture, cruel, inhuman and degrading treatment (Article 12 & 13). The mere fact that the regime is pre-occupied with taking ‘military or policing operations’ does not entitle militias and soldiers to murder and dislocate civilians or loot and destroy their properties. Nor does these kinds of operations relieve the government from discharging its responsibilities in combatting such kinds of activities. Even if the military operation was to be formally acknowledged as war, which it is not, the rules of international humanitarian law prohibit the killing of civilians, ethnic cleansing and vandalism.

The same can be said regarding what the responsibility of the Federal Government is in relation to the wrongful conduct of the Eritrean soldiers. The presence of these foreign soldiers is not acknowledged probably to escape from responsibilities linked to the war crimes and crimes against humanity. However, reports after reports claim that the Federal and Eritrean soldiers are seen operating side by side. Senior Ethiopian authorities are heard blaming Eritrean soldiers for looting of property and widespread executions. The Federal Government should have prevented all such acts rather than covering up the crimes. The failure to react against these crimes makes the regime an accomplice. The rules relating the “Responsibility of States for internationally wrongful acts”, as recognized in article 16 of UN General Assembly resolution 56/83 of January 28, 2002 provides that:

“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.”

This being the legal situation, the regime of Abiy Ahmed will find if difficult to continue denying the presence of Eritrean soldiers when the more and more evidence relating to the kinds of atrocities which they have committed inside Tigray comes to light. This is not to say that they are relieved from accountability for their own conducts. All combatants, whether they belong to state or non-state actors (i.e. the members of the Amhara militia, the Eritrean or Federal army or the Tigrayan force) will be liable for the international crimes which they have committed.

It is difficult to see what the Ethiopian nation and peoples have gained from this war since the country has been damaged militarily, economically, socially and politically by taking this destructive path. When Abiy Ahmed justified the significance of unleashing the military offensive, on November 4, he claimed that this was because the TPLF attack on the Northern Defense Forces has this Front to control most of the military hardware of the country. When he announced the defeat of the TPLF, on November 28, he said his military force was able to destroy 99% of the military targets of the TPLF. If both these statements are true, the Ethiopian military must now be very weak. This is even without considering the military damage that was sustained after December on both sides. It is no wonder the Sudanese army was able to take more than 40 kilometers of the rich agricultural border land facing the Amhara state which was in dispute, recognizing that the Ethiopian military is weakened and also bogged down in Tigray. This is also why the Ethiopian Government is begging for diplomatic solution to the dispute with Sudan when its sovereignty is challenged militarily. Meanwhile, the Government of Sudan continues to expand its territorial claims, and humiliating Abiy Ahmed constantly by using insulting words.

This military weaknesses of the Ethiopian regime and the cruel and immoral policy that is pursued in Tigray, including by allowing neighboring Eritrea to terrorize Tigrayans has also damaged Ethiopia politically and diplomatically. Sudan, as stated above, is on war footings with Ethiopia. Relation with Kenya is the lowest it has even been. The African Union is seen moving its meetings from its headquarter, in Addis Ababa, to other African cities often in the pretext of Covid-19. The European Union and the United States are contemplating to impose sanctions if Abiy Ahmed does not change course in Tigray.

Inside Ethiopia too, social relation is poisoned with hate speech and ethnic mobilization spreading everywhere. Abiy Ahmed’s tolerance for the kind of atrocities that are committed against the civilians of Tigray is seen as a sign of moral decadence by those who take morality and religious seriously. The widespread rape, vandalism, destruction of property and arbitrary killings that are seen there are clearly prohibited by international law as well as by the Ethiopian Constitution. All this erodes the confidence which Ethiopians have on their government. When law and order is sacrificed in one state, the residents in the other states will be compelled to devise their own strategy of how best to protect their safety and interest in case the political chaos in Tigray spreads to their regions. Such moves, in turn, lead to suspicion, tension, rivalry and more insecurity.

The war in Tigray is also unsustainable economically since it depletes the badly needed resources and finances which could have been used for progress and development. Foreign investment and tourism have decreased considerably, the military expenditures and cost of living have increased, the government is getting less and less revenues from taxes now that the economic fabrics of Tigray are destroyed and the government is facing shortage of foreign currency. To make things worse, the European Union and the United States are contemplating to impose sanctions because of the policies used in Tigray and the World Bank and the IMF are not eager to extend loans. Even before this war, the country ranked 173rd out of 189 States under the human development Index used by the United Nations Development Programme.

4. The United Nations

According to the preambles of the Charter of the United Nations, the organization was established, in 1945, “to save succeeding generations from the scourge of war … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person …[and] to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Its purposes, as stipulated in Article 1 Paragraph 3 of this Charter include, achieving “international co-operation in solving international problems of …humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. Paragraph 2 of this Article underscores further that the U.N. is committed to the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.

The war in Tigray provides a classical example of the type of situation which the UN is meant to address. Successive generations of Tigrayans have been exposed to the scourge of war, the last one being the genocidal war in which the Ethiopian Socialist Government of Mengistu Haile Mariam (the Derg) pursued in the 1970s and 1980s. This regime was known for carrying out mass murder and endless abuses on human dignity and worth throughout its rule. However, the atrocities which are now committed by the current regime of Ethiopia are much more serious and systematic and are carried out in persistent ways. As mentioned earlier widespread mass executions, attacks on civilian properties, including on sacred places, violence against women, children, refugees and exposing civilians to inhuman and degrading treatment are all carried out consistently everywhere. The Derg was evil but it did not engage in practices requiring human corpses to be eaten by hyenas, or women to be raped by their families and foreign objects to be inserted inside their wombs as is seen here and there in Tigray. The Derg also used hunger as a weapon to starve Tigrayans, but not by as far as disrupting electricity and water supplies for months and by destroying or plundering hospitals and clinics. Abiy did all these so that the people would have to cook and to store their food, and to deny them access to medicine as well as to prevent hospitals from saving lives since some of their equipment operate using electricity.

There are people who share Abiy Ahmed’s viewpoint concerning the legitimacy of taking punitive measures against those who conduct elections in defiance of government orders as well as for attacking the military, as the TPLF has done. But no one with sound mind would agree that wiping out the state and people where this was done is the appropriate course of action for these. It is true that Abiy Ahmed has not openly stated this, but that is what he is now doing, including by soliciting the support of foreign states. The Ethiopian state was not threatened by the people of Tigray, e.g. by declaring independence. In fact, during the state election, which was denounced by Abiy, less than 3% supported the party which was calling for secession. Yet, Tigrayans were doomed for extinction simply because the authority of Abiy was challenged by the TPLF, that which was not even secured by the people.

The state election in Tigray itself was carried out within the timeframe set in the Federal Constitution. It was the postponement of the national election by Abiy which has defied this constitution in the pretext of Covid-19. According to this law the people of Tigray is supposed to be sovereign (Paragraph 1 of Article 8) with the right to self-determination (Article 39). The military offensive was unleashed on this people, apparently, also because the people have voted in the ‘illegal’ state election, although there are other reasons as well. Abiy has not officially linked the offensive to this election, but his supporters and others mention this as one of the reasons for the war. Even if credit is to be given to this viewpoint this still will not provide the answers to the many other questions related to this war, including how western and southern Tigray ended up falling under jurisdiction of the Amhara state and why Eritrean soldiers are still in Tigray including in the major cities.

As clarified in section 3.3. this paper totally rejects the official view which describes the scenario in Tigray as policing or military ‘operation’ whose aim is to bring to justice those responsible for the November 4 attack on the Northern Defense Forces. What is seen, in the view of the present author, is well-designed and coordinated total war including by inviting foreign actors such as Eritrea, Somalia and the UAE. The timing that was used to launch this military operation was carefully chosen when the global media turned attention to the coverage of the Presidential election in the United States. To prevent media reporting about the military operations inside in Tigray, the latter was also cut off from the external world, for several months, by disrupting electricity, phone and the internet. As if this was not bad enough, foreign journalists were forbidden from entering.

The Government of Abiy Ahmed knows too well that what is seen in Tigray is a major war which is taking the lives of hundreds and thousands of its own citizens and that the disruption of normal life alone has exposed close to five million civilians to hunger. Despite this, and although humanitarian agencies have been extending their hands to save the victimized civilians, this government has prevented these agencies from delivering food and medicine. It has also rejected the international calls asking the establishment of an independent investigating body to examine who was/is responsible for the serious international crimes that were/are committed. All this shows how determined the regime of Abiy Ahmed is to prevent the international community from seeing this ‘dirty war’ and from saving the victims before the genocidal war has achieved the desired goals.

Genocide, war crimes, crimes against humanity and aggression are all punishable crimes under the statute of the International Criminal Court. Genocide is defined in Article 6 of this statute as acts that are committed with “an intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, such as, by killing or inflicting deliberately “on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Examples of the crimes against humanity which are mentioned in this statute include, the “widespread or systematic attack directed against any civilian population”, murder, rape and enforced disappearance of persons. Added to this is “the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population” (art. 7). War crimes, according to this instrument include, intentional killing, the “extensive destruction and appropriation of property “attacks against civilian objects” bombarding towns, villages, dwellings, the “deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”, deliberate “attacks against buildings dedicated to religion, education, art … historic monuments, hospitals” rape, …and any other form of sexual violence”. (art. 8). The forcible transfer of population from their territories (ethnic cleansing) falls under the categories of both crime against humanity (art. 7(1)) and war crime [art. 8(2)(a)(viii)]. Aggression is defined in article 9 of this Statute and includes:

“(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary …

(b) Bombardment by the armed forces of a State against the territory of another State

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided …

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State.”

Judging from the now circulating reports, most of the abovementioned crimes were committed and continue to be committed in this war as explained in section 3.3 as well as in the present section. The presence of ‘an intent’ to destroy the people of Tigray, as understood in the genocide convention, is evident from the practices of widespread execution of civilians, the destruction of farms and crops, the prevention of farming, the looting of industries, shops, health centers and universities, the use of hunger as weapon, the widespread systematic rape including by damaging the womb of women and girls, and the forcible transfer of around one million Tigrayans from western and southern Tigray

Seen from this angle, it did not come as a surprise that the leaders of the U.S., U.K., and E.U., as well as the UN and many human rights organizations have all denounced most of the above crimes, especially the killings of civilians, the plundering and destructions of civilian properties since they are all prohibited crimes by international humanitarian rules. This is also why they have repeatedly appealed to the Ethiopian leader to put an end to this war, and asked for the “immediate” withdrawal of Eritrean soldiers from Tigray. The latter demand also suggests an acknowledgement of the presence of an illegal intervention and aggression since the Ethiopian Government has not even formally asked for Eritrean support.

The magnitude and consequences of this war are still not widely appreciated by the political world because of the blackout of the past three months. In their open letter to Abiy Ahmed, four former American Ambassadors to Ethiopia have expressed concern over the fact that “2.2 million people have been displaced, and 4.5 million people need emergency assistance, many of whom are without adequate food.” (28) This is a staggering figure, considering that the population of Tigray is around 8 million. It means that the majority of the Tigrayan population is already exposed to hunger in less than four months. It is true that food supplies in Tigray were already at risk before the start of the war, as a result of locust plague. But it is the war itself and the deliberate policy of Abiy Ahmed to starve the people of Tigray which has compounded the humanitarian problem. The fact that weaponizing hunger is formally condemned by the international community – as a crime, – means nothing to the Ethiopian regime since it views international law as toothless.

The claim that hunger is used by the regime of Mr. Ahmed as a weapon to destroy the people of Tigray can be substantiated by using the following arguments. The first is the refusal of the regime of Abiy Ahmed to open its borders to enable international humanitarian organizations to deliver emergency food aid. If this was not motivated by the desire to see Tigrayans starve to death what other reasons are there? Yes, the regime made reference to ‘sovereignty’ and ‘territorial integrity’ as a pretext, but this makes no sense. How can providing access to aid agencies to feed starving people threaten sovereignty? Is it not the invitation of foreign soldiers, such as those from Eritrea and Somalia, or the attack by the drone of the UAE, which actually threatened the Ethiopian sovereignty and territorial integrity? Even an elementary school student would grasp this point. The foreign forces that are inside Tigray are not seen promoting the security of the people or their property or ensuring law and order, unless ‘law and order’ is understood in the sense of permitting soldiers rape and plunder and terrorize civilians. But these acts are prohibited under the Federal Constitution and deemed as punishable.

Second, the regime of Abiy Ahmed must know that hunger follows when electricity, water and bank services are disrupted for months, when farms and their crops are destroyed and markets collapse, when shops, hospitals are looted, and people are not paid for more than three months. This is precisely what is happening within Tigray today. Despite this there is hardly anything that the Government of Abiy Ahmed has done to meet the challenges, which are caused by its soldiers other than blaming the TPLF. If the TPLF was defeated at the end of November, as Abiy Ahmed officially told his Parliament on November 30, how can the TPLF be blamed for all the problems in its absence? The fact remains that even the Federal Government is said to be unable to control what the Eritrean soldiers, the Amhara militias and its own soldiers are now doing.

The third reason for claiming that the regime is weaponizing hunger is the selection of November 4 as the date for launching the military operation. Most Tigrayans rely on teff, a fine grain, for their daily food. The harvest of wheat, barley and teff usually “start(s) in the last week of October, while the harvest of sorghum, finger millet and maize (the latter being of minor significance) is expected to take place from November through January.” (29) It is legitimate to ask whether it was sheer coincidence that military operations were launched at the start of the teff harvest, or whether this decision was taken intentionally, in order to disrupt the harvest. Indeed, the destruction of farms and crops and disruption of the markets created serious problems for the population in the months following this military offensive.

If the military offensive was delayed by one or two months the farmers of Tigray would have been able to harvest their crops and earn an income by selling their produce. Traders would have earned money in the process. The consumers too would have stored the food to tide them over during the war. By launching the war just prior to harvest, the Government of Abiy Ahmed intentionally wrecked the flow of food and income, exposing the population to hunger.

The fourth reason is the government’s own reluctance to come to the rescue of the farmers of Tigray when they were devastated by swarms of locusts in the weeks prior to the war. This is in stark contrast to the prompt assistance provided to those affected farmers in neighboring states. Even the drones that were donated by the Tigrayan diaspora from Israel to combat the locust invasion, and the helicopter which one person donated for this purpose were confiscated on security grounds. The fact that the National Bank of the country has frozen all the bank accounts inside Tigray too shows the presence of an intention to prevent people from using their savings in the banks before they were closed. Taking all this evidence together, there are compelling reasons for maintaining that the Government of Abiy Ahmed did weaponize hunger in the present war in Tigray.(30)

When close to 8 million people are facing problems of the kind described above and their government is not willing or unable to protect them, the UN should have stepped in and protected them. The Secretary General of this organization was expected to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”, as expected by Article 99 (emphasis added). Operative Paragraph 11 of Security Council resolution 2417 even required the Secretary General explicitly “to provide information on the humanitarian situation and response” so that the Council would be able to take measures, including the consideration of “sanction measures” against “individuals or entities obstructing the delivery of humanitarian assistance, or access to, or distribution of, humanitarian assistance” (Operative Paragraph 9). Yet, two months after Secretary General Antonio Guterres proceeded by cooperating with the Ethiopian Government the latter is still seen dragging his feet.

Mr. Antonio Guterres was receiving information about the dangerous humanitarian crisis from the various humanitarian organizations and UN offices that were expressing concern about the problem. He knew too well that this looming humanitarian crisis is directly linked to the disruption of normal life, especially due to power shortages and the difficulties of accessing clean water, banking, marketing and medical services. Yet, even when it was obvious that Ethiopian government was hindering humanitarian agencies from delivering assistance and that it was weaponizing hunger, the Secretary General chose to continue with the strategy of appealing to cooperate with Abiy Ahmed rather than pressuring him. He justified this approach by underscoring the point that it was much better “to establish with the Ethiopian Government a functional relationship.”(31) But Abiy knows what he is doing, which is why he is ignoring the appeals of the international aid agencies.

The Secretary General Antonio Guterres was also asked why nothing is done about the Eritrean involvement in this civil war, since this external military involvement without even being invited threatens international peace and security. Here again Mr. Guterres bushed off this claim as being unsubstantiated. “We have no proof of the presence of Eritrean troops inside Ethiopia”, he stated, by relying on the fact that he was assured by the Ethiopian Prime Minister denying the Eritrean presence.(32) If Abiy has assured the Secretary General that Eritrean troops were not invited, and there are credible allegations accusing Eritrean soldiers for committing crimes against humanity and war crimes, the Secretary General should have investigated this matter or referred the matter to the Security Council. Claims which concern the external aggression and threat to state sovereignty and territorial integrity should not be seen lightly. By not doing this, the Secretary General prevented this case from being considered by the Security Council, and in effect violated his obligation to function as required in the first paragraph of article 100 of the UN Charter, The Ethiopian Government too has violated paragraph 2 of this same provision by influencing the Secretary General in a misguiding direction..

This is not to discredit the UN Secretary General without credible reasons but to face the truth. The UN should be appreciated for the roles it has played in the past but should also be criticized when mistakes are seen. This organization has developed human rights instruments and the mechanisms to be used for monitoring on how states are complying with the instruments they have ratified. Examples of the latter includes the use of country rapporteurs, thematic rapporteurs, working groups (such as those who examine situations revealing massive and systematic violations of human rights) and the Universal Periodic Review of the Human Rights Council. Another important milestone in this respect was the decision in 2005 to adopt the doctrine known as “International Responsibility to Protect.” As summed up by the Office on Genocide Prevention and the Responsibility to Protect:

“The responsibility to protect embodies a political commitment to end the worst forms of violence and persecution. It seeks to narrow the gap between Member States’ pre-existing obligations under international humanitarian and human rights law and the reality faced by populations at risk of genocide, war crimes, ethnic cleansing and crimes against humanity.”(33)

Likewise, the adoption of resolution 2417 by Security Council was another significant achievement made by the UN made when it comes to devising when civilians should be protected in times of armed conflicts. This resolution condemns “the unlawful denial of such access and depriving civilians of objects indispensable to their survival — including willfully impeding relief supply and access for responses to conflict.” According to operative paragraph 4 of this resolution, the parties to armed conflicts are required to respect the obligations recognized under international humanitarian law and “to cooperate fully with the United Nations Humanitarian Coordinator and United Nations agencies in providing such access”. If they fail to do so, the matter should be brought to the attention of the Security Council since this amounts to “a threat to international peace and security” deserving the adoption of “appropriate steps”. Here too they UN has not taken a firm stand in protecting the people of Tigray when the Government of Abiy Ahmed has shown its defiance, for several months, to the calls by the different UN agencies, such as OCHA, UNICEF, UNHCR and WFP to provide unfettered humanitarian corridor.

In short, although the UN has made considerable progress in developing human rights instruments and the mechanisms that should be applied to monitor them in practice, when it comes to responding to the challenges posed by the war in Tigray there was hardly any step that was taken by the Security Council or the General Assembly. The heads of the different UN offices, such as those of the UNHCR, UNICEF, OCHA and the Special Representative of the Secretary-General on Sexual Violence in Conflict have issued praiseworthy statements expressing alarm about what is taking place. The fact that the Security Council has not invoked the doctrine of responsibility to protect (R2P) in this case when the Government of Abiy Ahmed is clearly unwilling and unable to protect its own citizens has come as a surprise. But then again, Tigrayans, do not inhabit a territory blessed by rich natural resources like Libyans, who were protected in 2011 by invoking this norm of responsibility to protect.

Which direction the UN will take in the coming days and months is hard to tell. Hopefully, the Security Council will call for a cease-fire, send peacekeeping forces to ensure this and to protect the delivery of humanitarian assistance, establish an independent commission to investigate the international crimes that were committed and to make sure that those that have committed them will be accountable for their deeds. There are promising signs that this tract will be followed. The Biden Administration appears to be unwilling to accept the military gains made through ethnic cleansing. This is implicit from its Press Release which has called for:

“The immediate withdrawal of Eritrean forces and Amhara regional forces from Tigray are essential first steps. They should be accompanied by unilateral declarations of cessation of hostilities by all parties to the conflict and a commitment to permit unhindered delivery of assistance to those in Tigray. The United States is committed to working with the international community to achieve these goals.” (34)

Above all, the UN is expected to find a lasting solution to the conflict itself. The challenges are by no means easy. This organization should not proceed by disregarding its values and purposes which are mentioned in its Charter – i.e., democracy, human rights, law and order, and the principle of self-determination. These values are affirmed in the Ethiopian Constitution. Because the present humanitarian crisis is man-made, it will be difficult to provide humanitarian assistance without arranging a cease-fire. That will, in turn, require sending a UN peacekeeping force to monitor the cease-fire and protect the delivery of the humanitarian assistance. The cease-fire should be linked to the immediate withdrawal of the occupying forces. Otherwise, these forces will take the humanitarian assistance leaving the victims starved. This makes the withdrawal of Eritrean soldiers and the Amhara militias a pre-requisite for extending humanitarian assistance. The failure to expel these forces will also amount to endorsing the ethnic cleansing in western and southern Tigray as well as the Eritrean aggression.

Requiring the withdrawal of the Amhara forces from Tigray will be met by opposition on the grounds of meddling in internal affairs. According to the Amhara officials, western and southern Tigray were incorporated into Tigray by the TPLF arbitrarily in 1991. Prior to that, they argue, these regions belonged to the Amhara. One way of resolving this controversy would be to allow the inhabitants to have a say in choosing between the states of Amhara or Tigray. However, even this too can be criticized for being illegitimate since this matter was settled formally when the Federal Constitution was approved in 1994. Even the Derg administration was considering the people of these regions as Tigrayans.

If the UN requires the withdrawal of the Federal forces, and the current Provisional Administration and their replacement by the previous TPLF administration, militia and police force this will be opposed by the regime of Abiy Ahmed as meddling in internal matters. On the other hand, if it fails to do this, this will signal that it is proceeding by disregarding democracy and the Ethiopian Federal Constitution. This is because the current Provisional Administrative Authority in Tigray was not elected by the people of Tigray. Nor is Abiy Ahmed himself, for that matter. The TPLF Government, which was elected by Tigrayans was removed militarily. Since the Federal Constitution protects the sovereignty of the people of Tigray, and the right to self-government, the UN cannot tell this people to accept the current Provisional Administration or to choose another government when they have already chosen one.

There will be states that will defend the position of the Government of Abiy Ahmed, by calling for respect for the norm of state sovereignty and hence non-interference in domestic matters (UN Charter, Article 2 Paragraphs 1 and 7, respectively). However, it is also evident that this is used as a cover for protecting their own interests. As is well known, States, especially the major powers, have their own important economic, political and other interests inside Ethiopia and do not want to disappoint its regime by showing sympathy for Tigrayans. Yet, to say that this regime should be left alone to complete his genocidal policies would equally be morally and politically damaging to those who support Abiy Ahmed. Legally too it is difficult to defend this ‘internal matters’ clause in this case when serious international crimes, such as genocide and ethnic cleansing are committed. What is prohibited in article 2 Paragraph 7 of the UN Charter is intervention “in matters which are essentially” of domestic nature. When a government is suspected of having committed genocide, its conduct becomes “essentially” an international matter and to be punished as required by the genocide convention. It is also important to add that the Ethiopian Constitution, in Paragraph 1 of Article 8, makes “the peoples of Ethiopia” sovereign and guarantees them the “unconditional right to self- determination, including the right to secession” [Article 39 (1)]. If the rules governing sovereignty and territorial integrity are to be invoked they actually strengthen the case of Tigray since its “people” is deemed to be sovereign under the law of that country.

The pattern of human rights abuses that were/are committed inside Tigray, the violations of international humanitarian rules and the weaponization of hunger have clearly created a situation which the UN cannot ignore. This organization has a long record of confronting these kinds of situations by disregarding the clause on ‘internal matters’, e.g. when it relies on its 1503 procedure or on Security Council resolution 2417 of 2018. The situation inside Tigray also reveals an internationalized conflict since neighboring Eritrea is involved. This fact, combined with the use on ethnic cleansing have brought about a political question, namely how to resolve “the question of Tigray”.

Sovereignty clearly shields states from ‘external intervention’, but only for those who respect the norms of international law. According to Paragraph seven of Principle Five of the UN Declaration on Friendly Relations (General Assembly resolution 2625 (XXV) of 1970) this implies being “possessed of a government representing the whole people belonging to the territory without distinction”. The people of Tigray are not represented in the Ethiopian Government. As Mick Wallace stated, 17,000 Tigrayans have been removed in the past few months from the military alone.(35) Those that were removed from the Federal and local administration are much more. The TPLF administration itself has been replaced by one which is controlled from Addis Ababa. Nor are Tigrayans represented in the Ethiopian Parliament. Again, the electoral board has made it clear that the national election which will be held this summer will not be held in Tigray. This means that Tigray will be excluded from parliamentary representation for another five years.

Thus, the day the people of Tigray decides to establish separate state, it will be difficult for the Government of Abiy Ahmed to challenge the legitimacy of this demand. The right of peoples to secede from the Ethiopian state is clearly recognized in Article 39 of the Constitution. True, international law protects the ‘sovereignty’, ‘national unity’ and ‘territorial integrity’ of independent states. But the people of Tigray, which is ‘sovereign’ according to the Federal constitution has been excluded from power (sovereignty). Nor is it viewed by the regime as an integral part of the Ethiopian nation as its exclusion from power reveals and the regime is seen using hunger as a weapon and refusing to extend protection when the residents are exposed to serious international crimes. The rule on ‘territorial integrity’ cannot be invoked while at the same time placing the territory under the control of foreign state (Eritrea) for purposes of terrorizing the inhabitants. Abiy Ahmed Ali cannot have it both ways: i.e., to benefit from the principle of state sovereignty, territorial integrity and national unity, while at the same time destroying the state and people of Tigray. He should choose between loosing this state or behaving with international norms. The latter do not recognize the rights of states to commit genocide.

If Tigray was a part of Europe, NATO would have resolved this question as it did in Kosovo, i.e., by protecting the people and facilitating its independence by involving the UN. Again, if neighboring Sudan was as powerful as India, and eager in protecting the people of Tigray, it would have intervened militarily to facilitate its independence just as India did for Bangladesh. Unfortunately, Tigray is lonely and surrounded by neighbors that are determined to crush it militarily even if this takes years and the total destruction of its people. The longer this war continues, the more atrocities will be committed and the louder the voices calling for independence. The creating a separate independent state is already in the air. Some are even debating if its name should be Tigray, Axum, Habesha, Ag’azi or simply Northern Ethiopia.

The more the UN avoids tackling the political crisis in Tigray head on, the more its own weaknesses and credibility, as an effective international organization, will be exposed. This is not simply because this organization is required to address serious problems like those seen in Tigray by its own Charter, but also because the 1948 convention against genocide too requires it to “prevent” and “punish” the kinds of serious crimes that have been committed in Tigray daily during the past few months. The day the UN takes up this case seriously, it will be difficult to imagine how the political leaders that are responsible for all the war crimes, crimes against humanity, ethnic cleansing and aggression will escape from facing an international tribunal.

Leaving this aside, the other thorny problem which the UN will have to resolve will be how to ensure lasting peace in Tigray after arranging cease fire. One way of doing this would be to encourage the parties to the conflict to resolve their differences by stimulating negotiated settlement. The approach the Security Council used to resolve the North-South conflict in neighboring Sudan, based on the 2005 Nairobi Comprehensive Peace Agreement, could serve as a model for going forward. There, the principle of self-determination was deemed to be necessary for ending the war and for strengthening peace, although the Sudanese constitution did not guarantee the right to self-determination. Any attempt to resolve the question of Tigray outside this framework would be unjust and a violation of Article 39 of the Ethiopian Constitution which guarantees this right. Such a move will also disregard the purpose of UN Charter on the “equal rights and self-determination of peoples” (Paragraph 2 of Article 1, emphasis added). Furthermore, imposing a political formula which the people of Tigray have not asked for would be impractical and violate Paragraph 7 of Article 2 of the UN Charter which prohibits this organization from intervening “in matters which are essentially within the domestic jurisdiction.” This is why the reliance on the Ethiopian Constitution and the UN Charter principle on self-determination would be the only legitimate way of resolving the question of Tigray.

*About the author and this work

Eyassu Gayim, Juris Doctor, and Docent in international law.

Between 2012 and 2019 this author taught at the School of Global Studies at the University of Gothenburg, in Sweden (as an Associate Professor). Prior to that he worked for different universities in Finland, Sweden and Southern California. Currently, his current affiliation is with the University of California in Los Angeles (UCLA) and San Diego State University (SDSU).

Reading this paper the reader might get the impression that this is probably the work of a person from Tigray or even commissioned by the Tigray People’s Liberation Front (TPLF). Neither is the case. The author was born in Addis Ababa and lived there until 1977. Since then, he returned back to the Horn of Africa only once, in the mid-1990s and for about one month. He has never had any affiliation with the TPLF, and never lived in Tigray or even saw that state, regrettably, other than the bus routes between the Ethiopian and Eritrean capitals. What motivated him to contribute this paper is simply the calls of humanity, the refusal to look the other way when horrific crimes like the ones seen today in Tigray are committed against millions of human beings in the pretext of ensuring ‘law and order’.

Endnotes

1. AFP News Agency, November 12, 2020 in Ethiopian PM Abiy Ahmed justifies Tigray military operation | AFP – YouTube

2. Human Rights Watch, 11 February 2021, https://www.hrw.org/news/2021/02/11/ethiopia-unlawful-shelling-tigray-urban-areas See further Tigray Media House February 27, 2021, https://www.youtube.com/watch?v=N3Gchbap5kA; Asena TV February 25, 2021, https://www.youtube.com/watch?v=ougTZaHOUzs; Ethio Forum Febuary 5, 2021, https://www.youtube.com/watch?v=7U9vuN43-zs; Awlo Media, February 19, https://www.youtube.com/watch?v=J4FylsbjGv4; and Andafta Media. Feb 2, 2021, https://www.youtube.com/watch?v=teffLbw7ISc See further note 26.

3. United Nations TV, Tigray Update, February 5, 2021, GENEVA / TIGRAY UPDATE | United Nations UN Audiovisual Library (unmultimedia.org).

4. Ibid.

5. UNICEF, “Children in Tigray in acute need of protection and assistance” 12 February, 2021 in https://www.unicef.org/press-releases/children-tigray-acute-need-protection-and-assistance.

6. Ethiopian Forces Admitting Rape in the Tigray Capital, Mekelle, 9 January, Ethiopian Forces Admitting Rape in the Tigray Capital, Mekele. – YouTube

7. United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, in United Nations Special Representative of the Secretary-General on Sexual Violence in Conflict, Ms. Pramila Patten, urges all parties to prohibit the use of sexual violence and cease hostilities in the Tigray region of Ethiopia – ; and also Michael Georgy, Reuters, “’Choose – I kill you or rape you’: abuse accusations surge in Ethiopia’s war.

8. Statement attributed to the UN High Commissioner for Refugees, Filippo Grandi on the situation of Eritrean Refugees in Ethiopian’s Tigray Region, 14 January 2021, in UNHCR – Statement attributable to the UN High Commissioner for Refugees Filippo Grandi on the situation of Eritrean refugees in Ethiopia’s Tigray region.

9. United Nations TV, Tigray Update, February 5, 2021, GENEVA / TIGRAY UPDATE | United Nations UN Audiovisual Library (unmultimedia.org).

10. Press release, Department of State, February 27, 2021, https://www.state.gov/atrocities-in-ethiopias-tigray-region/

11. “EU envoy warns Ethiopia Tigray crisis ‘out of control’, com with AFP, February 23, 2021, https://www.euractiv.com/section/global-europe/news/eu-envoy-warns-ethiopia-tigray-crisis-out-of-control/

12. Ethiopia: Declaration by the High Representative on behalf of the European Union, https://www.consilium.europa.eu/en/press/press-releases/2020/12/25/ethiopia-declaration-by-the-high-representative-on-behalf-of-the-european-union/

13. Memorial service 01-23-2021, https://www.youtube.com/watch?v=sNZJUqumDj0

14. Lords raise concerns over conflict in Tigray | House of Lords | 24 November 2020 – Bing video

15. Ibid.

16. Mick Wallace on Twitter: “#Ethiopian Government is accused of War Crimes in #Tigray, using Hunger as a weapon, + continues to blatantly lie about involvement of #Eritrean troops in Tigray cannot be trusted to deliver relief to Tigray… https://t.co/twxwVllCC6” / Twitter

17. Assita Kanko MEP on Twitter: “Live #EPlenary speaking about Ethiopian conflict. We strongly condemn the violence in the Tigray region. We support international calls for swift and unconditional access to the whole region for humanitarian aid, independent human rights monitors, and the media. Urgent. https://t.co/Jr3UK5niNZ” / Twitter

18. Memorial service 01-23-2021, https://www.youtube.com/watch?v=sNZJUqumDj0

19. https://twitter.com/HelenClarkNZ/status/1361272289325506562

20. Memorial service 01-23-2021, https://www.youtube.com/watch?v=sNZJUqumDj0

21. “Open Letter to Prime Minister Abiy Ahmed from retired U.S. Ambassadors to Ethiopia, January 21, 2021”, Staff Reporter, The Reporter, 26 January 2021, https://www.thereporterethiopia.com/article/retired-us-ambassadors-ethiopia-write-open-letter-prime-minister-abiy

22. Pope Francis asks for prayer for Ethiopia’s embattled Tigray region”. Pope Francis asks for prayer for Ethiopia’s embattled Tigray region (catholicnewsagency.com).

23. Staff reporter, “Aid to the Church in Need”: possible atrocities in Tigray – Vatican News, The Vatican News, January 26, 2021.

24. Archbishop Thabo Makgoba: Archbishop Thabo Makgoba pleads for the people of Tigray, Ethiopia (anglicanchurchsa.org).

25. Memorial. See also note 20 supra.

26. Asena Television ATV 25 February 2021, https://www.youtube.com/watch?v=ougTZaHOUzs For more detail surrounding these atrocities consult, Ethio Forum 25 February, https://www.youtube.com/watch?v=RFLX2ud5c8M; Ethio Forum and February 5 in https://www.youtube.com/watch?v=7U9vuN43-zs; and Awlo Media, 19 February 2021, in https://www.youtube.com/watch?v=J4FylsbjGv4

27. See the interview given by Eritrean Television to President Isaias Afeworki on February 8, 2020 (https://www.youtube.com/watch?v=dThEx-eztHQ) and February 17, 2021 (https://www.youtube.com/watch?v=EOG-HMKTNXI); See further, Alex Dewaal, “Who Will Call Out Eritrea’s War Crimes in Tigray?”, World Peace Foundation, December 23, 2020, in Who Will Call Out Eritrea’s War Crimes in Tigray? – Reinventing PeaceReinventing Peace (tufts.edu); the interview given to Dr. Aregawi Berhe, Andafta Media. Feb 2, 2021, https://www.youtube.com/watch?v=teffLbw7ISc; the interview with the leaders of the Tigrayan Biatona party, in Awlo Media, February 19, 2020 https://www.youtube.com/watch?v=J4FylsbjGv4

28. “Open Letter to Prime Minister… note 21 supra.

29. Joachim D. Ahrens and Yves Guinand, “Agroproduction in Tigray and Wollo”, African Studies Center of the University of Pennsylvania, September, 1998, available in https://www.africa.upenn.edu/Hornet/meher98.html

30. “Famine crimes Ethiopia’s government appears to be wielding hunger as a weapon”, Economist January 23, 2021 in https://www.economist.com/leaders/2021/01/23/ethiopias-government-appears-to-be-wielding-hunger-as-a-weapon

31. “Ethiopia: Immediate Priority is the well-being of the people of Tigray” Press Conference, 10 December 2020, reproduced in, https://www.youtube.com/watch?v=tB_h-NfjesI

32. Ibid.

33. Accessible on the website: https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml

34. US Department of State, Press Statement, note 10 supra.

35. Mick Wallace on Twitter, see note 16.

Following in the Footsteps of Nature: an Introduction

27/07/2020Introductory noteNSU, aesthetics, environmentalism, human rights, phenomenologyNeli Dobreva

By Neli Dobreva, École des Arts de la Sorbonne, University Paris 1 Panthéon Sorbonne

This special issue of Nordicum-Mediterraneum contains select papers from the research seminar Environmental Aesthetics and Citizenship (https://estenci.wordpress.com/), coordinated by Neli Dobreva, Oleg Bresky, Mogens Chrom Jacobsen and Oliver Kauffmann at the École des Arts de la Sorbonne, University Paris 1 Panthéon Sorbonne, in partnership with the research circles Patterns of Dysfunction in Contemporary Democracies. Impact on Human Rights and Governance, coordinated by Mogens Chrom Jacobsen, and Appearances of the Political, coordinated by Carsten Friberg–all of them within the Nordic Summer University (NSU). This project was supported by the Nordic Council of Ministers of the Nordic Countries in cooperation with Foreningerne Nordens Forbund (FNF), the University of Aarhus (Department for Philosophy of Education and General Education) and the European Humanities University / The J. Althusius Institute.

The Seminar Environmental Aesthetics and Citizenship took place in Paris, France, at the École des Arts de la Sorbonne, University Paris 1 Panthéon Sorbonne, during two semesters of the academic year 2018-2019. The guest editor Neli Dobreva would like to express her gratitude to the Dean of the École des Arts de la Sorbonne, Marie-Noëlle Semet-Haviaras, for her support and willingness, which allowed the Project to succeed.

The debate started at the NSU Summer Session in 2018 at Faro Island in Sweden, when all the NSU circles first got in contact with each other and began working together. One of the first considerations was how to collaborate between circles, exploring the ways in which human-rights militancy and, more generally, the protection of human rights are affected by the international human rights system and the way this regime enters State relations and, on the other side, the ways in which we could connect the sensory or sensitive (le sensible) experience, such as the aesthetic one, through the ongoing global debates about: the environment, ecology, humanity and non-humanity, post-humanity and trans-humanity, citizenship and environmental migration through the lens of representations, Anthropocene-centered discourses on degrowth, the ethics of de-extinction, the education on citizenship and urban participative democracy, the politics of care and common good, etc. Of course, all these questions were so inspiring and the debates so rich, that we opted for an interdisciplinary experimental seminar: Environmental Aesthetics and Citizenship.

Three main authors, one artist, and their recent works inspired us to start the discussion and to launch the Seminar. Fortunately for us, they did us the honor of participating and giving a talk, and thus brought their own contribution to the Project. Here, I would like to express all my gratitude to Nathalie Blanc, who is the French pioneer in eco-criticism, an artist, researcher and geographer, specialized in the realm of Urban Nature, environmental aesthetics, and environmental mobilization and activism. As a founding member of the French internet portal of the Environmental Humanities, she was also the French delegate (2011-2015) of the European Research Network COST “Investigating cultural sustainability”^[i] as well as a privileged researcher of the European program “How Matter Matters” (2016-2019). Her book with Barbara Benish, (2016) Form, Art, and Environment: Engaging in sustainability (London, Routledge), was naturally the inspiration for the title of the Seminar as well as the direction that we decided to follow, questioning the place of art in the discourse of political ecology and the politics of care through the ecological vulnerability in the context of the everyday needs of urban “survival”, including the politics of sustainable food, urban farms and urban soils within the Project “SOLS FICTIONS”, dedicated to the urban soils of the Anthropocene.

Blanc’s shared experience within her participation in the European research program How Matter Matters (2016-2019) and her political ecology discourse led us to another eminent author who is pursuing a twenty-year polemical work strongly engaged within the philosophical ontology and axiology related to the philosophy of technology and the production of sense in a time of crisis. We mean the philosopher, researcher, Professor in Epistemology and Gilbert Simondon specialist, Jean-Hugues Barthélémy, who had just published his new work (2018) La Société de l’invention. Pour une architectonique philosophique de l’âge écologique (Paris, Éditions Matériologiques). Revisiting the idea of the “crisis of sense” within a very particular philosophical language, dismissed by some of his critics as too fractious, he proceeds to connect it to the “ecological crisis”, thus establishing the bases of a future system that should be radically anti-dogmatic for the individuation of the ultimate sense. For him, in this system, Simondon’s ontological genetics, or genesis “génésique”, is finally re-founded. That becomes possible by including and redesigning Simondon’s “philosophy of ontological information”, linking it to the “philosophy of economic production” and the “philosophy of axiological education”, each of which precedes their reconfiguration outside ethics and, especially, the “ethics of low” in its totality. Introducing an idea of a philosophy of the paradox, Jean-Hugues Barthélémy opened for us the question of how one should connect these three principles (“philosophy of ontological information”, “philosophy of economic production”, “philosophy of axiological education”) to the ongoing debate of the ontological link between human and non-human in terms of sensory experience, i.e. the aesthetic one, and how we could revisit the individuation of sense overwhelming the modern paradigm of the separation between nature and culture by introducing the question of “axiological education”.

Rethinking Toward the Materiality of Aesthetic Experience (Peter De Bolla, 2002), we discovered Jean-Michel Durafour’s book (2018) Cinéma et cristaux. Traité d’éconologie (Paris, Éditions Mimésis). A philosopher and Professor of Aesthetics and Films Studies, Jean-Michel Durafour’s work opened up our discussion to the consideration of living beings and non-organic forms of life. His innovative ontological conception of iconology, as thinking of images as material beings, includes a comprehensive aesthetic theory of images as artworks, popular culture, scientific imageries and ethnology. Thus we could revisit the “artist’s gesture” explored by Jean-Marie Shaeffer (Adieu à l’esthétique, 2016), and the materiality of the aesthetic experience as a ‘one-dimensional’ iconology inducing a ‘one-dimensional’ ontology. Durafour is thus exhuming Aby Warburg’s idea about images as “expressions of equal dignity” and subjects of a ‘flat’ iconology as well as a ‘flat’ ontology going back to Duns Scotus’ idea of “being as unequivocal”. What is particular here is the empirical use of the field of cinema as primary material exploring the hypothesis that through material experiences (e.g., the context of viewing experience, the framework, the digital apparatus, the experimental and animated film), we could go beyond the mere cinematographic domination of images. This hypothesis should be probably confirmed by a clause on “general iconology”. And that is the point that provokes the central interest of Durafour’s work, already developing since his previous writings: the “general iconology” is distinct from any allusion to Alain Roger’s Court traité du paysage (1997) and is within the linguistic (nominal) intersection of iconology and ecology, hence diverging from the growing (nominal) use of ‘ecology’ and ‘economy’. Furthermore, that ‘clause’ becomes the main pivot in relation to Barthélémy’s “eco-logical age” and Blanc’s pragmatic approach to the aesthetic (environmental) objects. Consistently, Durafour claims a “christalographic Aesthetics of film”. Nevertheless, Le traité d’éconologie includes the relationship to biological theories, as well as ecology, ontology and anthropology lingering within the images. Questioning images takes place at the very particular intersection between art and science (i.e. physics, natural history, genetics) in relation to film. Thus, his ‘iconology’ reposes on metaphysical, ontological and biological principles as a specific discourse about images.

Durafour’s suggestion of new anthropological, ontological and ecological practices applied to images disrupts and involves the possibility of an ‘alter-iconology”. Consequently, the ‘econology’ is an ‘iconology’, which reposes on a relationniste type of ontology: the world is not composed by inert or living entities, but these entities are the product of their relationships with each other. The chief example is “loneliness” as a modality of being-in-relation with: without the experience of the other, one should not be able to understand that he or she is alone. It is in that tradition of ‘relationnisme’ that Durafour rethinks here the ‘econology’ based on the history of the philosophy and contemporary ecology. From there comes his redefinition of the iconology as a specific idea of the image, which is the relational composition of the image itself and its iconographic environment (milieu): artistic images, scientific theories or imageries, philosophical doctrines, literary works, cultural products, etc. We are interested in images, says Durafour, and that is because they are “beings-in-between” (inter-esse). From the idea of relationisme, follows that the concept of perception should be enlarged to the existing whole. He is using the precept from N.A.Whitehead of the “perception without cognition”: thus Durafour includes non-organic forms of life in the understanding of a singular ‘prehension’. We could recall here Jacques Lacan’s “sardine can” (Les quatre concepts fondamentaux de la psychanalyse, 1973) that is gazing at us, while the Real is challenged by its entirety. Accordingly, images could exist without being perceived by the particularity of conscious human cognition. The question that then appears concerns the production of the images themselves (en soi) and without the correlation image-observer. Thus, we should think that the relationships that images are entertaining within their iconic environment should not be reduced to the relation between them and the humans, nor to other relationships familiar to humans. Hence Durafour, inspired by E. Kohn (How Forests Think: Towards an Anthropology Beyond the Human, 2013), suggests rethinking an iconology beyond the human perspective of it. This point also maintains and encourages us to think about the object without the limitations of mere human access, as opposed to the dominant post-Kantian tendency. Furthermore, Durafour continues his reflection by discussing the relationship between relationnisme, correlationnisme and anticorrelationnisme, following his thesis on ‘econology’. In that we gleaned three main theses about it as a science about the living relationship between images. Including that: a) images in general are non-organic forms of life; b) images maintain between each other and within their iconic environment mutual and co-evolutional relationships such as “expressions-in-between” (entr’expression) and material ones such as “perception-in-between” (d’entre-perception); c) iconology is a science about these relationships.

Following this inspiring scholarship, our attention was attracted to Pauline Julier’s recent artistic presentation. In her work Naturalis Historia (2017) (https://ccsparis.com/event/pauline-julier), a movie and a moving-images art dispositive (apparatus), the artist Pauline Julier is asking: what is “real Nature”? Inspired by the works of Professor Wang and his team on a coalmine in China, where an unexpected tropical forest appeared under the geological strata engulfed by a volcano, Julier is realizing a very personal artistic but also documentary work that is underlining multiple challenges for the environmental humanities. Recalling the eminent work of Pliny the Elder and his Naturalis Historia, Julier invites us to make an inventory of the World, as he did, combining art and science, archeology and ecology. The discovery of that forest—the oldest one before human and even animal life emerged—is also a clarion call for witnesses to archive and document a piece of Naturalis Historia, which is expected to mobilize our contemporary imaginaries. Thus analyzing Julier’s work, we could see that it includes the main problematic approached by Nathalie Blanc, Jean-Hugue Barthélémy and Jean-Michel Durafour. Expressing a special form of art and science work, in the context of the everyday–the care of the everyday, life forms and life styles— Julier is developing something original that we could call an environmental aesthetics. With this in mind, we considered her artistic practices as proposing aesthetic and ethical-moral objects acting as ways of seeing new-old life forms.

Keeping in mind the above-mentioned arguments, the contributions from this special edition of Nordicum-Mediterraneum emerging directly from our Seminar revolve around the issues of environmental challenges, educational campaigns, political and environmental sustainability, non-political, apolitical and supra-political aspects of human life, human rights, democracy (including citizenship), transhumanism, post-humanism, political eco-logy, gender studies, atmosphere, identity, atmosphere, pathic aesthetics, ecology, environment [Umwelt], environmentalism and ecological aesthetics.

Expanding Democratic Citizenship: Education Through Bildung. Klafki Confronting the 21^st Century

Our first contribution, by Asger Sørensen, explores the issues related to including in the contemporary democratic education template a theory of Bildung inspired by Wolfgan Klafki (Studien zur Bildungstheorie und Didaktik, 1963): the cultural Bildung as problem-solving in addition to political democracy for educational outreach. It is important to stress that the work of Klafki did not have an influence beyond the borders of the German-speaking world, with the exception of Denmark, where his work received an enthusiastic reception. Sørensen shows us how important it is to maintain an axiology for citizens’ education, at all social and political levels. Participative and direct democracies are highlighted in a way to show how a collective aesthetic experience could contribute to the common good. The Bildung theory appears to be very appealing for the contemporary world, especially when thinking about climate migration and the ethical debate about de-extinction. It also seems to be a useful template for questions of gender and religious discrimination including the problematic of human rights through citizen education and Bildung. Moving beyond Rawls, Durkheim, Habermas et alia, Sørensen ultimately claims that only by emphasizing the metaphysical value of every individual human being can democracy, Bildung and citizenship education hope to cross cultural boundaries and divides, so as to establish an attractive and legitimate background culture of mutual trust.

Remarks on Science, Epistemology and Education in Bruno Latour’s Down to Earth

Olivier Kaufman is interrogating issues of “soil” and citizenship in Bruno Latour’s recent works, namely: From which epistemic stance can “soil” be seen, and how, precisely, is the ensuing description carried out? Criticizing Latour’s scientific-epistemological stances of ‘Galileism’, Kaufman suggests that there are other models that we could follow, especially in order to look more closely at the differences between the thesis of Latour on a ‘view from nowhere’, which is “misguided and wrong in the details” for Kaufman, and the alternative stance toward the ‘Terrestrial’ that Latour is arguing for. The ability to form conceptions towards a view from nowhere is constitutive for being able to think. Kaufman recalls Thomas Nagel’s book The View from Nowhere (1986), where Nagel has argued in detail for this epistemological ‘fate’ of human beings – a kind of ‘double vision’, since we can transcend our subjective selves – although not fully so. For Kaufman that is an essential part of our pursuits of truth – that we are able to attempt putting ourselves to the side, including being able to acknowledge another subject’s point of view. At the same time, Kaufman considers a missing element in Latour’s attitude towards education, encouraging us to revisit the discarded ‘old forms of subjectivities’, i.e. attitudes, myths and rituals, as we develop new templates offering a survival perspective for our human future.

Ecology of Sense(-making), Political Eco-logy and Non-ethical Refounding of Law

In his contribution, Jean-Hugues Barthélémy shows his concern about “health of both nature and culture” and thus the necessity for the deconstruction of the duality of nature/culture. In that sense he gives an example concerning “Transhumanism and many other new ways of thought” that “are still – implicitly but undoubtedly – under the paradigm of the duality nature/culture, since their position needs in the last instance a discontinuity between nature and culture”. Barthélémy underlines a paradox between the evolutionary theory of transhumanism (as its goal is to build an immortal post-human) and the naturalist claim about language and consciousness: “The only way to keep an evolutionary framework while considering human self-construction is to admit the finitude of human being as historicity or self-construction which prolongs evolution and reveals the fact that biological life itself has no essence […], the very strange fact is that naturalists do not even consider the non-human animal when they assert that ‘consciousness’ is reducible to its physico-chemical substratum : in their minds, the ‘problem of consciousness’ is a problem which concerns human beings only.” For Barthélémy, the transhumanist position is ideological, taking advantage of speculative techno-capitalism so as to dream of a post-human era instead of worrying about the future of the planet. On the contrary, Barthélémy defends the so-called current geological age ‘Anthropocene’, which at least, through its ultimate and dramatic consequences, reveals the indirect index of the crisis of sense(-making), which results from the misunderstanding of human finitude – that is to say: human non-originarity (or being-derived) and therefore human mortality. Inspired by Husserl and Heidegger, but moving beyond their thought, and debating implicitly as always with Simondon and Bachelard, Barthélémy is developing his own theory on sense(-making) as noematic, three-dimensional and over-representational of the ob-jects of thought. Accordingly, “such an archi-reflexive semantics, which provides an unprecedented modality of the self-‘knowledge’ that philosophy must be, can be considered as a fundamental ecology of sense(-making) – and of its crisis -, because sense(-making) is the “milieu of all milieux” which make sense within it”, Barthélémy says.

From that modality follows the articulation of multidimensional sense(-making), engendering a philosophy of ontological information, a philosophy of economic production and a philosophy of axiological education. Claiming that the “Law is not the system of compatibility between the ‘free-wills’ of ‘moral persons’, but the system of compatibility between the needs of all the human and non-human subjects that might suffer from not satisfying their needs”, Barthélémy introduces the idea that “the political eco-logy which should permit us to go beyond the debate between the post-Rousseau ‘political philosophies’ of the ‘social contract’ and the post-Marxist ‘political economies’ of ‘suspicion’. In this new theoretical context, freedom and justice are needs because needs are what ensures health – against suffering – and not just survival”. Claiming that axiological problems are educational problems and denouncing how Western thought confuses health and happiness, Barthélémy moves to the question of ‘re-founding’ the Law: “further thinking about a new and non-ethical notion of responsibility is now possible: my being-in-debt towards the universal ecosystem means that my semantic non-originarity translates itself into a responsibility within the political-economic problematic – exactly as it translated itself into a non-substantiality of beings within the epistemological-ontological problematic, and into a contingency of our being and values within the pedagogical-axiological problematic”. Thus, if the Law re-founded in a non-ethical way is not breaking the relationship to Nature where that clause does not exists, but “the entirely refunded Law has for vocation to become what will allow the planetary ecosystem’s balance to be maintained beyond the anthropocenic ruin of the forces which have founded it so far as equilibrium”, Barthélémy argues. In that way, the duality human/ non-human would be deconstructed and thus we could recover an equilibrium within the sense(-making) and the environmental, so as to finish with the eco-political crisis of sense(-making).

The Human Rights of Privileged Victims. A Marxist Satire on Shouting Matches

The thought-provoking discussion of Barthélémy’s proposition about the “Law re-founded in a non-ethical way” continues within the contribution of Giorgio Baruchello. Stressing the fixed social inequalities – in terms of gender, religion, social status and the imposed status quo – and seeing human rights overwhelmed by the over-privileged 1%, Baruchello adopts a very pragmatic approach, one could say almost an anthropological one, replacing the old semantics of the “classe bourgeoise” with current terms such as “the corporate elite”, “the job creators”, or just “the rich”. Highlighting the old principle of divide et impera, Baruchello shows how this old-as-the-World principle is still in operation, especially in times of crisis, observing: “When religion cannot do a good enough a job, viable alternatives exist: race, nationality; region-, party- or even football-based affiliation can be often as effective”. In these terms he faces the great ongoing debate on disparities between men and women. The gender discourse is an example of how popular attention is diverted from far more important questions and what is pointed out is that such a debate is subverting the middle class as well as the academic environment. The question should be: is that a false direction to take in hand the problematic proposed within the refunding of the Law in a non-ethical way that “has for vocation to become what will allow the planetary ecosystem’s balance to be maintained beyond the anthropocenic ruin of the forces which have founded it so far as equilibrium”, as Barthélémy claims? According to Baruchello: “Men and women spend endless time and effort squabbling about the so-called ‘male privilege’ and an alleged set of attendant disparities, rather than combining their efforts in order to pursue better wages, better working conditions, sensible monetary and fiscal policies by State authorities, true economic security and autonomy, a life-saving stop to the all-embracing profit-motive that is destroying the planet, as well as emancipatory self-ownership and democratic self-stewardship”. It seems that the same considerations concern the economic apparatus (dispositif in terms of Foucault), the decision-making societies from all levels up to the European commission’s technocrats. In comparison, the female representatives are more and more duped into participating in commonly understood patriarchal structures, and even though some of them enjoy careers and prestige, they are still subverted by the same regime of domination. The working place is also an environment, an urban one, and also the one that has to be the habitus and the habiter in everyday life.

However, gender roles could also have some positive aspects in the contemporary debate, especially when it concerns Western women who are winners in that case. But socially, this debate replaces the problematic of the ‘working class’ and especially what has been going on in Europe for decades: for Baruchello, “Europe’s working class has emigrated to China under the banner of ‘globalization’”. As a result, the egalitarian principle could not satisfy centuries-old traditions of non-emancipation. And that is a concern for both men and women, according to Baruchello. The question of human rights is completely displaced and still very alien from the one concerning the duality human/non-human through the refunded Law and its vocation to allow the planetary ecosystem’s balance to be maintained beyond the anthropocenic ruin of the forces which have founded it so far as equilibrium, in terms of Barthélémy’s claim. Yet, one could think about some possible issues as a contrapuntal presence within that very pessimist landscape of the contemporary Western world. Supposing, for example, that the Law is not refunded according to a non-ethical template, so that human rights could still be evolved as a counter-power against the 1%. That would be the point that is underlined in the contribution of Carsten Friberg.

Identity and Aesthetics. Atmosphere as an approach to the appearance of the concrete person

Carsten Friberg approaches the question of human rights by conceptualizing ‘sensitivity aesthetics’. For him, sensitivity (le sensible) relates to the forming of both identity and perception. (Here we could recall Durafour’s position on ‘perception’ that we already discussed.) Friberg illustrates his assumption following the Baroque writer Baltasar Gracián’s reflections in Oráculo manual y arte de prudencia (1647). The appearance and the perception of what we call identity are very often displaced from the very idea of it. Therefore aesthetics could be approached as a matter of sensorial perception that supplements the reduction of complexity in a conceptual identification. Assuming that the human being evolved in relation to its environment – cultural, social and natural – Friberg claims that: “We embody social relations as well as perception and sensorial relations to ourselves and the environment the way we have learned to”. To enforce his assertion, he introduces the concepts of ‘atmosphere’ having in mind the works of Gernot Böhme and the ‘pathic aesthetics’ of Tonino Griffero. But the way he emphasizes the sensitive (sensible) dimension of identity leads us to pay attention to “how the consequences of strong ideas of identity prove not only to be insensitive and prejudiced but can result in the neglect and dehumanization of individuals”. Here is the question of citizenship as related to identity: What makes me human, individual, having rights and belonging to this or that identity? Who am I? And what makes me an individual having rights, i.e. defending my rights of being, having a legal protection issued from belonging to a national, juridical community? Is that a passport, a ‘soil’, a community, etc., that makes me capable of affirming my identity? In that sense we are still far from establishing the pretended sensitivity (le sensible) as criterion of identity. Nevertheless, we should assume that there is that emotional, sensitive side of the question of identity that is subversive, on the one hand, of my environmental life-long education and belonging to a milieu, and, on the other hand, of my own subjective experience, which could be also a choice of who I am and who I want to be. That could be an allusion to Pierre Bourdieu’s thesis on class reproduction and of the initial ignorance of the milieu to which “I” belong. As Friberg says, it is about how environment matters, because we are guided and influenced by cultural artifacts, specifically aesthetic artifacts, judgment of taste, education and absorption of sensitivity as such.

The intervention of the so-called new technologies does not simplify the problem: should “I”, or my identity, correspond to a ‘fingerprint’? Does identification of a body, even though it is ‘mine’, express a state of mind, character, or sensitivity? Accordingly, for Friberg: “The relationship between aesthetics and identity should be apparent when recognizing the relationship to the forming of senses, feelings, and body”. From this stems the axiological role of aesthetics, as related to the values of a community, its appearances and shared experiences such as social roles, nationalities, gender choices and storytelling within it. So the “I” as a free subject is surrounded by all these spheres, milieus and environments in his everyday being. Carsten Friberg relates his problematic to Böhme’s understanding of “atmosphere as a fundamental concept of aesthetics”. Within that concept, perception, experience, the body, individuals, objects and the environment are merged inside the affective and sensitive (le sensible) experience of the environment. The concept of atmosphere, in this sense, means that perception is a kind of diplopia experience that should not determine the phenomenology of seeing, perceiving and feeling: it is the extension of the aura of all these elements as “atmosphere of a place” or “perceiving atmospherically”. However, it is important to underline, and Friberg stresses it, that this specific experience which Böhme reveals, of ecology as an organic environment, is not merely including nature into the aesthetic experience, as a bodily or corporeal one, hence alluding slightly to A.G. Baumgarten’s conception of aesthetics, but to this “organic environment” [Umwelt] extending to the non-organic forms of life. Thus, the concept of atmosphere reveals an aesthetic experience without necessarily including nature, but rather its very Kantian sense of disinterestedness. In spite of this, it is somehow anthropocentric and caring for the human sensitivity to aesthetic judgments integrating “the human being as a sensorial and bodily being affected by its surroundings”. And this is the pivotal point of Friberg’s presentation that changes our fundamental relationship to the world: aesthetics without nature and recovering identity through environmental aesthetic experience perceived atmospherically.

Environmentalism Without Nature ? Steven Vogel’s post-natural environmental philosophy

Adopting an opposing position in his contribution, Sune Frølund analyses the thesis of Steven Vogel’s “postnatural” environmental philosophy as expressed in Against Nature. The Concept of Nature in Critical Theory (1996). Although criticizing it and pointing out its ambiguities, Sune Frølund argues for an overwhelming ambivalent attitude to nature that prevails in his writings, influenced by the Critical Theory tradition and integrated by Vogel’s pragmatic constructivist epistemology. This novel approach grapples with Böhme’s analysis, which we just saw in the contribution of Carsten Friberg, where the question of ‘pathic experience’ was underlined. What Frølund is exploring here is the way in which we could succeed in bypassing the specific attitude to nature coming from philosophers such as Lukács, Adorno, Horkheimer, Habermas, and Marcuse. However, the idea of post-natural environmental philosophy is also much closer to Bruno Latour and Jacques Derrida, concerning the former’s separation between nature and culture qua ideological and political construction and the latter’s postmodern theory in general. Frølund exposes Vogel’s arguments against the misleading place given to nature by Lukács, who claims, “Nature is a social category” and, at the same time, rejects Engel’s “dialectics of nature”. The question that follows, and Frølund is stressing it, is “how is it possible to think of an ‘environment without nature”? Contesting the philosophers from the school of Critical Theory, but also using their arguments, Frølund insists that what Vogel claims, “helps us see that the overcoming of this alienation consists in realizing that nothing in the material reality, not even nature, exists un-mediated by human construction and labor”, which includes the position of Lukács (“Reality is not, it becomes”) and the Marxist concept of “alienation”.

Hence another question appears, following Bill McKibben: “What if we drop the very idea of Nature?” And that question is the very recognition of the way humans succeeded in leaving their mark everywhere within Nature as a trace of their activities. From this recognition results, as Frølund underlines, Vogel’s concept of ‘environmentalism’, which should replace the separation between nature and culture and allow the organization of human existence around its own actions in everyday life: “The world is not something we find ourselves in; it is something we have helped to make. But at the same time it is something that helps to make us: we are who we are because of the environment that we inhabit. The environment is socially constructed; society is environmentally constructed”. Recalling the importance of the concept of “labor” through Kant, Hegel and the Marxist use of it, Frølund underlines Vogel’s attempt to represent a new type of materialism in which the idea of practice is taken seriously as physical labor or as material practice. Accordingly, we should accept that everywhere within our “sub-lunar terrestrial world” there are residues from an “anthropogenic impact”. Vogel’s’ argument for that is: “if cognition is a practice there is no cognition of anything beyond practice, i.e. no cognition of anything unaffected, unconstructed or unbuilt like nature is assumed to be” – and that is his incontestable pragmatic constructivist epistemology. However, it is evident that, as humans, we need to have a coherent environmental theory and for that we need to reconsider the concept of “nature”. For that we need, in turn, to denote a former existence of a pre-anthropogenic, unconstructed world. And furthermore, we need to show that nature was before and will be after the human action on it. Frølund stresses that point, too: “only if environmentalism were able to acknowledge that there is nature before and after anthropogenic impacts, it is possible to determine which of our actions has or will change nature to a degree that threatens our survival”. To save his “materialism”, Vogel affirms that even an artifact has a ‘nature of its own’ and may “exceed [its] relation to human construction”. At the same time, Frølund assures us that nature only “plays a kind of cautionary role” or “nominal” role in his theory, and that he only sanctions the word because it reminds “us of the limits of our abilities and the need to be careful and modest about our attempts to transform the world”. With that we could recognize the contradiction of a theory that maintains human cognition as material experience capable of overwhelming nature within its practice, but at the same time recognizing the need for a coherent acceptance of it. As a result, Frølund articulates the problem arising within this new type of materialism defended by Vogel: “What is Nature at all?”. Is it a question of constructivist cognition or the continuation of a fight between environmentalists about the idea of nature, as Latour (2017) suggests it as “le Terrestre” that more or less plays the role of the old concept?

The Nature-culture Continuum through Moving Images: From Vegetable Pompeii (Pauline Julier) to NATURALIS HISTORIÆ (Pliny the Elder)

Continuing the debate, and especially, restating the question “What is Nature?”, my contribution to the present collective work is a type of ‘field work’ (an art project of Pauline Julier), using images as “primary materials”, asking questions such as “what if before humans there was, and after there would be, Nature?”. The question that I am asking is: “is it possible to make an inventory of the World before humans disappear?” And if we should follow a new materialist practice still dreading the duality nature/ human society, how should we defend the complexity of the “anthropogenic impact”? Combining art and science, archeology and ecology, Pauline Julier invites us to rethink the discovery of a forest, maybe the oldest one ever, before human and even animal life emerged, as a witness, archive and document, in order to mobilize our contemporary imaginaries and eventually to act. I am arguing that this project, put in the context of the everyday, provokes our cognitive capacities for care, life forms and life-styles in respect to environmental aesthetics. With this in mind, I am considering her artistic practices as a materiality of the aesthetic experience dealing with ethical-moral objects in terms of Saito (2007). By considering the artist’s responsibility in the process of producing, I am exploring her artwork as a gesture, and the artistic action as a projection of society’s “forms of life” (Wittgenstein; Braidotti). Seen this way, the artist is an author-producer (Benjamin) of a “form of life”. That understanding of the artist is indebted to Dewey’s notion of “the experience of experience”, which recognizes that the aesthetic experience is not separate from the life experience. That should be considered as the will of the artist to repair the ethical connection to the environment, which is by itself the sharing of ethic and aesthetic experience (Nathalie Blanc; Jacques Rancière). In that sense the sharing of the sensitivity is repaired. This, in turn, opens the way towards an environmental aesthetics. Accordingly, Julier shows us that it is not scientific inventions that discovered Nature but, on the contrary, that is the Nature, as a subject of our human devastating actions on it, which is contributing to our scientific research and understanding of it. And the way in which we dispose of objects brings us to some sacred significance: Nature existed before us humans, and will exist after our own self-provoked extinction. Another point we address is how the attempt to escape from that, as the transhuman and the posthuman conditions are trying to do, would be to approach images that Julier is showing through the scholarship of Jean-Michel Durafour and his concept of “econology”: images as “beings-in-between” creating a link between human and non-human nature. I demonstrate next how we, from our human position, should face and reconnect the inhuman part of images, i.e. Nature.

I am infinitely thankful to Giorgio Baruchello for inviting me as a guest editor for this special issue of Nordicum-Mediterraneum. I would also like to express my gratitude toward my colleague Mogens Chrom Jacobsen, who made the success of our Project possible, and Kelly Cogswell, who helped with the text.

^[i] I am using double quotation marks when it is a straight citation of a word or expression and single quotation marks to stress the importance of the concept.

Alexandra Délano Alonso, From Here and There: Diaspora Policies, Integration, and Social Rights beyond Borders (Oxford: Oxford University Press, 2018)

14/08/2019Book review (editorial review)Migration, diaspora, human rights, integration, interculturalism, multiculturalism, transnationalismLara Wilhelmine Hoffmann

Since the pivotal work on transnationalism by Glick-Schiller, Basch and Blanc-Szanton (1992), a number of studies have investigated transnationalism as a perspective on migration that goes beyond earlier concepts of one-way assimilation. Whilst the boundaries between host country and receiving country are becoming increasingly intertwined, studies on transnational migration have for the most part focused on the perspective of the receiving country. Immigrant integration is frequently framed as processes that are taking place in the receiving countries alone, placing the responsibility for integration on actors on immigrants’ countries of destination, e.g. migrants, migrant organizations or the government of the receiving country. The receiving country bias in migration research prevails (Castles, 2010; Czaika & De Haas, 2014). There remains a gap in the literature on the impact of actors in countries of departure on the well-being and incorporation of immigrants in the societies in which they reside.

Alexandra Délano Alonso book, “From Here and There: Diaspora Policies, Integration, and Social Rights beyond Border”, goes beyond the prevailing focus on the destination country in research on transnationalism as it looks at institutions supporting the integration of Latin-American immigrants in the United States and Canada, highlighting the role of the destination country. The book is a case study of initiatives in the United States and Canada, focusing primarily on Mexican diaspora organizations and other Latin American diaspora organizations. A central claim and contribution of this work is its focus on the responsibility and accountability of various actors, particularly actors in immigrants’ countries of origin, which have not been largely discussed in the literature. In order to analyze this claim, Alexandra Délano Alonso analyzes actors on several levels, such as civic participation and diaspora organizations as well as the consulates of the countries of origin and the country of destination.

After providing an overview of the theoretical background of looking at diaspora policies as integration, the book focuses especially on two case studies, namely two programs offered to Latin American immigrants in the United States by Mexican diaspora organizations: Ventanillas and Plazas Communitarias. While Ventanillas focuses on health care of migrants, Plazas Communitarians are a provider of adult education, for example English language training. Then, the analysis is extended towards collaborations between different diaspora organizations in the United States and Canada. Alexandra Délano Alonso demonstrates that there is a significant number of examples of collaborative projects across various Latin American diaspora organizations. The role of Mexico is in this context in some cases a best-practice example and Mexican diaspora organizations further provide resources used by other diaspora organizations. Subsequently, the author discusses aspects of return and reintegration.

Alexandra Délano Alonso discusses the efforts of diaspora initiatives and the countries of origin to support immigrant integration into both the destination countries and immigrants’ countries of origin. The author particularly highlights imbalances in efforts of immigrants’ countries of origin, which tend to focus on the integration of immigrants in the destination countries, especially “in relation to migrants with precarious status” (p. 158).

In her work, Alexandra Délano Alonso raises questions about “Rethinking transnational responsibility for the well-being of migrants, including their social and political rights in another country” (p. 174). This approach, therefore, shifts the responsibility towards the perspective of the governments of the sending countries. The book further highlights various points and limitations in research, for example that the programs and initiatives discussed in the research have favored certain groups of migrants and that efforts of the governments discourse have for the most part focused on the integration of migrants in the country of destination. Drawing on these findings, Alexandra Délano Alonso makes a claim for an extension of these efforts towards more intersectionality and increased inclusion of groups of migrants, which at the point of this study benefit less from the organizations and programs discussed in this case study than other groups of migrants.

The term “integration” features prominently in the title of the book. Alexandra Délano Alonso highlights that her work looks at integration as a two-way process in contrast to previous notions of one-way assimilation. Whilst being one of the key word in the title of the book, in the conclusion the term “integration” is discussed in a rather short paragraph. As, in fact, the book does not simply look at integration as a two-way process between the destination country and migrants, but includes actors on various levels and across several borders, the study provides a new perspective on migrant integration. While the author does acknowledge the need for new theoretical perspective, discussing migrant integration and concluding that a “multilayered approach” (p. 186) is much needed, this aspect is not emphasized in the contribution. The conclusion primarily emphasizes the relevance of the work in the context of current political developments in the United States. In addition, however, the data collected and the original angle of this work could provide material for a more in depths discussion of the implications of this work and its original contribution to transnational migration research from a theoretical angle. As mentioned earlier, the work does for example provide material to rethink “integration” as a concept through the findings of this case study.

The book shifts the perspective of the analysis towards the responsibility of actors in immigrants’ countries of origin to support the incorporation of immigrants into the receiving countries. Even though the author does not provide an in depth discussed of the findings of the study on a theoretical level, the shift in responsibility suggested by the researcher can be adapted to other case studies as well. As the receiving country bias in migration studies prevails, this work provides an interesting angle on the role of immigrants’ countries of origin. Alexandra Délano Alonso’s work is thus a continuation of immigrants’ involvement in the receiving countries from a transnational perspective and provides valuable insights for a further reconceptualization of theories of immigrant integration.

References

Castles, S. (2010). Understanding Global Migration: A Social Transformation Perspective. Journal of Ethnic and Migration Studies, 36(10), 1565–1586. doi: 10.1080/1369183x.2010.489381

Czaika, M., & Haas, H. D. (2014). The Globalization of Migration: Has the World Become More Migratory? International Migration Review, 48(2), 283–323. doi: 10.1111/imre.12095

Schiller, N. G., Basch, L., & Blanc-Szanton, C. (1992). Transnationalism: A New Analytic Framework for Understanding Migration. Annals of the New York Academy of Sciences, 645(1), 1–24. doi: 10.1111/j.1749-6632.1992.tb33484.x

November 2018 – Issue 13(2)

03/11/2018AnnouncementNordic Summer University, human rightsNordicum Mediterraneum

This special issue of Nordicum-Mediterraneum contains selected proceedings from three research circles within the Nordic Summer University (NSU): Human Rights and International Relations, Understanding Migration in Nordic and Baltic Countries and Patterns of Dysfunction in Contemporary Democracies; Impact on Human Rights and Governance. The meetings took place in Saulkrasti, Latvia, from 29/7 to 2/8 2017 and in Copenhagen, Denmark, from 2/2 to 4/2 2018.

Continue reading November 2018 – Issue 13(2) →

An Introductory Note

24/09/2018Introductory noteDemocracy, Migration, NSU, Nordic countries, Scandinavia, governance, human rightsMogens Chrom Jacobsen

This special issue of Nordicum-Mediterraneum contains selected proceedings from three research circles within the Nordic Summer University (NSU): Human Rights and International Relations, Understanding Migration in Nordic and Baltic Countriesand Patterns of Dysfunction in Contemporary Democracies; Impact on Human Rights and Governance. The meetings took place in Saulkrasti, Latvia, from 29/7 to 2/8 2017 and in Copenhagen, Denmark, from 2/2 to 4/2 2018.

The program of the research circle, Human Rights and International Relations, ran from 2015 to 2017. This circle explored how human rights militancy and more generally the protection of human rights are affected by the international human rights regime and the way this regime enters state relations, and it also examined how the international human rights regime modifies the relations between states and how this is explained in international relations theory.

Understanding Migration in Nordic and Baltic Countries runs from 2017 to 2019. This circle addresses contemporary migration through the lens of representation. Interpreted broadly as various means of capturing, contextualizing, interpreting, and defining people, institutions, politics, and histories, representation should encompass both tangible renderings – such as photographs and films – and also a wide range of practices and processes whose representational forms serve in specific ways to produce the subject matter itself.

The study circle about the Patterns of Dysfunction in Contemporary Democracies; Impact on Human Rights and Governance runs from 2018 to 2020. This circle endeavours to study different patterns of dysfunction in contemporary democracies and in particular the insidious processes which undermine the traditional canons of liberal democracy, notably encapsulated in the rule of law and human rights. Many factors are involved in these insidious processes and the state of the various democracies can be seen as nodal points between different factors that are criss-crossing and thus creating a unique constellation: populism, nationalism, corruption, fear, social isolation, ignorance, poverty, luxury, injustice, rootlessness in its various forms are signs of unbalances within democracies on both the global, national and local levels.

The contributions from these circles evolve around the issues of human rights, democracy (including citizenship) and religion.

Jean-Pierre Cléro approaches democracy from the perspective of generational justice. Acquired pensions rights collide with the constraints of democracy and create dilemmas. Lucas L. O. Cardiell addresses other kinds of dilemmas when measures of citizen deprivation send the international protection of citizens’ rights on collision course with citizenship as the domaine réservé of states. Eyassu Gayim studies the contentious issues behind and between democracy and human rights and considers the possible conflicts involved in using the Human Rights-Based Approach to measure democracy.

Julio Jensen examines the origins of human rights and points at the important work of Bartolomé de las Casas and Francisco de Vitoria as initiators of a certain kind of resistance against state power. Marianna Barchuk-Halyk approach human rights from the increasingly important notion of human security and the new UN doctrine about the Responsibility to Protect. Magdalena Tabernacka examines the human right of freedom of religion, and emphasizes the discrepancy found in Poland between the formal adoption of relevant legal measures and the effective protection of the right.

Giorgio Baruchello addresses religious and philosophical beliefs about abortion and their relation to claims about human rights, and how possible conflicts spell out in various social contexts. Welfare provisions and positive attitudes to pregnancy tend to make abortion less necessary. Magdalena Tabernacka discusses the implementation of religious freedom in Poland and how circumstances and will impact the effective implementation of this freedom. Julio Jensen considers how an egalitarian tradition within Judeo-Christian thinking has inspired resistance against state power.

The special issue contains the following papers

Jean-Pierre Cléro

University of Rouen, France

Democracy Put to the Test of Age

A Case Study Concerning the Dysfunction of Modern Democracy

Abstract: After having defined with some degree of precision the concept of a dysfunction which has a very particular meaning within politics, since a regime – be it democratic – can bring forth situations which over time will not be sustainable, we will analyse the case of the retirement pension system in which the generation at work takes care of the generation not working any more. This care meets with some particular difficulties linked to inequalities in what regards economy, politics (resulting from demography), health and social conditions. Certainly, these inequalities can be covered up for some time by a play of fictions which is partly analysed here. A situation seemingly without future considering the age pyramid is strangely enough viable in fact as certain sociological studies have shown, and we endeavour to find a clue to this fact in a dialogue between two persons, who separated by about forty years cross their points of view on how contemporary relations between generations play out. However, we are not quite sure that this play between fictions is a full substitute for the economic realities. We outline here some first steps in an area rich with contradictions, which we endeavour to illuminate by some elements of a theory of fictions.

Julio Jensen

University of Copenhagen, Denmark

A Note on the Origins of Human Rights:

Bartolomé de las Casas and Francisco de Vitoria

Abstract: In the wake of the Spanish arrival in America, a controversy arose with respect to the legitimacy of the conquest and the colonial rule. This debate was started by the Dominicans in the New World, who denounced the oppression of the native population. The most renowned participants in these discussions were Bartolomé de las Casas and Francisco de Vitoria. The former received the title of “Defender of the Indians”, while the latter is remembered as a central figure in the foundation of international law. Through the debates concerning the conquest of America, one precondition – noted by Habermas – for the emergence of human rights is explored namely resistance against state power on the basis of the egalitarian tradition belonging to Judeo-Christian thinking.

Lucas L. O. Cardiell

Migration Institute of Finland

Citizenship Deprivation: A Violation of Human Rights?

Abstract: In the past few years, the issue of citizenship deprivation has risen considerably on the agenda of the international community following the recent terrorist attacks in many States. Many citizens have been deprived of their nationality based on involvement in terrorist activities or possibly on the ground of national security. In consequence, an increasing body of legal and political discourse on citizenship deprivation has been added to the literature and the academic discussions on the topic at hand. This paper argues that despite the progress in IL/IHRL, which usually creates limitations in the attribution and deprivation of citizenship, the right to citizenship falls within the domaine réservé of states. It also argues that even though there are certain legal instruments that prohibit nationality deprivation resulting in statelessness, as of the 1961 statelessness convention, the issue of nationality deprivation most likely creates a legal vacuum for individuals concerned when the acquisition of other rights is necessarily linked to nationality.

Magdalena Tabernacka

Uniwersytet Wrocławski, Poland

The Human Right to Freedom of Religion in the Polish Education System

Abstract: Teaching religion in public schools has a significant bearing on the implementation of the individual’s right to freedom of religion and belief. Even if the state outlines a model for teaching religion that is compliant with the standards for the protection of human rights, an infringement of these rights may occur due to faulty execution of the existing provisions. The fact that a given belief system obtains the status of a majority religion does not exempt the state from its obligation to ensure the effective protection of the rights of non-believers and members of minority religions.

Marianna Barchuk-Halyk

Precarpathian National University named after

Vasyl Stefanyk, city of Ivano-Frankivsk, Ukraine

Human Rights as a Part of the Human Security of Ukraine

Abstract. The paper is dedicated to questions of human security, the importance of which grows in international relations, yet its legal and political meanings remain ambiguous. The human security concept is about the protection of a human being or a minority group conceived as the responsibility of the states, or the international community, when the national governments cannot guarantee this security or when they consciously violate these rights. The concept of Responsibility to Protect is connected with human security. The concept is about the state’s duty to ensure the security of a person.

Giorgio Baruchello

University of Akureyri, Iceland

Religious Belief, Human Rights, and Social Democracy: Catholic Reflections on Abortion in Iceland

Terms such as “pro-life” and “pro-choice” evoke animated responses in the Anglophone world and can even win, or lose, major elections to political parties, candidates and movements. In the Nordic countries, however, the same terms and related responses are generally perceived as academic, at best, or as American, at worst. The issue of abortion seems to have been settled long ago in the Nordic context, both legally and, above all, socially. Does it mean that it has also been settled ethically? I argue that this is far from being the case and present an Iceland-based approach to the issue that, while leaving women’s rights and freedoms untouched, can accommodate to a worthy extent the defence of Scandinavian-style social democracy as well as the traditional Catholic opposition to abortion.

Eyassu Gayim

University of Gothenburg, Sweden

Democracy, Human Rights and the UN Human Rights-Based Approach

Although democracy and human rights are universally shared values, their content has always been contested. The controversy concerns the nature of the human being, how the self relates to the community and the state, and how social and political relations should be formed. The UN followed its own political philosophy regarding this when the international regime of human rights was developed by acknowledging individual and people’s rights and democracy. This study highlights the core contentious issues behind democracy and human rights, how these concepts are intertwined and what the implications of using the Human Rights-Based Approach is to measure democracy.”

Human Rights as Part of the Human Security of Ukraine

23/09/2018Conference proceedings (multiple non-blind peer review)United Nations, human rights, human security, international law, securityMariana Barchuk-Halyk

The present reality of the European Community requires a complex analysis of international and inter-ethnic crises and armed conflicts. The context of recent events, the military conflict in Ukraine, human security in Europe are the key components in the policy of the European Union and number of democratic countries.

In Ukraine we have problems with the main part of human security as human rights, because of the negative heritage after the USSR as well as a difficult political and economic situation and a low level of legal culture. After the beginning of the conflict in 2014, the interest in human rights started to be in the first row and caught the attention of politics as well as society as a whole in Ukraine. The problem became so intense that the events and popularization of how to solve the existing issues in the country took its beginnings and action followed.

Before we actually get to talk about either human rights or human security, we should ponder on the following questions: What is security? What are its peculiarities? What is personal and international security and what influence does it have on human rights?

Security studies is a research area that has an interdisciplinary nature. It is linked to international relations, history, law, political science, economics, and several areas of military studies. The sources for this discipline are academic research and the monitoring of the behavior of the subjects of international law functioning under different conditions and depending on a series of external and internal factors. Security is divided into national and international according to the subjective criterion, and into military, political, economic, ecological, and informational according to the objective criterion[1]. Human security is among the latter group.

The notion of security has a subjective and politically charged nature, and it can change depending on the subject’s point of view. It can, in turn, generate a so-called security dilemmawhich has to do with conditions of uncertainty. For instance, the increase of military potential in a certain country or the conclusion of military treaties can cause neighboring countries to experience the sensation of a security deficiency[2]. Where does it come from? A couple words about history are needed.

The search for means to establish lasting peace in the international community has found its way through the idea of collective security. This concept of collective security consists in countries joining forces in order to achieve superiority in armaments, impose collective sanctions on the aggressor, and, finally, protect the mutual values of the participating countries and the “sense of international solidarity”[3]. It means that the countries interacting in the international activities accommodate their own national interests to the requirements of international security. Collective security is a shared value for the actors in international relations, it is a global value, and concerns global security (comprehensive security concept by Barry Buzan).[4] Collective security is furthermore a legislative and political system whose aim is to prevent probable conflicts among countries participating in international relations, and keep peace permanent. The institutions of collective security are as follows: The United Nations, the Organization of the Security and Cooperation in Europe, the European Union. The first to verbalize this idea was Woodrow Wilson, the President of the USA. By his initiative, the League of Nations was founded in 1919.

The complicated consequences of the Second World War and the endeavor to find ways to eliminate them urged the international community to found an organization that would unite the activities of the countries in the field of international collaboration and establishing peace basing their actions on international law. Thus, in 1941, the Atlantic Charter was signed, and then followed the Universal Declaration of Human Rights, where 26 countries declared their wish to collaborate and develop human rights. The fundamental document for United Nations activity was the United Nations Charter, also known as ‘the constitution of nations’. At that very moment, human rights became a separate sphere in the international discourse. The United Nations Charter is based on the principles of international law and it is the legal foundation for the United Nation activity. The United Nations Charter describes the aim, structure, bodies and the procedures of its activity, directions tor its activity, and the principles for the United Nations membership. The United Nations Charter also declares the supremacy of law and other international law obligations, which altogether makes the United Nations Charter a basic and essential document of international law. The United Nations are universal system with legal and institutional infrastructure, within whose framework the international community acts in order to solve mutual problems on both regional and global levels. The United Nations are the groundwork for international security. The main United Nations body is the Security Council, which is responsible for keeping international peace and security. According to the United Nations Charter principles, the United Nations has monopoly on using force to resolve various international conflicts (Chapter 7)[5].

The present-day notion of security has altered after the Cold War ended. It evolved from a brief notion of military threat to a multifaceted idea which includes economical, ecological, and social components. Human rights and their part in the legal relations system are another crucially important sphere. Human security relies on countries’ obligations, and the human rights recorded in international documents.

The need of security is one of the fundamental personal needs that, according to Maslow’s hierarchy, regard all the aspects and spheres of human life. What it involves is not only a threat of armed conflict, but also the risk of losing something particularly valuable to an individual, that is, psychological comfort. The sense of security provides people with an opportunity to survive and live, to have their independence, human dignity, and a chance to grow. It gets them into a state of rest and permits a number of freedoms, such as freedom of thought and speech, the right to identity, including national, religious, and linguistic. The sense of security enables people to exercise their rights and grants them a sense of their rights being respected on both the personal and civilian levels.

By the end of Second World War, the state was still the primary subject of security; however, in present-day international affairs, the role of human being and non-state actors feature instead as ones of the key roles. Human rights are a branch of constitutional and international law that aims at the institutional protection of human rights, people, or larger groups; it’s aims also include control over rights enforcement and protection. By the first half of the 20^thcentury recognition or non-recognition of human rights had belonged to the state. Occasionally, it is still true even nowadays. It was thanks to the 1909 Geneva Convention[6] and The International Red Cross and Red Crescent Movement,[7] starting in 1919, that began to draw the international community’s attention to the issues of human rights violations, especially during armed conflicts.

The tool for international community’s action in emergency situations is the international humanitarian law of armed conflicts, which regulates behavior of combatants and defines their status, as well as the status of civilians and prisoners. The turning point for defining human rights was the Proclamation of the Universal Declaration of Human Rights by the United Nations General Assembly in 1948.[8] It was an unprecedented act of the states that proclaimed freedom and equality for all. It was a cornerstone for building the human rights systems on the international level. These positions were consolidated by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, defining the state’s obligations towards its residents where their right to strike and right to take part in trade union activity were emphasized.[9]

On the European level, The European Convention on Human Rights (ECHR – formally the Convention for the Protection of Human Rights and Fundamental Freedoms) has an important function. It has become a summary of the achievements of the preceding documents in the realm of human rights, in particular due to its mechanisms which can restrict the violation of human rights and sanctioning violations. The ECHR catalog of human rights has constantly been improved in the Supplementary records containing the register of not only state residents’ rights, but also foreign nationals and non-nationals.[10] The important part in the system of preventing human rights violations belongs to the judicial branch, that is the international tribunals and courts.

The process of European integration and the enlargement of European Union has increased its competence in the sphere of civil rights and has influenced the Сharter of Fundamental Rights of the European Union. It is a fundamental compilation of human rights and civil obligations which is based on common values such as dignity, freedom, human equality, consideration of cultural differences and national identities.[11]

The international system of human rights protection would not have survived – without the 1972-1975 Conference on Security and Co-operation in Europe – Organization for Security and Co-operation in Europe (CSCE-OSCE) process dedicated to two issues: security and human rights. It was an ideological confrontation between East and West, the United State of America and the Soviet Union, resulting from different ideological grounds.[12] The absence of analogies to the CSCE process is explained by the fact that before it emerged, the East-West relationships had not included the human rights issue due to the fundamental contradiction of views, doctrines, and practices.

The probability of an armed conflict sidelined a human rights sphere. The years of intense discussions resulted in the signing of the Helsinki Accords, which confirmed the nations’ right to self-determination, defined the duties of mutual collaboration in the humanitarian sphere, and included the respect of human rightsas one of the fundamental principles of international relations. Even though the Helsinki Accords did not spell out the control mechanism for human rights enforcement, it still stated that not only state governments but also NGOs are able to maintain the said control.

The strategic meaning of Нelsinki Аccords lied within the fact that 35 states of the post-war Europe signed a treaty making human rights a part of international relations. The institutionalization of the CSCE process into ОSCE, the availability of permanent departments ensured the implementation of standards for the sphere of human rights. OSCE is thus made into the regional system of international human rights protection. The variety of institutions dealing with human rights protection indicates in international law. Also, there are mechanisms which protect human rights but there are problems with implementation it in the states’ practice.[13] Human security handles such cases. Human security cannot exist isolated from the national security; therefore, it depends on how the state structure is functioning, its legal system, the society and human rights enforcement. These factors influence human activity, their opportunities, development, social integration level, and cooperation with the government.

A threat to the personal security can be perceived in different ways, depending on the country and the cultural traditions, the multiethnicity of the country, its religion, system of social values, quality of life, migration etc. The reason for the sensation of personal security is the conviction that one’s own state and the international community stand guard over human rights and fulfill the duty to protect both persecuted – persons and ethnic groups, and that international law is a guarantee and a tool for achieving such a goal. The threats of the present-day world, such as the aggravation of armed conflicts and terrorism pose a new challenge to the world community.

The role of human security in this situation grows significantly. Human security is personal security of the human being in emergency situations such as armed conflicts, catastrophes, famine, poverty etc., that require aid or intervention from international organizations based on international law.

The segregation of human security as an individual sector began in 1982 at the UN session, when Olaf Palme made a report to the United Nations Disarmament Commission concerning the humanitarian crisis in the Iran-Iraq war. In Ukrainian security studies, the interpretation of human security is slightly different from what is found in the general scientific discourse. It is the state of the sense of security of a person, family, ethnic group, nation, and their ambitions, ideals, values, traditions, culture, opportunities of growth and freedom of choice regardless of the race, gender, language, and religion[14]. It has connected with a series of historical factors that affect the sense of security in Ukrainian society, which is firstly centuries without it is own state, then Soviet government, and, finally, the present war in eastern Ukraine.

The idea of human security in Ukraine is developing in the three following directions: security of physical and mental health; free self-definition of residents, social groups and peoples; security of residents in terms of free choice of development path and the general opportunity to choose one’s own future. All these point towards a peculiar sense of security directly connected to freedom and the expression of one’s will, independence of actions and opportunity of choice[15]. This concept is somewhat similar to the United Nations’ concept of Sustainable Development and is closely linked to humanitarian politics; it is also a so-called ‘mitigating element’ of security. It is worth noting that in Ukraine the ethnic and national security is another element of national security, as several models of national identity coexist at the same time in the state as well as the subsequent threats.

Nowadays, human security is facing a number of challenges. There is poverty as a structural failing, epidemics, human trafficking, various kinds of violence (ethnic violence included), and terrorism. The international community is searching for ways to solve these problems. Quite a large number of sectors are covered by the activities of the different United Nations Commissions such as the UN Human Rights Council, Commission on sustainable Development, the UN Entity for Gender Equality and the Empowerment of Women etc. Furthermore, if the state is willing to ensure its residents’ security, more and more often it has to take action outside its borders, for instance, in the form of various missions. Some threats go far beyond conventional threats, e.g. in the cyberspace. The trends in world politics, armed conflicts and humanitarian intervention strengthened the attempts to solve different problems. It was a basic reason why the United Nations Trust Fund for Human Security (UNTFHS)was founded in 1999 and finances activities carried out by UN organizations; they define human security as a “dynamic and practical policy framework for addressing widespread and cross-cutting threats facing Governments and people” and “all individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential”[16]. The UNTFHS presents strategic ways to solve different challenges based on the “Human Security Unit Strategic Plan 2014-2017”[17] and creating a new interdisciplinary conception about human security activities and their implementation in the politic life of the international community.

Human security is based on 3 aspects: International Humanitarian Law, Human Rights, and the Responsibility to Protect concept. The international law is a so-called ‘law of nations’, and it is a regulator of international community’s activities.

As for the Responsibility to Protect concept, it embodies the idea of a state’s duty to protect its residents. However, as a matter of practice, it is quite often that countries, especially those of the great powers, do not adhere to international law, which causes humanitarian crises in different parts of the world.[18] The task of human security is to generate efficient law mechanisms that would influence states’ actions. The key questions that human security raises are: how to secure human rights? How and when to exercise the right to use force when solving conflicts? The monopoly of the right to use force belongs to the United Nations Security Council, which is supposed to use it in situations of an extraordinary threat to international peace, and when an act of aggression has been committed. Also, the Security Council can delegate authority to undertake repressive actions to regional institutions (Article 53).[19] The ban on one state proffering threats of using force towards another state is one of the basics of international relations.

Theoretically, the states participating in the international sphere should strive for stability and peace on both the local and international levels, yet, when national interests check into the game, the states declare adherence to the international law on the one hand, but just breach the law on the other hand.

It is necessary to consider the fact that every state has a right to the inviolability of its territory, and the right of self-defense, which is stated in Charter UN (Article 5).[20] A problem arises: in what cases does the international community have the right to interfere with the state’s actions? The answer might be as follows: in cases of aggression towards another state, a threat to international peace, and major violation of human rights. Nonetheless, there are no clearly defined limits for the massiveness of human right violations. It’s undermines the authority of and trust in the international organizations, sets precedents that lead to global consequences in the field of international law.

The Situation in Ukraine

Military conflicts which have not been solved become a threat to human security, and point in practice to a certain weakness of the international organizations.[21] A striking example is Russia’s aggression towards Ukraine, the annexation of Crimea and the war in Donbas that has been in progress since 2014. Avoided to be seems extremely one-sideare few comment of those facts are needed.

The aggression of Russia to Ukraine has two sides – military-political and humanitarian. If we compare the principles of International Law and the actions of Russia as for Ukraine we will see that Russia violated the rights of Ukraine as a sovereign subject of international law, that is the principle of the territorial integrity, they interfered in internal affairs, threatened to apply the power, made the act of aggression against Ukraine, that is applied the power by using the armed forces and annexed the part of the territory (Autonomic Republic of Crimea). According to the United Nation Charter, the principle of sovereignty is a customary international right. The annexation of Crimea by using armed forces is the breaking of rights of international law called ius cogens, that is a direct duty of the UN membership. The actions of Russia Federation in eastern Ukraine are the acts of ordinary aggression. The problem is that the example of Russia can be a negative precedent to other countries which will want to review the established borders. For example, for numerous violations Russia can be dismissed from the UN according to the UN Charter norms (Ch.2, Art.6)[22] Іt is clear that this is breaking of the international law (such as The Budapest Memorandum on Security Assurances,among others 10 articles in Helsinki Accords,a, b,c, d, e, g Article3, UnitedNationResolution № 3314, International Humanitarian Law:

“TheblockadeoftheportsorcoastsofaStatebythearmedforcesofanotherState”)

(“The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.)Art 3 (G) № 3314[23]

Vladimir Putin, the president of the Russian Federation, manipulated peoples’ right of self-determination and called the annexation of Crimea an act of defending the Russian-speaking residents of the peninsula. He referred to the Responsibility to Protect concept as the ground for the intervention of Russian troops into eastern Ukraine, that is the necessity to defend Russian citizens and Russian-speaking residents. It is clear that this is an absolute breach of international law (among others 10 articles in The Helsinki Accords, The Budapest Memorandum on Security Assurances, The Constitution of Ukraine, The Constitution of Crimea and human rights during the conflict), as the membership of a certain linguistic group does not imply state citizenship. Military actions in Donbas have furthermore led to a humanitarian crisis in the Russian-occupied territories.

The key violations on the part of Russia caused by the war are the annexation of Crimea and the violations of Ukrainian – sovereignty, its borders and territories. In the course of Russian aggression towards Ukraine, major violations of human rights have occurred, the following in particular: forced relocation the residents of Crimea and the eastern part of Ukraine; turning residents into refugees, ethnic discrimination (Ukrainians and Crimean Tatars), linguistic discrimination (Ukrainian-speaking people), illegal eviction, appropriation of property, deliberate warfare against civilians, (which caused numerous victims among them) breach of humanitarian law, torturing Ukrainian military servicemen and prisoners, forced acquisition of Russian citizenship under the threat of punishment, acts of violence, crimes, kidnapping, forced labor, violation of the inviolability of journalists and medical staff.[24]–[25]

The list can go further, but even now it points to the large scale of human rights violations. In situations like this, imposing sanctions on Russia is not exactly an efficient means to solve the conflict. The Russian-Ukrainian struggle demonstrates how fragile the international law is and how Russia continuously persists in breaking it. The case of the Russian-Ukrainian conflict has been called ‘the war of the 3^rdmillennium’ which aims at destroying mental and cultural identity of the territorial community. It is a new challenge for Ukraine as well as for the entire international community. Russia has subverted the international order, which it had previously promised to protect. It is another evidence of the global failure of both human rights enforcement and human security in general.

The conflict between Ukraine and Russia caused a deficit of humanitarian security. To increase the level of the humanitarian security in Ukraine it is necessary to realize a few aspects. First, these are the new legal documents both at the international and state level. They could regulate the issue of applying the power in crisis situations, the prerogative of which belongs to the United Nations Security Council. With this purpose the international community may not create new but review already existing documents in international law. Second, this is the activity of international and national non-governmental organizations, which task is the monitoring of the current situation in Ukraine and informing the international community, attracting attention to the existing problems. The Red Cross, The Maltese Service and other organizations occupy an important place. They conduct important humanitarian actions and promote international humanitarian cooperation. Third, this is the activity of Ukrainian society in the direction of creating and developing civil society. An active part of Ukrainians realize this idea in the volunteer movement, which we can call without exaggeration the key success after the Revolution of Dignity. Yes, the volunteering movement managed to rise the Ukrainian army to combat level, which had been in the decline at the beginning of the annexation of Crimea, which caused the lack of armed resistance. However, already in August 2014, the potential was renewed and the Ukrainian army achieved combat capability. Nowadays there are several public initiatives: the help of settlers and their families, free juridical consultations, courses of the first aid, tactical medicine etc. In total the volunteering movement for the needs of Ukrainian army has 15 thousand people. Only an improved personal position for every Ukrainian and the rise of the legal culture in the country can be a contribution to the rise of the Ukrainian humanitarian level.

Conclusion

Global security in the world can be ensured by means of the development of each and every country through the supremacy of the law in international relations. Human rights have made the human being the subject of international relations. Enforcement of human rights on all levels such as daily-life level, civilian, and international, is the guarantee of human security and stable legal relations. The means of securing human rights in critical situations are human rights enforcement by the states, the military, by stabilization and peace-support missions, and through a search for mechanisms to the implementation of international law into the practice of states. The increase in the level of legal education in the post-Soviet countries, raising public awareness about the value of human rights is of specifically high importance. In Ukraine, these elements are crucial for democratic reforms and the construction of civil society, and voluntary movements and NGOs do make significant steps towards the achievement of these goals.

References

Buzan B., New Patterns on Global Security in the Twenty-First Century, International Affairs, 67.3, 1991
Falk R., Humanitarian Intervention and Legitimacy Wars. Seeking Peace and Justice in the 21st Century, Routledge, London and New York, 2015
Kuźniar R., Prawa człowieka. Prawo, instytucje, stosunki międzynarodowe, Wydanie trzecie, uzupełnione, Fundacja Studiów Międzynarodowych, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004
Mero, The Humanization of International Law, Martinus Nijhoff Publisher, The Hague, 2006
Walt S.M.n T., International Relations. One World, Many Theories, Foreign Policy No. 110, Special Edition: Frontiers of Knowledge (Spring 1998), pp. 29-30 (Published by the Slate Group, a Division of the Washington Post Company)
Zięba R., Instytucjonalizacja bezpieczeństwa europejskiego. Koncepcje – struktury – funkcjonowanie, Wydanie czwarte poprawione i rozszerzone, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, op.cit.

Internet sources

The United Nations Documentations

The International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols

The International Committee of the Red Cross and Red Crescent Movement

The United Nations, The Universal Declaration of Human Rights (UDHR)

The United Nations Human Rights, The International Covenant on Civil and Political Rights

The Council of Europe, The Convention for the Protection of Human Rights and Fundamental Freedoms

The European Commission, EU Charter of Fundamental Rights

The National Institute for Strategic Studies, The Social Security: Essence and Measurement

The National Institute for Strategic Studies, The Humanitarian National Security Complex

The United Nations Trust Fund for Human Security

The United Nations Trust Fund for Human Security, The Human Security Unit, Strategic Plan 2014-2017

The United Nations Codification Division Publication, Carter of UN, Chapter 8 – Regional arrangements

The United Nations Codification Division Publication, Carter of UN, Chapter 2 – Membership

The United Nations General Assembly Resolution 3314, Definition of Aggression

The Chapter of the United Nations and Statute of the International Court of Justice

The Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights situation in Ukraine 17 August 2014

Endnotes

[1] Zięba R., Instytucjonalizacja bezpieczeństwa europejskiego.Koncepcje – struktury – funkcjonowanie, Wydanie czwarte poprawione i rozszerzone, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, op.cit.

[2] Walt S.M., International Relations. One World, Many Theories, Foreign Policy No. 110, Special Edition: Frontiers of Knowledge (Spring 1998), pp. 29-30 (Published by the Slate Group, a Division of the Washington Post Company).

[3] Kuźniar R., Bezpieczeństwo w stosunkach międzynarodowychW: E. Haliżak., R. Kuźniar, Stosunki międzynarodowe. Geneza, struktura, dynamika, 2006, p. 143.

[4] “Security is taken to be about the pursuit of freedom from threat and the ability of states and societies to maintain their independent identity and their functional integrity against forces of change, which they see as hostile. The bottom line of security is survival” Buzan B., New Patterns on Global Security in the Twenty-First Century, The Royal Institute of International Affairs, Blackwell Publishing, 67.3, 1991, pp. 432-433.

[5] The United Nations Documentations

[6] The International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols

[7] The International Committee of the Red Cross and Red Crescent Movement

[8] The United Nations, The Universal Declaration of Human Rights (UDHR)

[9] The United Nations Human Rights, The International Covenant on Civil and Political Right

[10] The Council of Europe, The Convention for the Protection of Human Rights and Fundamental Freedoms

[11] The European Commission, EU Charter of Fundamental Rights

[12] Kuźniar R., Prawa człowieka. Prawo, instytucje, stosunki międzynarodowe, Wydanie trzecie, uzupełnione, Fundacja Studiów Międzynarodowych, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, p. 12

[13] Ibidem, p. 244-245.

[14] The National Institute for Strategic Studies, The Social Security: Essence and Measurement

[15] The National Institute for Strategic Studies, The Humanitarian National Security Complex

[16] United Nations Trust Fund for Human Security

[17] United Nations Trust Fund for Human Security, The Human Security Unit, Strategic Plan 2014-2017

[18] Meron T., The Humanization of International Law, Martinus Nijhoff Publisher, The Hague, 2006

[19] The United Nations Codification Division Publication, Carter of UN, Chapter 8 – Regional arrangements

[20] The United Nations Codification Division Publication, Carter of UN, Chapter 2 – Membership

[21] Falk R., Humanitarian Intervention and Legitimacy Wars. Seeking Peace and Justice in the 21st Century, Routledge, London and New York, 2015

[22] The United Nations General Assembly Resolution 3314, Definition of Aggression

[23] The Chapter of the United Nations and Statute of the International Court of Justice

[24] The Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights situation in Ukraine 17 August 2014

[25]The Guardian, Ukraine: kidnapped observers paraded by pro-Russian gunman in Slavyansk

Citizenship Deprivation: A Violation of Human Rights?

21/09/2018Conference proceedings (multiple non-blind peer review)citizenship, citizenship deprivation, domaine réservé, human rights, international human rights law, statelessnessLucas Cardiell

Introduction: the relevance of the issue

In the past few years, there have been an extensive analysis and fervent political and legal debates over criminal and administrative measures to fight international terrorism, specifically to cease the flow and prosecute the so-called “foreign fighters” (FF). In various literature, FFs are generally referring to as ‘home-grown terrorists’ or ‘radicalized citizens’ (Mendelsohn 2011, 189; Malet 2009, 13). Even if there is no well-established definition, this paper refers to the following: A FF is “an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship”. (Krähenmann 2014, 6)

The impressive number of FFs joining terrorist organizations, and the international dimension of their activities, mobilization, and travel patterns have created heated political and legal discussions in various countries. It also resulted in an intensifying discourse around the growing threat to international security. It has not only been about the number of FFs that is very impressive (more than 30,000) but also about the geographic diversity of individuals who have joined conflicts (de Guttry; Capone and Paulussen, (eds) 2016, 12-13; Bakker & Singleton 2016, 10-15 and Academy Briefing, 2014).

One of the means to fight international terrorism and punish individuals involved with terrorist activities has been applying citizenship deprivation, in other words, turning them into aliens. Noticeably, the practice of depriving individuals of their citizenshipis not a new phenomenon to the international legal domain. Itreached extreme levels during and after World Wars, as illustrated by the denaturalization of British and Belgian citizens of German origin after the World War I (Cloots 2017, 59). The Nazi era and inter-war years used it as a political tool to banish large numbers of people, such as political opponents and Jews. Belgium also applied citizenship deprivation to punish collaborators after World War II (Cloots 2017, 64).

The war against terrorism following the 9/11 events, together with the most recent terrorist attacks in Europe, revived the issue to the foreground. Effectively, as terrorist events can be considered as pure criminal acts (Travalio and Altenburg 2003, 98), various states have recently pondered citizenship stripping as a way of responding to these acts. In the UK, it was passed as part of the Immigration Act, which enabled the government to revoke citizenship in some cases even if it results in statelessness; in the US, it was proposed first as the Terrorist Expatriation Act and later as the Expatriate Terrorists Act, but neither passed (Sykes 2016, 749-763). In a comparable vein, reforms have meanwhile been announced in Israel, Spain, France, Belgium, Norway and the Netherlands (van Waas 2016, 472-475;Sykes 2016, 749-763).

This paper presents the thesis that citizenship is a human right and its deprivation violates this right particularly when it results in statelessness. In order to defend this opinion, the first section will highlight the definition of citizenship and its evolution as a human right and its legal status. The following section will elaborate on the universal and regional legal framework that regulates citizenship. The concluding section of this paper will outline an analysis of citizenship as a human right and the consequences of its deprivation will be drawn.

Definition and evolution of citizenship as a human right and legal status

In her most famous work, The Origins of Totalitarianism, Hannah Arendt (2004, 297) argued that citizenship is ‘the right to have rights’, whereas ‘the Rights of Man’ proved to be inadequate to actually protect ‘abstract’ human beings who were no longer recognized by ‘their state’. Only belonging to ‘one’s own people, that is, as a fundamental status that gives rise to concrete rights’ could ensure protection of supposedly inalienable and universal human rights (Arendt 2004, 296). In a similar vein, Sandra Mantu (2015, 12) also expresses the same opinion and claims that ‘citizenship may be labelled as a secure status, if not the most secure status a person can enjoy. This is true because numerous political, civil, economic, and social rights are enjoyed through citizenship.’

One can conclude, from Arendt and Mantu´s mutual standpoint, that having citizenship is a gateway to other rights and that citizenship is the highest and most secure legal status one can hold in a state. It also seems that citizenship lies at the very heart of the concept of the nation-state. Further, there is the question of how citizenship is constructed as a legal right in a combination of domestic and international developments. Since IL and IHRL are designed to protect both state and individual interests, it is not surprising that they both form paths by which citizenship is constructed. Similarly, domestic law affirms who is and can or who is not and cannot become their citizen. For example, citizenship can be acquired through naturalization after complying with a state’s rules concerning its domestic citizenship regulations. In most states, individuals can become a citizen of another country through the jus domicilli principle or marriage. With regard to the relation between IL and IHRL as long as citizenship law is concerned, for example, the Hague Convention states that: “This law shall be accepted by other states in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognized with regard to the citizenship law.” (Article 1 (b) of The Hague Convention 1930)

This paper confirms that the principle of state autonomy in citizenship matters, and acknowledges the limits to the states’ prerogative to determine the membership of their citizenry. Discussions on the formulation of a right to citizenship as a human right only took place in the mid-20th century. It was first confirmed as a right in non-binding regional documents, including the American Declaration on the Rights and Duties of Man (1948). The universal protection of the right to citizenship was envisaged by the Declaration, which has since become binding as customary international law. Although international human rights law under the UDHRaffirms that human rights apply to all individuals regardless of their citizenship or national origin, citizenship determines the scope of the application of basic human rights and obligations of states to other states and the international community, such as the application of multi- or bilateral conventions and treaties.

In its famous judgment, the International Court of Justice (ICJ) in the Nottebohm (Liechtenstein v. Guatemala)case has described citizenship as a “legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties” (ICJ Reports 1955: 4, 23. See also art. 2 of the European Convention on Citizenship). Citizenship can thus be understood as a link between an individual, a country, and the international community.

This link results in mutual rights and duties on all sides, including loyalty to the state of citizenship, while the very same state reciprocates by protecting its nationals. Further, citizenship holds the keys to international legal protection and holds States accountable for their actions and to recognition by a system cantered on Statehood. Under domestic law, citizenship is defined as denoting full membership in a state or as a sum of legal rights and duties of individuals attached to citizenship (Mantu, 2015, 1). Even if there is no symmetric catalog of the rights and duties that nationals possess in relation to their state, Mantu states that ‘it is generally considered that the content of law to citizenship will vary from one State to another according to the domestic legal protections and the political system surrounding the right to citizenship.’In this regard, Pocock also states that citizenship ‘enables us to define an indefinite series of interactions between persons and things, which may be restated as rights, used to define new persons as citizens.’ (Pocock, 1995, 45)

Moreover, it has been argued that several human rights instruments purposefully diminish the importance of citizenship so to prevent statelessness or the status as a non-citizen from being used as a basis for discrimination, in the sense that they make citizenship a non-prerequisite to enjoying human rights. Despite the central role the concept of citizenship played in the rise of human rights culture, the words “citizen” and “citizenship” are rare in the major international human rights instruments. Indeed, the sense of the instruments themselves is to erode the importance of the very concept which originally gave rise to the idea of fundamental human rights (citizenship), in the interest of doing away altogether with boundaries between privileged and non-privileged (Claude, 2003, 245).

Weissbrodt (2008, 248-250) also suggests that ‘because being human is the sole requirement entitling us to human rights, whether or not one possesses citizenship should have no bearing on whether we enjoy all of our human rights. This has been stated by Donnelly (2003, 10), who sees human rights as literally ‘the rights that one has simply because one is a human being.’ Although States may have the primary responsibility for implementing internationally recognized human rights in their own countries… human rights are ‘the rights of all human beings, whether they are citizens or not.’(Weissbrodt and C. Collins 2006, 245) Because being human is, for him, the sole requirement entitling one to human rights, whether or not one possesses citizenship should have no bearing on whether one enjoys all of her or his human rights. For example, the ICCPR requires states ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or another opinion, national or social origin, property, birth or another status (Article 2, para 1). The European Convention for the Protection of Human Rights and Fundamental Freedoms requires state parties to “secure to everyone within their jurisdiction the rights and freedoms(of the Convention). Similar provisions can be found in Article 2 of the UDHR.

Yet, having said that, it should not be understood that citizenship as a legal human right has always been protected and respected by States. The most agreed opinion on citizenship says that citizenship is a right means to have rights. This fact gives it the attribute of being far more than a social or political fact of attachment to a certain state. Therefore, to be deprived of citizenship means to weaken access to other fundamental rights, such as the right of movement, the right to access education, etc. Citizenship can be described as involving both inclusionary and exclusionary practices that are meant to express the meaning of identity and belonging within a specific political community (Mantu 2015, 3). From this, one indeed can see that the right to citizenship is widely recognized as a fundamental human right.

Kingston (2005, 23), in her article on the history of the practice of banishment, deportation and the deprivation of citizenship claims that ‘on the question of citizenship it is not often acknowledged that the state has power, not only to grant or deny residency and new citizenship in a political community, but also to revoke membership and expel those once deemed citizens.’ Additionally, one of the doctrines of state sovereignty refers to the fact that states have power over rules and principles for the loss and acquisition included in their domestic legal regime in respect to citizenship. As such, states are understood to be free to determine who the members of their national community are. Sandra Mantu (2015, 1) states that: ‘by designing legal rules dealing with the acquisition and loss of citizenship, states engage in a series of legal practices that shape the personal scope of national citizenship’.

Yet, the individual remains a state´s citizen and enjoys the rights guaranteed under its citizenship law but loses some of the rights that go with it. Being deprived of one’s own citizenship effectively causes one to lose all rights other than those recognized in international law as basic human rights. Thus, to revoke someone´s citizenship is not a measure to be taken lightly. The rights linked with citizenship, such as the right of movement, right to access to education, etc., are inherently affected, amounting to a severe limitation of human rights enjoyment and protection. Notwithstanding, international law does not absolutely prohibit deprivation of citizenship but it is, nevertheless, in accordance with various legal texts, sets out strict conditions for States to follow in order to deprive their citizens of their citizenship. It should not be forgotten, however, that citizenship loss is not only on the basis of public security threats or political motives. There are other justifications for its deprivation, such as, among others, fraud in naturalization, expiry of citizenship after long-term residence abroad or loss in case of acquisition of a foreign citizenship. Macklin (2014, 1) states that some States that prohibit dual citizenship may revoke the citizenship of an individual who gains the citizenship of another state. Many states also retain the power to naturalize the citizenship of a citizen who obtained citizenship through fraud or misrepresentation.

As we have seen, questions related to citizenship and the legal framework that constitute it were within the exclusive domaine réservéof states (Weis 1979, 66). States were autonomous in their citizenship matters. However, in the new millennium many international standards were developed regarding the rules and principles of acquisition and loss of citizenship. This development in the international arena has challenged this understanding. Arendt´s conceptualization ‘right to have rights’ would gradually be secured by shifting the power of citizenship and its deprivation from liberal democratic States to the international legal system (Spiro 2013, 2169).

This does not mean that a state’s right to determine citizenship law has remained unaffected by the development of human rights and human dignity. Rather than making general assumptions about to what extent the sovereign rights of states are replaced or limited by human rights concepts of self-fulfillment and personal identity, it seems appropriate from a legal point of view to differentiate different areas in which human rights considerations influence the determination of citizenship or have been recognized in the process of obtaining increasing recognition by states. As examples, we refer to the naturalization of migrant workers, the issues of denationalization and arbitrary deprivation of citizenship, and, finally, discrimination in granting naturalization. It is important to recall that in practice States have not always been willing to implement the principles of IL, IHR or CIL on citizenship prescribed by the relevant legal instruments and for different reasons. There are some states which have not signed and/or ratified relevant international law instruments, and which do not comply with even the general standards of CIL. Others have signed and ratified treaties, but still fail to implement all key provisions, opening themselves up to political criticism and the possibility of legal action in the domestic courts depending upon the domestic effects of international treaties. Other states again comply with certain international standards while not having signed and/or ratified the treaty they are contained in.

From this standpoint, one can claim that banishment has been used as a form to prevent future crimes and express the power of a state´s ability to meet its responsibility towards its sovereignty and to punish those who do not respect the law. This leads us to understand why citizenship is seen as a privilege, not as a right, which in turn might explain why more often than not rules dealing with the loss of citizenship will, as Mantu puts it: ‘indirectly target naturalized citizens’ (Mantu, 2015, 1). The citizenship link between a state and individuals was conceived mainly as a privilege, which at the international law level guaranteed the individual the enjoyment of a certain degree of protection outside his or her own country.

Citizenship should not be considered as a personal relationship between an individual and a state or allegiance of an individual towards his state, the development of IHRL on citizenship makes it a legal status embracing a set of mutual rights and obligations towards a state fulfilling certain requirements necessary for the coexistence of a sovereign state and IHRL. Regulating the right to citizenship on the international level reflects the interests of states, and the wording of relevant documents is typically vague and lacking in order to enable states to retain the regulation of citizenship as far as possible within their respective domestic spheres and the right ensured on the international level is frequently rendered meaningless in practice.

The right to citizenship as set out in international legal instruments

Citizenship as a legal right confirms the membership of an individual in a state, and the definition of who is a national of a state is almost exclusively a product of domestic legislation. Further, an individual having a state´s citizenship is in many important respects subject to its own domestic laws, meaning that this individual may be recalled and penalized for his failure to return to his country. A national may be punished for crimes committed outside the state of citizenship or he may be subjected to judgements obtained against him in absentia. This in a way gives a pathway to the fact that foreign fighters are, and seem bound to always remain, ‘citizens of State X or B’ and, thus, are bound to its domestic laws.

The power of a state to regulate issues of citizenship, depriving foreign fighters of their citizenship as a result of terrorist acts for instance, is nonetheless limited by international human rights law.For one reason, this is due to the interplay between the citizenship rules of states and their commitments to the international legal regime on citizenship and, for another, any interference with the enjoyment of citizenship has a significant impact on the enjoyment of rights (UN 2011). This is evidenced by the IHRL limiting States’ discretion, through the principle of avoidance of statelessness, the right to respect for private and family life, non-discrimination, the principle of non-arbitrariness, the right to freedom of movement, and the right to enter one’s own country (Goethem, 2006, 4-6)

The legal regime on citizenship can be found in customary international law, in very few instances of case law, and arguably also within the universal human rights regime (Bilgram 2011, 2). Most importantly, however, its international standards are being developed in bilateral and multilateral treaties, supported by international bodies such as the UN. This is at the international level. However, this study is interested to focus on the European system as well, thus it is important to mention, at the European Union level, standards that have been set by the Council of Europe and to a certain extent also by the EU through EU law, although the latter has no competence per sein citizenship matters.

How states will address foreign fighters stems from the international human rights law which its cornerstone is that everyone has a right to, at least, citizenship, albeit no right to a specific citizenship of a specific state. The documents concerned, at least a great number of them, contain provisions on the law of citizenship. The approach of international legal instruments in this matter is necessarily in a sense that multilateral conventions obligate States Parties to criminalize specific terrorist conducts under national criminal law.

At the international level, the very first source of this cornerstone principle corollary to the right to citizenship is the 1948 Universal Declaration of Human Rights (UDHR), which accords everyone ‘the right to a citizenship’and guards against arbitrary deprivation of citizenship. (Article 15). Under its Article 15, the importance of the UDHR appears, with regard to citizenship law, as it guarantees protection against statelessness and arbitrary denationalization. However, although the UDHR is significant as a leading instrument to other legal instruments which was created after 1948, the UDHR is not legally binding on States, so this paper is merely considering the UDHR as reference.

Following its adoption, it became ‘necessary to spell out the general standards of the UDHR in legally binding instruments…covering the whole range of human rights at both universal and regional levels (Cassese 2005, 381). Moreover, Waas claims that the American Convention on Human Rights (ACHR)is ‘the most far-reaching right to citizenship in a legally binding human rights document to date’ (Waas 2008, 3). It is the aim of this study to consider Article 20 of the ACHR as of great importance. This article contains significant elements, including a fundamental recognition of the general right to citizenship, in particular by imposing a specific obligation to grant citizenship jus solito every person that otherwise would with no state, the prohibition of arbitrary deprivation of citizenship, and in violation of human rights and values.

In addition to the American system, the IHRL on citizenship also consists of other regional human rights systems, including the Inter-American system, the European system, the African system, the Arab system, and the ASEAN system. These systems, as Vela puts it, ’share various common features, including the fact that they all possess at least one fundamental right’s instrument, at least one human rights body, and they were all ‘established under the auspices of an intergovernmental organization’. (Vela 2014, 54).

Like in the Inter-American system, the European and African systems are equipped with courts that can hear cases of violations of the rights stipulated in their respective regional documents, and a substantial amount of case law on issues of citizenship exists. The Arab charter is a relatively new development, and as a document it does not possess the same enforcement mechanism as the documents in the Americas, Europe and Africa possess. In the 1994 version of the Arab Charter, the article 24 did not contain an acknowledgement of a general right to citizenship. It stated that ‘Everyone has the right to citizenship. No one shall be arbitrarily or unlawfully deprived of his citizenship’.However, in the 2004 version of the charter, article 29 (1) acknowledges this right, saying that ‘Every person has the right to a citizenship as prescribed by law. No person shall be arbitrarily deprived of such citizenship nor denied the right to change that citizenship’.

Finally, the ASEAN declaration is a declaration, which means it contains the rights that all ASEAN members should strive try to protect, but it does not give rise to obligations. Article 18 ASEAN HRD does not recognize a general right to citizenship; the right to citizenship is limited insofar as the individual has the right to citizenship ‘as prescribed by law.’ The Inter-American, European, and African systems have complaints mechanisms, ‘through which individuals can seek justice and reparation for human rights violations committed by a State party’ (Vela 2014, 54) and have organs which have issued decisions on cases dealing with citizenship and statelessness. Both the Arab and ASEAN systems lack a complaints mechanism which makes the jurisprudence of citizenship in their human rights law underdeveloped. Importantly, the five systems lack regular enforcement mechanisms. In fact, the structure of the international adjudication makes it very difficult to enforce international norms governing the relationship between an individual and the state of his citizenship.

The object of both binding and non-binding instruments on citizenship is to guarantee every individual with at least one citizenship, and instruments have aimed particularly at also restricting denial of citizenship, with the adoption of the 1961 Convention on the Reduction of Statelessness to be considered as a leading step at the universal level for this purpose (Chan 1991, 9). Inspired as it is by Article 15 of the UDHR, the 1961 Convention forbids loss of citizenship in some cases where the consequences of such loss would be statelessness, and thus forms part of international human rights law on citizenship, even if its title refers to statelessness, not to citizenship.

As far as citizenship deprivation is concerned, Article 8 of the Convention is especially noteworthy. Article 8(1) stipulates that ‘[a] Contracting State shall not deprive a person of its citizenship if such deprivation would render him stateless’. The second and third paragraphs of Article 8 list a number of exceptions to this rule, permitting denationalization to entail statelessness in certain limited circumstances. Those circumstances include cases where the person affected had obtained the citizenship by misrepresentation or fraud (Article 8(2)) or had, inconsistently with his duty of loyalty to the Contracting State, conducted himself in a manner ‘seriously prejudicial to the vital interests of the State’ (Article 8(3)(a)(ii)).

At the European level, The European Convention on citizenship 1997 is of paramount importance, being the first comprehensive citizenship convention (Waas 2012, 245). This convention reproduces the content of the UDHR and the 1961 Convention, but the safeguards it puts in place against statelessness and arbitrariness are more extensive. On the one hand, the 1997 Convention reduces the grounds on which persons can be stripped of their citizenship even if they become stateless as a result. Statelessness is only tolerated in the case of fraudulent acquisition of citizenship, but not when the person concerned conducted himself in a way ‘seriously prejudicial to the vital interests of the State Party’ (European Convention on Nationality 1997, article 7(3)).

However, the latter deprivation grounds may only result in statelessness if the Contracting State made a declaration to that effect at the time of signature, ratification or accession. Yet the 1961 Convention not only contains guarantees against statelessness, but also against arbitrary state conduct. To this end, Article 8(4) demands that any citizenship deprivation be consistent with certain procedural safeguards: the deprivation must be in accordance with law, and the person concerned must be entitled to a fair hearing by a court or other independent body. Moreover, Article 9 of the 1961 Convention prohibits citizenship deprivation on racial, ethnic, religious or political grounds. Although it leaves no doubt that the international materials discussed above have singular authoritative value, it should be noted that their legally binding force is limited.

For example, the 1961 Convention and the 1997 Convention have not been ratified by all legal systems studied in this paper. In terms of membership, only the Netherlands is party to both treaties.France, in contrast, is party to neither, and the United Kingdom and Belgium have signed and ratified solely the 1961 Convention. Other bodies of legal instruments constitute the right to citizenship and put limits on its deprivation, and supervision of these international standards on citizenship has consistently recognized the increasingly narrow restrictions on the discretion of states in respect to denial of citizenship.

In addition to the aforementioned conventions, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, (Art, 5) the 1966 International Covenant on Civil and Political Rights, (Art, 24) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, (Art, 29) among others, have codified the right to citizenship and contain provisions which form a high relevancy for international law on citizenship. Countries such as the UK, Australia, the Netherlands, France and Canada have either signed or ratified them.

There seems in fact to be a relatively uniform recognition of a right to citizenship, although in the case of some instruments a limited version of this right is expressed. In the cases of Europe and African, interestingly, neither the ECHR nor the ACHPR recognize the right to citizenship. However, on a closer look at the system rather than just the instrument, there is evidence that points towards increasing recognition of this right in the regions.

On the European level, standards have been set by the Council of Europe and to a certain extent also by the European Union (EU) through EU law, although the latter has no competence per sein citizenship matters. There are relevant duties under customary international law constraining state autonomy in citizenship matters. Important customary international law principles contain the duty to avoid and reduce statelessness, the prohibition of arbitrary deprivation of citizenship, and the general obligation of non-discrimination.

It is natural to look at international law and see what it is proposing as the studied phenomenon is of an international nature as well as looking at what measures states are taking in order to tackle it. Yet, the challenge encountered in a legal analysis of foreign fighters is that their legal status is of a controversial nature and involves a conceptual ambiguity. This in fact is paralleled by the uncertainty as to its legal status as there is no legal regime for foreign fighters and other individuals involved in terrorist activities per se. Rather, there is a conflation among different legal regimes. Meddling between international human rights law and domestic criminal law blurs the issue. Regardless of this and the lack of a comprehensive definition at the international level, terrorist acts, mostly associated with these individuals are crimes under domestic law, under the existing international and regional conventions on terrorism, might qualify as war crimes or as crimes against humanity.

The very nature of the debate about individuals engaged in terrorist activities assumes that the phenomenon is a new category. Looking at the individuals themselves and their status, in most cases they are fighting in armed conflicts and more specifically in non-international armed conflicts (Kraehenmann 2014, 3). Accordingly, non-state armed groups, including foreign fighters, do not enjoy combatant immunity and may be prosecuted under domestic law for mere participation in hostilities (UN 2000, 5). International human rights law continues to apply during situations of armed conflict. As is the case with all other members of state armed forces or non-state armed groups, foreign fighters are, at a minimum, bound by the peremptory norms of international law (UN 2000, 13).

Importantly, international human rights law affirms that human rights apply to every human being simply by virtue of being human. In practice, however, the existence of a legal bond of citizenship between an individual and a state continues to be a prerequisite to ‘the effective enjoyment of the full range of human rights’ (Adjami, and Harrington 2008, 93). Edwards describes the substantive content of citizenship by exploring it from different yet interrelated perspectives: that of the state, the international law perspective and that of the individual (Alice, in Alice and Waas, 2014, 30). As individual human beings, our individual legal identity derives largely from our legal bond with one or more states, expressed through our citizenship (Batchelor, 2006) Therefore, the adoption of the various human rights instruments, as noted by Cassese, has had ‘such an impact on the international community that no state currently challenges the concept that human rights must be respected everywhere in the world’. He continues to note that ‘a general principle has gradually emerged prohibiting gross and large-scale violations of basic human rights and fundamental freedoms’, making massive human rights violations reprehensible (Cassese 2005, 59). Yet, what is essential is the ‘complementarity’ between universal and regional human rights documents, since the regional systems ‘operate within the framework of the universality of human rights’ (Trindade 2008, 5)

From a general level, international law in the present day continues to respect the principles of sovereignty and equality of states. This means that a state can never be compelled to undertake obligations under international law without having given its ‘consent to be bound’ (Waas 2008, 40). Therefore, any constraints on a state’s discretion over citizenship matters have been the results of the willingness of states to be bound by international legal instruments that contain provisions that have resulted in those constraints.

Thesis and conclusions

The first thesis of this paper is that citizenship is a protected human right and the newly expanded laws on citizenship deprivation puts the depriving state at risk regarding its international legal obligations. Another thesis is that the discussion on citizenship deprivation has been recently dealt with extensively with the implications of international human rights and international humanitarian law on the ‘war against terrorism’ and shifted from an administrative measure to criminal one. In other words, this has been done by using the lens of both criminal and administrative measures implemented by States at the domestic level as a result of two UNSC Resolutions 2178 and 1373, corresponding instruments and the willingness of States to keep their terrorist nationals away from their borders by depriving them of their nationalities. Additionally, these two UN Resolutions, together with the States´ new legislative proposals, have changed the understanding of who is subject to deprivation powers. Traditionally, citizenship deprivation has only been applied to naturalized citizens, as those who are native-born citizens were at risk of becoming stateless. Keeping in mind that some citizens are more protected than others depending on their category (individuals of dual citizenship or individuals of one citizenship).

A third thesis of this paper claims that deprivation of citizenship refers to rendering the individuals concerned of their citizenship, causing them to forfeit the rights they held as nationals. Although only a small number of nationals have had their citizenship stripped by their countries of citizenship, the newly adopted legislation in several states, mainly in Europe, in respect to citizenship deprivation has a major effect in the sense that citizenship as a legal status through which nationals enjoy human rights has become conditional on the citizen´s behaviour. This means that human rights violations, alienation and strained relationships between individuals and the State are ‘recognized as conditions conductive to the spread of terrorism’, Dowding and Mckeon (2016, 6).

This study has observed a differentiation in international human rights law between nationals by birth and nationals who have gone through the naturalization process and has noticed that, for States, deprivation of citizenship acquired by naturalization is often much easier than deprivation of citizenship acquired by birth or otherwise. As evidence for this, for example, deprivation of citizenship as a result of fraud is applicable only to naturalized citizens. Consequently, it is clear that where safeguards to prevent deprivation of citizenship resulting in statelessness are present, terrorist nationals of dual citizenship are more vulnerable to deprivation than those with a sole citizenship. A state can have a citizenship deprivation act compatible with international human rights law as long as it concerns terrorist nationals with dual citizenship. Although there is no outright ban on revoking the citizenship of dual nationals there is, however, at the very least procedural obligations that States must carefully consider. On the other hand, international human rights law permits States to deprive individuals of their sole citizenship, so long as the requirements of the 1961 Convention are satisfied.

Finally, this paper does not argue that states should adopt a particular stance towards citizenship law to comply with their IHRL obligations. It rather presents the case that the existence of national deprivation of terrorist nationals is not to be avoided and the deprivation practice has in recent years become a serious concern and it is not only an exception or a random event, and that this in turn has particular important consequences for IHRL and the understanding of citizenship and statelessness. Notwithstanding the fact that at the time of the drafting of the conventions on citizenship, the domestic legislation of many States permitted denationalization on several grounds, it was agreed to envisage a list of circumstances authorizing deprivation even where that would render an individual stateless. Among the listed exceptions, Article 8(3)(a) makes reference, in particular, to acts of disloyalty and conduct seriously prejudicial to the vital interests of the State. Such an exception, covering acts like treason, espionage as well as terrorist acts, can, however, be invoked only if it is an existing ground for deprivation in the internal law of the State concerned, which, at the time of signature, ratification or accession, the State specifies it will retain.

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Democracy, Human Rights and the UN-Human Rights-Based Approach

20/09/2018Conference proceedings (multiple non-blind peer review)Democracy, United Nations, human rightsEyassu Gayim

Introduction

Democracy and human rights are universal aspirations and ideals which governments that claim to be legitimate should always respect. This is why the United Nations and its members commemorate December 10 as Human Rights Day and September 15 as the International Day of Democracy. While both are considered by the UN as “interdependent and mutually reinforcing”[1], they are also the subject of controversies which are complex, multi-faceted and politically sensitive.

There are scholars who feel that the emergence of the international regime of human rights, linking human rights to democracy, has weakened the preexisting ideological divide by conditioning governance to the requirements of human rights. This has been the case especially since the UN developed the Human Rights-Based Approach (hereafter HRBA), urging member-states to use this approach in the pursuit of political goals, such as development and good governance. Not surprisingly, some of the scholars who used to stubbornly defend this or that ideological school of thinking are now prepared to be flexible and accept the validity of human rights which were not tolerated traditionally by their ideological camps, such as the rights to health or education and minority rights. However, many others have remained in their ideological barracks, criticizing or belittling the UN approach to human rights and democracy because it deviates from their ideological orthodoxy. These scholars may never surrender until and unless the contours of international human rights law are perfectly aligned to their own ideological doctrines.

Many other scholars have preferred to watch from the sidelines as the HRBA takes root. Their silence has created a wide gap in the academic literature where contributions are most needed. Publications on HRBA which come after it is fully developed will still be welcome, especially for those interested in history. However, timely commentaries can make valuable contributions to debates around the direction democracy and human rights are taking. It is bearing this in mind that this study was undertaken.

The importance of this subject-matter hardly needs explaining. In 1998 the UN adopted the Declaration on Human Rights Defenders, encouraging the promotion of human rights awareness, and affirming the rights of individuals to be concerned with human rights and to claim their rights. In effect, this instrument lays the foundations for the measurement of democracy based on application of the HRBA from below. In response to this, and in the interest of critically assessing the broader political implications of this approach, the academic world should share its intellectual insights rather than lagging behind. Scholars should feel free to express their own views, including those which further particular economic, social and political interests. This is, in fact, what most of them do, defending their respective beliefs in the name of justice, even though their conclusions are hardly reconcilable. Still, it is better for scholars to make contributions, rather than leaving questions relating to human rights and democracy to be shaped by political actors to meet their needs.

At the core of the discourse on human rights and democracy is the question of who the human being (the self) really is and how s/he relates to or should relate to society and the state. The philosophers who previously devoted their lives to answering these questions now rest in peace, after agreeing to disagree with one other, leaving their followers intellectually restless. The ideological camps that have gradually emerged are not only numerous, but also tolerant of multiple interpretations, thereby blurring the landscape. This is why we see all kinds of shades of opinion within liberalism or Neo-Liberalism, Marxism or Neo-Marxism, Social Democracy, Communitarianism etc. Less colorful, more focused and relevant to the real political world is the approach used by global political organizations, such as the UN. Their positions are widely accepted for the simple reason that they are products of a broader political consensus, which accommodates the diverse views of experts from different fields.

What makes the UN approach legitimate is the existence of a legal mandate to promote human rights as stipulated by article 1 paragraph 3 of its Charter. Using this mandate, this organization has adopted an impressive list of international human rights instruments which have been widely ratified by its member-states. The contents of some of these human rights instruments concern democracy, directly or indirectly, as will be shown later. The compliance by state with the undertakings assumed under these international instruments is monitored by a number of international bodies using a range of different methods, for example by considering reports and petitions received, or by tracking the progress made. Obviously, there is a long way to go before this international regime of human rights achieves its goals. However, no one can seriously question that the UN has reached a milestone by developing this international regime, thereby making the world a more humane place than before.

When it comes to the promotion of democracy, per se, the contributions of the UN are often belittled by those who are displeased by the apparent neglect of the preferences of their own ideological camp. In fact, much was achieved, especially considering that the organization was prevented during the Cold War period from engaging in what was deemed to fall under the domestic jurisdiction of states by paragraph 7 of article 2 of its own Charter. It is also important to remember that there was no consensus around which political system served democracy best. Was it that of the U.S. in the 1950s, which excluded blacks and women from political participation? Or the Swiss confederal model, which did not permit women to vote until the 1970s? Or that of the socialist states in the Eastern bloc, which disregarded political rights?

Leaving this aside, the UN has played a crucial role in developing the rights of peoples, by elaborating the contents of these rights, e.g. the rights to self-determination, to social progress and to development. These clarifications were significant for democracy since they concern both peoples (the demos) and good governance (kratia). This approach addressed democracy head-on, and not only from a theoretical perspective. Decolonization was advanced by applying the Charter principle on the right of peoples to self-determination. The system of Apartheid in South Africa was confronted. Arbitrary usurpation of power was denounced in many countries, and the UN began to monitor elections in post-conflict situations or where there were serious political conflicts. The support which it gave and still gives to the promotion of gender mainstreaming, empowerment and participatory rights also concern democracy.

The collapse of the Socialist regimes in the former USSR and its Eastern European allies, who were the staunchest defenders of state sovereignty, removed one of the most serious hurdles to the promotion of democracy. The UN capitalized on this political development to raise the banner of democracy, which gained prominence on its agendas. The 1993 Vienna Declaration of Human Rights made abundantly clear that “(t)he international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.”[2] This document linked democracy to “the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.”[3] Within a decade or so, HRBA was developed. Initially, this approach was recommended as a tool for application in the promotion of economic development. However, gradually its use was extended to other areas, for example, to health, child welfare, gender mainstreaming etc. Although the UN maintains that it does not advocate a single model of democracy[4], one can wonder if the HRBA which it uses is not one such model, since it promotes a bottom up approach to politically sensitive questions including the question of what constitute sound governance.[5]

Proceeding from the above acknowledgement, this study examines the road map used by the UN in developing and promoting human rights and democracy, and how it urges its members to conduct themselves by applying HRBA. The questions which guide this study are clear-cut. Is there a UN perception of democracy? If so, what is the position of this organization regarding the contested ideological positions concerning who the individual self is, and how this person relates or should relate to society and the state? Has the UN’s position discredited or sanctioned the views of this or that ideological school of thought? What are the consequences of relying on HRBA to promote democracy? Will this reliance promote democracy in form, as well as, in substance? Will it empower the victims of oppression and marginalization, thereby ending despotism, oppression and bad governance once and for all? What are the wider political consequences and implications of using this bottom-up approach? Will it lead to the fragmentation of multi-ethnic and multi-national states by making them ungovernable when the voices of the marginalized are heard? Will states reject HRBA because of fears that it will lead to the destabilization of their governments?

Since international human rights law is used in this study as the term of reference for measuring democracy, the reliance on a particular theory or hypothesis to guide the study has not been appreciated. Instead, what is done is to examine the relationship between the pertinent provisions of the human rights laws, sound governance and how the Human Rights-Based Approach offers. In effect, therefore, the study follows the indictive approach.

This is also why the answers to most of the questions posed above appear to be obvious from how the provisions of the different international human rights instrument have been formulated. Before examining these documents and the UN’s approach to democracy, it is necessary to reflect on he ideological controversies surrounding the concept, and how it evolved historically. Only then will one be able to judge the significance and implications of the approach used by the UN based on the application of the human rights norm.

Conceptual Clarification

Democracy, as was pointed out earlier, is praised and aspired to across the globe while at the same time being controversial. This is one reason why varied forms of democracies are found, whose goals and features are often at odds with one another. Take, for example, ‘the Western model’, which is known as liberal democracy. This model is supposed to guarantee individual political rights (freedom of expression, association and assembly), universal suffrage, a free media, and the multi-party parliamentarian model of governance based on the division of power (with checks and balances). However, the systems of governance in Italy, France, the United States and Denmark are far from being the same. The model that has been adopted in some of the Eastern European states, such as Hungary and Poland, is criticized and referred to illiberal democracy, ‘low intensity’ or ‘empty’ democracy because there are restrictions on individual civil liberties and the free media. If the attack on the media makes democracy illiberal then the U.S. is also heading in this direction since President Trump regards the media as the enemy of the people, except for a few extreme right-wing media outlets. Before the demise of the Socialist order in Eastern Europe and U.S.S.R the labels most commonly used by the Soviet bloc countries were proletarian democracy or people’s democracy. In the Nordic countries the phrase social democracy is used to describe their welfare system, which is financed through higher taxation.

Even within a single country, we can see the bewildering variety of ways the word democracy is used. Sweden, for example, was governed during the last few years by a coalition led by the Swedish Social Democrats. The opposition camp included the Christian Democrats and the Swedish Democrats. Although the Swedish Democrats are supported by about 17% of the electorate, the party has been ostracized by all the political parties because of its racist roots. Adding more confusion to this scenario, a new political party called simply The Democrats has just come to prominence in the Gothenburg region by securing 17% of votes in municipal elections. All this may well make Swedish citizens wonder who the true democrats are.

Dictionaries define democracy in a variety of way, reflecting the divergent ways the term is understood in the real political world. Sources that fail to do this or that tell only one side of this perplexing story run the risk of being criticized for being ideologically biased. This is why we find this term defined in different ways, reflecting the political mess in the real world. According to dictionary.com (Thesaurus), it can mean “a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system” or “a state of society characterized by formal equality of rights and privileges.”[6] Cambridge Dictionary re-affirms this and underscores further the importance attached to the expression of opinions and that government should be elected.[7] Likewise, in Merriam-Webster we read that this term describes a system of “government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”[8]

These and other similar broad and varied definitions of democracy raise more questions than they answer. Does this term mean self-rule by the people collectively, as a group, where all the members of the community have equal voice and are the beneficiaries of this rule? Or does it mean majority rule? Does it require more than the presence of political institutions that allow the electoral system to function and ‘formal’ equality? For example, does the fact that the political system restricts voting rights to men only or to certain racial groups mean that there is no democracy? What about if the country does not respond to the needs of the people, e.g., by denying people economic and social rights? Should the political system promote real equality and a fair distribution of resources? Because these questions are answered in so many different ways Susan Marks correctly remarked that“democracy appeared to mean everything, and therefore nothing.”[9]

One way of understanding democracy would be to examine the toot of the word itself, i.e. ‘dēmo’’, which means ‘people’, and ‘kratia’, meaning authority or rule, in Greek.[10] When juxtaposed, these two words convey the idea that the inhabitant of a territory govern themselves by exercising political power or have a say in the affairs of governance. Ancient Greek cities, such as Athens and Sparta, are believed to have practiced dēmokratia. Aristotle listed many other examples when he wrote:

“At Marseilles the oligarchy became more constitutional, while at Istrus it ended in becoming democracy, and in Heraclea the government passed from a smaller number to six hundred. At Cnidus also there was a revolution… Another case was at Erythrea, where at the time of the oligarchy of Basilidae in ancient days, although the person of the government directed affairs well, nevertheless the common people were resentful because they were governed by a few, and brought about a revolution of the constitution”.[11]

Over the years, these experiences of the Greek city-states inspired many political communities to emulate them. In the late 18^thcentury, the American and French Revolutions raised the banner of democracy with the aim of ending despotism and replacing it with a democratic system. What distinguished their experiences from those of the ancient Greeks were the right-based justifications used to legitimize the political system and the structures that were created to ensure its continuity, e.g., through a system of division of powers, the codification of right and respect for the rule of law. The American Declaration of Independence sets out what are claimed to be ‘self-evident’ truths by underscoring the belief:

“that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”[12]

When the French revolutionaries brought to an end the despotic feudal regime of the House of Bourbon, they proclaimed in their Declaration on the Rights of Man and the Citizens that “men are born and remain free and equal in rights” and that the goals of political association should be “the preservation of the natural and imprescriptible rights of man”.[13] Subsequent constitutions of the French Republics included a commitment to respect the principle of “government of the people, by the people and for the people.”[14]

Like the proponents of democracy in ancient Greece, the American and French revolutionaries claimed to have empowered the people by giving them self-rule. Unfortunately, this is often misinterpreted as meaning the total empowerment of all members of the political community (the people), in the sense of being full beneficiaries of the political system. This is far from true. The democratic experiments in Istrus, Heraclea, Cnidus, Erythrea and Basilidae, which Aristotle wrote about, did not permit all the members of these communities to participate in the political process (children, women and slaves, for examples, were excluded).[15] In fact, Aristotle clearly stated that some people were slaves by nature, and lacked the necessary capacity to rule, and therefore it was advantageous for them to be ruled by the free people. Despite this obvious exclusion from power, the political system was called democracy, apparently because it was expected that those who were empowered by the system would promote the interests of the community as a whole, e.g. by sharing what the system has given them.

One can draw a parallel with the democracy which was promised by the American and French Revolutionaries at the end of the 18^thcentury. The ‘American people’ emerged as a legally and politically constituted entity and were promised a democratic order. Yet those who held power were ‘white men’. Before slavery was abolished in the 1880s black slaves were deemed to be the property of their white owners. Many of the celebrated fathers of the American Revolution, such as George Washington and Thomas Jefferson, were themselves slave-owners. White women too were marginalized and excluded from positions of power until the mid-1960s. Even the American Indians that had treaty relations with the United States were disempowered for too long, despite the fact that they were formally acknowledged as ‘domestic sovereign entities’.

The French Republics which were established following the French Revolution also failed to deliver the democracy that had been promised, until after World War II. The ‘French people’ was recognized as a single political entity but power was in the hands of French white men. Although the 1879 French Declaration recognized ‘the rights of man’, the French slaves and the colonial peoples remained excluded from power despite being regarded legally as members of the French community.

‘People’ (‘dēmo’’). Without knowing who ‘the people’ is and what the nature of its authority is, it is difficult to know what democracy means. Is this people composed of all the persons that are present in the country, including foreign residents and tourists, or only the citizens (wherever they may be), or is it selected categories of citizens (e.g. only men)? Is the power or authority of this people simply to choose who should rule, regardless of whether the chosen ruler is a tyrant or one who responds to the wishes and needs of the governed? In other words, does democracy empower the people to rule itself through elected representatives who can be removed if they fail to respond to what the electorate wants and expects?

The term ‘people’, in everyday usage, describes a collection of individuals. The term is commonly used to describe a particular social group by combining it with a social, territorial other factor.[16] Examples of this include the description of those inhabiting particular territory, as ‘Hill People’, those living in the countryside, as ‘rural people’, those who speak the same language as the ‘French-speaking people’ or the ‘Arabic-speaking people’ (the whole north Africa), or those who profess the same religion, as ‘the Jewish people’. Whichever classification is used, the term ‘people’ groups together large number of individuals as a an entity sharing particular characteristics.

When used in the technical sense, for legal or political purposes, ‘people’ identifies a legally organized political community. The glue which unifies the individuals as an entity here is not necessarily a common language or religion or territory, but a political and/or legal identity. This means while people in a society can be divided according to the languages they speak, the religions they profess and the territories they inhabit, legally they constitute one entity. Examples of this include references that are made to “the American people”, “the German people”, “the Swiss people” or “the French people”. The French-speaking “people’ is not the same as “the French people” since the former embraces French speakers in France, parts of Belgium, Switzerland and Canada. “German-speaking people” is broader than the “German people” because the German language is spoken Germany, Austria and parts of Switzerland.

Appreciating this distinction, dictionaries acknowledge that the word ‘people’ also means “a political community”[17] or “any consolidated political body”[18] or “the entire body of those citizens of a state or nation who are invested with political power for political purposes.”[19] Likewise, philosophers, jurists, political scientists, and other scholars also use ‘people’ as a code word, to mean a “body of the citizens”[20] or “a public family or nation (gens, natio) whose members are all related to each other as citizens of the state”[21], or simply as ‘the “aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or of different colour.”[22] Not surprisingly, we see the plural form of this term in use as “peoples”, as stated in paragraph 2 of article 1 of the UN Charter which deals with the self-determination of peoples.

Understood in this unique technical sense, a people can be very young, e.g. “the people of South Sudan” which came into existence eight years ago, or over three hundred years old, like “the American people” which dates from in 1776. Two distinct peoples can merge, example as the East and West German peoples did following the fall of the Berlin Wall, and one people can split into two or more new political communities, as occurred in Yugoslavia and the USSR. Again, a people can also exist for well over a thousand years. The fact that no human being can live that long makes no difference. Grotius clarified the distinction that should be borne in mind between the lives of these kinds of imagined political communities and those of their members by stating the following.

“(I)n comparing a river to a people, Aristotle said that rivers bear the same name, though different water is always replacing that which is flowing on. Again, it is not an empty name merely that remains, but ‘the essential bond’, which Conon defines as an ‘inherent bodily character’, Philo as a ‘spiritual bond’, and the Latins as a spirit.”[23]

If the existence of a people as a political community is indisputable, a question which follows from this is how can this people govern itself as suggested by the term democracy? Does this necessarily mean that the voice and interests of all the members of this political community should count? Responding to this question, John Mills wrote:

“The ‘people’ who exercise the power are not always the same people with those over whom it is exercised … The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority…”[24]

This honest statement exposes the hypocrisy surrounding those who brag about behaving in accordance with the principles of democracy. If democracy is the rule of the people as a whole, government which responds to the interests of a minority or a majority cannot be democratic. To argue otherwise is false or, in everyday language, a lie.

Governance. If the term people (demo) in democracy relates to an organized socio-political entity, what is its authority or rule (‘kratia’) when speaking of democracy? There are two ways of seeing this. One is to say that if sovereignty belongs to the people, power can only be delegated to the government. This means that the governmental authorities are mandated to serve as representatives, to act by responding continuously and transparently to the wishes and interests of the people. The other interpretation reduces democracy to the means of legitimizing the government. Once the people has chosen the government, those elected should represent the state by exercising the sovereignty of the state. They can do this by promoting the interests of the majority or of a minority or minorities or those of the whole people as they see fit. Until its period in power is over, the government in charge does not have to step down just because there are people that are not pleased by how the country is governed. Whichever stance one takes, it is difficult to avoid those ideologically charged questions regarding the kinds of rights of the members of the political community should have, and the justifications for these rights. While a deeper discussion of this topic is beyond the scope of this contribution, it would be a mistake to ignore it altogether in any discussion of democracy and human rights.

The Discourse on Human Rights and Democracy

The Contentious Positions: The debate on human rights and democracy is very old, complex and linked to the kinds of political interests which deserve to be protected. The main aim here is not to attempt to disentangle all the thorny issues but merely to highlight the dominant positions as a backdrop for an examination of where international human rights law stands on this matter. The two most contested issues relate to (i) what is meant by ‘the will of the people’ and ‘the government of the people’ when speaking of democracy; and (ii) how individuals relate to this ‘people’, and the state. These questions cannot be answered without opening up a Pandora’s Box of many other controversial questions. For the purpose of this paper, the debate can be narrowed down to one between the individualist and collectivist approach to rights. The dividing line concerns the justifications for the rights of individuals, what the limitations for them are and how they apply to individual as member of broader social groups inside political communities? Defenders of the rights and interests of the broader community maintain that since individuals are product of their communities, their rights and freedoms should be subordinated to the rights, interests and needs of their communities. Most individualists, on the other hand, reject this position and question the very existence of the community or society as a separate entity.

Whichever stance one takes (individualist or collectivist) in order to defend democracy, there is no escape from the requirement to justify why rights should be recognized in the first place. The question which begs for an answer becomes what the foundation for the rights which is used as the bricks for building and sustaining the desired form of democracy? Defenders of Natural Law, positivism and other sources of rights have wrestled with this question, which brings to the surface seemingly intractable questions regarding the nature of the human being. Are humans social, humane and rationale, or self-centered, autonomous and evil beings, who should be tamed to conform to social requirements? Can democracy co-exist with individualism? Should the majority impose its will over the rest in the name of democracy? Is democracy merely the presence of a social contract whereby the governed choose who should rule? Should the governed have a say on how the government rules? These questions have been answered differently.

The theory of social contract has been advanced by different philosophers in the interests of the governed, even though the way it is formulated has varied considerably. Thomas Hobbes (1588-1679) used this theory to legitimize the rulers and the suppression of ‘natural rights’. He was praised for having recognized the ‘existence’ of natural rights which entitle the individual to defend his life and interests on the basis of his own judgment.[25] However, because the exercise of these rights leads to “war of all against all” (Bellum omnium contra omnes). Hobbes called for their renunciation in the interest of the common good. This was justified because we are not social (like bees) but individualistic, egocentric, jealous, evil beings who constantly struggle for power and dominance.[26] This being the state of nature, the only way out from the ‘war of all against all’ is for people to surrender their natural rights by choosing the ruler (a king or an assembly) who governs by suppressing natural rights in the interest of peace and the common good. If the ruler fails to achieve this, the people should choose a different ruler.[27]

This Hobbesian formula advocates a government which is chosen by the people and for the people but is not of the people. The idea of social contract is used merely to legitimize the government and to disempower the governed in the conduct of the political affairs of the community. In other words, this is not democracy in substance. The despots of that time ridiculed Hobbes’s recognition of natural rights and the idea of a social contract, whereby people would be free to choose and change who ruled them. However, they liked his endorsement of despotism, which is why Hobbes earned the title of apologist for tyranny.

Like Hobbes, John Locke (1632-1704) and Immanuel Kant (1724-1804) recognized natural rights and supported the idea of a social contract theory. However, they did not use it to justify despotic form of governance. Both rejected Hobbes’ negative view of the ‘state of nature’ of mankind. According to Locke, ‘the war of all against all’ that Hobbes wrote about arises not from the evil nature of mankind but from disregard for the Law of Nature.[28] It was this unfortunate condition which led to the need for civil government in the first place, i.e., as a “remedy for the inconveniences of the state of Nature”.[29] The purposes of civil societies should, therefore, be to preserve the natural rights of the citizens, such as life, liberty and property.[30] When a government fails to protect these natural rights, the people should be able to remove and change it.

Immanuel Kant also dismissed Hobbes’s negative view of the state of nature and the notion of war of all against all “as if there could have been no other relation originally among men but what was merely determined by force…”[31] The goals of establishing civil union should not be to ensure the destruction of natural rights, but to strengthen them “by laws of right.”[32] The Kantian formula of social contract for governance asserts “the right of every citizen to have to obey no other law than that to which he has given his consent or approval …civil equality… (and) … the right to owe (one’s) existence and continuance in society not to the arbitrary will of another, but to his own rights and powers as a member of the commonwealth…”[33] These thoughts of Locke and Kant were highly praised by many, especially by liberals and libertarians, who later used them to justify the establishment of a democratic political order which strengthens individual rights and limits to the powers of the government.

Jean Jacques Rousseau (1712-1778), who lived during the same period as John Locke, also defended both natural rights and the principle of social contract. “The people, being subject to the laws, ought to be their authors,” he wrote, “the conditions of the society ought to be regulated solely by those who came together to form it.”[34] He too dismissed the negative picture of the state of nature which Hobbes had painted. According to him, social life promotes morality and the values of humanity even if it is not always easy to suppress individual selfishness and anti-social behaviors. In other words, what is unique with his approach is the recognition that the individual should not be allowed to undermine the interests of the broader community. Individual rights and freedoms should be subordinated to those of the community. As he puts it, “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free”.[35] This earned him the title ‘Communitarian’.

For Karl Marx (1818-1883), the human being is a social being whose vital expression is nothing but “an expression and confirmation of social life.”[36] By nature, man was not evil, as Hobbes maintained, but is good and social. However, men had been poisoned by the system of private property, which had reduced each individual to nothing more than a ‘representative of property’. Human essence exists only when there is existence for one another “as the vital element of human reality”.[37] This kind of social existence makes society“the perfected unity in essence of man with nature” or “the realized humanism of nature”[38], rather than something dissociated from individuals that comprise it. Marx argued that the social contacts proposed by the writers such as Hobbes, Locke, Kant and Rousseau cannot resolve the political problems and conflicts arising from social relations based on the appropriation of private property. The ‘war of all against all’, which Hobbes wrote about, was the class war.

Karl Marx dismissed some of the French and American revolutionary slogans, such as, liberty, security, freedom, and equality, as both empty words and deceptive. These ideals cannot be realized in a political community which relies on private property. As he argued:

“The liberty we are here dealing with is that of man as an isolated monad who is withdrawn into himself. The right of man to freedom is not based on the association of man with man but rather on the separation of man from man… The concept of security does not enable civil society to rise above its egoism…”[39]

The “rights of man” which the philosophers of the late 18^thcentury defended were denounced by Marx because they protect the selfish interests of the bourgeoisie and tear human beings apart from their communities. Even if they appear appealing in theory, “not one of the so-called rights of man goes beyond egoistic man, man as a member of civil society, namely an individual withdrawn into himself, his private interests and his private desires and separate from the community.”[40]

The electoral systems established after the French and American Revolutions were belittled by Karl Marx. In his opinion, the deputies that were elected could only serve as a rubber stamp for advancing the ‘particular’ class interests of the ruling class.[41] It was impossible for the deputies to act otherwise since “the politeness ceases as soon as privilege is menaced.”[42] Still, unlike his ideological colleague, Engels, he did attach some value to the electoral system to the extent that the workers could exploit it to speed up the demise of the political system.[43] However, in his view, emancipation of the oppressed class could only be achieved by transforming “the affairs of the state into the affairs of the people”.[44] This means nothing less than dissolving the old society by overthrowing the ruling class “on which rested the power of the sovereign, the political system as estranged from the people. The political resolution is the resolution of civil society.”[45] Besides encouraging the proletarian class to rise up to this end, Marx and his ideological compatriots and followers (F. Engels and V. I. Lenin) also supported, as legitimate, the struggle of historically constituted sociological nations to secede from oppressor nations and to establish proletariat nations.[46]

The flood of literature which is inspired by the above-mentioned thinkers and others before and after them is often categorized under various schools of thinking, such as Marxist and Neo-Marxist, liberal and Neo-Liberal, Libertarian, Communitarian, traditionalist and many others. Although writers sometimes resent being compartmentalized in this way, these labels will be employed in this study as they are used in the general literature to make it easier to understand who follows which position in the debate relating to human rights and democracy.

Liberals and libertarians are the champions of individual rights and freedoms and question the legitimacy of collective and group rights. The latter are defended by Communitarians, Socialists and Social Democrats. Having said this, care should be taken to avoid generalizations, since we find various shades of thoughts within each school of thought. This is why it is important to examine the formulations used by each writer before passing judgment on the democratic formulas defended by each school of thought. It is simply for purposes of simplifying this complex debate that this paper has chosen to divide them between two camps, namely those who defend normative individualism and those who are behind collectivism.

The thought of Ayn Rand, one of the most celebrated libertarians, can be used as an example of how many defenders of normative individualism think. For Rand, the best political system to live under is “a full, pure, uncontrolled, unregulated laissez-faire capitalism.”[47] This is because the system protects individualism by stimulating the pursuit of the selfish interests which she valued so highly. She rejected the existence of collective entities, including “– society,’ since society is only a number of individual men”.[48] She despised collective morality, such as solidarity and altruism because they lead to “renunciation, resignation, self-denial, and every other form of suffering, including self-destruction”[49] and ultimately bring “the morality of death.”[50] Put bluntly, “if civilization is to survive,” she wrote, “it is the altruist morality that men have to reject”.[51] Instead of ‘public morality’ she believed in the merits of individual morality, to be used as “the means of subordinating society to moral law”.[52]

Rand maintained that the sources of these kinds of individual rights, liberties and freedoms “is not divine law or congressional law, but the law of identity.”[53] Rights, for her, represented “the property of an individual” and “society as such has no rights”, thus “the only moral purpose of a government is the protection of individual rights”.[54] She was well aware of the claims of those who regarded themselves as collective entities and who were demanding rights or protection but rejected their claims. “A group, as such, has no right”, she wrote, and individuals who claim to exist as collective entities are nothing “but a gang or a mob”.[55]

This rejection of community led Rand to question the role of government in promoting the wider interests of the society or in protecting marginalized groups. This was in part because this protection requires using revenues that are derived from taxing others (which she called ‘robbery’). She strongly resented the use of tax revenues to provide benefits under the pretext of promoting the right to work, health services and standards of living. As far as she was concerned:

“There is no such thing as ‘a right to a job’ …(but) a man’s right to take a job if another man chooses to hire him. There is no ‘right to a home’.. ‘rights’ of special groups … There are only the Rights of Man.”[56]

For her, the only legitimate rights were individual, civil and political rights, with the exception of property rights which are “man’s only ‘economic rights’”, and the only rights that deserve to be called political rights.[57] Leaving this aside, there are “no ‘economic rights’, no ‘collective rights,’ no ‘public-interest rights’.”[58]

Liberals[59], like libertarians, applaud normative individualism because it protects the rights of the individual by disregarding the collective needs of the members of the community. This is justified on the grounds that the individual is “the primary normative unit” of society and the state. Jack Donnelly, for instance, remains convinced “that only individuals can have human rights” and therefore opposes group rights.[60] According to him, society and the state are constructed by individuals for the promotion of their interests. “Human rights are morally prior to and superior to society and the state,” and can only belong to individuals “who hold them and may exercise them against the state in extreme cases.”[61] Donnelly accepts that the individual “is a social animal”, whose personality and potentials are “developed and expressed only in a social context”, which is why society discharges “certain political functions” through its political organization (the State).[62] Because of this, individuals do have duties towards society.[63] However, when tension emerges between the interests of the society and its individual members, the conflict should always be resolved by giving priority to the wishes interests of the latter. “For the liberal,” wrote Donnelly, “the individual is not merely separable from the community and social roles but specially valued precisely as a distinctive, discrete individual – which is why each person must be treated with equal concern and respect.”[64] This distinctive existence, according to Donnelly, legitimizes the rights of the individual to enjoy the “liberty to choose and pursue one’s own life”, including by exercising those familiar civil and political rights known as “rights of man”.[65] This reduces democracy to a form, which is an end in itself, i.e. for legitimizing government, rather being self-government by the people and to promote the welfare of the community, including marginalized social groups etc. “The democratic component of liberal democracy”, stated Susan Mark, “comes to revolve, principally, around elections.”[66]

There are Liberals who seek to give democracy substantive meaning by accepting the importance of promoting some collective interests of the community. Donnelly himself, for example, refers to the legitimacy of economic and social rights, such as the rights to food, health care and social insurance, and hence the role of the “society” in providing basic services such as “health care or universal material benefits”.[67] This, according to him, also distinguishes him from John Locke, whom he criticized for failing to address key development issues.[68] The democratic formula which Donnelly supports, therefore, responds not only to the rights of the individual, but also to a certain extent to the needs of the community in the interest of justice.[69]

Will Kymlicka also moves the compass of liberalism closer to what matters for the marginalized and the common good. To defend this within the framework of liberalism he focuses on “a liberal theory of community and culture”.[70] As he sees it, membership of cultural groups “gives rise to legitimate claims, and some schemes of minority rights respond to these claims”.[71] According to him, protection of individual rights should not be perceived as necessarily leading to confrontation or tension within society. The members of the community are, after all, not separated from their groups since there are ‘bonds of mutual respect” which motivate individual members to act responsibly and to “successfully pursue their understandings of the good.”[72] This is how different groups of people have always co-existed and how they freely pursue “their shared communal and cultural ends, without penalizing or marginalizing those groups who have different and perhaps conflicting goals.”[73] This approach brings normative individualism closer to what concerns communities and thereby to the acknowledgement of the roles of government to promote these needs. However, this does not go far enough to the recognition of collective life or groups. As Birch put it, “(T)he language of rights has to be used with great care when it is applied to groups”.[74] Those who endorse this kind of middle-of-the-road approach are often called ‘Social Liberal’.

Communitarians are not shy when it comes to defending communities, their interests and the role of governments. They dismiss Liberalism as a misleading ideology because it distorts who the self is and how social relations work. Michael Walzer calls this ideology an ‘incoherent’ and “a self-subverting doctrine” which cannot be reconciled with reality. The reality which Communitarians recognize acknowledges the presence of social bonds, values and loyalty to family, relatives, neighbors, friends and co-workers. Liberalism, according to Walzer, denies all this as if the individual exists in a vacuum and as if there is no community, no Jews, blacks, Catholics, religious organizations, etc.[75] Brian Lee Crowley relegates Liberalism to the sphere of an intellectual exercise that is in conflict with the real world.[76] According to him, the self is shaped by social forces, i.e., the community, language, culture, history etc. These social forces enrich the self, endowing it both with morality and roles and responsibilities. He dismisses the Liberal’s ‘universal’ self as a one dimensional ‘faceless’ being who resembles a shadow, or even an inanimate object.[77] “The liberal social order”, he states, “finds its justification in a realm of abstraction quite separate from the concrete and contingent.”[78]

The self emerges in the real world, according to Crowley, from a social context, as a byproduct of complex processes of nurturing, training, relationships and attachment. These relationships “are partly constitutive of who we are, and to that extent our reflection on, and reasoning about, that part of our deeper self will entail the ‘coming to self-awareness of an intersubjective being’, whose boundaries transcend those of the individuals it comprises.”[79]

This contextual self-awareness comes with social roles and social responsibilities which are linked to religious, cultural, national, professional and other requirements. Compliance with these expectations is not perceived by the self as something that is done for ‘others’, but for ‘us’, and hence for ‘me’. The self is gratified by what it discharges for ‘us’ and is aware of the reciprocal services. The fusion between ‘me’ and ‘us’ is best explained by what MacIntyre calls ‘our moral particularity’, which derives from our particular social identity. This is why when the individual describes himself he brings others in the picture by stating:

“I am someone’s son or daughter, someone else’s cousin or uncle; I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits these roles. As such, I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations.”[80]

This description reflects ways of life that exist in many developing countries. Here, individuals are often identified as “son of x or y” or as ‘the person from this or that community or village”. Even in the Western countries this survives in family names, such as Abrahamson or Johansson, meaning son of Abraham or Johan, or Kristbjörnsdóttir, meaning the daughter of Kristbjörn. These kinds of identifications sometimes bestow social benefits or disadvantages depending on the reputation of the person or family whose name is used. This approach to the understanding of the selfreveals the interactive and reflective nature of the individual. It shows that the individual is not as isolated and independent as s/he appears from the outside but “a being emerging out of a dense social ground” with fluid character, “rough edges and ill-defined boundaries.”[81]

Concluding Observations

The conflicting approaches used to the understanding of the nature of the human being (the self) and how s/he relates (or ought to relate) to society and the state, have led scholars to endorse varied forms of government. Of these, democracy is clearly the most favored system. However, how democracy should be understood concretely and applied in practice remains a puzzle because the point of departure for deciding how society should be organized differs depending on how the human being is perceived. That democracy should permit people to choose their government is not in dispute. The dividing line is on what kinds of rights, freedoms and obligations the individual should have and how these should be aligned to the interests of community.

The nature of the human being (the self), as understood in the Hobbesian, Libertarian and Liberal sense, is at odds with social reality outside the Western world. Except in times of hardship, such as, during periods of war, political chaos or confinement (in jails or hospitals), the human being in this part of the world is social. S/he is a by-product of community life, inter-dependent and bonded with the other members of his/her community and motivated to maintain this state of affairs. Even in times of extreme poverty or economic deprivation, which tests the limits of human loyalty, individuals remain attached to one another emotionally, socially and in many other ways.

Although the political models of governance recommended by Hobbes, Libertarians and Liberals are different, they are united in their affirmation of the individualistic nature of the human being. Where the latter two currents of thought differ from Hobbes is in their rejection of his characterization of human beings as evil by nature. They, therefore, come to different conclusions regarding the extent to which individuals deserve to exercise what are regarded as natural rights and freedoms. For Libertarians and Liberals there should be no hindrance to the exercise of civil and political rights by individuals. What is more, these rights should even be prioritized over the interests of the community. As far as they are concerned, a community is nothing more than the sum of its members, which means that the community (or social groups) cannot have distinct interests and rights. This is why they advocate reducing the role of governments and their influence over community matters and reject the idea of protecting marginalized social groups.

This political model, which prioritizes the rights of individuals over the needs of the community and rejects the idea that government should have a role in responding to these needs, blocks the possibilities of achieving democracy in substance. Less governance, by definition, means less care for the collective needs and problems of the governed. Under these circumstances, it is difficult to see how there could be a government for the people as a whole. What the electoral system assures is only democracy in form, a means of legitimizing the power.

Social contract theory, as imagined by Hobbes, was also intended to legitimize the authority of the ruler. The government can be viewed as being “of the people’ since the people chose it. This right to choose the ruler was justified by Hobbes because he believed that the individual has natural rights, i.e. the right to rule himself. However, since this person is assumed to be, by nature, egocentric, competitive and violent, Hobbes recommended surrendering these natural rights in the interest of the peace and interests of community life. One should note, in this regard, that Hobbes expected the ruler to govern by observing the mandates given by the governed – namely to protect the interests and safety of the community. This means, there would be ‘a government for the people’. What is problematic in the Hobbesian formula is the assumption that people would choose to surrender their rights and freedoms and willingly submit to suffering under a tyrannical rule.

Liberal and Libertarian democracies are products of the historical evolution of Western European societies and those states which were established outside Europe by the descendants of Europeans. Liberal democracy is a political system which mirrors the nature of the prevailing social relations and which evolved from the requirements of the socio-economic and political structures of the industrialized capitalist states. It attaches special importance to the freedoms and values of the individual citizen and applies social contract theory as a means of legitimizing governance through regular elections. This constitutes a system of government of the people, hence democracy in form. The exercise of individual rights and freedoms opens the doors for empowerment from below, and governance by the people. However, since minorities are not able to participate effectively in the political machinery or to benefit from the economic wealth of these countries in the same way as the members of the majorities, the system has serious weaknesses.

In theory, this political model has the advantage of contributing to nation-building by shifting the loyalty of the individual away from his/her social group and traditional social structures to that of the state. However, in reality, this is possible only if states are politically and economically strong and able or willing to meet the needs of their citizens, including that of the marginalized members of the vulnerable groups. Otherwise, the latter will be unwilling to abandon their loyalty to their traditional identities and social structures since they are the basis for their survival.

Whether this Western model of normative individualism works in the developing countries as it does in the West is an open question. To assume that the indigenous communities of the Amazon, the rural tribal communities of Africa or the religious communities of the Middle Eastern countries will replace their collective ways of life by normative individualism is to be naïve. Even in the more economically developed urban settings of these countries, social relations have a collective dimension. Unlike in the West, the governments on these continents are not politically or economically strong enough, to care for their citizens, with the exception of mineral exporting countries (like the Gulf countries) or the few industrialized Asian countries. The negative consequences of replacing the existing social fabrics of these collective societies by normative individualism, at a time when the state is unable or unwilling to provide the means of existence to the citizens, would be hard to predict. The massive exodus of ‘migrants’ from Africa to the European countries across the Mediterranean Sea might be one of these unfortunate consequences.

The fact that the developing countries have a heterogenous social base, in contrast to the homogenous nature of the nation-states of Europe, also calls into question the idea of rule of the majority which underpins democracy in Europe. This model of majority rule, that is characteristic of Liberal or Libertarian democracy, is appreciated by the members of the majorities since the political system adopts their ethnic, linguistic or religious characteristics. It is those who belong to the ethnic or linguistic or religious minorities who fear marginalization and discrimination based on their identities. It is no wonder, therefore, that the system can even tolerate and protect the exercise of individual rights and freedoms that are directed against ethnic, linguistic or religious minorities. This is also why when the racist, Nazi and Fascist groups mobilize the members of the majorities against the minorities they do it under the pretext of nationalism, by even describing themselves democrats.

For many of the African and Asian countries who have over one hundred smaller distinct ethnic, religious or cultural groups (e.g., Nigeria, Sudan, the Democratic Republic of the Congo and Ethiopia), majority rule can mean political and economic domination by very few ethnic groups with large populations. In most of these countries, the official languages used in the government offices, courts, schools, hospitals, employment areas, etc. are the language(s) or these majority groups. By virtue of their numerical size these majorities can effectively dominate the other groups economically, politically, culturally, socially and in other respects. The fear of being dominated by other social groups, as well as the desire to protect and promote their own traditional collective interests, leads individual in these kinds of societies to think of their own narrower social groups rather than with the nation when the right to votes is exercised. Alex Thomas was right in underscoring the point that even the recognition of “(M)ulti-party democracy … opens up the possibility of full-scale mobilisation. After all, as Claude Ake points out, ’Liberal democracy assumes individualism, but there is little individualism in Africa’. Africans interact on a more communal basis.”[82]

The other reason which makes normative individualism less attractive in countries that are not as economically developed as Western countries is that it is associated with calls to limit the role and authority of government in societal matters. People in countries with diverse social groups who suffer from neglect, deprivation and discrimination need centralized government policies and measures to provide assistance, for example, by expanding the infrastructure and providing education, health services, housing facilities and the like. This means government for the people. However, this is the exact opposite of what normative individualism calls for, particularly as inspired by the Randian political model.

This Randian model has been praised as the best system since it maximizes individual freedoms; however, at the same time it rejects the rights of individuals to work, health, education and a decent standard of living — i.e. to their very means of survival. Under this formula an unemployed person is given the option of accepting or rejecting an offer of employment. A person who is discriminated against in the field of employment, education or health has nowhere to turn to because the government is discouraged from responding to these kinds of social and economic problems. A citizen who is bankrupted after being forced to sell his home to pay for medical treatment for family member or who becomes disabled or ill due to conditions at work should not count on help from the government since the rights to health and a decent standard of living are not recognized. The individual merits no support as a citizen since the government has no authority to respond to such problems. Those private individuals who try to help by providing support are ridiculed since altruism is considered as foolishness. This model is surely unacceptable in developing countries. Martti Koskenniemi was correct in stating that “(T)he nation-State and its democratic forms may not be for export as pure form” and in warning against the insistence on using democratic models as “an international or universal norm of ‘democracy’ … within existing political communities (where it) may in fact be unacceptable … and always suspect as a neocolonialist strategy”.[83]

Concerned by the loophole in human rights which normative individualism has created, some Liberals, such as Jack Donnelly, Will Kymlicka, John Rawls and those who appreciate the virtues of Utilitarianism offer different kinds of remedies in the interest of social justice. Jack Donnelly endorses economic and social rights but not group rights, except indigenous rights. Kymlicka accepts group rights including minority rights. Both these positions deviate from normative individualism. Embracing Utilitarian ideas also creates obvious tension with the Liberal and Libertarian ways of thinking, whose very premise, at least as formulated in the thoughts of John Locke, Immanuel Kant and Jean Jacque Rousseau is the defense of natural rights. According to Jeremy Bentham, the father of Utilitarianism and positivism, the notion of natural rights is nonsense because it is fabricated based on passions.[84] “There are no rights without law”, in his opinion and “no rights contrary to the law.”[85] Rights, obligations, offence and services are all inter-connected and they are made by governments to govern the community.[86] When there are social problems or wrong things happen, it is the responsibility of the government to make them right, in ways that maximize benefits to the welfare of the governed. This is why Utilitarianism maintains that if a right is worth its name it should have utility.[87]

The collectivist schools of thoughts, such as, Communitarianism, Socialism and Social-Democracy embark from a solid base which considers the self as a by-product of the community and the defense of the collective interests. Unlike the proponents of normative individualism, they do not have to rely on imagined ‘natural rights’. Their concern for collective and group interests makes their approach ‘democracy friendly’ since the people are groups, not individuals. Regarding the self as a by-product of the community leads to the idea of empowering communities. However, this creates tension inside multi-ethnic and multi-national societies, and may even lead to the disintegration of their states, as occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. The challenge is to develop political models which extend democracy to the people of the state, as a whole, while protecting the interests of communities.

An example of a common ideological platform which unifies diverse ethnic, religious and cultural groups under a common cause is the Marxist theory of Socialism which merges ‘the workers’ into one proletarian class. The weaknesses of this theory include (i) the rejection of the civil, political, economic, social and cultural rights of the individuals, (ii) the use of the top-down approaches of governance by elitists (central committees) to dictate on the people, and (iii) the assumption that all sociological nations should have the right to create their own political nations. The concept of the ‘dictatorship of the proletariat’ implies elitist rule by those who claim to know the requirements of ‘Scientific’ Socialism and who are intolerant of dissent. We have seen, time and again, how opposition can be silenced by being condemned as anti-social, reactionary, counter-revolutionary.

The other problem with the Marxism model is its defense of national self-determination. The application of this theory would lead to the disintegration of multi-national states such as Russia, Spain and the United Kingdom as well as most African and Asian countries, as has already occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. Moreover, this is likely to encourage smaller social groups, such as, indigenous groups, tribes, and religious and linguistic communities to also struggle either for separation or for some kind of autonomy, thereby further disrupting the fabric of national unity.

Social democracy has navigated between these contrasting positions of Marxism, Communitarianism and Liberalism. It accepts the social nature of mankind and rejects the notion of political emancipation through proletariat revolution. The electoral system and multi-party system are embraced as the best means of protecting individual rights and freedoms. This way, the notion of government by the people and of the people is guaranteed. The interests of the broader community are promoted in two ways. On the one hand, economic, social and cultural rights are recognized and promoted through higher taxation and key public sectors – such as schools, transportation, insurance, media – are placed under ‘public’ control. This political model has been used for decades and continues to dominate politics in the Nordic countries, such as Sweden. This model tolerates the existence of rival political parties, such as Liberals, Leftists, extreme Right-wing parties and Christian Democrats. While the Social Democratic Party of Sweden is not as powerful as it used to be it is still the strongest of all the parties, and the dominance of social democratic ideas is such that even the rival parties do not dare to openly call for dismantling of the social benefits which Social Democracy has brought about. Interestingly, because Social Democracy has produced tangible results, the strategy which the populist parties use is to say that immigrants are threat to the nation and looting what is collected from the taxpayer. To put it crudely, their slogans are simple: ‘elect us and we will drive the alien looters out’. Not surprisingly, these kinds of emotionally appealing promises have enabled the Swedish Democrats (the Extreme Right) to get about 17% of the votes in the most recent election.

Modern Democracy: Historical Evolution

The American and French revolutions created shock-waves among despotic leaders near and far and inspired hope among the victims of oppression. During the first decade of the 19^thcentury the armies of Napoleon spread out over large parts of Europe, promising the fruits of the French Revolution to the inhabitants of the occupied territories. The leaders of the uprisings in European colonies of Central and South America took advantage of the occupation of Portugal and Spain by Napoleon to struggle for independence and start out on a new, democratic way of life. The louder and wider the drums of revolution, popular sovereignty and self-determination echoed, the more colonialism and despotism lost ground in the American hemisphere. European despots too were left with a choice between peaceful change and bloody uprisings.

Not surprisingly, constitutional proclamations upholding popular sovereignty started to make appearances in many places, even if what was promised and proclaimed was not always delivered. Article 49 of the May 17, 1814 constitution of the newly established state of Norway promised Norwegian citizens that the new order would place the legislative power in hands of their parliament (the Storting).[88] The Liberian Declaration of Independence of July 16, 1848 recognized the ‘inalienable rights’ of all men including “life, liberty, and the right to acquire, possess, enjoy, and defend property” and:

“…to institute a government, and to choose and adopt that system, or form of it, which in their opinion will most effectively accomplish these objects, and secure their happiness, … to institute government and powers necessary to conduct it is an inalienable right and cannot be resisted without the grossest injustice.”[89]

Article 39 of the Mexican constitution of 1917 stated that “national sovereignty resides essentially and originally in the people. All public power originates in the people and is instituted for their benefit. The people at all times have the inalienable right to alter or modify their form of government”[90] Paragraph 1 of article 6 of the 1937 Irish constitution affirmed that:

“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”[91]

In light of this there is no doubt that the notion of ‘the will of the people’ has been transformed to an important international principle by the end of World War I.This is not, by any means, to suggest that democratic governments were established everywhere or that the states which purported to be democratic were acting democratically. The point is made merely to underscore that popular sovereignty was increasingly invoked and formally acknowledged in the American hemisphere and in Europe including in Russia where a Communist form of governance had been proclaimed. The enjoyment of effective democracy, however, had to wait for several decades until the required institutions were fully developed and the citizens (including women) were empowered to exercise their democratic rights.

The notion of ‘the will of the people` received a face-lift when it was proposed for use as an international political norm by the victorious Allied Powers at the end of World War I. The intention behind this proposal was mainly to legitimize of the contours of the new political borders of Europe. This was to be done by asking some of the inhabitants of the frontier areas to choose between the bordering states they preferred to belong to. Speaking before the U.S. Congress, President Woodrow Wilson emphasized the significance of respecting the rights of every people to “be left free to determine its own polity, its own way of government” since “(N)o peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their powers from the consent of the governed.”[92] This idea was endorsed by the British Labour party with regard to the occupied German and Ottoman territories.[93]

There is no doubt that the problems that emerged following World War I were ultimately settled according to the principle of ‘Might is Right’. Few would doubt that the political behavior of the Allied Powers, on both domestic and international planes, was hardly reconcilable with this noble idea of ‘the will of the people’. Nevertheless, by this time the concept of ‘will of the people’ had become popular and it was applied. albeit selectively, in border areas such as the Saar Basin, Upper Silesia, East Prussia, and Eupen and Malmedy by asking the inhabitants of these regions to indicate which states they wished be part of.[94] The inhabitants of these territories were not given the right to create separate states, or to have their own rule in the form of autonomy or self-administration. The principle of self-determination was applied in a restricted way.

The other innovative political development which occurred at this time was the establishment of the Mandate system. Under Article 22 of the Covenant of the League of Nations, the states that were awarded the administration of territories that were taken from Germany and the Ottoman Turks, were required to respect “the principle that the well-being and development of such peoples form a sacred trust of civilization”. The manner in which this obligation was discharged was supervised by the League of Nations.

The Evolution of Democracy as a Universal Legal Concept

The Mandates and Roles of the UN. More relevant to the present era is how the notion of democracy was developed by the United Nations as a legal concept of universal validity. This development came about after a long and twisted process of negotiations and international political cooperation. The mandates for being concerned with this subject-matter were enshrined in the UN Charter as purposes of this organization. According to Article 1 paragraph 3 they include the promotion of respect for human rights and finding solutions to international economic and social problems. Paragraph 2 of this same provision obliges the UN to promote the equal rights and self-determination of peoples as the basis for friendly relations among nations. Even if the word democracy is not explicitly mentioned in these provisions, it is obvious that the realization of these goals would further the process of democratization.

Before explaining the road-map used by the UN to promote democratic values, it is important to remember two things. Firstly, the UN does not have the power to adopt legally binding decisions, other than those that concern international peace and security. This is why its guidelines on the promotion of democracy are merely guidelines, unless they are embodied in legally binding instruments which are ratified by states. Example of this includes the right to take part in government which is recognized in article 25 of the international covenant on civil and political rights. Secondly, when it comes to the kinds of political systems which best promote democracy, the view of this organization is that it does not endorse any particular model. Whether this is stated merely for the sake of politeness to respect the Charter principle of state sovereignty, it is up to the reader to decide. What is equally obvious is that the UN is urging states to conduct themselves in accordance with the Human Rights-Based Approach, which suggests that this approach is the only acceptable method of promoting and measuring democracy in the absence of other acceptable apporaches.

The UN has been following two distinct ‘pathways’ to the promotion of democracy, one based on peoples’ rights and good governance and the second one based on human rights.[95] The former focuses on the collective dimensions of the rights of peoples (political communities)– i.e. democracy ‘from above’. The second approach focuses on how empowerment is to be promoted ‘from below’ by facilitating the exercise of rights by individuals and the members of some social groups. These two approaches are closely intertwined. Ignoring one or the other leads to a distorted understanding of how democracy, as a concept, is perceived by the UN. In the following section we will sketch the legal background for the UN’s promotion of both peoples’ rights and human rights. The significance of these legal frameworks for democracy will be explored in more detail later.

The Rights of Peoples: The UN developed the rights of peoples because its purposes include promoting “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” (art. 1(2) emphasis added). Article 55 lists the conditions which are necessary for achieving stability based on people’s rights. These include respect for human rights, and the promotion of economic and social development and other collective interests of the community. In Articles 73 and 76, this instrument addresses the rights of peoples inhabiting non-self-governing territories. All these references to the rights of peoples has evidently transformed the notion of ‘people’, which was earlier vague and an ideologically contested political concept, to a universally applicable legal concept with practical implications.

The UN Charter has not defined the concept of ‘people’. Nor has it listed all the rights peoples have. However, it is apparent that its drafters took care to ensure that issues related to democracy were not left out altogether. For example, its preambles start with the words “We the peoples of the United Nations” and ends by stating that it is these peoples of the world “through representatives assembled in the city of San Francisco, who have exhibited their full powers … (and established) … the United Nations.” Although many of the governments that were assembled to establish this organization in 1945 were not democratic, the form of the words used in the Charter sends a clear signal that states should belong to their peoples and not to the rulers. This implies the illegitimacy of despotism: a clear signal to despotic rulers that the UN would not tolerate the conducts of rulers who say, “I am the State” or “The State, That’s me”, as Louis XVI of France is supposed to have stated.

Using the mandates given to it by its Charter to promote friendly relations among nations based on respect for people’s rights(art. 1(2)), human rights and development (art. 1(3)), the UN wasted very little time in clarifying the road-map that should be followed. The first bold step was taken in 1948 when it adopted Universal Declaration of Human Rights setting out the civil, political, economic, social and cultural rights of the individual. Article 21 of this Declaration specifies the role of democracy in guaranteeing human rights. According to the 3^rdparagraph of this provision, “(T)he will of the peoples hall be the basis of the authority of government” (emphasis added) and “this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” The first two operative paragraphs of this provision deal with the rights of the citizen “to take part in the government of his country, directly or through freely chosen representatives” and to “equal access to public service”.

Leaving this implicit endorsement of democracy aside, group rights, such as minority or indigenous rights and the rights of peoples to self-determination were left out from the Universal Declaration of Human Rights.[96] Because of this the states that were disappointed by this omission wasted no time in mobilizing in defense of the rights of peoples. Since these states were in the majority, they were able to muster the necessary votes to recognize the right to self-determination as a human right[97] and to include this right in the two draft covenants on human rights which were prepared following the adoption of the Universal Declaration on Human Rights.[98] Henceforth, peoples’ rights were to be treated not only as human rights but also as a pre-requisite for the effective enjoyment of human rights.[99]

Bearing this in mind, as well as the pledges given by the colonial powers under article 73 and 76 of the Charter to respect the rights of the peoples of the dependent territories, including their “their political, economic, social, and educational advancement” and “self-government” (art. 73) or independence (art. 76) the UN pressed these powers to deliver on their pledges. When they dragged their feet, the General Assembly adopted, on 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples. The rest is history: colonialism was progressively dismantled, overseen by the Decolonization Committee, a process which led to the gradual advancement of democracy.

In the decades that followed, the UN adopted important instruments re-affirming and elaborating the different rights of peoples, including their right to social progress and development, to sovereignty over natural resources and wealth, etc. The adoption and coming into force of the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights further affirmed the validity and significance of human rights and peoples’ rights. Monitoring bodies were set up to assess the compliance with the provisions of these Covenants by the states that had ratified them. Of special importance to democracy is the acknowledgement made in paragraph 1 of article 1 of these two covenants that:

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

This provision acknowledges the political, economic, social and cultural dimensions of the rights which peoples have. The exercise of the political rights entitles a people, i.e., an internationally recognized political community or public family, to decide what the international political status of its country should be, e.g. to be independent, to be united with other political entities, or to be associated in different ways. In addition, a people is also said to have the right to manage its domestic affairs by freely pursuing its economic, social and cultural development. How this is done is left to each people and its state. However, it is interesting to note, in this regard, that article 55 of the Charter considers the promotion of “higher standards of living, full employment, and conditions of economic and social progress and development” as being essential for the realization of the rights of peoples. The UN is obliged by this provision to promote these goals, and members states have given their pledge to cooperate with these efforts, in accordance with article 56 of the Charter.

International Human Rights Law. The 1945 UN Charter reaffirms that all human beings have dignity and worth. It also made the promotion of human rights and freedom sone of its basic purposes. Proceeding from these premises the UN acknowledged, in 1948 the legitimacy of civil, political, economic, social and cultural rights when it adopted the Universal Declaration of Human Rights. The unique contribution which this document has brought to the discourse on human rights and democracy are highlighted by six key points of interest.

First, the declaration recognizes, in the third preamble, that “human rights should be protected by the rule of law” to avoid rebellion against oppression and tyrannical rule. This statement slams the door on the Hobbesian model of governance. Second, it articulates rights and freedoms by individualizing them (as the rights of individuals) as desired by Liberals and Libertarians. Third, it identifies the civil and political rights necessary for establishing and sustaining democratic governance, e.g., the rights to the freedom of expression, assembly, association and political participation. Fourth, it sets out the economic, social and cultural rights which good governance should promote – i.e. the entitlement to work, health, education, an adequate standard of living, etc. Fifth, in article 29, it accepts the positions of collectivists concerning the importance of subordinating individual rights and freedoms to the interests of the community. This provision makes it clear that individual rights can be restricted as “determined by law for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. At the same time, it acknowledges that the individual beneficiary of human rights “has duties to the community in which the free and full development of his personality is possible”. Last but not least, as pointed out earlier, this Declaration requires that the authority of governments should be based on “the will of the people”, which “shall be expressed in periodic and genuine elections”.

When the Universal Declaration on Human Rights was adopted no state voted against it. This was because its contents were formulated after considerable negotiations and because it was understood that it was not intended to be legally binding, but merely to set a “common standard of achievement for all peoples and nations” as indicated in the last paragraph of the preamble of the Declaration. As stated in article 10 of the UN Charter, the General Assembly has no power to adopt binding instruments. Still, there were six Socialist states, Saudi Arabia and South Africa abstained and two were absent during the voting (Yemen and Honduras). The Soviet Union and its allies did not support it consistent with the opposition of Marx to ‘the rights of man’. The racist regime of South Africa and conservative Saudi Arabia had ideological reasons for refraining to give their support since both did not believe that all the members of their communities should be allowed to participate in politics. This is not to say that the domestic features of the other states who voted in favor of the declaration were fully in line with what required by the Universal Declaration of Human Rights. It is simply to explain what ‘compelled’ those states that chose to abstain to do so.

After the adoption of the Universal Declaration on Human Rights, the UN turned its attention to the preparation of legally binding covenants. On 5 February 1952 the UN General Assembly adopted resolution 543 (VI) requesting the Economic and Social Council to instruct the Commission on Human Rights to draft two separate covenants for subsequent adoption by the General Assembly. One was to deal with civil and political rights and the other with economic, social and cultural rights. During the drafting process the ideologically charged controversies relating to the validity of economic, social and cultural rights once again became the focus of intense debates. When it became clear that these were leading nowhere, the General Assembly stepped in to break the deadlock by asking the Economic and Social Council to instruct the Commission on Human Rights (the drafting body) to acknowledge that “when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man”.[100]

Bearing this in mind, the Human Rights Commission was required to “include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to civic and political rights and freedoms.”[101] The Commission complied with this, which is why we now find, in the third preamble of both these covenants, an identical provision acknowledging that:

“the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights”

Ever since then, the inseparability of the linkage between civil and political and economic, social and cultural rights has been continually re-affirmed by the international community. In the 1968 Tehran Declaration, which was adopted on the twentieth anniversary of the adoption of the Universal Declaration of Human Rights, the General Assembly made it clear that:

“Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development”.[102]

This formulation was slightly reformulated gradually, when the General Assembly adopted the 1993 Vienna Declaration and Programme of Action, by stating:

After the two international covenants were adopted by General Assembly resolution 2200 A (XXI) on 16 December 1966, and came to force in 1976, the stage was set for the emergence of many other human rights conventions. Some of these subsequent conventions provide protection for the members of the different vulnerable groups (e.g., children, women, those with disabilities, migrant workers, indigenous peoples and those belonging to minorities) by contextualizing the complex realities obstructing their enjoyment of rights on an equal basis with others. The international regime of human rights which is now in place has been further enriched by the practices of the international monitoring bodies of the UN, the treaty committees, those of specialized agencies (e.g., the International Labour Organization and UNESCO) and the regional organizations (e.g., the Council of Europe, the African Union, the Organization of American States, etc.).

These developments have been warmly welcomed by progressive states and non-state actors who are committed to the defense of human rights, as positive steps towards the creation of a human rights-sensitive just global order. However, because the existing international monitoring systems have obvious weaknesses, pressure to further develop these mechanisms have been growing. In response to these concerns, the UN has gradually developed its Human Rights-Based Approach to be used as a normative conceptual framework to assess and promote compliance with international standards for human rights. Since the UN considers that the progress that is made towards developing human rights is irreversible, it started to use this HRBA for assessing how states are conducting themselves in human rights sensitive matters, including when it comes to promoting democratic values.

The Human Rights-Based Approach and Democracy

Linking Human Rights to Political Conduct: the Earlier Experiment

It may well be asked whether governments will permit the international organizations such as the UN to assess their conduct under the lens of human rights. Can the international requirements to comply with human rights standards and the principles of social justice really shape the conduct of political actors? This is not a new question. It was raised as far back as 1919 in the preamble of the International Labour Organization, which clarifies why this organization was established:

“Whereas universal and lasting peace can be established only if it is based upon social justice. And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled; and an improvement of those conditions is urgently required … The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organization.”

It may seem puzzling that states of this period, especially the colonial powers, agreed to the establishment of such an organization, committed to the promotion of social justice. The explanation lies in the timing: the ILO was set up in the aftermath of the 1917 Bolshevik Revolution in Russia, when fears of the spill-over effects of this Revolution were real. The establishment of a communist regime in the USSR was justified as a response to the grievances of Russian workers against capitalism; and it seemed all too likely that workers in Western capitalist states would do the same. Added to this was the exhaustion of the Western powers after the First World War (1914-1918), leaving them with little alternative but to seek to establish more sustainable norms of political behaviour, based on humane values.

Unfortunately, this enterprise was not founded on solid grounds. The League of Nations which was established at the time to maintain international peace and security was not equipped with the legal and political mandates necessary to create a political order based on human rights. Instead, the League was used to protect the hegemonic interests of the rival big powers, including by preserving their spheres of colonial domination. An international organization which protects an unjust political order cannot survive and it soon became clear that the next annexationist wars were just around the corner.

The establishment of the UN brought about a unique situation which favoured the establishment of a more just order based on the promotion of human rights. The states which joined hands to create this organization made clear their determination, as stated in the preambles of the UN Charter that they are committed:

“to save succeeding generations from the scourge of war…

to reaffirm faith in fundamental human rights.…

to establish conditions under which justice … can be maintained, and

to promote social progress and better standards of life in larger freedom”.

The‘peoples of the world’ were thus promised an international order that would take issues related to human rights and justice seriously. To this end, the UN was given a clear mandate to promote the self-determination of peoples and universal human rights, as provided by article 1 of the Charter, bearing in mind the need for settling international disputes “in conformity with the principles of justice and international law”. The regime of human rights that was developed subsequently was based on the understanding that its operation should not contravene the principles of state sovereignty and non-intervention. The ratification of the human rights instruments is left up to each state, although this would be monitored by the international bodies that are created for this purpose. If states ratify these human rights instruments they are not at liberty to disregard the undertakings assumed thereunder. If they do, violations of human rights are seen as an essentially international concern, warranting the legitimate responses in accordance with the seriousness of the case.

It goes without saying, therefore, that states which have assumed international human rights obligations are required to conduct themselves as required by the ratified instruments. This means they should follow a human rights-based approach when pursuing their political objectives. The idea of empowering the UN to monitor how this approach was pursued was resisted during the Cold War by the ardent defenders of state sovereignty, such as the U.S.S.R. and its allies, since they were suspicious of the political intentions of the Western Powers. The states which are not as economically developed and politically stable as those in the West also feared that this approach could be easily exploited to undermine state sovereignty in the pretext of addressing human rights violations. When the Soviet Bloc collapsed, resistance to the use of this human rights-based approach by the UN started to crumble. The Western powers too started to pressure these weaker states to embrace this approach, if they are to participate in Western-led globalization. This basically meant they were required to respect human rights as perceived by Liberalism.

The UN Human Rights-Based Approach

As the Soviet Union and its allies became weaker towards the end of the 1980s, the Western powers, political activists, non-governmental organizations and units within the UN wasted no time in making sure that a human rights-based approach to development should be incorporated into the UN system. The basic idea was to use this approach by making human rights a cross-cutting and pivotal factor for all states and agencies involved in formulating policies and pursuing and assessing development programs. As UNICEF put it:

“A human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.”[104]

This approach, as its proponents see it, ensures further consolidations of progress achieved in developing the regime of human rights, since the excuses which are commonly made to disregard human rights in the pretext of development will no longer be tolerated. After all, in article 1 (1) of the 1986 Declaration on the Right to Development, development has already recognized the right to development as:

“an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

This means, when states design and implement their development plans, programs and activities, the human being should be “the central subject of development and should be the active participant and beneficiary of the right to development” (art. 2(1)). The human being should not be used as a tool for development.

One of the driving forces behind this promotion of human development is the United Nations Development Programme (UNDP), which published its first Human Development Report in 1990. Thereafter, the seeds of the HRBA began to be sown in the different international conferences that were arranged by the UN. The 1992 Rio Declaration on environment and development urged states to put human beings at the center of ‘sustainable development” and to enhance the participation of women and indigenous peoples in the development process.[105] The 1993 Vienna Declaration and Programme of Action reaffirmed “the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights.”[106] Article 16 of the 1995 Fourth World Conference on Women in Beijing called for the promotion of:

“sustained economic growth, social development, environmental protection and social justice (which) requires the involvement of women in economic and social development, equal opportunities and the full and equal participation of women and men as agents and beneficiaries of people-centred sustainable development”.

That same year the World Summit for Social Development underscored, in article 66, the importance of pursuing a policy of social integration by enabling the individual to play an active role in the process, and added that:

“Such an inclusive society must be based on respect for all human rights and fundamental freedoms, cultural and religious diversity, social justice and the special needs of vulnerable and disadvantaged groups, democratic participation and the rule of law”.

Shortly thereafter, A UN Programme for Reform was launched, in order to inspire UN-affiliated entities “to mainstream human rights into their various activities and programmes within the framework of their respective mandates.”[107] The idea behind this was to design a commonly agreed upon, right-based approach model for use by UN agencies, funds and programmes. The task was initially left to the UN Interagency Workshop on a Human Rights Based Approach, which met from 3 to 5 May 2003. This gradually led to the formulation of a “Common Understanding”, which was subsequently endorsed by the 2005 World Summit, giving HRBA official political legitimacy, thereby paving the road for “developing concrete tools, instruments and processes … [and] coordinated system-wide actions in those areas.”[108]

In the context of development, there are two basic requirements for compliance with HRBA. First, the goals of development policies, strategies, programs, activities, technical assistance and co-operation should always further human rights, as laid down in the Universal Declaration of Human Rights and other international human rights instruments. This means that the human rights standards contained in these instruments should guide development programming and cooperation in all sectors and in all phases of the development processes. Second, these development processes and cooperation should contribute to strengthening the capacities of the ‘rights-holders’ to claim their rights and the ‘duty-bearers’ to comply with their human rights obligations. This requires appreciating five key points: i. the universality of human rights, so that all human beings are in a position to exercise their rights; ii. the inalienable nature of human rights, which means that they cannot be abandoned; iii. The indivisibility, inter-dependent and inter-relatedness of civil, political, economic, social and cultural rights, without prioritizing one over the other; iv. The promotion of equal rights by combating all forms of discrimination, e.g. by ensuring inclusion and participation; and v. respect for the rule of law and the principle of accountability.[109]

When applied to the real world what this means is that development should be understood in human terms, as a means of safeguarding the dignity and worth of the human being, for the benefit and empowerment of all the right-holders without discrimination based on sex, age, linguistic, religious and other factors. This requires compliance by States with the obligations which they have assumed under the different international human rights instruments, including those protecting the members of vulnerable groups, such as children, women, migrant workers, persons with disabilities and those who belong to minorities and indigenous groups.

It is important to recognize that this HRBA is not legally binding or free from controversy. Its starting point which considers human rights as inter-related, interdependent and interconnected, as recognized in the Universal Declaration of Human Rights, is questioned by some states who have intentionally avoided from ratifying the covenant on civil and political rights or the covenant on economic and social rights, or some of the conventions which protect vulnerable groups. The principle of state sovereignty, which is recognized in paragraph 1 of article 2 of the UN Charter permits states to ratify or not to ratify the human rights instruments and to make reservations on the instruments they wish to ratify. As elaborated in principles 3 and 4 of the 1970 UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States the principle of sovereignty it also entails non-intervention in what is essentially a domestic matter. “Every State” under this declaration, “has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.”

States that lag behind in economic development see the HRBA with suspicion because it can be used to stifle their development efforts by making allegations about human rights abuses. These states, especially those with marginalized and neglected multi-ethnic and multi-national groups, claim that they have inherited unjust economic, social and political structures from their colonial past. As they see it, there is no quick-fix to achieve development without making sacrifices. Without rapid economic development, human rights cannot be effectively realized and enjoyed by all on equal basis. These states, therefore, appear to be caught in a vicious circle with no easy escape from the traps of underdevelopment.

Under these circumstances, as governments of these developing countries see it, prioritizing HRBA will not only frustrate the efforts which they are making to develop, but could even be used to de-legitimize these governments themselves and in the end weaken their states. The developed states do not have this problem because they are already developed – and mostly by sacrificing human rights. A case in point is the way the industrialized states in north America and the Western Europe were able to develop during the past centuries by benefiting from slavery and colonial subjugation. The point here is not to say that the developing countries should do what the developed ones have done, but to underscore the point that giving veto power to individuals and local groups on the pretext of human rights, e.g. when attention is turned to the construction of dams, railroads or highways, the large-scale development of agriculture and the exploitation of minerals, etc. runs the risk of arresting national development efforts.

Leaving behind these controversies surrounding HRBA, UN bodies, human rights monitors, donors, NGOs and an increasing number of states now use of this tool for evaluation of development policies, and to make sure that rights-holders are claiming their rights. UNDP relies on HRBA for assessing the success of development efforts of states in promoting sustainable human development and tackling inequalities and discrimination. Donor agencies use it to see how their development aid benefits the local populations on the ground. UNICEF uses it to assess the extent to which the welfare of children is being protected in accordance with the Convention on the Rights of the Child. Likewise, WHO uses HRBA to assess health service provision for children, compliance with the health service provision for women as required by the Convention on the Elimination of Discrimination against Women, and accessibility and acceptability of food, water, clothing and shelter to populations at large as required by articles 11 and 12 of the Covenant on Economic, Social and Cultural Rights.

At the same time as the HRBA is monitored from above by UN bodies, specialized agencies, donors and states, the UN was also making efforts to empower beneficiaries and defenders of human rights to apply HRBA from below. These efforts culminated in 1998 in the adoption of the “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms” (better known as the Declaration on Human Rights Defenders). This instrument sets out how the voices of the beneficiaries and defenders of human rights should be respected and promoted in the debates on human rights. “Individuals, groups, institutions and non-governmental organizations”, states article 18, “have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.”

The different provisions of this declaration underscore the roles which states should play in supporting human rights activities. More specifically, it defends the rights of individuals and groups “to promote and strive for the protection and realization of human rights at the national and international levels” (art. 1). These activities include the rights “to know, seek, obtain, receive and hold information about human rights” (art. 6(a)), to meet, assemble and participate in associations, to form non-governmental organizations, and to communicate with international organizations and NGOs (art. 5) and to engage in public awareness campaigns (art. 6(b) & (c) & 16). Further, the declaration affirms the rights of individuals and groups to solicit resources for their human rights activities (art. 13), to engage in peaceful activities (art. 12), to obtain effective remedies for the rights that are violated (art. 9(1)) and to approach governmental bodies and agencies to express criticism and propose improvements (art. 8).

Shortly after this declaration was adopted by the UN General Assembly, the Human Rights Commission also began highlighting the kinds of measures which states should take to promote democracy. These included respecting human rights in general, but also in particular political rights, such as the freedoms of expression, assembly and association (for example by allowing multiple political parties), and the right to participate in the government. Furthermore, states were urged to strengthen their electoral systems (by ensuring universal suffrage), to guarantee the impartiality of the judiciary, promote a pluralistic and independent media, ensure respect for the rule of law, and enhance the transparency and the accountability of government.[110] Support was also given by UN offices and programs to national and local initiatives to empower women, to strengthen human rights institutions, to safeguard the independence of the media and develop policies and laws promoting freedoms of expression, association and assembly.[111] All these measures were are necessary for the promotion of democracy.

The Human Rights-Based Approach to Democracy – The Group Rights Lenses

Collectivists, such as Socialists and Communitarians, and most of the defenders of state sovereignty prefer to see the UN focus on collective rights (and state sovereignty) when applying HRBA to promote and measure democracy. It is evident that HRBA is currently used mainly to check on the extent to which countries respect and promote individual rights and freedoms, as preferred by Liberals and Libertarians. Having said this, it would be a mistake to assume that the international regime of human rights has entirely abandoned the collectivist approach, especially how peoples’ rights are promoted. The UN has been promoting empowerment both from below (by promoting individual rights) and from above (by promoting the rights of peoples) to further the processes of democratization.

The UN assumed its mandate to promote the rights of peoples on the basis of articles 1(2), 73 and 76 of its Charter. The earlier moves of this organization to promote the rights of peoples were aimed at facilitating the decolonization of the non-self-governing territories. This was achieved by following two separate approaches. On the one hand, the UN monitored compliance by administrators of colonial territories with their human rights obligations under articles 73 and 76 of the UN Charter, which had both collective and individual dimensions. On the other hand, this organization was promoting ‘friendly relations among nations based on the principle of equal rights and self-determination of peoples’ as provided by paragraph 2 of article 1 of the Charter. The latter, in essence, concerns promoting the rights of political entities (i.e. the dependent nations) and their relations with the administering powers. Operative paragraph 3 of General Assembly resolution 637 A (VII) 16 December 1952 encapsulates how these two approaches were used to achieve the same goal of ending colonialism. This provision provided that:

“The States Members of the United Nations responsible for the administration of Non-Self-Governing and Trust Territories shall take practical steps, pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories, and to prepare them for complete self-government or independence.”

Frustrated by the consistent demands of the UN General Assembly calling for the speeding up of the process of democratization in the non-self-governing territories, the colonial powers questioned the legal basis for these kinds of “interventions” by the UN, since they considered these questions as internal matters. At one point they even refused to send the reports to the UN as required under article 73 of the Charter. If the UN was to proceed with this manner of ‘intervention’, it was argued, then other independent states too should do the same by speeding up the process of democratization within their realms e.g., by empowering minorities and indigenous groups. This political campaign was led by Belgium using the formula which was known at that time as ‘the Belgian thesis’. The idea was to broaden the obligations mentioned in articles 73 and 76 of the Charter to all the UN members to promote self-government for all their minorities and indigenous tribes.[112] This idea was dismissed by the anti-colonial camp as an effort to meddle in the internal matters of independent states, by confusing internal and international issues, thereby distorting the purposes of articles 73 and 76 (the so-called colonial provisions).[113]

One of the arguments used by the colonial powers to reject the promotion of human rights, democracy and self-determination in their colonial territories was that the word self-determination is not mentioned in articles 73 and 76. The General Assembly responded by recognizing the right of peoples to self-determination as a human right, by resolution 421 D(V) of 4 December 1950. On 5 February 1952, the General Assembly went a step further by adopting resolution 545 (VI) which requires an article which deals with this right to be inserted in the international covenants that were being drafted. The colonial states, backed by most other Western states, rejected this by raising the familiar Liberal argument that the right of peoples to self-determination was a group right and not individual human right and therefore cannot be accepted as a human right. Even if the UN was to proceed with this idea, they argued, it would be difficult to apply it because it was difficult to define who the right-holders (i.e. the ‘peoples’) were.

The General Assembly justified its own moves by underlining that this right to self-determination was already recognized in paragraph 2 of article 1 of the UN Charter. Moreover, the UN would continue to promote this right throughout the dependent territories since they had international status and were not simply internal matters of the colonial powers. When the colonial powers refused to cooperate in dismantling their colonial rule based on the principle of the ‘will of the people’, the General Assembly adopted, in 1960, its Declaration on the Granting of Independence to Colonial Countries and Peoples. This was followed by the creation of its Decolonization Committee to speed up the demise of colonialism. The rest is the story of how around seventy per cent of the population of the world was set free from the yoke of colonialism. This was an important step forward for democracy.

The UN Charter recognizes the principle of equal rights and self-determination of peoples and the two international covenants acknowledge the rights of “all peoples” to self-determination. Bearing this in mind, the UN has not refrained from expressing concern over how the principle of self-determination is respected even inside independent states. For instance, it will be recalled that this organization refused to recognize the credentials South Africa’s Apartheid regime, as the legitimate representative of the people of South Africa and had imposed economic and arm embargoes on it. The UN Security Council has denounced the overthrown of the legitimate ruler of Haiti, President Jean-Bertrand Aristide, in 1991 (resolution 940) and the military take-over in the Fiji in 2006 (resolution 8893). This organization has also called for free and fair elections in many countries that were plagued by conflict, as in the case of the conflict in Rwanda in 1993 (resolution 872), the D. R. Congo, in 1999 (resolution S/RES/12134), Sierra Leone in 2002 (resolution 1389), Liberia in 2003 (resolution 1509) and Burundi in 2016 (resolution 2303). As the UN homepage on democracy indicates, only after the end of the Cold War, this organization “has provided various forms of electoral assistance to more than 100 countries — including advisory services, logistics, training, civic education, computer applications and short-term observation”. All these concerns and efforts are intended to promote democracy inside independent countries.

How states conduct themselves when respecting and promoting the rights of people also continues to be of concern to the UN. Proceeding from this premise, the UN has continued to adopt important declarations which elaborate the different rights of all peoples. Examples include the rights to social progress and development[114], on sovereignty over natural resources and wealth[115], and the right to development.[116] In all these instruments attention is drawn to ‘peoples’ rights’ and how the needs of the members of these political communities are to be met. It is important to recognize, in this respect, that unlike the right to self-determination, which is affirmed by the two legally binding covenants, most of above-mentioned rights are mentioned in declarations which are not binding and only set guidelines.

Equally important to note when it comes to how the UN promotes democracy are the steps taken to promote the rights of the rights of persons belonging to minorities and indigenous groups. In 1992, this organization adopted the Declaration on the Rights of Persons Belonging to National, Ethnic, and Religious Minorities.[117] Although this declaration takes an individualized approach to minority rights it also acknowledges that the rights that are recognized can be exercised collectively. In 2007 the UN adopted the Declaration on the Rights of Indigenous Peoples. This instrument defends both the individual and group rights of these communities. In effect, this latter instrument which promotes the rights of ‘indigenous peoples’ follows the ‘Belgian thesis’ which was defended in the late 1940s and early 1950s. At the time Belgian was calling for expanding the obligations assumed by the Colonial Powers in relation to articles 73 and 76 to encompass all states.

The 2007 Indigenous Declaration acknowledges that indigenous peoples have the right to internal self-determination in the form of self-government or autonomy[118] and calls for the protection of their laws, cultures, traditions, languages, institutions, traditional medicines and land rights.[119] This instrument will clearly empower the members of the indigenous communities, as well as indigenous groups as entities, to pursue their own economic, social and cultural development. To stimulate this process the UN established a Forum for Indigenous Peoples inside the UN, for networking among representatives of indigenous peoples and to facilitate discussion of issues of interest to them with one another and with others. It has also appointed a Special Rapporteur to monitor their human rights.

The approach used by the UN to empower indigenous groups introduces an interesting question into the debate on the promotion of democracy, since minorities are not afforded similar group rights, for example to autonomy, self-government, and right to develop their own languages and cultures. It is to be recalled that when the Covenant on Civil and Political Rights were being prepared, the U.S.S.R. and Yugoslav both tabled draft resolutions calling for the recognition of the collective rights of minorities. The U.S.S.R.’s resolution defined these rights as follows:

“The State shall ensure to national minorities the right to use their native tongue and to possess their national schools, libraries, museums and other cultural and educational institutions”[120]

This idea was not accepted. Instead the formula that was agreed upon for minority rights focused on the right individuals not to be denied access to these benefits, as set out in article 27 of the Covenant on Civil and Political rights:

“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”

This defective formulation was widely criticized later by the defenders of minority rights as being insufficient and vague. To remedy this, the 1992 declaration on the rights of minorities affirmed that persons belonging to ethnic, linguistic, religious or national minorities “have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language” (art. 2). It also calls upon states to “encourage conditions for the promotion of that identity” (art. 1) rather than allowing the right-holder to do this. As set out in paragraph 2 of article 4: “States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.”

These formulas of promoting group rights and responding to their needs can be seen as positive steps in the promotion of empowerment and democracy. However, most states are wary of advancing the agenda of minority rights because of the fear that this could lead to ethnic-based rivalry and local nationalism, threatening national unity. In a worst-case scenario, they fear, this could tear apart their state. The indigenous question was seen differently because most states deny having such groups and argue that they exist only in states where the descendants of the European settlers have established states outside Europe, e.g. in Australia, New Zealand and the Americas.

The Human Rights-Based Approach to Democracy: The Civil and Political Rights Lenses

The Content of Civil and Political Rights. In the view of most of the defenders of normative individualism, democracy should only be measured with reference to individual civil and political rights and how these are respected and promoted. Before examining how these lenses works, it is necessary to explore the contents of these rights as set out in the Universal Declaration of Human Rights and more importantly in legally binding International Covenant on Civil and Political Rights (CCPR). This latter instrument has been ratified by 172 states. Both these instruments list the civil and political rights which are derived “from the inherent dignity of the human person”. According to the covenant on civil and political rights, what are acknowledged include the protection of life (art. 6), privacy (art. 17), family (art. 23), protection from slavery, forced labor and servitude (art. 8), from torture and similar cruel and inhuman punishment or treatment (art. 7), from arbitrary arrest (art. 9), and from punishment through retroactive application of laws (art.15). This covenant also acknowledges the rights to freedoms of religion (art. 18), expression (art. 19), assembly (21) and association (art. 22), as well as the right to take part in the conduct of public affairs in one’s own country through direct elections or through representation by using the voting systems and access to public services (art. 25).

The manner in which these rights are framed in this Covenant makes it clear that most of them are subject to limitations. For instance, the freedoms of assembly and association may be restricted if this is “necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others” (art. 21 and 22(2) respectively). The exercise of religious freedom can be restricted by law when it is necessary “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (art. 18(3)). Freedom of expression entails recognizing “duties and responsibilities” and can be restricted to protect “national security or of public order, or public health or morals” or to ensure respect for “the rights or reputations of others” (art. 19(3)(a) & (b)). What is more:

“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (art. 20 (2))

There are very few rights which should not be subject to restriction. They are listed in article 4 of the Covenant. They include the protection of life, protection from slavery, torture, cruel and inhuman treatment and punishment, immunity from double jeopardy and from imprisonment for not fulfilling contractual obligations, recognition of the person by law, and religious freedom in principle (articles 6, 7, 8 (I & 2), 11, 15, 16 and 18). Freedoms are recognized in a manner that makes them limitable. The grounds for restricting them are recognized by the regime of rights. This is why we speak of ‘the right to the freedom of expression or assembly or movement or religion. This is also why the political world chose the expression human rights rather than human freedoms as the title of the regime of rights. This suggests that the Libertarian position which calls for rights to be based on freedoms has been rejected since it is the regime of right which determines which freedoms are to be accepted as legitimate and how they should be exercised or not exercised.

Linking Civil and Political Rights to Democracy: Democracy is obviously inconceivable without civil and political rights. The notions of ‘the will of the people’, ‘popular sovereignty’ or ‘government by the people, of the people and for the people’, all lose their meaning without civil and political rights. If there is no protection of life or security, if liberty and equality are disregarded democracy will only have symbolic importance. To establish and sustain democracy it will be necessary to freely express opinions, by collecting the necessary information and distributing them to the other members of the society, to associate with one another (through the formation of political parties or associations) and to assemble to discuss political issues of interest. It is only when these political rights are respected and promoted that the members of the national community are able to manifest their will in choice of who should govern – i.e. by casting their votes, without constraint and discrimination, in free and fair elections.

In short, it is the effective exercise of civil and political rights which creates the conditions for empowering the citizens, to be able to choose their government, and to monitor how public affairs are conducted by their government. This way, the wishes of the citizens could be heard from within by tolerating inclusiveness in decision-making processes. This paves the road to the emergence of ‘government by the people, of the people and for the people’ and popular sovereignty. If the government does not operate in transparent ways by responding to the needs and desires of the people, then democracy is a sham. This is why the acknowledgement of “the will of the people” as the basis for government, in article 21 of the Universal Declaration of Human Rights, has been described as not just a revolution but “a ‘revolution within a revolution’”.[121]

One of the cornerstones of democracy, which is acknowledged in article 26 of the Covenant on Civil and Political Right, is the notion of equal rights and non-discrimination. According to this provision:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

This principle is well anchored in this covenant. Under article 2 (1) of this instrument, the states parties to this Covenant have assumed the obligation “to respect and to ensure” all the civil and political rights that are mentioned therein “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Article 3 of this covenant also requires ratifying states to “…ensure the equal right of men and women to the enjoyment of all civil and political rights”.

The other democratic value that is acknowledged in the covenant on civil and political rights is the idea inclusiveness, which should be achieved through participation in political processes. This idea follows from paragraph 3 of article 21 of the Universal Declaration on Human Rights which considers “the will of the people” as the basis for “the authority of government” and calls for the use of “periodic and genuine elections … based on universal and equal suffrage .. or by equivalent free voting procedures”. The first paragraph of this same provision acknowledges the importance of ensuring participation in government “directly or through freely chosen representatives” with “equal access to public service in (one’s own) country”. This idea is re-affirmed in article 25 of the covenant on civil and political rights which acknowledges the citizen’s rights to:

“(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.”

The universal validity of this political right is evident from the wider acceptance it has received under many other human rights conventions which prohibit various forms of discrimination that imposes limits on political participation. For instance, paragraph C of article 4 of the Convention on the Elimination of Racial Discrimination calls for the elimination of racial discrimination affecting the exercise of “(P)olitical rights, in particular the right to participate in elections— to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service”. Article 7 of the Convention on the Elimination of Discrimination Against Women also calls the elimination of gender-based discrimination “in political and public life”, including restrictions on the rights of women to vote in elections as well as “(T)o participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions.”

Similar stipulations are included in the regional conventions. Examples include article 23 of the 1969 American Convention on Human Rights, article 3 of the first Protocol to the 1950 European Convention on Human Rights, article 13 (1) of the 1981 African Charter on Human and Peoples Rights and art. 29 of the 1999 Commonwealth Independent States Convention on Human Rights and Fundamental Freedoms. The 1994 Arab League Charter of Human Rights considers “the people” as “the source of authority” and acknowledges that the citizen has “political capacity” (art. 19) and “the right to occupy public office” (art. 33). In view of all these it is difficult to question that the right to be represented in the government is now clearly recognized in international law.

The Challenges of Relying Solely on the Civil and Political Rights Lenses

As clarified above, the merits of relying on civil and political rights to promote and measure democracy are obvious. Using only civil and political rights as a benchmark reduces democracy to nothing more than a political system with institutional features for electing the ruler. It also reduces the significance of the rights to the freedoms of expression, assembly, association, or the very purpose of having an electoral and multi-party systems, or equality, inclusiveness and participatory rights. It makes one wonder why people have to choose a government which oppresses them or which shields their oppressors? If ‘less government’ is the formula for democracy, as suggested by normative individualism, then there is no government ‘for the people’ and what is in place is a government for the politically and economically dominant social groups.

The point in recognizing the freedoms of expression, association, assembly and voting rights is to enable people to secure their basic human needs – such as work, access to health or educational services, freedom from discrimination and corruption, and inclusion in social life. When people collect information and exchange views with others and use their voting rights during elections, what motivates them to exercise these rights is to secure their goals linked to survival rather than for sake of exercising rights and freedoms. If there were no government that is ready to help them achieve these goals and to respond to their collective needs, then the exercise of these political rights would have mainly symbolic significance. Unfortunately, this is why voting turnout are dwindling in many places because the citizens see no point in taking advantage of these opportunities. When they feel that there no government for them they lose confidence in democracy.

Civil and political rights are also being used in many places to threaten democracy. Example of this includes the protection that is given to the rights of individuals and groups who promote Neo-Nazi, Neo-Fascist and White Supremacy ideologies. After decades of tolerance to the freedoms of expression, assembly, association and voting rights of the members of these kinds of organizations, these groups are now poised to challenge the traditional political parties and to win political elections through democratic means. Some of these political parties are already accommodated in the process of governing in some of the Western countries. The Covenant on Civil and Political Rights clearly prohibits, in article 20 (2), “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Yet, in these countries protecting political rights favoring these kinds of organizations appear to be more important than protecting the social groups which they target and the values of democracy.

The reliance on the lenses of civil and political rights only to measure democracy in the multi-ethnic countries of the Third World also poses challenges to democracy. In many of these countries, where the states are weak and unable to meet the needs of their citizens, individuals exercise their civil and political rights by promoting the economic, political, social and cultural interests of their own communities. This ‘self-centered’ or localized approach to the exercise of civil and political rights perpetuates narrow collective thinking, exacerbating group rivalries and tensions instead of facilitating nation-building and displaying loyalty to the state. Some use these rights to mobilize for autonomy or self-rule for their own linguistic, cultural or religious groups. If these ways of exercising civil and political rights are not checked, there is a risk that the socio-political fabrics of these states will be torn apart. This tendency is less visible in the developed Western countries because their states are strong and able to meet the needs of their citizens and because their ways of life are more compatible with normative individualism.

Human Rights-Based Approach and Democracy: The Economic, Social and Cultural Rights Lenses

Opponents of normative individualism prefer to see democracy promoted and measured by the extent to which the needs and interests of the political community is promoted, without neglecting marginalized social groups. This includes by considering efforts made by governments to address economic, social and cultural problems and to create the conditions necessary for the exercise of economic, social and cultural rights the members of the national community without discrimination. They dismiss the arguments used by the critics of economic, social and cultural rights to reject or belittle the legitimacy of these rights. These critics advance different reasons when rejecting these rights, including by stating that they are vaguely formulated in the laws and are impractical, not least because of they cannot be claimed or because they entail high economic cost. The defendants of these rights, by contrast, argue that if these same tests were applied to civil and political rights, they too would fail the test of legitimacy. As they see it, all rights are socially constructed and can be claimed if desired. They are also vaguely formulated and their realization entail cost one way or another.

The Universal Declaration of Human Rights recognizes both these sets of rights. The preambles of the two international covenants underscore the point that all these rights are derived from the needs of protecting the dignity and worth of human beings. Further, operative paragraph 5, part I of the 1993 Vienna Declaration on Human Rights makes it clear that civil, political, economic, social and cultural rights are “indivisible and interdependent and interrelated”. Thus, the UN cannot afford to ignore economic, social and cultural rights when it addresses issues of democracy. Under article 1 of its Charter the UN assumed the obligation to promote human rights, conditions for economic and social development and the respect for the rights of peoples to self-determination. Article 55 also mentions the obligations of the UN to promote the ‘conditions’ that are necessary for ‘well-being’ and for promoting “higher standards of living, full employment, and conditions of economic and social progress and development”. When the UN meets these obligations, its members are expected to cooperate individually as well as collectively as pledged under article 56 of the Charter.

In the pursuit of these mandates, the UN adopted a range of human rights instruments recognizing economic, social and cultural rights. This is obvious from the provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Migrant Workers and the different conventions prohibiting discrimination. The ILO, UNESCO, WHO and the regional organizations too have acknowledged the legitimacy of economic, social and cultural rights by adopting specific instruments and are seen actively engaged in promoting and monitoring their implementation.

The concern for economic, social and cultural questions has both individual and collective dimensions. Example of the latter is the manner in which the rights of peoples to self-determination is promoted, including by promoting the pursuit of economic, social and cultural development. When this group rights is achieved, the individual members of the national communities will be able to enjoy and exercise their economic, social and cultural rights. The right to development is another group right that is recognized in the 1969 declaration on social progress and development, and the 1986 declaration on the right to development, as individual and group rights. The UN has been promoting both these two aspects of the right to development in the course of promoting democracy.

The specific economic, social and cultural rights which are recognized by the Universal Declaration of Human Rights include the rights to own property (art. 17) and to work (art. 23). By the latter, what is meant is not forced labor but work that is chosen or accepted freely by the person concerned. Moreover, this work should also be performed under “just and favourable conditions”, under conditions that guarantee fair wages and right to establish and to join a trade union (art. 23). The social rights that are recognized include those which are necessary for a way of life which is indispensable for one’s dignity (Art. 22), the right to education (art. 26), and the right to “a standard of living adequate for the health and well-being of the individual … including food, clothing, housing and medical care” (art. 25). In addition, recognition is also given to the right “to participate in the cultural life of the community” (art. 27).

The legal obligations of states to acknowledge and promote these economic, social and cultural rights are clearly mentioned in the Covenant on Economic, Social and Cultural Rights and the other conventions which protect vulnerable groups. For instance, article 2 of the Covenant on Economic, Social and Cultural Rights, requires the ratifying states to promote the full enjoyment of these rights by using the resources at their disposal. This requires formulating clear economic, social and cultural policies, strategies and adopting the necessary measures. Further, these states are required to ensure that there will not be discrimination in the enjoyment of these rights. The manner in which these obligations are discharged require the adoption of sound systems of governance. How states comply with these obligations is monitored by UN bodies and programmes (e.g. by the UNDP), by the treaty committees (e.g., the Committee on Economic, Social and Cultural Rights), the regional human rights bodies and by some of the specialized agencies. For instance, the ILO monitors work related rights, UNESCO monitors rights related to culture and education and WHO monitors rights relating to health. This is done by assessing the available statistical data, on the level of unemployment, school enrollment, infant mortality, malnutrition, and prostitution; as well as by considering how health services are promoted, the extent to which social security is provided, and the availability, affordability and accessibility of food, housing, water, cultural heritage sites and museums. All these monitoring bodies give special attention to how states comply with the requirements of promoting inclusiveness and effective participation. The cumulative effect of monitoring how these obligations are complied with promotes democracy in substance.

This is in no way intended to suggest that the road-map for promoting substantive democracy is strait forward and easy. The mere fact this area concerns governance creates tensions between this right-based approach to promote democracy and the principle of sovereignty. The UN cannot compel states to cooperate in implementing the policies which it advocates. This is why the UN itself denies that it uses a specific model of democracy. National deficits in the promotion of the economic, social and cultural rights can also be caused, at least in part, by external factors. A good example of this is imposition of Structural Adjustment Programs on developing countries by the World Bank and IMF, requiring these countries to reduce investment in the educational and health sectors. Engaging with globalization also requires deregulation, privatization, and weakening of trade unions. This means without international cooperation it may not be easy to resolve economic and social problems and hence the full realization of economic, social and cultural rights. It is therefore no wonder that article 28 of the Universal Declaration on Human Rights considers the creation of a just international order as necessary if human rights are to be fully realized.

Conclusion

Democracy and human rights are very appealing and politically sensitive complementary ideals, which people have both aspired to and fought for over the centuries. Paradoxically, while being universal ideals, they are also perceived and practiced differently. What makes them ideologically and politically contentious are disagreements over the nature of the human being, how s/he relates to the community and the state, what kind of individual rights and freedoms should be acknowledged and whether these rights should be subordinated to the interests of the community. Resolving the differences of opinion on these questions has always proved to be difficult because they are related to questions regarding the kinds of social and political systems and orders that humans aspire to. We have different political systems that recognize or deny the legitimacy of different political, economic and social interests, and that have different views on which rights and freedoms that should be protected. It is, therefore, no surprise that states, political actors and many writers have resigned themselves to simply agreeing to disagree. Rather than engaging in debate they dedicate themselves to glamorizing their own political systems, as the best model for democracy, and endlessly ridiculing or discrediting the systems used by their protagonists.

This, in part, is why the literature on democracy is in turmoil. It explains why democracy is equated with ‘legitimate rule’, ‘government of the people’, ‘the will of the people’ or ‘the rule by the majority’, ‘popular sovereignty’, ‘government by the people’, ‘government for the people’ or combinations of some or all of these. Although all these formulations legitimize power in the name ‘the people’, it is not always the case that all members of this ‘people’ are empowered by and benefit from the proposed political system. This is why some of these proposals are dismissed by their critics as symbolic or sham democracy or as democracy ‘in form’ only, while others are called ‘true democracy’ or ‘democracy in substance’.

The literal meaning of the term ‘democracy’, in Greek, is the rule, authority or government of the people. The ancient Greek city states are said to have used this political system of governance as a means of allowing the governed to rule themselves. In fact, not all the inhabitants of these city states were able to participate in political life. Slaves and women, for example, were not empowered to do so. Likewise, those who claim that modern democracy is linked to the experience of the American and French Revolutions are ignoring the fact that the beneficiaries of the ‘rights of man’ which were proclaimed by these Revolutions did not empower the slaves, women, indigenous groups or their colonial subjects. Democracy was more of an ideal for the people, rather than a political reality.

It is the emergence of the United Nations, with its mandates to promote human rights and the rights of people to self-determination, which led to the modern concept of democracy if this concept is to be understood in the sense of governance of the people as the word suggests. The road-map that was used to this effect was twisted since there were two political currents that were competing to shape it. They were and still are normative individualism (supported by the Liberal and Libertarian positions) and collectivism (supported by Socialists, Communitarians, traditionalists, etc.). Navigating between these currents, the UN ended up by accepting something from both of them. On the one hand, it identified democracy as human rights by incorporating it in article 21 of the Universal Declaration of Human Rights, and using the bottom-up approach later when the HRBA was developed by empowering all the individual members of the political communities (in contrast to the restrictive model of promoting the historical ‘rights of man’ of few citizens). On the other hand, this organization proceeded by recognizing the existence of ‘peoples’ (demos), and by promoting their rights, including the right to self-determination and developing guidelines for how sound governance (cracy) should be promoted. This rights-based and double-sided approaches was intended to assure democracy in form as well as in substance. The former uses the lenses of civil and political rights and the latter is advanced by promoting economic, social and cultural rights, and the right to development and sound governance. This is what the goals of the Human Rights-Based Approach are about.

Because democracy has sensitive political, economic, social and cultural dimensions most states may well be unwilling to cooperate with the use of this HRBA to measure democratic performance. This is in part because states incorporate a wide range of economic, social, political and cultural structures, making it difficult to use a single measurement tool for all cases. Further, as long as the principle of sovereignty permits states to refuse to ratify human rights conventions, serious doubts must arise regarding the legitimacy of using conventions which they have not accepted to measure their progress towards democracy. This, apparently, is why the UN relies on the Universal Declaration on Human Rights to promote the HRBA since this document, by contrast to the two international covenants, recognizes civil, political, economic, social and cultural rights as being inter-related and inter-dependent.

Endnotes

* Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This paper represents a revised version of two earlier conference presentations. The first one, on “human rights, democracy and peace: the implications of the new challenges”, was presented in the workshop held in Jyväskylä (Finland) in August 2017, jointly sponsored by the Academy of Finland, the University of Jyväskylä, Kone Foundation and The Åland Islands Peace Institute. The second paper was presented in the winter session of the Nordic Summer University, in Copenhagen, in February this year on “Dysfunctional Democracies, Empowerment and the Human Rights Based Approach”. I am grateful to the organizers of these two workshops for the invitations. Special thanks goes Mogens Chrom Jacobsen, who was kind enough to invite me to workshops of the Nordic Summer University and to the Honorable, Reverend Doctor Ezra Gebremedhin for their valuable comments on the draft of this manuscript.

[1] Vienna Declaration and Programme of Action, part. I, operative paragraph 8. This declaration was adopted by UN General Assembly on 25 June 1993. See google.com

[2] Ibid.

[3] Ibid.

[4] UN, Democracy, http://www.un.org/en/sections/issues-depth/democracy/index.html Seen on October 30, 2018

[5] Declaration on Social Progress and Development, A/Res/2542 (XXIV) 11 December 1969.

[6] Thesaurus, dictionary.com

[7] Cambridge Dictionary

[8] https://www.merriam-webster.com/dictionary/democracy

[9] Susan Marks,” The End of History? Reflections on Some International Legal Theses”, European Journal of International Law, Vol. 8, Issue 3, 1997 p. 449.

[10] https://www.merriam-webster.com/dictionary/democracy.

[11] Aristotle, Politics, trans. H. Rackham (Cambridge: Harvard University Press, 1959), Vol. 5, p. 403 (v.3-5).

[12] USHistory.Org, The Declaration of Independence, available from the web in, http://www.ushistory.org/declaration/document/

[13] The History Guide, Declaration of the Rights of Man and the Citizen (August 1789), art. 2, in http://www.historyguide.org/intellect/declaration.html

[14] Article 2 of the 1958 French constitution.

[15] Jack Donnelly, “Human Rights, Democracy, and Development”, Human Rights Quarterly, Volume 21, Number 3, August 1999, p 615. See also Anthony H. Birch, The Concepts and Theories of Modern Democracy. Routledge London, 1993 (1996 reprint), p. 45. In the view of the latter, democracy is about form, i.e. the existence of political institutions. and not a question of substance, i.e. whether or the community as a whole governs itself. “The idea that there was a classical doctrine of democracy is,” he wrote, “in fact, a most unhelpful piece of nonsense”. Ibid., p. 52.

[16] Webster’s Encyclopedic Unabridged Dictionary of the English Language (New York: Gramercy Books, 1989); The Oxford Illustrated Dictionary (Oxford: Clarendon Press, 1975); Jewett’s Dictionary of English Law, Vol. 2 (London: Sweet and Maxwell Ltd., 1977); and A Dictionary of Modern Legal Usage, 2^nded., Bryan A. Garner (Oxford University Press, 1995).

[17] Cassell’s Latin Dictionary, D.P. Simpson (New York: Macmillan, 1957).

[18] Ballentine’s Law Dictionary, 3^rded., William S. Anderson ed., (Rochester: The Lawyers Cooperative Publishing Co. 1969): Black’s Law Dictionary, Bryan A. Garner ed., 7th ed., (St. Paul: West Group, 1999).

[19] Black’s Law Dictionary

[20] Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, Vol. 2, C.H. Oldfather & W.A. Oldfather, trans. 1688 ed. (New York: Williams S. Hein & Co., 1995), p. 1367.

[21] I. Kant, “The Science of Right,” in Great Books of the Western World, R. M. Hutchin et al(eds.), (Chicago: Encyclopaedia Britinnica, Inc., 1952), Vol. 42, pp. 436 and 452.

[22] L. Oppenheim, International Law: A Treatise, Vol. I – Peace, 7^thed., H. Lauterpacht, ed., (London: Longmans, Green and Co., 1948), p, 114, §64.

[23] Hugo Grotius, The Law of War and Peace: De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey (New York: The Liberal Arts Press, 1925), p. 312.

[24] John Stuart Mill, “On Liberty, representative Government & Utilitarianism”, in Great Books of the Western World, Robert Maynard Hutchins, et al(eds.), (Chicago: Encyclopaedia Britannica, Inc., 1952), Vol. 43, p. 269. Emphases original.

[25] Thomas Hobbes, Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}), p. 86.

[26] Ibid.,pp. 84-86 & 99-100.

[27] Ibid.,pp. 85-88 & 101-102, and 116.

[28] John Locke, “An Essay Concerning the True Original Extent and End of Civil Government”, Great Books of the Western World, Robert Maynard Hutchins el al, Vol. 35, pp. 26-27.

[29] Ibid.,pp. 28-29.

[30] Ibid., pp. 26-30, & 46-47.

[31] I. Kant,The Science of Right” in Great Books of the Western World, Vol. 42, R. M. Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952), p. 435 (Author’s Emphasis)

[32] Ibid.,pp. 435 & 437.

[33] Ibid., p. 436.

[34] Jean-Jacque Rousseau, The Social Contract and Discourses, G.D.H. Cole, trans. (London: J.M. Dent and Sons Ltd., 1913, 1977 prt), p. 193.

[35] Ibid., p. 15. See further 41, 165, 170-1.

[36] Karl Marx, Early Writings, translated by Rodney Livingstone and Gregor Benton, Middlesex: Penguin Books, Ltd., 1975 (1977 prt.). 350.

[37] Ibid., p. 349.

[38] Ibid.

[39] Ibid., pp. 229-230.

[40] Ibid., p. 230.

[41] Karl Marx “Critique of Hegel’s Doctrine of the State” in Early Writings, Rodney Livingstone trans. (London: New Left Review, 1975, 1977 prt.) p. 194.

[42] Karl Marx, “The Charists”, in Surveys from Exile: Political Writings, David Fernbach, ed. (London: New Left Review, 1973), p. 194. p. 265.

[43] See the letter of Marx to Engels, 11 February 1865, in K. Marx, F. Engels and V. I. Lenin, Selected Correspondence (Moscow: Progress Publishers, 1975), p. 153. See also the letter of Marx to Engels, dated 18 Feb. 1865, in Karl Marx & Friedrich Engels, Correspondence: 1846-1895.A Selection with Commentary and Notes (Bristol: Western Printing services, Ltd., 1934?), p. 193.

[44] Karl Marx, Early Writings, pp. 232 and 234.

[45] Ibid., pp. 232-4.

[46] See V.I. Lenin, Collected Works, Bernhard Isaac, trans (Moscow: Progress Publishers, 1964, 1977 prt.), Vol 20, 1913-14, pp. 401-2 & 412; and, The Rights of Nations to Self-determination (Moscow: Progress Publishers, 1951,1971 prt) Progress Publishers, translation.

[47] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: The New American Library, 1962{1964}), p. 32. Any Rand, whose original name was Alisa Zinovyevna Rosenbaum, left Russia when she was 26, disappointed by what the Bolshevik Revolution had done to her country.

[48] Ibid., p. 123.

[49] Ibid. p. 33.

[50] Ibid. p. 32.

[51] Ibid. p. 34.

[52] Ibid. p. 122. Original italic.

[53] Ibid. p.126.

[54] Ibid. p. 124.

[55] Ibid. p. 137.

[56] Ibid. p.130.

[57] Ibid. p.131.

[58] Ibid. p. 134.

[59] According to Fernando Teson, liberalism is “a theory of politics founded upon individual freedom, respect for individual preferences, and individual autonomy”, Fernando R. Teson, “Kantian Theory of International Law”, Columbian Law Review, Vol. 92, 1992, p. 54, note 4. This position considers the end of governments and states to the protection of the rights and interests of individuals, and traces its root to the works of Kant in his essay on Perpetual Peace. Ibid., p. 54. For Anthony Arbaster, “Liberalism was inaugurated by the French Revolution. Anthony Arbaster, Liberalism and postmodernism”, in James Meadowcroft, ed. The Liberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996), p. 162.

[60] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, p. 20. Note that this Donnelly does not dismiss the idea that rights can be exercised collectively, p. 21.

[61] Ibid. p. 70.

[62] Ibid. p. 69.

[63] Ibid. p. 21.

[64] Ibid. p. 69.

[65] Ibid.

[66] Marks, Susan. “The End of History? …, p. 470. According to Birch there never was “a classical doctrine of democracy” to speak of. See Birch, note 15 above. For views defending democracy in substance see, Cerena, M. Christina. “Universal Democracy: An International Legal Right or the Pipe Dream of the West?” New York Universal Journal of International Law and Politics, Vol. 27, 1995, p. 126.

[67] Donnelly, Universal Human Rights, p. 73.

[68] Ibid. p. 103.

[69] Ibid. p. 87.

[70] Will Kymlicka, Liberalism, Community and Culture(Oxford: Clarendon Press, 1989), p. 254.

[71] Ibid., p. 4.

[72] Ibid. p. 254.

[73] Ibid.

[74] Birch, p., 133.

[75] Michael Waltzer, “The Communitarian Critique of Liberalism”, in Amitai Etzioni, ed., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995), pp. 62-63. This writer wonders where this ‘solitary’ and ‘heroic’ individual which Liberal intellectuals write about comes from, since it appears that s/he “is fully formed before the confrontation begins.” p. 68.

[76] Brian Lee Crowley, The Self, the Individual, and the Community (Oxford: Clarendon Press, 1987), pp. v, and 255.

[77] Ibid., , p. vi. Liberals “require us to conceive of ourselves in ways which conflict with our understandings of reason and responsibility” he added, “and therefore conflict with our deepest moral sense”. Ibid., p. 220.

[78] Ibid., p. 281.

[79] Ibid., citing Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: 1982) p 132.

[80] Alasdair MacIntyre, After Virtue (London: Duchworth, 1981{2007}) 3^rded. p. 220.

[81] Jean Bethke Elshtain “The Communitarian Individual”, in Amitai Etzioni, ed., New Communitarian Thinking…, p. 108.

[82] Alex Thomas,An Introduction to African Politics, 4^thed. (New York: Routledge, 2000{2016}), p. 254.

[83] Martti Koskenniemi, “Intolerant Democracies: A Reaction”, Harvard International Law Journal, Winter, Vol. 37, 1996, p. 234.

[84] The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, reproduced from the Bowring editions of 1838-1843, by John Bowring), Vol. III, pp. 218-220..

[85] Ibid., p. 221.

[86] Ibid., p. 159

[87] J. Bentham, An Introduction to the Principles of Moral and Legislation (Oxford: Clarendon Press, 1789 {1823 prt.}), p. 4.

[88] 1814 Constitution of Norway, see https://www.stortinget.no/en/Grunnlovsjubileet/In-English/The-Constitution—Complete-text/

[89] 1848 Liberian Declaration of Independence, see, Declaration Project, in http://www.declarationproject.org/?p=181

[90] Constitution of Mexico, 1917, in LatinAmericanStudies.org, in http://www.latinamericanstudies.org/mexico/1917-Constitution.htm

[91] 1937 Constitution of Ireland, in, Wikisource, https://en.wikisource.org/wiki/Constitution_of_Ireland_(original_text)

[92] U.S. Congressional Record, Vol. 54, Senate, p. 2, pp. 1742-1743.

[93] “British Labour’s Message to the Bolsheviki”, New York Times Current History. February1918, pp. 206-7.

[94] Eyassu Gayim, The Principle of Self-Determination: A Study of Its Historical and Contemporary Legal Evolution.Norwegian Institute of Human Rights, Publication no. 5, 1980, pp. 12-15.

[95] Franck, Thomas M. “The Emerging Right to Democratic Governance,” American Journal of International Law, Vol. 86, 1992, pp. 46-91.

[96] Resolution 217 C(III), which was adopted at the same time as the Universal Declaration on Human Rights made it clear that “United Nations cannot remain indifferent to the fate of minorities” and will deal with this matter later after a thorough study was made concerning the problem.

[97] Resolution 421V (D) of 4 December 1950.

[98] Resolution 545 (VI) 5 February 1952 and 549 (VI) 5 February 1952

[99] Resolution 637(VII) 20 December 1952

[100] Resolution 421 (V), E preamble 4 December 4, 1950

[101] Ibid, E. operative paragraph 7.b.

[102] Operative paragraph 13, Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

[103] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[104] UNICEF, Human Rights-Based Approach to Programming, https://www.unicef.org/policyanalysis/rights/index_62012.html

[105] The Rio Declaration on Environment and Development, principles 1, 20 and 22 in UN Doc. A/Conf.151/26, Vol. 1, 1992 annex in http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[106] Vienna Declaration and Programme of Action Part I, operative paragraph 10

[107] http://www.unsystem.org/tags-hlcp/human-rights

[108] http://www.unsystem.org/content/2005-world-summit-outcome-human-rights-democracy-and-rule-law; & http://www.unsystem.org/tags-hlcp/human-rights

[109] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[110] UN HRBA Portal, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies, http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies

[111] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[112] See, Yearbook of the United Nations, 1952, p. 560, and also General Assembly, 10^thsession, Third Committee 669 mtg. p.226, para. 13.

[113] See UN Doc, E/2256, p. 7. Commission of Human Rights 8^thsession, April 14 to 16 June 1952, in Commission on Human Rights, Official Records, Report of the Eighth Session, Economic and Social Council, 14^thsession, Supplement no. 4. 1952.

[114] Declaration on Social Progress and Development, General Assembly resolution 2542 (XXIV) 11 December 1969.

[115] Permanent Sovereignty over Natural Resources, General Assembly resolution 1803 (XVII) 14 December 1962.

[116] Declaration on the Right to Development, General Assembly resolution 41/128, 4 December 1986, annex.

[117] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly resolution 47/135, 18 December 1986, annex.

[118] Declaration on the Rights of Indigenous Peoples, General Assembly resolution 61/295 of 13 September 2007, annex, arts. 3 & 4.

[119] Ibid., articles 11 – 14, 20, 25-26 and 31.

[120] E/1992, annexes IV, section, page 35. See also the Yugoslavia draft resolution in UN Doc.E/1992, annex IV, section A, article 10 b, p. 35, cited in the debate in the Commission of Human Rights 8^thsession, April 14 to 16 June 1952, Official Records, Report of the Eighth Session, Economic and Social Council, 14^thsession, Supplement no. 4. NY, UN, E/2256, p. 54.

[121] Allen Rosas, “Article 21”, in, Asbjorn Eide, Gudmundur Alfredsson and el al, eds., The Universal Declaration of Human Rights: A Commentary. Scandinavian University Press, 1993, p. 299.

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A Note on the Origins of Human Rights: Bartolomé de las Casas and Francisco de Vitoria

19/09/2018Conference proceedings (multiple non-blind peer review)Bartolomé de las Casas, Confessional State, Conquest of America, Francisco de Vitoria, Jürgen Habermas, human rightsJulio Jensen

The present contribution arises from a remark made by Habermas with respect to two historical conditions that allowed for the appearance of human rights:

[O]n the one side, the internalized, rationally justified morality anchored in the individual conscience, which in Kant withdraws entirely into the transcendental domain; and, on the other side, the coercive, positive, enacted law which served absolutist rulers or the traditional assemblies of estates as an instrument for constructing the institutions of the modern state and a market society. The concept of human rights is a product of an improbable synthesis of these two elements. (Habermas, 2012, p. 83).

Habermas notes how these two elements had become independent in early modernity and, to begin with, developed along different paths (Habermas, 2012, p. 83). On the one hand, one result of Renaissance individualism and subsequent philosophy is the “internalized, rationally justified morality anchored in the individual conscience” mentioned in the above citation. This will be translated into a central principle of human rights: to protect individual autonomy as regards morality and convictions. In this way each person may – within the limits of due respect for other individuals – pursue a life of one’s own preference. This protection of the individual’s interiority is a central aspect of human rights and it is an essential part of constitutional rule. On the other hand – and this is the reason why Habermas speaks of an “improbable synthesis” – one consequence of the confessionalization of the state in the sixteenth and seventeenth centuries was that law, religion and morality were not open for discussion. All the subjects of a given monarchy were under the obligation to share the same faith and moral values, whereby no room was allowed for a subjectively reflected morality. Habermas’s hypothesis is that the modern state with its robust legislating, judicial and executive powers needs to crystallize before human rights can be implemented as a legally binding element.

Modernity is, in Habermas’s definition, the period that aimed at giving itself its normativity, that is, the period in history that has relied on human reason alone as a normative principle (Habermas, 1987). At the same time, Habermas’s later thinking has abandoned the classical modern notion that human reason is self-founded. Instead he has turned to the idea that “when reason reflects on its deepest foundations, it discovers that it owes its origin to something else. And it must acknowledge the fateful power of this origin, for otherwise it will lose its orientation to reason in the blind alley of a hybrid grasp of control over its own self.” (Habermas, 2006, p. 40). In keeping with this, Habermas considers that the notion of human rights has – just as many other ideas of modernity – its origin in the Judeo-Christian tradition. The absolute worth of any person, its inviolable dignity is the secular translation of regarding the human being as created in the image of God (Habermas, 2006, p. 45; Habermas, 2012, pp. 89-90). In Habermas’s words, the classical human rights declarations of the eighteenth century “betray their religious and metaphysical origins” (Habermas, 2012, p. 81).

In the evolution from absolutism to constitutionalism, one line that can be followed is that of the state’s consistency vis-à-vis its alleged religious principles. The absolute confessional monarchy imposed – as the term clearly expresses – one religion to be followed by all its subjects. However, in spite of the strongly cohesive force of one common religion, the confessional state would prove to be an unstable construction – among other reasons because of its assimilation of religion as a kind of state ideology. Precisely because the Christian tradition emphasizes the absolute worth and dignity of the individual, the confessional monarchies could easily enter into conflict with their alleged moral and religious principles – as will be seen in the following.

It is important to clarify that there is a difference between what is meant by rightin the medieval and early modern sense and what we today understand as civil/social/human etc. rights. In the scholastic terminology, ius(right) refers primarily to justice in the sense of what is just (iustum). This means the fair and equitable or the adequacy to the circumstances, for example the payment of a salary (Jacobsen 2011, pp. 152-153). In this sense, then, right is related to justice rather than to an individual, inviolable sphere. Conversely, the modern understanding of rights is the protection of the individual as regards the possibility of the state’s intervention (Habermas 2012, p. 79; Jacobsen 2011). This idea can be traced back to Nominalism, or to Vitoria (Deckers 1991, pp. 166-188; Böckenförde 2006, p. 353-356), whereby the notion of an inviolable individual freedom appears at the beginning of the modern age. At the same time, the evolution towards the notion of human rights has also another genealogy, as has been shown by the Mexican theologian and philosopher Mauricio Beuchot. According to this thinker, Thomism is a key factor in the transition from right as justice to rights in the modern sense of the term. The Aristotelian-Thomist school considers that any society must be oriented towards the common good, and the common good requires a social justice in which every individual is given its due as regards both material and spiritual goods (in keeping with the individual’s age, health, capacities, etc.).[1] Such a social justice gives a dignified place to the individual in the totality of the community. However, a society that eludes the obligation to carry out such a distributive justice is an unjust society, and this was the wrong that was inflicted on the original American peoples when they became conquered and enslaved (Beuchot 1994, pp. 149-155).[2] From this perspective, then, the question of human rights emerges from a concern for a collectivity that has been deprived of what is its due in the social totality.

In this article the intention is to pursue one of the historical moments in the development that allowed for the emergence of human rights: the controversy that took place in sixteenth-century Spain concerning the status of the indigenous peoples of America. This historical episode presents the conflict between the confessional state and an egalitarian tradition of thinking which confers on the human being an inherent dignity and on human society a necessary demand for justice.[3] The main points of reference below are the Spanish Dominicans Bartolomé de las Casas (1484-1566) and Francisco de Vitoria (1483-1546). Concerning the question of statehood, reference will be made to Heinz Schilling and his development of the notion of the confessional state. State confessionalization can be regarded as a parallel colonial enterprise in relation to the one overseas because when the ruler determines the religion of the subjects, a conquest of interiority takes place. In this respect, the discussions carried out by las Casas and Vitoria are remarkable because the fact that these two thinkers defended what today would be called the rights of the native peoples of the Americas shows that religion – also at that historical moment – can provide a critique of the exercise of power.

The contribution is organized as follows: first appears a presentation of Schilling’s ideas about the confessionalization of the state in Early Modernity; then follows a commentary on the thinking of las Casas and Vitoria as regards the Spanish colonization of the Americas; finally – in the conclusions – a perspective is drawn up to the present situation. The part on las Casas and the part on Vitoria are rather different. The reason for this is that the two were very different personalities with correspondingly different legacies. Las Casas was an erudite theologian with great rhetorical skills but, since his main interest was to obtain justice for the original inhabitants of America, he never wrote a systematic body of speculative texts (Beuchot 1994, pp. 71-72). His life and his texts form a continuum, and for this reason his works must be read in the context of his tireless advocacy for the Amerindian peoples. Vitoria, conversely, was a professor of theology who worked in an academic setting his entire life, whereby he in this sense is a more conventional author.

The Confessional State

During the sixteenth and seventeenth centuries the modern territorial states emerged in Europe. As part of this process, the nobility, the Church, cities, military orders, etc. lost their autonomy and power while, conversely, the monarchy was strengthened. A modern state is generally understood as a geographically limited territory in which only one political authority has the power of legislating and using force (Morris, 1998).In Max Weber’s famous formulation from 1919, “a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” (Weber, 2009, p. 78). Consequently, it was also at this historical moment – after the Peace of Westphalia (1648) – that international authority was restricted to territorial states. The monopoly on sovereignty over territory and domestic affairs also made the states the only significant actors in the international system of power relations.

As regards religion, absolutism incorporated it as a kind of ideology. This is the confessionalization thesis defended by, among others, Heinz Schilling (2008). The obligation of all subjects to share the same faith formed a homogeneous collective identity.[4] In addition, the state achieved power over the Church, something which was evident in the reformed kingdoms but was also a fact in the Catholic nations.[5] From a perspective that considers religion in opposition to modernization, this socio-political change should unequivocally be considered anti-modern, but it can also be seen as a qualification for the emergence of modernity:

My hypothesis is that decisive preconditions for Europe’s turn onto paths of modernization were installed, not in opposition to the religious forces of confessionalization prevailing in that epoch, but closely intertwined with them, making the confessional approach epoch in Europe – namely the decades around 1600 – to be a “Vorsattelzeit der Moderne” ([pre-]saddling up for Modernity). (Schilling, 2008, p. 14).

The reason for this is that the religious and secular domains, that in Christianity are theologically separate, now became intertwined “but in a way that gave each of them independence in its own sector or area of responsibility.” (Schilling, 2008, p. 16). In turn this simultaneous interweaving and independence caused a transference from the religious to the secular: “Secularization frequently drew its decisive inspiration from the Christian religion and philosophy and was sustained by religious movements. Again and again, a religious dynamic was transported into the secular world, where it gave power and legitimacy to both political and social activities.” (Schilling, 2008, p. 16).

As mentioned above with reference to Habermas, this is the historical background for the emergence of human rights. On the one hand, the dialectic mentioned by Schilling makes possible the transference of a Judeo-Christian idea to a secular sphere – as will happen in the eighteenth century with the human rights declarations. On the other hand, the strengthening of the state by means of religion would become a kind of Trojan horse carrying within it a moral concern that could be activated against the absolute monarchy – as happened with Bartolomé de las Casas and Francisco de Vitoria.

One consequence of the confessionalization of the state was that religious minorities had only a small possibility of being accepted. The ban on religious difference was clear in the case of Spain, where the convivencia (co-existence) of Jews, Christians and Muslims that had been possible during the Middle Ages stopped with precisely the emergence of the confessional state. In 1492 the Jews faced the ultimatum of converting or leaving the country. That same year the last Muslim dominion on the Iberian Peninsula, the Kingdom of Granada, was conquered by the Catholic monarchs, Isabella of Castile and Ferdinand of Aragon. In the capitulations written in connection with the surrender, the Muslim population was allowed to practise its religion, but a few years later, in 1502, this permission was suspended. Shortly after 1500, then, only Christianity was allowed as the official religion in what would become the kingdom of Spain.[6]

In this context it is noteworthy that theologians such as las Casas and Vitoria sustained that the Amerindian population should be allowed to maintain their original religions. This is remarkable in two ways. On the one hand, because the logic of confessionalization entailed that only one religion was allowed in the domains of a given monarch. On the other hand, because it would seem logical that one consequence of the assimilation of religious authority by the state would be to silence dissident voices. However, as will be seen in the following, this was not the case in the episode that will be commented upon below.

Bartolomé de las Casas

In 1510 the Dominican friars arrived on the island of Hispaniola (which today comprises the Dominican Republic and Haiti). They witnessed the treatment of the natives and decided to denounce it. In his History of the Indies, las Casas narrates that

[t]he Dominican friars had already pondered on the sad life and harsh captivity suffered by the natives on the island and had noticed the Spanish lack of concern for their fate except as a business loss which brought about no softening of their oppression. (…) They knew how new and scandalous it would be to awaken people from such an abysmal slumber, and after mature reflection they decided to preach from the pulpit and in public that to oppress Indians was to go straight to Hell. (las Casas, 1971, pp. 181-83).

They composed a sermon in defence of the “Indians” – as the original inhabitants of America were called at that time – to be read on the fourth Sunday of Advent 1511 by Friar Antonio de Montesinos.[7]

Among those on whom this sermon made an impact was the young Bartolomé de las Casas, who was present at that mass. He would later become a Dominican friar, then bishop and, for posterity, be remembered as the most ardent defender of the native population of America. At that moment las Casas was a secular priest and colonist in the encomienda system that was established during the conquest. This quasi-feudal order meant that each colonist was entrusted (encomendar: to entrust) a number of natives. The colonist should care for their spiritual and material well-being, and in return they would work for him as bondservants. In practice, then, the Amerindians who were under an encomiendawere not at all free men.

Since the Dominicans would not cease to protest against the treatment the original inhabitants were subject to, the governor Diego Columbus (the discoverer’s son) and the encomenderos complained to King Ferdinand V, who regarded the Dominicans’ protests as a direct questioning of his authority. Consequently, he ordered that neither “they nor other friars of their Order speak upon this matter or others similar, in the pulpit or away from it, in public or in private.”[8] Furthermore, the Dominican provincial, Alonso de Loaysa, accepted the king’s admonition and repeated to the friars the prohibition to speak about this matter. In his admirable work Las Casas. In Search of the Poor of Jesus Christ, Gustavo Gutiérrez remarks the following as regards this conflict between the missionaries and state power:

While the historical and social context here is different from our own, we can only regard Loaysa’s demand (and not the friars’ preaching!) as an expression of the “captivity” of the Christian message. This, like many bishops and missionaries in the Indies, las Casas could not accept. Instead, the missionaries upheld the validity of the demands of the Gospel. (Gutiérrez, 1993, p. 37).

It is clear that, for the monarchy, the colonization process had priority over the missionary one, and that the revenue from the colonies was more important than a coherent religious practice. The forced labour of the natives was necessary for the extraction of gold – and thus everything else would be of secondary importance.

As a consequence of the protests, the king ordered the gathering of a council of theologians and jurists, the Junta de Burgos (Council of Burgos), in 1512. As an outcome of this council a set of rules were issued, the Leyes de Burgos (Laws of Burgos), which was the first legislative document regarding the Amerindian population.[9] Even if the Leyes de Burgos recognized that the native inhabitants were free subjects, at the same time the encomienda system became sanctioned and formalized. The consequence was, as Gutiérrez notes, that these laws in fact changed nothing, they only legitimized the oppression: “Thus the door was wide open for a reinforcement of the Indians’ de facto slavery, at the same time that lyrical declarations about their freedom were being made.” (Gutiérrez, 1993, p. 283).

One of the outcomes of the Junta de Burgos was the sadly famous Requerimiento (Requirement), written by the influential councilor Palacios Rubios as a consequence of Montesinos’s question: “What authority did you use to make war against them who lived at peace on their territories, killing them cruelly with methods never before heard of?” (cited in las Casas, 1971, p. 184).Montesinos’s question carried with it an accusation at a legal level because a just war can only be claimed on the basis of a previous affront. In order to respond to this, Palacios Rubios made use of the medieval theocratic political theory according to which spiritual power is different from but at the same time also superior to secular power. In consequence the pontiff must prevail over emperor and kings. While this theory clearly works against the development of the sovereign territorial state, it was used on this occasion to legitimize the Spanish rule over the American territories. Given that the pope had granted the Spanish monarchs the dominion over these territories in 1493 with the Alexandrine Bulls, King Ferdinand V was their legitimate ruler.[10] Palacios Rubios, furthermore, asserted that the violation of natural law, the absence of legitimate political authority (due to unbelief), and opposition to the proclamation of the Gospel were sufficient causes to wage a just war. However, before an act of war could actually be carried out, an antecedent notification of these arguments must be made. Thus the Requerimiento was produced in order to read aloud to the Amerindians encountered by the conquerors.[11]

Given that the theocratic viewpoint at that moment was not at all a dominant one (as will be seen below, Vitoria will argue very clearly against it), and given that the idea of the pope having actual power over the monarchs went counter to the emerging territorial state, it is clear that this strange juxtaposition of royalism and pontifical theocratism was enacted merely to justify the Spanish dominion over the American territories and their inhabitants. Aware of the harm it caused both to the natives as well as to Christianity, las Casas could not accept this document. When commenting upon the Requerimiento in his History of the Indies, he exclaims:

The ignorance of the King’s council is then manifest; I pray to God it is remissible – how unjust, impious, scandalous, irrational and absurd this injunction [the Requerimiento] was! I will not speak of the infamy it caused the Christian religion; I don’t know whether to laugh or cry at the absurdity of the council, who believed these people to be under more obligation to acknowledge the King as their Lord than Christ as God and Creator, since one cannot be constrained to receive the Faith, and yet, to obey the King, the council used force. (las Casas, 1971, p. 196).

As las Casas (Beuchot 1994, p. 48) and (as will be seen below) Vitoria argued, it is a matter of natural law that each people has its own rulers. Unbelief is not a cause to lead a just war against another people since the Gospel must not be forced upon anybody. Here emerges the conflict between the missionary – who knew that evangelization has to be undertaken by peaceful means[12] – and the monarchy, which was eager only to accumulate power, riches and territories. The faith cannot be forced upon anybody, but the fact that force was used to acquire new subjects and territories reveals the inconsistency of the confessional state because the monarchy did not act in keeping with the religion it adhered to.

In spite of the Leyes de Burgos and the monarchy’s clear standpoint, the natives’ advocates would not stop from arguing their case. Battles were won and lost. In 1530 Charles V, king of Spain and emperor of the Holy Roman Empire, prohibited the enslavement of the Amerindian population in a decree that had very little effect in the colonies and was subsequently revoked in 1534. During this period las Casas’s influence reached to the Vatican, since Paul III’s papal bull Sublimis Deus(1537) was considerably influenced by him (Parish, 1992; Gutiérrez, 1993, pp. 302-8). This document declared that the Amerindians were rational beings, completely human, that they were to be free from slavery, that they should be allowed to own property and that their evangelization must follow the peaceful method of preaching and good example. The bull was followed by a papal letter condemning the greediness of those who mistreated the native peoples and declaring the automatic excommunication of whoever oppressed and enslaved them.

Another important event in this dispute was Charles V’s approval of the Leyes nuevas de Indias (New Laws of the Indies) in 1542. These decrees abolished the forced labour of the native population, and thus substantially restricted the encomiendas. But when these laws were to be implemented in the New World, serious conflicts arose. The most notorious one was the uprising in Peru, where Gonzalo Pizarro (brother of Francisco Pizarro, the conqueror of the Inca Empire) led a rebellion in the course of which the viceroy was killed. A new viceroy arrived to Peru and Gonzalo Pizarro was arrested and sent to Spain to be judged for his uprising.

However, the outcome was that the Leyes Nuevas de Indias were never in fact implemented in the American colonies. Furthermore, Charles V revoked an important part of these decrees in 1545. As a reaction to this, las Casas, who since 1543 was bishop of Chiapas (what today is southern Mexico and Guatemala), wrote a proposal that is interesting with respect to the present discussion. Together with two other bishops, Valdivieso and Marroquín, he presented a document to the Audiencia de los Confines, the council representing the Crown in Central America. In this document he argued that the natives should be transferred under ecclesiastical jurisdiction so that their political self-determination could be restored.[13] Experience had proven to las Casas that the state would – in spite of its putative Christian identity – give priority to its expansion and enrichment rather than to Christian principles. As can be imagined, this proposal was rejected by the council.

The colonists and adherents of the conquest found in the humanist Juan Ginés de Sepúlveda (1490-1573) a spokesman who could argue their case. Sepúlveda was, according to the Argentinian philosopher Enrique Dussel, the “father of modern political philosophy” (Dussel, 2007, p. 195-99) because he was the first to formulate the idea that superior nations have the right to dominate inferior peoples in order to raise the latter to a more civilized stage.[14] Given that Dussel’s notion of modernity is closely connected with the European colonial enterprise, he regards las Casas as the first critic of the modern project. Dussel considers that through this expansion a new world-system appeared in which the Europeans understood themselves as the masters in military, economic, scientific and cultural respects.[15] This strongly Eurocentric world-system negated the otherness of the indigenous American peoples and of the African slaves. Against this background the figures of Sepúlveda and las Casas appear as representatives of, respectively, the Eurocentric and excluding paradigm, and the thinking that acknowledges alterity. Dussel sees in las Casas the most radical sceptic of the civilizing pretensions of modernity and thus also an example for the twenty-first century. (Dussel, 2007, pp. 199 and 206). Las Casas’s acknowledgment of the original inhabitants of the Americas led him to his activism, so to speak, against a state power that negated the Amerindians’ dignity by enslaving them and depriving them of their cultural and political autonomy.

In 1550 Charles V brought the Consejo de Indias (Council of the Indies) together with a committee of theologians and jurists to discuss the positions of Sepúlveda and las Casas. This debate, the Controversia de Valladolid,took place during the years 1550-51 and its outcome was unequivocally favourable to las Casas. However, the summary of the discussion reads:

Finally, after much debate, the (commission) judged that the expeditions, which in Spanish we call conquistas, are evil, unlawful, and unjust and, therefore, ought to be altogether outlawed in the future. However, concerning the allotments, which are called repartimientos[16] in Spanish, they made no decision because there was still rebellion by some of the oppressors in the kingdoms of Peru and other provinces were in a state of confusion. (las Casas, 1974, p. 9).

Thus the commission did not recommend giving freedom and political self-determination to the Amerindians – which was las Casas’s position – but it nonetheless condemned the conquest unequivocally. It is plausible to assume that state interests weighed too heavily to allow any changes as regards the American possessions. The Spanish crown was immersed in armed conflicts on the European continent and in the Mediterranean, and was highly dependent on the capital flow from the Americas. Once again the two logics, that of state interests and that of the missionaries, collided in a clear way. Following Gutiérrez, it is possible to assert that for las Casas

it is a matter of the rights of the individuals, indeed, but also – let us repeat – of the Indian nations vis-à-vis the Western Christian countries that had undertaken the conquest and occupation of the Indian continent. What is at stake is not only individual rights, but, especially those of a whole people: here, their right to require that their religion, however mistaken it be, be respected. (Gutiérrez, 1993, p. 206).

Here Gutiérrez touches upon the double aspect – collective and individual – of the human rights. Since the Amerindians were rational beings – rationality being one primary facet of human dignity – it was unjust to impose Christianity upon them. Las Casas considered that the Christian faith was the most valuable good that could be given to the indigenous peoples, but he also believed that they had the right to remain in their paganism. It would be unjust as regards the native’s rationality to deprive them of their faculty of judgement with respect to religion. Similarly, he also rejected the argument that a just war could be fought upon the Amerindian peoples on the grounds of the human sacrifices some cultures carried out (las Casas, 1974, p. 234). In this way, the conquest of America was unjust because it negated the autonomy and idiosyncrasy of the indigenous cultures.[17] In the Lascasasian perspective, then, the subjugation of America had nothing to do with neither civilization nor religion but with a simple will to power. The oppression of the native peoples was perceived as an injustice because of the egalitarian Christian tradition he belonged to. This perspective called for the resistance against state power that las Casas embodied.

Francisco de Vitoria

Francisco de Vitoria is a central figure of the Spanish Renaissance. His work can be divided into three categories: a) lectures from ordinary courses, that is, commentaries to the Sententiarum liber IV by Peter Lombard or to St. Thomas Aquinas’s Summa Theologica; b) the Relectiones, which are extraordinary lectures read at the end of a term; c) varia, which counts his epistolary work and some verdicts on moral and theological issues.

Vitoria sets out a universalistic vision of law since he conceives of the world as one commonwealth(respublica) governed by a common law, the law of nations (ius gentium). Vitoria considered human society as natural as any living organism: “The clear conclusion is that the primitive origin of human cities and commonwealths was not a human invention or contrivance to be numbered among the artefacts of craft, but a device implanted by Nature in man for his own safety and survival.” (Vitoria, 1991, p. 9). Correspondingly his law of nations is derived from natural law but enacted by the commonwealth of the world: “The whole world, which is in a sense a commonwealth, has the power to enact laws which are just and convenient to all men; and these make up the law of nations.” (Vitoria, 1991, p. 40). This idea is what has earned him the title – even if modern scholarship is divided as regards this claim – as the father of international law (e.g. Barcia Trelles, 1928; Scott, 1934).

Two of Vitoria’s Relectiones mention the question of the New World and the subjugation of the native peoples of the Americas. These lectures carry the titles De Indis (On the American Indians) from 1539 and De iure belli (On the Law of War) from that same year. However, as only De Indis treats the question of the conquest in depth, this text will be the focus of analysis here. The relection consists of an introduction, three discussions, a conclusion and three replies. In the first discussion the issue is whether the Amerindians had political authority before the Spanish conquest. After this, follows a discussion of the illegitimate reasons (the “unjust titles”) that could be argued for the Spanish dominion over the indigenous peoples. Then follows an analysis of seven or eight legitimate grounds (“just titles”) that could be given for the subjugation of the Amerindians: “There are seven irrelevant titles, and seven or perhaps eight just and legitimate ones.” (Vitoria, 1991, p. 252).

In the relection’s first discussion Vitoria states that it is a universal issue that a people governs itself. Any community may constitute itself with its rulers, institutions and laws, and this is not lost by diversity of religion or by sin because “Aquinas shows that unbelief does not cancel either natural or human law, but all forms of dominion (dominia) derive from natural or human law; therefore they cannot be annulled by lack of faith.” (Vitoria, 1991, p. 244). He furthermore dismisses the idea that a sort of tutelage of the Amerindians could be justified because that would presuppose that they were irrational and incapable of organizing their societies. On the contrary, the inhabitants of these nations possess the use of reason since

they have properly organized cities, proper marriages, magistrates and overlords (domini), laws, industries, and commerce, all of which require the use of reason. They likewise have a form (species) of religion, and they correctly apprehend things which are evident to other men, which indicates the use of reason. (ibid., p. 250).

The conclusion Vitoria arrives at is that the Amerindians were the true rulers of their societies before the arrival of the Spaniards. This poses a problem as regards the legitimacy of the conquest, which then will be discussed in the rest of the relection.

In the relection’s second discussion, Vitoria discards seven illegitimate reasons that could be alleged to justify the conquest of the Amerindian countries. These unjust titles are: (1) because the emperor is the sovereign of the whole world, (2) because the pope has authority over the whole world, (3) by right of discovery, (4) because the natives refuse the Christian religion, (5) because of the Amerindians’ sins,[18] (6) by voluntary choice induced by ignorance or fear,[19] (7) by special gift from God.

Of these titles the most interesting in the present context is the second one. According to the above-mentioned theocratic theory the pope, as the vicar of Christ, has the authority to legitimise the occupation. To this, Vitoria responds that if Christ did not have temporal or worldly power, much less can the pope as his vicar have it (ibid., p. 260). In addition, the pope does not have spiritual jurisdiction over non-Christians, as can be inferred from St. Paul: “For what have I to do to judge them also that are without?”[20] Furthermore, and in contrast to the confessionalization process, Vitoria rejects that the Conquest could be legitimized as an occasion to bring the Gospel to the indigenous peoples because he considers – in line with many other theologians – that nobody should be forced to convert to Christianity. This part of the relection concludes that the conquest of America cannot be legitimized on these grounds, and the discussion of the unjust titles significantly finishes with a passage from the Gospel: “‘For what is a man profited’, says the Lord, ‘if he shall gain the whole world, and lose himself, or be cast away?’”.[21] In this way Vitoria alludes to the conflict between religion and state interests, suggesting that they may diverge.

In the last part of De Indis, Vitoria discusses the reasons that might legitimize the conquest and domination of America. These just titles are: (1) if the Spaniards were prevented from the right to travel and dwell in the native’s countries “so long as they do no harm to the barbarians” (Vitoria, 1991,p. 278),[22] (2) if the Amerindians “obstruct the Spaniards in their free propagation of the Gospel” (ibid, p. 285), (3) “the protection of converts” (ibid.p. 286) would be a legitimate cause if some of the Amerindians had converted and their rulers wanted to force them back to idolatry, (4) a “papal constitution of a Christian prince” (ibid. p. 287) could be claimed if a large number of the original inhabitants had converted, (5) “in defence of the innocent against tyranny” (ibid. p. 287) if tyranny or tyrannical laws inflict damage on innocents, (6) “by true and voluntary election” (ibid. p. 288), that is, if the inhabitants of these countries voluntarily decided to accept the Spanish king as their ruler, (7) “for the sake of allies and friends” (ibid. p. 289), that is, if a given nation asks the Spaniards for help because they have suffered an affront and thus have the right to wage a just war against another nation, finally, (8) “mental incapacity” (ibid.p. 290). This last reason is, however, only added “for the sake of the argument” (ibid. p. 290).

It is remarkable that Vitoria discusses these seven or eight just titles in a hypothetical way. This hypothetical procedure indicates uncertainty as regards the validity of the arguments in the specific context. It is striking that Vitoria abstains from concluding on the arguments given as just titles in relation to the actual conquest. He lists them as hypotheses without asserting whether they in fact apply in the specific situation.

An example is the second just title, if the other peoples “obstruct the Spaniards in their free propagation of the Gospel” (ibid.p. 285). To this, Vitoria remarks that this is a hypothetical case that is unlikely to have happened during the actual conquest: “All that I have demonstrated is that this method is lawful per se. I myself have no doubt that force and arms were necessary for the Spaniards to continue in those parts; my fear is that the affair may have gone beyond the permissible bounds of justice and religion.” (ibid. p. 286).

In the same way the other just titles are listed as possibilities that would apply if they were the case – but he does not assert that reality is in keeping with what he mentions as justified causes for the conquest. In addition, Vitoria mentions situations that evidently were not the case, as in the following passage with respect to the just title “of natural partnership and communication” (ibid. p. 278): “Since these travels of the Spaniards are (as we assume) neither harmful nor detrimental to the barbarians, they are lawful.” (ibid, p. 278).[23] Given that at this moment, in 1539, Bartolomé de las Casas’s writings and denunciations were widely known (furthermore Vitoria was a Dominican just as las Casas), and the conquests of Mexico and Peru had been consummated, it is a claim against well-known facts to state that the Spaniards had arrived to the New World without causing harm to the indigenous peoples. The parenthetical interpolation “as we assume” should thus be taken as a purely speculative presupposition without relation to reality. The same is the case when Vitoria, under the same title, discusses how the Spaniards should act when arriving to the indigenous peoples’ territories:

My fifth proposition is that if the barbarians attempt to deny the Spaniards in these matters which I have described as belonging to the law of nations (ius gentium), that is to say from trading and the rest, the Spaniards ought first to remove any cause of provocation by reasoning and persuasion, and demonstrate with every argument at their disposal that they have not come to do harm, but wish to dwell in peace and travel without any inconvenience to the barbarians. (ibid. p. 281).

This passage makes clear how Vitoria’s discussion is not based on facts but should be regarded as a theoretical reflection – given that the reality of the conquest diverged ostentatiously from this description.

In addition to this disturbing split between the historical facts and the assumptions taken in the relection, a closer look at the possible eighth just title only underscores the hypothetical aspect of this discussion. In the first place, Vitoria discusses a theme that he had already been through in the same relection. In the first part of De Indis, “On the dominion of the barbarians”, he considered that the Amerindians “are not in point of fact madmen, but have judgement like other men.” (ibid. p. 250). At that moment he, furthermore, asserted that the Amerindians “have properly organized cities, proper marriages, magistrates and overlords (domini), laws, industries, and commerce” (ibid. p. 250). However, now, in the discussion of this last uncertain title, he sustains that “they have neither appropriate laws nor magistrates fitted to the task. Indeed, they are unsuited even to governing their own households (res familiaris); hence their lack of letters, of arts and crafts (not merely liberal, but even mechanical), of systematic agriculture, of manufacture, and of many other things useful, or rather indispensable, for human use.” (ibid. p. 290).

The difference between the discussion of the Amerindians’ dominium in the first part of the relection, and that of the possible eighth legitimate title in the second part lies in the fact that the latter considers the possibility of a temporary tutelage for the good of the original inhabitants. The question in the former was whether they had power over their own territories (to which Vitoria answered that they did have). In any case, the hypothetical quality of this eighth title is all the more manifest if we bear in mind that it is a position that had been discarded two years earlier by Pope Paul III in the bull Sublimis Deus (1537).

After this , Vitoria moves on to the conclusions, which are also hypothetical:

The conclusion of this whole dispute appears to be this: that if all these titles were inapplicable, that is to say if the barbarians gave no just cause for war and did not wish to have Spaniards as princes and so on, the whole Indian expedition and trade would cease, to the great loss of the Spaniards. And this in turn would mean a huge loss to the royal exchequer, which would be intolerable (ibid. p. 291).

Vitoria thus finally acknowledges the actual political situation in relation to the speculations that he or others might carry out, that is, he seems to realize that nothing that he could write would significantly change the Spanish rule in the New World. This interpretation throws a self-ironic light on the words at the end of the introduction: “In conclusion, I should regard it as something not unprofitable and fatuous, but an achievement of considerable worth, if I were to succeed in treating this question with the seriousness which it deserves.” (ibid. p. 238).

At the end of the relection he furthermore adds three “replies”, of which the first two argue in favour of withdrawing from the conquered territories whereas the last one argues against it. The first reply maintains that Spain could leave the dominion of the New World without fear of losing benefits because trade would be just as lucrative as possessing the territories in question: “Look at the Portuguese, who carry on a great and profitable trade with similar sorts of peoples without conquering them” (ibid. pp. 291-92). What reason could Vitoria have had to add this comparison with Portugal if not because he considered that this is how Spain should have acted towards the societies encountered in the New World?

The second reply adds to the first one “that royal revenues would not necessarily be diminished” (ibid. p. 292) if Spain allowed the indigenous peoples to rule their own territories because trade would continue and the Crown would maintain its income through the taxes put on the mercantile exchanges. However, the last reply turns to the question of the converted Amerindians and argues that “once a large number of barbarians have been converted, it would be neither expedient nor lawful for our prince to abandon altogether the administration of those territories.” (ibid. p. 292). In this way Vitoria gives, in extremis,a concrete reason for the Spanish crown to maintain its possessions. At the same time, it is also clear that this last reply does not in fact represent a legitimation of the conquest but is rather a post festum acknowledgment of the state of things. In addition, Vitoria does not argue that a status quo should be maintained. He asserts that it would be wrong “to abandon altogether” these territories, thus entailing that a degree of political self-determination should be given to the Amerindian peoples.

Vitoria’s conclusion parallels that of the Controversia de Valladolid(referred to above) a decade later. The conquest cannot be justified, but Realpolitik has its own logic. In this way, Vitoria’s position is in line with las Casas’s in the sense that Vitoria – in spite of his ambivalences and speculations – argues the logic of religion and human dignity, not that of conquest and enrichment. It is remarkable how Vitoria upheld that the appropriate and just would have been the autonomy of the Amerindian societies; in this way he implicitly declared the conquest to be illegitimate. In support of this interpretation, a sequel to Vitoria’s relections can be mentioned.

De Indis was read in January 1539, and De iure belli in June that same year but, despite Vitoria’s indirect way of expressing himself, in November 1539 Charles V wrote a letter to the prior of St. Stephen’s Convent in Salamanca, where Vitoria lived. In it the king of Spain and emperor of the Holy Roman Empire wrote that he had been informed that “certain religious masters of [your] house have lectured upon and treated in their sermons and law courses Our holdings in the Indies.” He asserts that this is “harmful and scandalous”, and demands that all “writings that they have in their possession concerning this” must be sent to him. Finally, he also commands that in the future “without Our express permission they neither treat nor preach nor dispute upon the abovementioned, or cause any document touching upon it to be printed.”[24] This letter makes the mentioned conflict between religion and colonization explicit, and shows – in spite of state confessionalization – a clear contradiction between the logic of the state and the logic of missionaries and theologians.

Conclusions

In the above a clear separation or, rather, a confrontation has been shown between the colonization enterprise, carried out by the absolute monarchy, and the missionary impulse. It must be acknowledged that the Spanish crown for the most part regarded the missionary activities as an essential part of the colonization process (Reinhard, 2016, pp. 376-80). Nonetheless, had it not been for the missionaries’ understanding of the Amerindians as their neighbours in the Christian sense, the conquest of America would have been unquestioned.

From this perspective, las Casas and Vitoria appear as precursors of human rights advocacy, since it is clear that the first combat that had to be fought in this respect was against the absolute monarchies. In turn, once constitutional rule was established then it would be the state that would safeguard human rights principles – precisely that state apparatus that had been constructed by the absolute, confessional monarchs. Bartolomé de las Casas and Francisco de Vitoria may represent an initial moment as regards the development that would lead to the establishment of human rights as a legal principle. The confessional state colonized its subjects’ interiority in a parallel way as it colonized other peoples, but – as has been shown in the above – at the same time religion appeared as a critical voice able to liberate the souls of the individuals from state interests.

Subsequently, the idea of human dignity would become “the conceptual hinge which connects the morality of equal respect for everyone with positive law and democratic lawmaking in such a way that their interplay could give rise to a political order founded upon human rights, given suitable historical conditions.” (Habermas, 2012, p. 81). This moment had not arrived yet, but if las Casas and Vitoria are taken as examples of the subversive potential of religion, then a clear logic emerges as to why a later political thinker such as Thomas Hobbes considered that religion must be put under the competence of secular power. Hobbes’s intention was to prevent religion from playing a role in the political sphere (which is the ideal for most present-day Western states). The theologian has a moral and hermeneutical authority that may contradict secular powers – and at times even state interests both at national and at international levels. The intention behind the integration of religion within the state was to create a collective identity, to assure the loyalty of the subjects, and at the same time to subordinate religion to the state. Subsequent history has shown that the “best” solution is to marginalize religion altogether.[25]

The idea of the natural community of all humans is clearly related to the Judeo-Christian tradition since one of the latter’s basic tenets is that the entire human race has God as its origin. This idea of kinship is in marked contrast to the Hobbesian tradition which envisages the human being as a solitary individual, always in latent or open conflict with others. It is very symptomatic in this respect that Vitoria, in De Indis, asserts that “it is against natural law for one man to turn against another without due cause; man is not a ‘wolf to his fellow man’, […] but a fellow.” (Vitoria, 1991, p. 280). This last citation prefigures and rejects the Hobbesian idea of permanent war or conflict as the state of nature. The difference between the two thinkers is that Vitoria is guided by a paradigm that regards humanity as naturally engaged with itself as a collectivity, whereas Hobbes belongs to a more nihilistic and individualistic horizon that focuses on the individual’s fight for survival as the primary human condition.

Today, at the other end of the historical process that enthroned it, the territorial state is challenged in a number of ways. Present day multi-ethnic and multi-cultural societies find a considerable difficulty in integrating the many different groups that inhabit the present-day civitas. In a parallel way, today relations between states follow to a large extent purely contractual rules, with no reference to any foundation of shared values or notions.[26] Human rights are often seen as the secular basis upon which a universal, international order can be founded. At the same time, it is possible that, in the process of searching for a global Gemeinschaft (in a Tönniesian sense), a set of shared values might be reached if, rather than avoiding religion, the religious traditions were acknowledged as a common basis.[27] Religion might convey a relationship based on a sense of kinship and justice that in turn would compel the states to cooperate with a greater degree of commitment than the Western tradition of the social contract – and in this way a universal acknowledgement of human rights might be catalysed.

The author wishes to thank Mogens Chrom Jacobsen.

References

Barcia Trelles, Camilo (1928): Francisco de Vitoria, fundador del derecho internacional moderno.Universidad de Valladolid, Valladolid.

Beuchot, Mauricio (1976): El primer planteamiento teológico-jurídico sobre la conquista de América: John Mair o Major. La ciencia tomista, 103, pp. 213-230.

Beuchot, Mauricio (1994): Los fundamentos de los derechos humanos en Bartolomé de las Casas. Anthropos, Barcelona.

Böckenförde, Ernst-Wolfgang (2006): Geschichte der Rechts- und Staatsphilosophie: Antike und Mittelalter. Mohr Siebeck, Tübingen.

Casas, Bartolomé de las (1971): History of the Indies. Collard, A. (trans., ed.). Harper&Row, New York.

––– (1974): In Defence of the Indians. Poole, S. (trans., ed.). DeKalb, Northern Illinois University Press.

Cavanaugh, William (1995): ‘A Fire Strong Enough to Consume the House:’ The Wars of Religion and the Rise of the State. Modern Theology 11, 4, pp. 397-420.

Deckers, Daniel (1991): Gerechtigkeit und Recht: eine historisch-kritische Untersuchung der Gerechtigkeitslehre des Francisco de Vitoria (1483-1546). Universitätsverlag/Herder, Freiburg (Schweiz)/Wien.

Dussel, Enrique (2007): Política de la liberación, historia mundial y crítica. Trotta, Madrid.

Getino, Mtro. Fr. L. G. A (1933):Relecciones internacionalistas del Padre Maestro Francisco de Vitoria, vol. 1. Publicaciones de la Asociación Francisco de Vitoria. Imprenta La Rafa, Madrid.

Glendon, Mary Ann (2001): The Sources of ‘Rights Talk’. Some are Catholic. Commonweal, 12, pp. 11-13.

Gutiérrez, Gustavo (1993): Las Casas. In Search of the Poor of Jesus Christ. Orbis Books, New York.

Habermas, Jürgen (1987): The Philosophical Discourse of Modernity, Twelve Lectures. Lawrence, F. (trans.). Polity Press, Cambridge.

––– (2006): Pre-political Foundations of the Democratic Constitutional State?, in: Ratzinger, J.C. (Pope Benedict XVI) and Habermas, J. : Dialectics of Secularization. On Reason and Religion. Shuller, F.(ed.) and McNeil, B. (trans.). Ignatius Press, San Francisco, pp. 19-52.

––– (2012): The Concept of Human Dignity and the Realistic Utopia of Human Rights, in: The Crisis of the European Union. A Response. Polity Press, Cambridge.

Jacobsen, Mogens Chrom (2011): Three Conceptions of Human Rights. NSU Press, Malmö.

Morris, Christopher W. (1998): An Essay on the Modern State. Cambridge University Press, Cambridge.

Parish, Helen R. (1992): Las Casas en México: Historia y obras desconocidas. FCE, Mexico City.

Reinhard, Wolfgang (2016): Die Unterwerfung der Welt. Globalgeschichte der europäischen Expansion 1415-2015. C.H. Beck, München.

Schilling, Heinz (2008): Early Modern European Civilization and its Political and Cultural Dynamism, University Press of New England, Hanover.

Scott, James B. (1934): The Spanish Origin of International Law. Francisco de Vitoria and his Law of Nations. Clarendon, Oxford.

Simpson, L. B. (trans.) (1960): The Laws of Burgos of 1512-1513. John Howell, San Francisco.

Symcox, G. (ed.) (2001): Italian Reports on America, 1493-1522. Letters, Dispatches, and Papal Bulls. Repertorium Colombianum, 10. Brepols, Turnhout.

Thomas, Scott (1999): The Global Resurgence of Religion, International Law and International Society, in: Janis M. W. and Evans, C. (eds.): Religion and International Law. Martinus Nijhoff, The Hague, pp. 321-38.

Vitoria, Francisco de (1967): Relectio de Indis o Libertad de los Indios, in: Pereña, L. and Pérez Prendes, J. M. (eds.):Corpus Hispanorum de Pace, vol. V. Consejo Superior de Investigaciones Científicas, Madrid, pp. 2-133.

––– (1991): Political Writings. Pagden, A. and Lawrance, J. (trans., eds.). Cambridge University Press, Cambridge.

––– (1997): Vorlesungen II (Relectiones). Völkerrecht, Politik, Kirche.Horst, U.; Justenhoven, H.G. and Stüben, J. (eds.). Theologie und Frieden Bd. 8, Stuttgart/Berlin/Köln.

Weber, Max (2009): Politics as a Vocation, in: Gerth, H. H. and Wright Mills, C. (trans., eds.) : From Max Weber: Essays in Sociology. Routledge, London, pp. 77-128.

Endnotes

[1] This idea of social justice also is at the base of the present social doctrine of the Catholic Church, and it builds on the idea that justice, rather than wealth or economic growth, is the key factor for the common good.

[2] Beuchot draws this Thomistic line from St. Thomas Aquinas’ definition of justice to Vitoria’s reflections on social organisation in his “De potestate civili”. Belonging to this same tradition, las Casas takes the most specific consequence of this thinking in his writings when he denounced the subjection of the Amerindian peoples.

[3] In Spanish a long series of scholarly contributions exist that relate las Casas and Vitoria to the human rights question, but – to my knowledge – the notion of the confessional state has not been included in this discussion until now.

[4]“[C]loselyconnected with the emergence of the confessional culture and its impact on early modern state formation was its influence on the rise of political identities and nation building. In almost all the countries of Europe, and among almost all the peoples, the formation of a confessional and cultural-political identity was closely connected in time and content. This connection shaped profoundly, and still shapes, the cultural and political profile of the individual nations of Europe.” (Schilling, 2008, pp. 20-21).

[5] The creation of state-churches in the Protestant countries was mirrored in the Catholic nations by the transference of ecclesiastical powers to the monarchy. In Spain the patronato realentailed that the king in many respects became the highest ecclesiastical authority in the territories under his rule.

[6]At that moment the future Spain was a personal union of the kingdoms of Castile and Aragon.

[7] The sermon is reproduced by las Casas (1971, pp. 183-84).

[8] Cited in Gutiérrez (1993, p. 34).

[9] The Laws of Burgos of 1512-1513. Trans., with an introduction and notes, by Lesley Byrd Simpson, San Francisco: John Howell, 1960.

[10] Cf. Italian Reports on America, 1493-1522. Letters, Dispatches, and Papal Bulls, Repertorium Colombianum vol. 10, ed. Geoffrey Symcox, Turnhout: Brepols 2001.

[11] las Casas reproduces the Requerimiento in his History of the Indies (las Casas, 1971, pp. 192-93)

[12] Las Casas’s first work, De unico vocationis modo, has precisely as its main argument that conversions must be attained by peaceful persuasion and not by violent means.

[13] This document is commented on by Gutiérrez (1993, pp. 317-19).

[14] Although not in the same way, the notion of natural servitude, borrowed from Aristotle and applied to the natives, was used by the Scottish theologian John Major as early as 1508 (he was the first scholar in theology to address the question of the Indies), cf. Beuchot 1976. Similarly, Palacios Rubios used it as an argument during the Junta de Burgos.

[15] Dussel follows in the wake of Edmundo O’Gorman’s seminal work La invención de América (1958) [The Invention of America] in the sense of regarding the European conquest of the Americas as a central element of modernity.

[16] A repartimiento differs slightly from an encomiendabut the conditions for the natives are the same.

[17] Gutiérrez also notes las Casas’s ability to put himself in the position of the natives. This becomes clear when las Casas questions whether the thinkers who legitimize the oppression of the Amerindians would approve the inverse situation: “I in no way think that John Major himself would tolerate a situation so impious and brutal if he were an Indian.” (Cited in Gutiérrez, 1993, p. 87).

[18] This title alludes to the native’s paganism and human sacrifices.

[19] This argument is clearly directed against the Requerimiento.

[20] 1 Cor. 5: 12, cited in Vitoria(1991, p. 260).

[21] Matt. 16: 26; Mark 8: 36; Luke 9: 25, cited in Vitoria (1991, p. 277).

[22] This right to travel and trade would become an important theme for later theorists of international law.

[23] Translation modified. Pagden’s and Lawrence’s exemplary edition and translation reads “as we may for the moment assume”, but neither the critical edition of De Indis in the Corpus Hispanorum de Pace, nor Getino’s facsimile of the first two printed editions of this relection, nor the German bilingual edition (1997) allow for anything else than “as we assume” since they all read “ut supponimus”.

[24] The letter appears in Vitoria (1967, pp. 152-53). The cited extracts appear in translation in Gutiérrez (1993, p. 348).

[25] William Cavanaugh (1995, pp. 397-420) has argued that the modern territorial state in fact was interested in eliminating the link to the religious institutions since they precisely represented a potential source of contradiction.

[26] It is understandable that some cultures see in the current way of organizing international society a repetition of the colonial justification from Sepúlveda onwards, namely, that the superior cultures have the right and even the obligation to impose their civilization upon less “developed” groups. Once again the West appears as the part that sets the rules of the game.

[27] This is proposed by Scott Thomas (1999). The present contribution shows an example of how the religious tradition is not in contradiction with human rights (in fact it lies at their origin). Furthermore, recent history of human rights confirms this because the influence of the Latin American countries and, through them, the doctrine of the Catholic Church, in promoting the Universal Declaration of Human Rights of 1948 is another example of how institutionalized religion can play an active role in advancing human rights (cf. Glendon 2001; Jacobsen 2011, pp. 338-39).

The Human Right to Freedom of Religion in the Polish Education System

18/09/2018Conference proceedings (multiple non-blind peer review)education, ethics, freedom of thought, human rights, religionMagdalena Tabernacka

Legal Guarantees for Freedom of Religion

The legal provisions in force in Poland set up standards for respecting freedom of and from religion. These provisions apply to all persons who find themselves within their territorial reach, regardless of whether they are citizens of Poland or other states or stateless persons residing in Poland. The standard of religious freedom is also not affected by the gender, ethnicity, race and age of a person. So it can be stated that the Polish national law and the international legal system serve as the basis for protecting the human right to freedom of religion and for exercising this freedom in educational settings.

The provisions of international law, to which Poland is a party, establish legal guarantees as to religious freedom, especially the freedom of worship and religious practices. Regarding the relation between education and people’s opinions about religion or in particular the lack of such; quite apart from the provisions applicable to all people regardless of their age, the regulations of the Convention on the Rights of the Child, and articles 14 and 24 of the European Charter of Fundamental Rights are of special importance.

Fig. 1 The international legal system safeguarding the freedom of religion and from religion in Poland

The system of national law in Poland guarantees the freedom of religion and the freedom from religion, yet the analysis of the legal system leads to the conclusion that Catholicism is the religion of the majority, which brings about particular consequences and risks for the human rights sphere.

The Polish Constitution fully respects the international standards of human rights protection as regards the freedom of belief and religion. This includes prohibiting the public authorities from commanding a person to disclose their philosophy of life, religious convictions or beliefs. The right to freedom of and from religion is guaranteed by Article 53, para. 1 of the Constitution, which states that “freedom of conscience and religion shall be ensured to everyone”. As stated in para. 2 of the same article, “freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing of rites or teaching”. What is more, according to para. 6, “no one shall be compelled to participate or not participate in religious practices” and “no one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or belief” (para. 7).

Moreover, Article 25 of the Constitution places on the public authorities the obligation to remain impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life.

Legal Regulation of Matters of Belief in the Spheres of Education and Upbringing

The Polish constitution guarantees the right of the parents to ensure their children a moral and religious upbringing and teaching in accordance with their convictions, while taking into account the freedom of conscience and belief of their children. As stated in art. 48, para. 1 of the Constitution,”Parents shall have the right to rear their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of the child as well as his freedom of conscience and belief and also his convictions”. In addition, according to Art. 53, para. 3, “Parents shall have the right to ensure their children a moral and religious upbringing and teaching in accordance with their convictions”. Parents thus have a subjective right towards the state with regard to their views on religious or lay upbringing of their children, although this right is limited and counterbalanced by the child’s right to have their religious convictions and beliefs respected.

There is, however, one provision in the Polish Constitution, which allows religion to be taught at school. According to Art. 53, para. 4, “the religion of a church or other legally recognized religious organization may be taught in schools, but other people’s freedom of religion and conscience shall not be infringed thereby”. The Catholic religion is not mentioned explicitly, but the Constitution states that the provision applies to a religion that is legally recognized. At present, there are 178 registered operational religious communities in Poland.

As follows from the case law of the courts, the right of the parents to raise children in the spirit of a particular worldview does not mean that the knowledge transmitted at school will be consistent with this worldview. Such an opinion was expressed by both the Polish Constitutional Court (Judgement of the Constitutional Court of 27 May 2003, on the provisions of section 97 paragraphs 3 and 4 of Act No. 127/2005Wyrok Trybunału Konstytucyjnego z dnia 27 maja 2003 r., ref. K 11/03, OTK-A 2003, No. 5, pos. 43) and the European Court of Human Rights (Judgement by the ECHR of 7 December 1976 in the case of Kjeldsen, Busk, Madsen and Pedersen v. Danemark application No. 5095/71, Judgement by the ECHR of 13 September 2011 in the case of Dojan and Others v. Germany, application No. 319/08). The case becomes more problematic; however, when children only learn about one religious worldview at school, something which comes close to indoctrination, or when it actually takes the form of intentional indoctrination where religious knowledge is passed on while participating in the religious practices of one particular tradition and faith.

The provisions that have significant bearing on the issue of human rights in education as regards the problem of religion at schools are mainly affected by the Concordat – an agreement signed in 1993 between the Republic of Poland and the Vatican. Poland has pledged that public schools and kindergartens will organize classes in Catholic religion and grant the Church the right to decide on its teaching programs, textbooks, and the persons teaching religion – including secular catechists, priests, monks and nuns, who have been granted permission to teach by the diocesan bishop.

The anti-discrimination provisions and the provisions securing the rights of the followers of other religions within the educational system and beyond are also in effect. Discrimination on religious grounds in Poland is forbidden according to the provisions of the Constitution and international law. However, victims of discrimination are not able to benefit from the legal measures provided by the Act implementing EU regulations, pertaining to equal treatment and the pursuit of compensation on its basis. This Act only prevents unequal treatment in education on account of race, ethnic origin or nationality (Art. 7).

It can be concluded that the Polish law introduces the standards of religious freedom, but it should be considered whether this standard is not a façade which hides the lack of equality. Because justice is not a dictate of the majority, the effectiveness of anti-discrimination instruments and the actual existence of response mechanisms for possible instances of minority discrimination need to be scrutinized and evaluated.

Dilemmas Pertaining to Teaching Religion in Public Educational Institutions

The main issue to consider when analysing the relation between education, religious matters and ethical principles is whether religion and ethics should be taught at schools and if so, how. Related questions are, first of all, whether teaching religion should also include participating in religious practices. The second question is whether the State should be neutral in terms of worldview and whether ethical issues should be taught through the lens of the legal protection of human rights. And the third question is whether religious matters should be discussed from the anthropological standpoint so that children could learn about the various belief systems that exist in the world.

It seems that these issues have long been resolved in the “old” European Union countries. Nevertheless, Poland is a peculiar state in which, after almost 30 years of teaching religion in public schools, we begin to ask these difficult questions anew. Poland is relatively uniform in terms of cultural and religious convictions and practices. There is a strong and increasingly stronger dominance of Catholic discourse in the Polish culture and public life. But the matter here is not so much about the numbers than it is about one of the most important issues in democracy. It is about honouring the rights of the minority to be respected in their beliefs and values and modes of social functioning. An analysis of the influence that religion and ethics have had on the society is difficult because everybody has a different value system. Values are part of human identity. The objective assessment of these problems is difficult in the actual circumstances. From the point of view of protecting human rights, it seems fit to evaluate the case of teaching religion in the context of law, which reflects certain universal values, developed and cultivated by the previous generations who had to find solutions to these problems before.

How Religion, Especially Catholic, entered into the Polish Education Institutions

The current regulations allow for teaching any religion that is registered in Poland, but originally the only religion taught in schools and later also in pre-schools was Catholicism, which found its way there due to pressure from the hierarchy of the Catholic Church. In order to fully understand the impact of the compulsory lessons in religion have had on the issue of human rights protection, the cultural and political circumstances behind the introduction of religion into the educational system need to be explained first.

Before religion became a school subject, children of the Roman Catholic faith could attend such classes at their parishes. These lessons were held in the so-called small classrooms, which looked like traditional classrooms, but were located either in the presbyteries or one of the parish buildings. Children from different religions either took non-institutional lessons or no lessons at all. Ethics was partially covered in the civic education course. But according to my experience, ethical dilemmas were discussed broadly in literature lessons while studying the Polish literary canon.

Religion was introduced into the Polish school system in September 1990, by virtue of a directive issued by the Minister of National Education on the 3rd of August 1990. At the time the act was illegal – as it would be illegal today. This was done at the express request of the bishops, who passed an official resolution regarding the matter at the Polish Bishops’ Conference and they threatened the Government to take legal action and organize social protests.

We should remember that Poland was in a very difficult situation at the time. The legislative power was held by a special constitution of the Sejm called the “contract Sejm”. It was made up in half from the Communists peacefully giving up power and in half of the Deputies chosen in a free election. The hyperinflation was raging. The Soviet Army was still stationed in Poland. The government wanted to defuse the social situation and was afraid of riots on religious grounds – even more so than in the Socialist period, the Church was heavily involved in the resistance against the Soviet Union and the Communist regime. It was at this moment the stereotype of the Polish-Catholic patriot was solidified. The Government took the opportunistic stand. They wanted to prevent further destabilization of the State and ensure a win in the upcoming parliamentary elections, so the blackmail happened to be effective.

One of the Government officials at the time, Jacek Kuroń, admitted: “I thought that we had avoided a religious war. But I was wrong. At once, critical voices were raised about trying to make Poland a religious state, which was all the more valid since we had broken the law – we, who talked so loudly about making the new Poland a state of the law!” (Kuroń and Żakowski 1997: p 182). It is often claimed that religion was sneaked into schools through the back door (e.g. Agnosiewicz 2002, Słowik and Beczek 2015). Introducing religious education classes were not approved by everybody and from the beginning it stirred many doubts related to civil liberties and human rights. This chart presents the formal stages of introducing religion into Polish schools (fig. 2 Chronology of educational curricula):

The decisions of the Government met with formal objections from the Ombudsman. Ewa Łętowska objected to the violation of the law, including the Constitution, provisions concerning the freedom of worship and laws regarding education. This was to little avail, as the Constitutional Court did not react accordingly. It stated, for example, that “the secular and neutral nature of the State” may not be a justification for teaching religion in public schools, but it also cannot be a justification for not allowing it to be taught. Legislative measures to introduce religion into schools were undertaken in 1992. Again, the Ombudsman raised an objection, which again was dismissed by the Court. In the end, grades for religious education began to appear on the school-leaving reports.

While the actions that led to the introduction of religion into schools in 1990 could be described as a blitzkrieg because they came as a sort of shock to the society, soon afterwards a heated debate began, which continues pretty much until today. Below are some exemplary quotes from the statements made by the Church officials and their supporters. These statements maintain the belief that religion is an expression of freedom from Communism and that Catholicism is linked to patriotism. As such, they stigmatize attitudes that do not adhere to the Catholic worldview. Jacek Kuroń cites the opinion of the bishops who commented on introducing religion into the Polish schools’ curricula. (Żakowski and Kuroń 1997: p.180 – 181.) In their opinion, ”Believers have the right to learn and develop their faith and since it is not possible to separate education from upbringing, schools are the right place for religious formation”. Moreover,”Return of religion to schools means the reparation of the harm the Polish society suffered under totalitarian rule that sought to banish God from people’s lives and to deprive Poles of their national identity”. The bishops also claimed that their fidelity to Christ’s teachings obliges them to preach and remind the entire world that schools are a natural place for evangelization. The matter was also commented upon by priests; the following is a representative example: “Freemasonry and other unbelievers, under the guise of freedom and neutrality, have suspended any relations with the living God” (Bartnik 1993, see: http://www.racjonalista.pl/kk.php/s,434).

Different argumentswere expressed by secular circles and those concerned about the “totalitarian” character of teaching just this one religion in schools. Some of these statements were made, for example, by the members of the Polish government at the time. They draw attention to the conflict-inducing nature of such actions and the threat that they pose to the freedom of persons who do not want to participate in religious education or who will only participate in them for fear of explicit or implicit discrimination and pressure.

Even then, technical problems as to the organization of these classes are signalled, which, as it turns out, has led to actual discrimination. Jacek Kuroń pointed to the negative implications of the fact that the state will teach religion under statutory coercion and he tried to salvage the situation of non-Catholics, stating that voluntary consent has to be a positive, not negative, decision for parents and pupils. He tried to substantiate his opinion with a claim that “introducing religion into schools threatens to create tensions and conflicts in many environments, not only between adults but also children”[1]. On the other hand, the then deputy minister, Anna Radziwiłł argued that universal Christian ethics should be part of education, but religion should not be taught as a school subject, because it is something greater. The representatives of the scientific and artistic circles and journalists then sent an open letter of protest to the Polish President, Prime Minister and The Minister of National Education, against the plans to introduce compulsory religious education in schools, in which they argued that “the initiative of the Ministry is aimed at turning state schools into denominational school which is the expression of undemocratic tendencies. They claimed, and rightly, as it turned out later, that ‘the choice: religion or ethics will be a false choice, given the Polish realities’.”[2]

Since 2007, grade in religion classes is placed on the school certificate and the Church has endeavoured to make religion one of the matura subjects(see: Wiśniewska 2016, see: http://wyborcza.pl/1,75398,20126283,religia-na-maturze-mozliwa-w-2021-r-kosciol-dogadal-sie-z.html?disableRedirects=true). Maturais a Polish state exam taken at the end of secondary school giving access to the University. Long-term observation of the political scene allows to conclude that the right-wing groups promised to acknowledge religion as one the matura subjects in exchange for the Church’s support for their candidates in the election.

The Importance of Catholic Religion in Poland

To understand the Polish case, one should be aware of how important the Catholic religion is in Poland as compared to other religions or atheism and what is the status of the ecclesiastical institutions in our country. Catholicism is very popular and, in a sense endemic here, as a worldview. Which is another reason why religious education (RE) has been taught at schools for about 30 years already.

The Catholic Church has an extremely well-developed and organized administrative structure, covering the entire Polish territory with a broad network of territorial units: parishes, dioceses, archdioceses and metropolies.

Fig. 3 The administrative structure of the Catholic Church in Poland and basic statistics. The Central Statistical Office of Poland Information note prepared in partnership with the Institute for Catholic Church Statistics SAC, Warsaw, 2017 (https://stat.gov.pl/files/gfx/portalinformacyjny/pl/defaultaktualnosci/5500/7/1/1/struktura_administracyjna_kosciola_katolickiego_w_polsce.pdf)

Clearly, as far as human capital and organizational support are concerned, the organization of RE classes in public schools and kindergartens does not pose any problems to the Catholic Church, but given the situation, these classes could equally well be held at the parishes.

It is indeed difficult to assess how many Catholics there actually are in Poland, how many atheists and how many people of other beliefs. Official government statistics are based on data provided by religious associations, but other statistics are also considered. The authors of the report (cited below) observed a 3,2 million discrepancy in the number of Catholic Church followers, depending on the counting method. It should be noted that the Polish population is about 38 million.

According to the report, the statistics as of 2017 are as follows:

10 248 parishes,
30 925 priests.
33 214 800 believers – according to the Church.
On average, there are 3241 followers in each parish and 1047 followers for one priest

The notion of a follower does not reflect fully the complex human relation to faith and religious duties. For this reason, the Church and public statistics do not indicate the actual number of practising followers, but rather the number of baptized persons. Thus, secular circles often allege that the official statistics, due to the opportunism of the Church officials, are highly inaccurate because they are based on the numbers provided by different religious denominations and their presentation is also not fully reliable.

In the general census, conducted in 2011,[3] 95% of respondents declared Catholic faith. As for other beliefs, 0,44 % of respondents declared the formal membership in the Russian Orthodox Church, 0,39% in the Jehovah’s Witness Association, 0,20% in the Evangelical-Augsburg Church, 0,9% in the Greek Catholic Church, 0,8% in the Pentecostal Church, 0,03% in the Mariavite Old Catholic Church, 0,02 in the Polish-Catholic Church and 0,2% in the Baptist Church. 0,12% respondents declared belonging to other religions and 2,41% declared themselves to be non-believers. These numbers have been obtained through a census that took into account only 20% of the households in Poland. What is more, 7% of the respondents refused to answer the question and for 1,6% it was impossible to obtain data. It is thus uncertain whether these statistics reflect actual social tendencies. What is also important here is that people who have been raised in some religion or just in certain social conditions, in which the existence of a higher power is implied, may not be able to declare atheism, even if they do not practice any religion at all. “They believe just in case, because you never know how it really is, and you wouldn’t want to mess with God.”

As a result, data showing that there is so great a domination of the Catholic worldview in Poland is not fully reliable. Still, the fact that it is presented in such a manner may lead to the occurrence of a phenomenon known as the Noelle-Neuman’s spiral of silence. According to this theory, people refrain from presenting their views when they believe that these views are not in agreement with the view of the majority (Noelle-Neuman 1974: p. 43-51).

Nevertheless, Catholic religion in Poland is dominant and this is visible in all spheres of social life. Many people go to church every Sunday. Baptisms, weddings, communions and funerals according to the Catholic rite are also common. This can be seen as an element of folklore, but also as the result of the strong, position of the church in Poland, which has been built over the last decades. Catholic priests are present during many state ceremonies and they bless newly constructed public buildings. Characteristic of the Polish landscape is spontaneously erected and maintained chapels. Not only in the villages, which were commonly conceived as the bastions of the traditional approach to life and religiousness, but also in the cities (cf. below: Pic.1 On the left is a rustic chapel in Bukowina, near Kudowa, on the right, a chapel in the Grochów District in Warsaw – the capital. Photo: M. Tabernacka).

It should also be noted that the Catholic Church receives considerable support from the public authorities. This support may be financial, organizational or institutional. An interesting example of this tendency is the Polish Post, the offices of which look like a combination of a devotional shop and a little rustic store that sells socks next to rosaries. Both pictures were taken in a Wrocław post office. Books that can be seen here are quite consistent in their subject matter. Some of them describe events from the history of Poland and the Polish people, but from a rather nationalist standpoint. There are also books written by priests and culinary books written by nuns and religious literature for children. Although “The Danish Way of Parenting” can also be spotted (cf. Pic.2. Photo: M. Tabernacka).

A certain counterbalance to these tendencies is provided by people with a secular outlook and non-Catholic religious beliefs and the actions they undertake in the public sphere. One example of such actions is the “School is not Church” social campaign run by the foundation called “Freedom from Religion”,[4] whose poster (with the same inscription) is shown on the photo below (Pic. 3. Photo: M. Tabernacka 2017).

The campaign’s authors insist on the secularization of the school and they are opposed to the domination of the Catholic religion, pointing out that the ever-presence of its symbols in schools is a symbolic violence that affects students from religious and non-believer minorities during the long years of education. The same foundation also promotes the freedom of worldview and the separation between the church and the state, which is guaranteed by the art. 25 of the Polish Constitution.

Both the Polish Constitution and a separate legislation ensure the separation of church and state. However, a number of legal regulations guarantees a privileged position to the Catholic Church and teaching religion in schools is just one of its consequences. About 30 years of publicly teaching RE in Poland may be one of the key factors determining the current escalation of xenophobic attitudes among young people who hide behind a specific perspective of patriotism that is closer to nationalism and religious ethnocentrism.

What Is the Teaching Practice of Religion in Polish Schools

According to Polish provisions, children can attend RE classes in all types of primary and secondary public schools. These can be in Catholic religion or any of the minority religion classes. Those who are not willing to be educated in religion can attend ethics classes if these are organized at their schools. If these are not organized, they can attend neither of the classes, at least according to the general principles derived from the law. But it is the practice of teaching religion in Polish schools that raises doubts about the preservation of human rights.

Legal regulations in Poland guarantee the freedom of religion and non-discrimination on the ground of religion. The problem lies, however, in the manner they are executed and in the specific social climate, which makes public authorities and certain individuals more inclined to opportunism towards the aspirations of the clergy and the Catholic community.

Attending or not attending RE has important implications for the Polish learners, because it affects the assessment of their overall school performance. The following diagram illustrates the specifics of organizing RE and / or Ethics in Polish schools in relation to the grades that learners can obtain (fig. 4 Organization of RE / Classes):

The organization of RE / ethics classes are regulated by the Regulation of the Minister of National Education of 14 April 1992 (Journal of Laws No. 36, item 155, as amended, the latest amendment of 1 December) regarding conditions and methods for teaching religion in public schools and kindergartens. According to this regulation, learners attending RE / ethics can get two grades, one grade or no grade at all. These grades count in the grade average, which makes them important for the assessment of the learners’ overall performance. If either ethics or religion are chosen, presence is mandatory just as for any other classes, so it may affect the grade for conduct.

If there are 7 pupils in a school class or a kindergarten group who want to attend religion, the school or kindergarten is responsible for organizing such classes. If there are fewer than 7 pupils in a class or group, combined classes should be organized. If there are fewer than 7 pupils interested in attending RE classes in a school or kindergarten, the municipality is responsible for organizing classes for interschool or inter-kindergarten groups or at a religious education facility. The municipality is obliged to organize them even if there is just 1 such learner. The case is similar with ethics. In practice, the number of children attending ethics classes is small, even if it has increased in the last few years. The statistical data is presented below (fig. 5: Fig. 5, 2015 Annual Report of the Ombudsman. Source: M. Tabernacka):

Access to ethics classes in Poland was only taken seriously after the 2010 judgement of the European Court of Justice in Strasbourg in the case of Grzelak vs. Poland (Judgement of the ECHRights of 15 June 2010 in the case of Grzelak v. Poland, application No. 7710/02). The school authorities’ failure to organize ethics classes for a child who refused to attend RE classes was taken by the Court as an infringement of the articles 9 and 14 of the Convention. Nonetheless, even if ethics classes were formally guaranteed in schools, there were often doubtful cases from the standpoint of freedom of religion and conscience. There were some cases in Poland, where ethics classes were conducted by the same people who taught religion and on the basis of textbooks written by some Catholic priest or parents who opted for an ethics course were met with such proposals for these classes. Thus, when it comes to the actual safeguarding of human rights, the implementation of the provisions pertaining to teaching religion and ethics actually leads to the infringement of the standards for protecting human rights in Poland.

Teaching minority religions in Polish schools are, in fact, very rare. Under the current provisions in force public schools have the obligation to include the grade from any religion taught outside of the school system on the school-leaving certificate. The Ombudsman’s report showed that quite frequently the school authorities did not recognize such grades. The followers of minority religions who want to organize RE classes at schools often meet with a refusal by these authorities, their passivity or institutional obstacles, such as inconvenient hours (The 2015 RPO Report). The following chart illustrates the Polish educational practices for teaching minority religions (fig. 6):

The presence of the Catholic religion in schools goes far beyond the scope of an ordinary school subject in what regards the substance and organization.According to the law, two classes in Catholic religion should be held each week, or if it is only one, then the local bishop should give his permission. During the lessons, the pupils learn about the principles of the Catholic faith, but they also participate in religious practices, for example the classes tend to start with prayers. In fact, lessons are the combination of religious practices and theory from the textbook and workbook. This may pose a problem if schools cannot provide care or an alternative place to stay during the lessons to children who do not want to participate in RE and have to sit in class with other children. The organization of the Catholic holidays and retreats also calls for additional study breaks. The research conducted among children attending these lessons reveals that some of their contents verge on indoctrination. Children are shown propaganda videos (about miracles, conversions, etc.).

It is important to note that in Polish schools it is assumed that everyone will attend religion, but the regulations in force since 2014 (Journal of Laws of 1992 No. 36 item 155) explicitly state that religion is organized on the parents’ request or the learners’ themselves, after they have come of age, which stems from para. 1 of this regulation. The said request should be made in writing. The above chart presents the results of a study carried out by the Ombudsman in 2015.In many schools surveyed by the Ombudsman and schools which I researched, RE was simply a part of the agenda for all learners to attend by default. There was no practice of launching it on request and parents were not informed that such a request was a condition for the attendance of their children to such classes. Religion is simply placed on the class schedule, most often at a time convenient for the priest or catechist. The report that concluded the Ombudsman’s survey stated that in 70.4% of the schools surveyed, new students were automatically directed to take RE classes.If the learner didn’t want to participate, they could (or their parents could) report this orally (41.4%) or in writing (29%), 42% of principals explicitly stated that the schools they run do not inform learners and parents about the right to choose minority religion or ethics classes.

Both having a minority religion and ethics classes organized often require a great deal of determination from the learners and their parents, as these lessons often take place outside of school, in the so-called Inter-school classes and in inconvenient hours.

The law guarantees religious denominations and parents who adhere to specific beliefs the possibility to set up their own schools and such schools indeed exist. Parents representing these specific views can send their children to such schools without any obstacles, as it is also guaranteed by the law that a religious denomination can teach religion within their own structures.

The teaching of religion in Polish public schools points to numerous areas in which the right to non-discrimination and the freedom of worldview could be threatened. Economic determinants of state functioning considered in the light of the social justice principle, e.g. fair avocation of funds collected through taxes or total costs of the Polish education system are also relevant here. The law should not only safeguard certain rights but also provide mechanisms to counteract inequalities. Only such a legal standard can guarantee the protection of human rights in a given sphere. The Ombudsmanclaims that the current Polish regulations do not protect the various religious and social groups sufficiently. The persons belonging to the Roman Catholic Church have a privileged position: not so much due to legal regulations, but due to tradition, cultural practices and pragmatic considerations. The Ombudsman’s report points to the existence of hidden or passive denial of the rights of persons and groups representing religious or worldview minorities. The Ombudsman believes that legislative actions are less important than soft educational measures, appropriate mass media communication and a long-term policy for social education, which can bring about cultural changes (The 2015 RPO Report: p. 6-7).

The analysis of the legal provisions allowed me to distinguish a number of legal provisions pertaining to human rights in the field of education. They can be classified into three groups: first, freedom of religion, second, prohibition of discrimination affecting universal right to education and, third, provisions protecting the child’s mental and physical well-being. The rules in question will now be presented within the social context related to the presence of religion in the Polish public schools.

Freedom of Religion and Freedom of Thought

The principle of freedom of religion and belief is a fundamental human right, which obviously applies not only to adults, but also to children. It includes, among others, freedom to choose one’s religion, including the lack of it. One of the most important achievements of our civilization in the last 150 years has been the gradual refinement of the societies, which brought about the recognition of children’s subjectivity. As regards the guarantees for respecting human rights, another fundamental issue is the right of children to express and to demand respect for their views, including their religious views.

These standards are binding in secular countries with democratic systems. Any infringement of the principles regarding the freedom of worldviews and the freedom to choose one’s religion calls into question the actual secular and democratic nature of a state. Poland, according to the current Constitution, is both a secular state and a state following the model of democratic ruled by law.

It is extremely important to ensure that the prohibition against compelling anyone to participate in religious practices is complied with. This issue is related to whether RE will be taught as a school subject, whether it will aim to familiarize students with different religious systems and whether it will entail participation in religious practices. During the Religious Education lessons it may occur – and in Poland this is commonplace – that children say their prayers. Given the compulsory participation in such lessons this can be regarded as a violation of human rights.

Participation or non-participation in classes of religion in public school is an expression of a specific worldview or a particular religious or non-religious option. Even if a person who chooses one of these options does not intend to deliberately affirm anything, their choice can still become the subject of social evaluation. What is more, the consequences of making the choice and having it formally disclosed by placing the RE grade on the school certificate, are permanent, which further increases the risk of human rights infringement in the future and is already such an infringement itself. A related problem regards the assessment of the student’s participation or non-participation in RE within the context of the other classes that the school provides. According to the experts, placing a dash instead of a grade on a school certificate of a student who didn’t attend RE / ethics is regarded as illegal if ethics classes were not organized by the school. This violates the constitutional principle of not having one’s religious convictions disclosed and represents a breach of the right to privacy, guaranteed by Art. 18 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Olszewski 2010:p. 189-190).

One characteristic of teaching RE in Poland is that public education is subject to certain normative regulations that stem from a normative order that is not “public”. This also affects persons who are not willing to conform to this order. The public and legal relations of the state’s citizens should not be bound by regulations other than those provided by public law. This is one of the fundamental standards of democracy. The public law and its execution should thus not lead to the state of coercion, in which the process of performing public activities, the situation of individuals is affected by religious norms. Even if public law allows to be exempt from the operation of these norms, the actual social situation of an individual opposing the active, or even silent, will affect this individual’s right to religious freedom and freedom of convictions, which should be explored with regard to one more factor. As noted by J. S. Mill, “social intolerance, kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion”. According to the author, social stifling of “heretical” opinions allows to maintain the status quo of the intellectual climate, and to provide for comparative order, at least for some time. Yet, the price society has to pay for such an intellectual pacification is “the sacrifice of the entire moral courage of the human mind” (Mill 2012: p.128-129).

Freedom of religion and belief in the context of introducing religious education into schools should also be examined from the standpoint of the principle of proportionality operating in Poland by virtue of Art. 31 para. 3 of the Constitution. According to this regulation, any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights. None of the conditions it outlines justifies restricting the scope of the principle of freedom of religion and belief, atheism included. Perceiving “minority” worldviews as immoral or “threatening” to the public order by the mere fact of their existence would be against the universal values expressed in the Universal Declaration of Human Rights, including the right to freedom of thought and religion, guaranteed in Art. 18.

Even more so, that the preamble of this convention frames its underlying rationale as the following: “whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Big words from the preamble, stating that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people”, and that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” should also apply to the legal obligation to ensure non-discrimination of religious minorities and persons professing no religion.

Ban on Discrimination

Discrimination related to teaching Catholic religion in Polish schools is thus a structural problem involving both specific organizational problems and organizational culture of the Polish educational establishments in general, derived from the broader social climate. This happens when the provisions create a condition in which, depending on the specifics of their implementation, discrimination will be either present or absent.

One example is the regulations of 1992 concerning the organization of RE which place the school principal in a very difficult predicament from the praxeological point of view. According to paragraph 1 of this article, lessons of religion in schools and pre-schools should be organized at the explicit request of parents or pupils, after they have reached the age of majority. But, as stated in para. 2, these lessons should be included into class schedules. Enrolment requests for school or kindergarten pupils should be made in writing. It is not technically feasible in multiple-class schools that RE will always be scheduled as the first or last lesson on a given day. These classes are often planned to take place in between other classes, which brings about serious logistical problems related to ensuring proper care to children who do not participate in them. This, in turn, causes schools to resort to measures resulting in discrimination of such children. It is also worth considering that statistical surveys conducted among both believers and non-believers conclude that the vast majority of the population (81%) thinks that RE classes should be scheduled either at the beginning or at the end of the school day so that persons who do not participate in them do not have to wait between lessons. Only one in eight persons surveyed (12%) does not endorse such a solution.[5]

An important question regarding the problem of discrimination is the question whether participation in RE is actually coerced. It emerges from my own research and the Ombudsman’s report (2015) that it is commonly “expected” in schools that all the school or kindergarten pupils will attend RE. Therefore, the catechists will commonly just enter the classroom and begin to conduct classes for all the children that are present. Also, contrary to the provisions of this Act, there are cases in which a written declaration of a child’s non-participation in RE classes is needed. At times, participation declarations ready to be signed were distributed among children at the beginning of a school year. Occasionally parents were required to hand in participation or nonparticipation declarations along with first-class admission forms. “Freedom from Religion,” foundation protested against such instances addressing the school management (e.g. the management board of the Integration Primary School No. 11 in Kielce), asking them to immediately change the first-class admission policy and remove any inquiries as to the candidates’ intention to attend or not attend RE. These inquiries were seen as having no legal footing and clearly violating Art. 53, para. 7 of the Polish Constitution as well as the provisions of educational law.[6].

The same tendency was pointed out in the RPO report (2015). On the other hand, as shown in the surveys conducted among the school principals, the practice of organizing RE classes for first graders is very routine. In 70.4% of the schools surveyed, new students were automatically directed to take Catholic religion classes. Only if the learner didn’t want to participate, could they (or their parents could) report this orally (41.4%) or in writing (29%). The active and prior, oral or written, declaration concerning the classes the student wishes to attend is taken by only one out of ten students (or their parents). Almost half (42%) of the principals surveyed explicitly stated that the schools they run do not inform learners and parents about the right to choose minority religion or ethics classes.

The Ombudsman’s report has also uncovered other actions that bear the distinguishing features of discrimination on the grounds of religion or worldview (The 2015 ROP Report):

Not including the grade from minority religion classes on the school-leaving certificate. This grade is counted in the grade average, which results in unequal educational opportunities for these children.
No remuneration for teachers of minority religions within the education system.
Obstructing the organization of minority religion classes for children of the same age and insistence on creating combined groups for children. e.g. from the primary school’s year one up to six.
Negative reaction to the parents’, adolescents’ and children’s willingness to participate in ethics classes, including dismissal of the request, apparent acceptance, but lack of further action; making children participate in RE, e.g. by informing that participation is compulsory, when it is voluntary according to the law.

Yet the data disclosed by the foundation “Freedom from religion” suggests that religious discrimination in Polish schools takes on other forms as well. These include school employees pressuring students to take part in religious ceremonies; what is more, school celebrations contain elements of Catholic religion. Discrimination and indoctrination are also present in many educational and upbringing activities, including school decorations (e.g. the domination of religious symbols in the classrooms and corridors, a plaque in the cafeteria which equates the students’ high personal culture with praying before meals, etc.).[7]

Any discrimination of social groups or individuals is detrimental to the society’s potential as is social pressure to ensure a complete worldview uniformity. J.S. Mill draws attention to the need to ensure liberty of thought and pointed at the socially negative consequences of the “tacit convention that principles are not to be disputed”. According to the author, no nation has developed or will develop in “an atmosphere of mental slavery” (Mill 2012: p.131). The observations of R. Wilkinson and K. Picket concerning equal opportunities in society (Wilkinson and Pickett 2011: 191-211) are consistent with this line of thought and can also be linked to the social effects of discrimination arising in schools out of teaching just one (Catholic) religion there. The lack of equality brought about by favouring just one religion creates divisions and undermines trust, leading to a dysfunctional society.

The ban on discrimination on religious grounds is also related to fair participation in public finances. In the case of teaching religion in Polish schools this is also closely linked to the principle of separation of church and state expressed in Art. 25 of the Polish Constitution. Public schools are financed from public funds and run by municipalities. The salaries of the priests and catechists teaching RE are drawn from public funds, but these teachers are appointed by the church authorities. Public supervision of their teaching is limited, which will be analysed in more detail below. The catechists have a formal status equal to teachers of other subjects – in terms of wages, working conditions and pension rights.

The unequal professional standing of catechists and teachers of secular subjects is pointed out by B. Olszewski (2010: p. 186 and 193-194) as one element in the structural conflict related to teaching RE in Polish schools. The author mentions that the catechists are employed in accordance with the Teacher’s Charter – a legal regulation concerning all Polish teachers – but their legal status is also influenced by the Church regulations and the decisions made by its representatives. One example is the manner of assessing their competences to teach, e.g. the bishops deciding who can teach religion in a given school. The catechists can also become members of the Teachers’ Board and acquire early retirement rights like other teachers, but they are not fully subject to normal supervision within the general education system.

The cost of organizing the Catholic religion classes is therefore borne by all taxpayers, regardless of their beliefs. The problem of financing RE lessons in public schools has been debated since 1990s. One of the main arguments brought forward by the opponents of financing RE from public funds has been that teaching just one single worldview is financed through taxes also paid by those who do not subscribe to this worldview. The creators of the civic project under a statutory initiative “Secular school”, started in 2015, put forward the following postulates: “Religion in schools – yes, but not paid for through our taxes – let it be financed through Church funds and disappear from the class schedule. They maintain that their initiative is not anti-Catholic nor anti-religious. On the contrary, “[they] are absolutely for religion being taught in schools but after the regular classes have ended, not alongside them”.[8] Opponents of public funding often refer to the opinion expressed by T. Jefferson: that it is unacceptable “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves”. He considers this “sinful and tyrannical, and any attempt to do so threatens the religious neutrality of the state” (Agnosiewicz 2002: op.cit).

The prohibition to compel a person to disclose their convictions or belief is essential for the elimination of discrimination. However, when a particular religion is commonly taught at schools, this prohibition is actually violated, because the very fact of participating or not participating in RE classes is indicative of a certain worldview. If schools are to be neutral in terms of worldview, then religious matters could be taught in classes objectively presenting different religious and philosophical systems. What is specific about learning environments in general is that they foster frequent interactions between children who know relatively much about one another. Actively creating situations in which some of the children may feel inferior because they differ from the majority is a real discriminatory mechanism. Adolescence is a period fraught with conflicts and those who differ from others are subject to rejection and discrimination. In Poland, unfortunately, little attention has been paid to the shaping of egalitarian social attitudes, especially lately.

Any form of discrimination against learners who are the followers of minority religions or followers of no religion at all may prevent these learners from fully benefiting from their right to education. Vital aspects of this problem will be presented below, but it should be noticed that in the General Commentary to Art. 18 of the International Covenant on Civil and Political Rights, the Human Rights Committee has pointed out that public education which allows for teaching of a particular religion is not compatible with this Covenant. Unless it is possible to obtain an exemption from these classes without any discrimination or alternative classes are offered, taking into account the wishes of the parents and caretakers.

Universal Right to Education and the Prior Right of Parents to Decide on their Children’s Upbringing

To pass on certain religious views to children at school could impact the right to education. This right should be implemented on an equal footing for all entitled persons. Where there is an actual breach of the principle of equality by discriminatory practices in both peer groups and in the school-pupil relations, that right is infringed. There are some important problems here.

One problem is the right of children to care and that their well-being is taken into consideration. This includes the physical security such that a child will not be left unattended as well as the psychological comfort that a child will not feel excluded and, furthermore, that it will not be affected by the negative consequences of the fact that they do not attend certain classes due to a different worldview. Another issue is related to ensuring the safety of children in educational institutions. Yet another concerns the parents’ right to raise their children in accordance to their convictions. It is also important to ensure a sufficiently high level of schooling that is uniform across the entire state.

The parents’ attitude to the declaration of their children’s participation in RE classes would be influenced by a possible threat against their children’s physical security and psychological comfort. According to one such views, the pressure from the “worldview majority” is so strong that non-believers, as they themselves declare, choose to declare their children’s participation in catechesis and other religious practices for “social reasons”. Non-believers are often worried about their children’s well-being in the face of more and more frequently reported cases of social ostracism and violence[9].

This tendency already manifested itself in the early stages where RE was introduced in the Polish public schools, that is, in the 1990s. Studies reveal (NEUTRUM 1996) that parents and students preferred to avoid open and long-term conflicts with the school. In practice, such conflicts were resolved by the child’s departure from school or muffling the conflict for the sake of peace. The conflicts were thus resolved “quietly”, as the parents were afraid that the situation might affect their child. In order to avoid repercussions or out of a sense of duty to remain loyal to the representatives of the religion that they professed, they rarely resorted to institutional settlement of conflictual situations.

The fear of being subject to aggression in a situation where the education system does not guarantee the de facto equality of different belief systems is not unfounded. As noted by Wilkinson and Pickett (2011: p. 151-152 and 161), increased inequality raises the stakes in the fight for status and is responsible for the increase in aggressive behaviours. The authors draw attention to the fact that violence is a frequent reaction to being insulted or losing one’s face. In a situation where children being educated get a hint that another person is “different”, because he or she does not attend RE and does not belong to the majority that would give them a sense belonging to the “right” people, this may lead, especially if there’s no standard of respecting differences, to treatment that is humiliating to the affronted person and may cause them to retaliate.

In the words of R. Tyrała (2014: p. 320), non-belief is a discreditable stigma. According to the author, dealing with this stigma by hiding one’s non-belief may result from the balancing of profit and loss. His research shows that non-believing parents often submit to the pressure of their family environment and send their children to RE classes, even though a relatively higher percentage of non-believers decides against such a step. Yet, due to the lack of institutional mechanisms, the pressure from peers and teachers is still present in the lives of the children whose parents are non-believers (Ibidem: p.334-335).

According to Art. 3, para. 3 of the regulations on the conditions and method of teaching religion in public schools, schools are legally obliged to “guarantee care or general educational classes during the period of religion or ethics classes for students who do not attend religious classes”.It emerges from my research that the implementation of this obligation in practice may at times be improper, resulting in both uncomfortable and dangerous situations for children as well as stigmatization and discrimination.

I have documented instances in which a child was to be chaperoned into another class for the duration of these lessons, but often he just had to wait in the school corridors. He was not taken care of properly, so he had to be moved to a different school. In another instance a child whose parents declared that he will not participate in RE classes was given a choice to either wait in a school corridor or stay in the class for the duration of RE, during which, in order not to “stand out”, he stands up for the prayer like other pupils. He does not participate in the activities but should not disturb the others.This is a stigmatizing situation, affecting the individual’s universal right to education. A study conducted in Poland soon after RE classes were first introduced[10] revealed that the opinion of the students themselves is no different. According to the respondents, when all the students finished their classes and went either home or to the parish to attend RE, their school situation was more or less equal. Upon introducing RE, the “otherness” of the children who did not attend the classes had become a problem. They have been stigmatized by being labelled with epithets that equalled not attending RE with being a member of certain religious or social groups that are perceived negatively in the society[11].

The proper standard of schooling should also be ensured by appropriate control measures. Public authorities financing a given initiative should have a degree of influence or at least supervision over its most important aspects. When teaching a subject in school, religion included, these aspects include, above all, appropriate pedagogical preparation for teaching different age groups in a manner that is adequate for their physical and mental development as well as providing an appropriate content. According to para. 4 of the regulations regarding the conditions and method of teaching religion in Poland, the RE curricula and textbooks are developed and approved by the Church authorities and only forwarded to the Minister of Education. There are no constitutional or supervisory mechanisms to oversee the content of these textbooks and curricula. The obligation to employ a catechist is not equated with influence over who will actually be employed. As stated in para. 5 of the aforementioned regulations, a catechist is employed solely on the basis of a registered referral issued by the church authority – in Catholic Church this is diocesan bishops. Similarly, professional qualifications of catechists are assessed by the Church hierarchs – the Polish Bishops Conference, specifically, but here the provisions entail acting in agreement with the Minister of National Education. Taking everything into consideration, it cannot be stated that the Polish provisions introduce a universal standard of equality in religious instruction in public schools. What is most lacking are the instruments of control and supervision over the socially important aspects of such an instruction, including curricula and staff responsible for conducting the classes.

Conclusions

The case regarding the introduction of RE into the Polish public education system allows the observation of certain important tendencies and evaluate them from a relatively long-time perspective of 30 years of religious education. Common religious education in public schools can highly affect the functioning of a given society. Some consequences are also visible in the manner of functioning of certain religious communities, such as the Roman-Catholic parishes in Poland.

Paprzycki (2015: p. 10) notes, while analysing the problem regarding religious markets as they are related to the competitiveness of churches, that the Catholic Church in Poland after 1989, that is, after the fall of socialism, was faced with the challenges related to its former position of a monopolist that did not have to, as the beacon of patriotism and freedom, compete with other religious orders. For these reasons, Catholic Church in Poland has difficulties in communicating with the state and the society, including its followers. The author suggests that the Church officials often depend on the state’s help, especially legislation that is favourable to them and takes the burden of convincing people about their rights and values off their shoulders. It seems that this strategy, despite its “totalitarian” character or perhaps because of it, has been quite effective, which is reflected in increasing social support for religion in schools, as confirmed by statistics below.

The data shows an upward trend in the social acceptance of teaching RE in schools as well as a decrease in the number of its opponents, which is illustrated by the chart:

Should religion be taught in public schools?	Respondents’ answers by date
Should religion be taught in public schools?	IX ‘91	IV ‘93	VII ‘93	I ‘94	VII ‘94	VII ‘07
Definitely yes	23%	21%	22%	20%	24%	36%
Rather yes	34%	34%	31%	37%	31%	36%
Rather not	23%	19%	18%	19%	19%	12%
Definitely not	19%	22%	25%	19%	22%	12%
Hard to say	1%	4%	4%	5%	5%	4%

Based on: Opinions about teaching religion. Research summary. Polish Public Opinion Centre (CBOS) BS/119/2007, Warszawa, Lipiec 2007 http://www.cbos.pl/SPISKOM.POL/2007/K_119_07.PDF

When it comes to teaching kindergarten students, the same study reveals that public opinions are rather divided. A bit more than a half of respondents (53%) believes that religion should be taught in public kindergartens, while two fifths of them (41%) takes the opposite view.This does not change the fact that religious minorities and non-believers still need to have their rights protected.Their situation, taking into account the increasingly widespread acceptance of religion in public schools, is becoming more and more difficult.

The study also paints a picture of the content which, according to the Poles, should be taught in RE classes. More than a half of the people surveyed (57%) believes that these lessons should present knowledge about various beliefs and religions, while a bit more than one third of them (36%) thinks that the curriculum should concentrate mostly on the rules of the Catholic faith.The practitioners – teachers and scientists – are of similar opinion (Olszewski 2010: p. 194). This is also a proof for the existence of a certain cultural climate allowing for religious tolerance, which, in turn, should be used for promoting anti-xenophobic attitudes. This, however, does not translate into the respondents’ empathy regarding potential threats to the rights of those not professing the Catholic faith. The question: Can the hanging of a cross in public places, such as classrooms, be considered a violation of the freedom of non-believers? Was responded in the negative by 60% of the respondents and by only 33% in the affirmative. 7% did not give their opinion (CBOS, BS/170/2013).

Both in the 1990s, when introducing RE in schools (Kuroń and Żakowski 1997: p.182), and at present (Paprzycki 2015: p.61), attention has been called to the fact that turning religious education into a school subject that is not respected by the youth, strips it of its sacrum. Paprzycki notes that introducing RE in schools could be perceived as a kind of coercion and the result of an agreement between the church and the world of politics, which might cause teenagers to rebel. According to the author, the said changes in the education system did not bring about an explosion of religiousness among the school learners, so the present state of things turned out to be rather a manifestation of the church gaining formal influence and the state authorities’ submission rather than an evangelical success.

Besides, studies conducted in the first 5 years after introducing religion in schools, already showed that certain non-religious motivations in taking up RE, tended to prevail. There were often related to pragmatic and conformist attitudes. The influence of the family and the pro-religious climate at schools were said to be the most prominent factors. Still, the authors were concerned by the fact that every one in four students declare that non-attending RE and the subsequent lack of grades may result in troubles, which, according to the authors, proves that there exists a cultural climate in Poland that will only strengthen the conformist attitudes towards RE classes.[12] And, as may be noted, their prognosis was correct.

The Catholic priests also see certain difficulties inherent in catechesis being taught in school. Attention is being paid (Tułowiecki 2010: p. 125-127) to the weakening bond between the children and the parish and moving the religious relations from the ecclesiastical organization to the school’s grounds as well as different relations with the parents who expect to treat religion as the provision of a certain service, without making any contribution to their children’s religious upbringing. The priest formulating these opinions also views the collision between the religious reality and the reality of a dynamic youth environment within the confines of a single institution, which performs both educational and pedagogical functions, as a threat. The author writes, for example about the confrontation with modern pluralism and postmodernism in the atmosphere of axiological turmoil.

It thus can be noted that almost 30 years’ practice of teaching RE in the Polish schools has brought about a particular social situation becoming established and strengthened, but it did not eliminate all the conflicts, which, considering their nature, seems impossible.

A major threat related to the common presentation of a single worldview, especially using the authority of the state leads to the unification of attitudes and worldviews, which tends to inhibit creativity and reduce the cultural wealth of this society. The opportunism of public powers and readiness to comply with the demands of the church officials contribute to the discrimination of non-believers. Since the fundamental principles of democracy are the principle of equality and the principle of the state as the common good of all its citizens, public schools should be neutral with regard to worldviews.

References

Agnosiewicz M., Wprowadzenie religii do szkół, 2002, http://www.racjonalista.pl/kk.php/s,434

Bartnik C. S., „Słowo”, 3 VI 1993, cyt za: Agnosiewicz M., Wprowadzenie religii do szkół, 2002, http://www.racjonalista.pl/kk.php/s,434

Dostępność lekcji religii wyznań mniejszościowych i lekcji etyki w ramach systemu edukacji szkolnej. Analiza i zalecenia 2015, Biuletyn Rzecznika Praw Obywatelskich, Zasada Równego Traktowania Prawo I Praktyka Nr 17.

Kuroń J., Żakowski J. (1997), Siedmiolatka czyli kto ukradł Polskę?,Wrocław: Wydawnictwo Dolnośląskie.

Mill J. S. 2012, Utylitaryzm. O wolności, Warszawa, Wydawnictwo naukowe PWN

Noelle-Neuman E., 1974 , The Spiral of Silence: A Theory of Public Opinion, Journal of Communication, vol. 24, nr.3, p. 43-51

Olszewski B.(2010), Konflikt strukturalny na przykładzie nauczania religii w szkołachin: M. Tabernacka, R. Raszewska-Skałecka (red.) Płaszczyzny konfliktów w administracji publicznej, Warszawa, Wolters Kluwer

Paprzycki J., 2015, Prawna ochrona wolności sumienia i wyznania, Warszawa, Wydawnictwo C.H.Beck

Słowik K. Beczek. W. (2015), Religię wprowadzono do szkół tylnymi drzwiami i na szybko. “Miałem telefony z episkopatu”.http://wiadomosci.gazeta.pl/wiadomosci/1,114871,18941898,religie-wprowadzono-do-szkol-tylnymi-drzwiami-i-na-szybko-mialem.html

Tułowiecki D., 2010, Dwadzieścia lat religii w szkole – nadzieje, trudności, wyzwania. Próba refleksji socjologicznej, in K. R. Kotowski, D. Dziekoński (red.) Dwadzieścia lat katechezy w szkole, Warszawa-Łomża, Wydawnictwo Uniwersytetu Kardynała Stefana Wyszyńskiego w Warszawie

Tyrała R., 2014, Bez Boga na co dzień. Socjologia ateizmu i niewiary, Kraków, NOMOS

Wilkinson, K. Pickett, 2011, Duch równości. Tam gdzie panuje równość wszystkim żyje się lepiej, Warszawa, Wydawnictwo Czarna Owca

Wiśniewska K., Religia na maturze możliwa w 2021 r.? Kościół dogadał się z rządem Beaty Szydło,2016, http://wyborcza.pl/1,75398,20126283,religia-na-maturze-mozliwa-w-2021-r-kosciol-dogadal-sie-z.html?disableRedirects=true

Authentic sources of opinions

Niesiołowski i Grodzka o religii. “Szkoła od edukacji, Kościół od katechezy” czy “im więcej religii tym lepiej”?, http://www.tvn24.pl)https://www.tvn24.pl/wiadomosci-z-kraju,3/niesiolowski-i-grodzka-o-religii-szkola-od-edukacji-kosciol-od-katechezy-czy-im-wiecej-religii-tym-lepiej,394666.html

Społeczna kampania „Szkoła to nie kościół”

OŚWIADCZENIE, ŻE DZIECKO NIE BĘDZIE UCZĘSZCZAŁO NA RELIGIĘ WE WNIOSKU O PRZYJĘCIE DO SZKOŁY – INTERWENCJA FUNDACJI, https://wolnoscodreligii.pl/wp/oswiadczenie-ze-dziecko-bedzie-uczeszczalo-religie-we-wniosku-o-przyjecie-szkoly-interwencja-fundacji-2/

http://rownoscwszkole.pl/o-projekcie

Religia w szkołach? “Chcemy, żeby płacił za to Kościół” http://www.tvn24.pl/wiadomosci-z-kraju,3/spor-o-finansowanie-z-budzetu-panstwa-lekcji-religii-w-szkolach,526692.html

http://wolnoscodreligii.pl/wp/kampania_spoleczna_szkola_to_nie_kosciol/

Statistics and study reports

Opinie o nauczaniu religii. Komunikat z badań. Centrum Badania Opinii Społecznej, BS/119/2007, Warszawa, lipiec 2007 (CBOSBS/119/2007) http://www.cbos.pl/SPISKOM.POL/2007/K_119_07.PDF

Religia i kościół w przestrzeni publicznej. Raport z badań. Warszawa, grudzień 2013 (CBOS BS/170/2013)

file:///C:/Users/IM/Documents/Konferencje%20wystąpienia/Religia%20w%20szkole%20lub%20poza%20szkołą/Reigia%20i%20kościół%20w%20przestrzeni%20publicznej%202013.PDF

Religia w systemie edukacji. Komunikat z badań, Centrum Badania Opinii Społecznej, BS/136/2008. Warszawa, wrzesień 2008 (CBOS BS/136/2008)

http://www.cbos.pl/SPISKOM.POL/2008/K_136_08.PDF

Respektowanie wolności sumienia i wyznania w szkole publicznej Raport. Stowarzyszenie na rzecz Państwa Neutralnego Światopoglądowo NEUTRUM 1996, Warszawa

Struktura administracyjna Kościoła katolickiego w Polsce i podstawowe statystyki. GŁÓWNY URZĄD STATYSTYCZNY. Notatka informacyjna opracowana wspólnie z Instytutem Statystyki Kościoła Katolickiego SAC, Warszawa 2017, file:///C:/Users/IM/Downloads/struktura_administracyjna_kosciola_katolickiego_w_polsce%20(1).pdf

Struktura narodowo-etniczna, językowa i wyznaniowa ludności Polski. Narodowy spis powszechny ludności i mieszkań 2011, Główny Urząd Statystyczny, Warszawa 2015, file:///C:/Users/IM/Downloads/struktura_narodowo-etniczna.pdf

Endnotes

1 20 years of religion in schools, http://fakty.interia.pl/religia/news-20-lat-lekcji-religii-w-szkolach,nId,886445

2 Ibidem.

3 file:///C:/Users/IM/Downloads/struktura_narodowo-etniczna.pdf

4 http://wolnoscodreligii.pl/wp/kampania_spoleczna_szkola_to_nie_kosciol/

5 http://www.cbos.pl/SPISKOM.POL/2007/K_119_07.PDF

6 OŚWIADCZENIE, ŻE DZIECKO NIE BĘDZIE UCZĘSZCZAŁO NA RELIGIĘ WE WNIOSKU O PRZYJĘCIE DO SZKOŁY – INTERWENCJA FUNDACJI,https://wolnoscodreligii.pl/wp/oswiadczenie-ze-dziecko-bedzie-uczeszczalo-religie-we-wniosku-o-przyjecie-szkoly-interwencja-fundacji-2/

7 http://rownoscwszkole.pl/o-projekcie

8 http://www.tvn24.pl/wiadomosci-z-kraju,3/spor-o-finansowanie-z-budzetu-panstwa-lekcji-religii-w-szkolach,526692.html

9 http://rownoscwszkole.pl/o-projekcie

10 Respektowanie wolności sumienia i wyznania w szkole publicznej Raport. Stowarzyszenie na rzecz Państwa Neutralnego Światopoglądowo NEUTRUM 1996, Warszawa, p. 9-16.

11 Ibidem, p. 18.

12 Respektowanie wolności sumienia i wyznania w szkole publicznej Raport., p. 13.

Human Rights and International Relations. Some Remarks

22/08/2017Introductory noteBrexit, human rights, international law, international relationsMogens Chrom Jacobsen

This special issue of Nordicum-Mediterraneum contains select proceedings from the meeting of the Nordic Summer University (NSU) research circle “Human Rights and International Relations”. The meeting took place in Wroclaw, Poland, from the 24^th to the 26^th of February 2017, where we were very well received by the University of Wroclaw, for which we thank them warmly.

The program of the research circle, “Human Rights and International Relations”, runs from 2015 to 2017. This circle explores how human rights militancy and more generally the protection of human rights are affected by the international human rights regime and the way this regime enters state relations, and it also examines how the international human rights regime modifies the relations between states and how this is explained in international relations theory.

The contributions from this circle address the issue of human rights implementation. What happens when universal principles are translated into concrete action. Magdalena Tabernacka analyses the political battles surrounding the implementation of the Convention on Preventing and Combating Violence against Women and Domestic Violence. Barbara Gornik shows how the plan to redress the erased residents of Slovenia was derailed. Athanasia Petropoulou demonstrates how visions of European citizenship fail the test of reality. Liudmila Ulyashyna reflects on how human rights law can be rooted into national legislation through education, in order to enhance the implementation. Eyassu Gayim addresses the relationship between human rights law and humanitarian law, and reflects on the nature of the human being and its rights in both of them. If they are based on the same fundamental considerations, why implementing them separately? Mogens Chrom Jacobsen challenges common views about Protestantism as the originator or foremost promoter of human rights. Implementation often depends on how human rights conform to pre-existing ideas about religion and politics, but such conformity can also be constructed to fit the purposes of the moment.

An additional contribution by long-time collaborator of Nordicum-Mediterraneum, Prof. John McMurtry, is also included, in which the worrisome implications of Brexit for human rights in the UK are discussed, given their EU-based emanation, with special emphasis on labour, environmental and financial regulation. McMurtry, who was Honorary Theme Editor for UNESCO’s Encyclopedia of Life Support System, authored therein the encyclopaedia of philosophy called “Philosophy and World Problems”. It is in the same spirit that he offers his contribution to Nordicum-Mediterraneum, in the hope of prompt and wide circulation. Consistently, the text is listed in a new category called “Philosophy and World Affairs”.

The abstracts of the published papers can be found below, as these were submitted by the authors:

Athanasia Petropoulou

On the Margins of Citizenship: The Refugee Crisis and the Transformation of Identities in Europe

Transformations of the notion of citizenship in today’s globalized context brings us closer to what Yasemin Soysal calls a post national citizenship characterized primarily by the erosion of the national identity as the distinctive form of belonging and the generalization of rights to non-nationals that initially were only attributed to members of the polity. While this vision has proven to be rather relevant in analysing changes in contemporary membership formations, it fails in some measure to capture the shortcomings of the universal human rights regime and the inherent tensions between the status of aliens and nationals-citizens. The current so called “refugee crisis” in Europe shows the predicaments of populations seeking to escape from war and deprivation and the uncertain legal status of these populations, whose rights are seriously impaired. Drawing on the notion of the “right to have rights” the study aims to explore how the European responses in this context, based on strong inclusion-exclusion mechanisms, can be pertinent for analysing and capturing current transformations of the notion of European citizenship and its future developments. In this respect, the current shortcomings of the international human rights regime can help us reconsider the foundation and notion of European citizenship. It is further suggested that the institution of European citizenship in its current form needs to be superseded, in order to attain a truly cosmopolitan content and to provide a foundation for a universalistic human rights regime. The main proposal presented in this direction, stresses the need to rethink human rights in terms of political practices and to “rediscover” the revolutionary heritage of human rights from an Arendtian perspective.

Barbara Gornik

The Politics of Victimhood in Human Rights Violations: The Case of the Erased Residents of Slovenia

In 1992, during the process of gaining national independence, the Slovenian government unlawfully erased 25,671 individuals, mainly citizens of other republics of the former Yugoslavia from the Slovenian Register of Permanent Residents. These individuals, who later become known as the Erased, became irregular foreigners; nevertheless, many of them continued to live in Slovenia for more than a decade without enjoying basic human rights. In 2012 the European Court of Human Rights in the case of Kurić and others vs. Republic of Slovenia held unanimously that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human rights. Following this judgement the Slovenian government adopted a compensation scheme for the Erased, where it introduced the criteria determining conditions for their redress. Building on this, the article reflects on the political and legal construction of victimhood and reveals the elements that constitute the victims of human rights violations. The article highlights the notions of political loyalty, legal conformity and territorial attachment as one of the most decisive elements of victimhood. In this manner it shows that the subjectivity of victims in the case of the Erased is not defined within the human rights discourse but is grounded in nationalist terms and categories.

Eyassu Gayim

Humanity and Human Rights: The contours of international law

Laws regulate conducts by responding to social and political requirements. This holds true for international law as well, which now follows two separate tracts, one for international human rights law and another one for international humanitarian law. If these two branches of law are intended to protect the dignity and worth of human beings as it is often said, why separate them? Does humanity really exist? If it does, how does it relate to human rights? If the two are distinct where do they converge? This article highlights these questions by revisiting the contours of international law.

Liudmila Ulyashyna

Human Rights Education for lawyers: A Case Study Into the Universality and Its Relativism

Normative universality in the international human rights law shall be rooted into national legal contexts for its effective implementation. Human Rights training for lawyers ensures that lawyers receive appropriate education for the practical application of the principle universality. The case study shows that learners often lack the knowledge of the peculiarities of international human rights law, which differ from the ”classical” public law notions. Human rights training curricula should include topics, which form lawyers´ understanding of international and national legal regimes in their interdependency. Concepts of ”International Human Rights Standards”, ”Implementation and de facto implementation”, ”Status and Role of Individual/Human Rights Defender” being delivered to learners increase their knowledge and awareness of the direct applicability of international human rights norms and make them effective actors of the two-way process facilitating “a cross-fertilization” between national law and international human rights standards.

Mogens Chrom Jacobsen

Protestant Origins of Human Rights Challenged

This paper will challenge common views about Protestantism as the originator or foremost promoter of human rights. The idea of a Protestant origin is launched by Georg Jellinek and disputed by Emile Boutmy. The idea is still current and John Witte can thus claim that Protestantism was in part a human rights movement. The point of departure for this strain of thinking is religious toleration, which is seen as a particularly Protestant achievement. We will argue that a more precise notion of what 18th century human rights were and a closer look at mainstream Protestant political philosophy will tell another story.

Magdalena Tabernacka

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence in the Polish Social Safeguard System

The ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence in Poland was preceded by a heated debate. From the very beginning it was the object of political battles between the conservative and liberal circles. Culturally and socially conditioned position of women has influenced its operation and the scope of its implementation. The Convention is a universally binding tool which guarantees the protection of human rights in events of violence against the woman and children. The case of this Convention in Poland proofs the existence of a universal European understanding of human rights protection standards. The Convention thus has a protective function not only for individuals but also, in a broader context, for the common European cultural identity.

John McMurtry

Is Brexit a Neo-Liberal Coup against 45 years of Life-Protective Law and Regulation?

The self-maximizing growth of private-money power over all life and life support systems – life capital in a word – to exploit for non-producer profit is not yet recognized as a master degenerative trend built into the ruling meta program of which Brexit and Trump are the latest Anglo-American expressions. Central to this unseen meta trend is the compulsive dismantling of life-protective law and rights whose masking justification has shifted from ‘globalization’ to ‘nationalism’. The Left is befuddled. It sees the anti-Labour implications in both the financialized EU and the de-regulating Brexit with no coherent program to overcome both. The Right blindly follows the inner logic of the ruling economic model while Liberals offer only partial and incompetent market fixes for collective life capital sustainability. All fail to see Brexit’s giant step towards life capital degeneration and eco-genocide at the margins as environmental and civil commons are stripped of their public funding by privatization and de-regulation. The cumulative carcinogenic conversion of organic, social and ecological life organization into ever faster private money-profit sequences multiplying to the unproductive few is the predictable system result.

On the Margins of Citizenship: The Refugee Crisis and the Transformation of Identities in Europe

10/08/2017Conference proceedings (double non-blind peer review)Arendt, Balibar, European Convention on Human Rights, citizenship, human rights, refugee crisis, right to have rights, rightlessness, undocumented immigrantsAthanasia Petropoulou

The 15^th December 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its judgement in the case of Khlaifia and Others v. Italy. The judgement concerns the detention of undocumented immigrants at the Italian borders and their subsequent expulsion from Italy to Tunisia. Whilst the facts of the case took place in the immediate aftermath of the Arab Spring in 2011, the case is evocative of the so-called “refugee crisis” and the predicaments of millions of third-State nationals seeking to cross the European borders.

Transformations in contemporary configurations of sovereignty, citizenship and rights have made many scholars argue that we are closer to a post-national citizenship characterized primarily by the erosion of the national identity as the distinctive form of belonging and the generalization to non-nationals of rights which were initially attributed only to members of the polity (Soysal, 1994). According to this approach, the institutionalization of human rights on the international level and the undermining of national sovereignty are indicative of the shifting of the basis of the entitlement of rights from nationality to universal personhood (Cohen, 1999). While this vision has proven rather pertinent in analysing changes in contemporary membership formations, it fails to capture the shortcomings of the universal human rights regime and the inherent tensions between the status of aliens and nationals-citizens. The fate of the people, referred to indistinctively as “asylum seekers”, “refugees”, “undocumented” or “illegal immigrants” in contemporary’s public discourse, is inextricably linked to the paradox and the perplexities of the contemporary “human rights regime”. Whereas the institutionalization and global expansion of human rights norms in the post-war era and the codification of the right to asylum constitute major advancements regarding the protection of the human person, the contemporary “refugee crisis” demonstrates that the problem of “rightlessness” can be still present in the so-called “age of rights” (Henkin, 1990).

In fact, the problems encountered by different categories of immigrants and refugees can partially be attributed to an implementation deficit, “a discrepancy between formal rights and their praxis” (Soysal, 1994). However, the difficulties of these groups in claiming some basic rights do not only result from external factors, but also reveal the limits of these norms. These groups, as Seyla Benhabib argues: “exist at the limits of all rights regimes and reveal the blind spot in the system of rights, where the rule of law flows into its opposite: the state of exception and the ever-present danger of violence” (Benhabib, 2004).

Drawing on the notion of “the right to have rights”, the phrase initiated by Hannah Arendt in her attempts to reconsider human rights in terms of a right to citizenship and humanity (Arendt, 1973) and the creative reading of Arendt’s critique of human rights by Ayten Gündogdu (Gündogdu, 2015), the present study aims to explore how the European responses to the current “refugee crisis”, based on strong inclusion-exclusion mechanisms which in their turn erode the human rights of refugees and asylum seekers, can be pertinent for capturing and analysing the notion of European citizenship and its future developments.

In the next two sections, it will be argued that the restrictive policies regarding the managing of the refugee crisis by the European Union needs to be directly associated with the shortcomings of the institution of European citizenship and its failure to contribute to the creation of a European demos. In this regard, the current failure of European citizenship to fulfil a universalistic ambition and to provide the foundation for a cosmopolitan political project cannot be considered without taking into account the shortcomings and inherent paradoxes of the human rights regime. In this respect, the failures in the European conception of citizenship are interrelated, though not interdependent, with the failures of the human rights regime, as it stands. In the third section, the paradoxes of the human rights regime and the question of rightlessness will be discussed, in order to show how this regime partakes in and exemplifies this failure. It is argued in the last part of this paper, that in order to reinvent the notion and content of European citizenship, we need to reconsider human rights. Rethinking human rights in terms of political practices is important in order to reinvent the notion of citizenship, as a foundation of a truly cosmopolitan polity, where human rights can be recognized to new subjects.

European Citizenship in a Post-National Context

European citizenship is one of the unaccomplished political projects of the European Union, seeking to give a popular legitimization to its construction and perpetuation. Having the protection of the person and human rights in the heart of its conception, European citizenship is primarily conceived as a legal relationship between the individual European citizen and the membership of the European polity. Without disregarding the connection between an individual and its nation State, which in fact constitutes a presupposition for the acquisition of European citizenship, the institution of the European citizenship aims at superseding both nationality and nationally confined citizenship, as the only forms of belonging in a polity.

The emergence of a “post-national” citizenship, according to some authoritative doctrines, is the result of transformations in the relationship between citizenship and the national State. European citizenship participates in this transformation, as it provides for a space where equal rights are recognized to European citizens irrespective of their nationality. In this context, while European citizenship was at its very beginning associated with internal mobility of labour and the creation of an internal market, progressively, it reflected concerns about the transformation of the single market into a People’s Europe.

The institution of European citizenship is to a considerable degree shaped by the tension between the two opposing dynamics, intergovernmentalism and supranationalism, the two major trends which dominate the policy and discourse on the subject (Kostakopoulou, 2007). The process carries with it fundamental ambiguities, contradictions, and tensions. The weakening of traditional state prerogatives with regard to the entry and residence of economically active or economically self-sufficient community nationals has been, in this respect, accompanied by the reinforcement of the dichotomy between citizens and aliens, be they resident third country nationals, migrants, asylum seekers or refugees. Processes of equalization thus coexist with processes of exclusion, and the relativization of the Member States’ borders is accompanied by the strengthening of the external frontiers of the Union and the relocation of migration controls to third countries (Kostakopoulou, 2007). The gap between “third country nationals with valid permits” and illegal migrants constitutes a direct challenge to the European citizenship’s cosmopolitan ambitions. This gap has to be directly associated with the restrictive asylum policies, which often fail to conform with the standards of the Geneva Conventions, the construction of a “space of Freedom, Security and Justice”, the criminalization of illegal immigration and the current rise of a nationalistic public discourse, as manifested in the rise of far-right political parties in Europe.

The external control of the borders of the European Union and their closure, the refusal to provide safe and legal routes for third country nationals in need of international protection are closely linked to the conditions under which the European identity is shaped and conceived. Consequently, the fight against illegal immigration raises the question of the symbolic borders determining the conditions of participation in a given political order. The fight against illegal immigration, which has been one of the goals of the creation of a “Space of Freedom, Security and Justice”, has fuelled the restrictive policies of the Union as regards the current “refugee crisis”. These policies have to be considered in the context of the broader procedure of the European integration and the shaping of a sense of belonging in the European Union as the foundation of the citizenship for the members of the European polity. In this perspective, the strategies applied by the European States reveal how Europe is constructing the figure of the “Other” and its own identity (Duez, 2008). As Etienne Tassin has rightly pointed out, “far from being a ‘collateral damage’ of European unification, illegal immigration could on the contrary be the heart of the problem” for it is impossible to accept “that this is nothing but a border police matter that would leave unscathed the unique logic according to which political Europe is structured” (Tassin, 2007).

In this regard, it is argued that the response provided by European institutions and States to the current immigration and refugee crisis is indicative of the shortcomings of the European citizenship and the European identity, the limits and contradictions of the human rights regime, the failure of the European demos as it stands and its cosmopolitan ambitions. The failure of the European Union to implement more inclusive policies and to provide a legal status conferring basic rights to undocumented immigrants or asylum seekers is a sign manifesting the disability of the European elites and institutions to conceive the project of European citizenship as a process of eroding identity boundaries and of creating a space where “universal rights” are applied. However, it can also be argued that the current crisis could constitute an opportunity to reconsider the concept of European citizenship and contribute to its transformation. If citizenship can be read as a historical process, European citizenship can also be seen as a laboratory of shaping new policies of belonging, thus extending some basic rights to non-members of the European polity and strengthening the “participation to collective self-government”.

Refugee Crisis and European Responses

Throughout Europe there are many migrants, primarily rejected asylum seekers, who live in a state of protracted legal and social limbo without any long-term prospects. About 60 000 refugees are stranded in Greece, where 26 400 are children, mostly Syrian, according to current estimations. The mass influx of displaced people, refugees, asylum seekers and immigrants has pushed the European foundations to its limits. The Member States have replied with border closings, erection of fences, racist and xenophobic reactions, and have reclaimed their sovereignty (Kapartziani, Papathanasiou, 2016).

Asylum seekers and migrants in Greece and other European countries face multiple human rights violations, including obstacles in accessing adequate protection, and reception conditions that are well below international human rights standards. The situation is particularly dire for people, such as pregnant women, female heads of households, unaccompanied children, people with disabilities, and the elderly.

Despite common, binding EU asylum standards, inadequate implementation and enforcement mean that there are deep disparities among EU member states with respect to procedures, reception conditions, and treatment of asylum seekers. These disparities are at the root of the distortions in the EU asylum system and explain many of the tensions and divisions among EU member states when it comes to addressing migration and asylum challenges (Human Rights Watch, November 2016).

The European policies in this respect reveal the fragility of human rights on which the European construction has been founded and shows that national considerations are central to how the European identity is generally conceived. However, the restrictive policies of the European Union manifest also the shortcomings of the universal human rights regime. Within this regime, the claims of undocumented immigrants, and even asylum seekers or refugees regarding access to basic rights, cannot be accommodated easily. In this respect, it would be pertinent to examine the case law of the European Court of human rights, one of the most prominent institutions in the field of protection of human rights in Europe. Reading the case law in the light of H. Arendt’s considerations on “statelessness” and “rightlessness” can help us understand the inherent paradox of human rights and the uncertainties of its current normative and moral foundations.

The Paradox of Human Rights and the Question of Rightlessness

The multiplication of “waiting zones”, “hot spots” and other similar sites within the context of contemporary immigration controls reveals the challenging problems that various categories of migrants encounter as they claim and exercise human rights. I will try to approach these problems by turning to one of the key arguments in Hanna Arendt’s reflection on statelessness in the first half of the 20^th century: “The stateless found themselves in a ‘fundamental situation of rightlessness’”, Arendt claims, “as they lost not only their citizenship rights but also their human rights. In the absence of a political community that could recognize and guarantee their rights, the stateless were deprived of legal personhood as well as a right to action, opinion and speech” (Arendt, 1973).

As Güdongdu notes, from an Arendtian perspective, personhood, or the artificial mask provided by law, is important, as it allows public appearance without the pervasive fear of arbitrary violence and enables rights’ claims to be articulated (Arendt, 1990). Without this mask, one is relegated to a certain form of civil and social death. However, legal personhood remains an artifact and not an inherent essence. It is therefore necessary to attend how it can be effectively unmade or undermined in certain conditions. Possibilities of qualifying and evading personhood are nowhere more visible than in the cases of asylum and immigration, due to the centrality of the principle of territorial sovereignty to the ordering of the international system. Given these possibilities, “rightlessness” must be reconsidered as a critical concept that can alert us to various practices that undermine the legal personhood of migrants. Rightlessness in this regard is thus conceived not as the absolute loss of rights but instead as a fundamental condition denoting the precarious legal, political, and human standing of migrants (Güdongdu, 2015).

I propose to analyse the limits and exclusions of the existing inscriptions of personhood in human rights law by examining the recent case of the ECtHR referred to in the beginning of this paper. The case is about detention at the Italian borders (including the island of Lampedusa) of aliens, namely undocumented immigrants, and their expulsion from Italy to Tunisia. Whilst the events took place in 2011, in the immediate aftermath of the Arab Spring, the issues raised before the Court by the applicants and the principles outlined by the judgement appear relevant to the current “refugee crisis” and its management by the European Union institutions and member States. The case concerns the arrival of the applicants, three Tunisian migrants, on the island of Lampedusa, their initial placement in a reception centre and subsequent confinement on two ships moored in Palermo harbour, followed by their removal to Tunisia in accordance with a simplified procedure under an agreement between Italy and Tunisia of April 2011. The applicants were complaining about the conditions of their detention, a violation of the right to personal liberty, as well as a violation of the prohibition of collective expulsions.

It is to the credit of the Court that the judgement corroborates its position on the value of personal liberty, by reminding States that legal certainty is a crucial principle when it comes to a deprivation of liberty, and it cannot be set aside “even in the context of a migration crisis” (§106). However, the Court found that the conditions in the Lampedusa reception centre did not amount to inhuman or degrading treatment. In this context, the ECtHR reiterated that an increasing influx of migrants cannot, per se, absolve a State of its obligation under Article 3, but conducted, so to say, a “reality check” of the situation suffered by the applicants vis-à-vis the actual situation in which Italy found itself due to the migratory pressure at the time of the Arab Spring (Venturi, 2017).

The Grand Chamber affirmed, firstly, that “it would certainly be artificial” not to consider that the undeniable hurdles faced by the applicants originated from a situation of extreme difficulty confronting the Italian authorities at the relevant time. Secondly, the Court observed that the applicants were not asylum seekers and therefore, they “did not have the specific vulnerability inherent in that status” (§194). Conversely, the Grand Chamber recalled that the applicants were in a weakened physical and psychological condition when held at the centre, due to the dangerous sea crossing (§194). Nevertheless, according to its view, the applicants did not bear the burden of traumatic experiences that had justified the vulnerability approach adopted in a previous case MSS v. Belgium and Greece. Furthermore, the Grand Chamber also pointed out that the applicants did not belong to any of the categories traditionally regarded as vulnerable, but they were young males without any particular health issue.

These arguments seem to corroborate the ECtHR’s nuanced approach to the notion of vulnerability, which, on the one hand, is inherent in all asylum seekers while, on the other hand, is attached to certain individuals because of specific conditions that put them in a more disadvantaged position. Besides, the Grand Chamber’s reasoning seems to give a hint on what vulnerability is not: being a healthy, young man, albeit with irregular status (Venturi, 2017). In any event, the utility of the notion of “vulnerability” in the Court’s case-law can also be criticized, because the legal status of the refugees and asylum seekers in contemporary international law is already founded, primarily, on their “vulnerable” status. The notion can also be considered responsible for introducing further differentiations of the status of non-nationals, be they refugees, illegal immigrants or asylum seekers.

As to the violation of Article 4 of Protocol 4 to the ECHR, concerning the prohibition of collective expulsion, the Grand Chamber found no violation. In the Court’s view, the “relatively simple and standardized nature” of the refusal of entry orders which were merely based on the applicants’ nationality due to the bilateral agreement in force between Tunisia and Italy, could be explained by the fact that the applicants did not allege any fear of being returned or any other legal impediment. In the ECtHR’s opinion, Article 4 of Protocol 4 does not warrant an unfettered right to an individual interview, but only the effective possibility to submit arguments against deportation. As the applicants had this possibility, but they did not raise any argument to challenge their expulsion, the latter did not qualify as “collective” in nature.

The judgement of the Court seems to grant States a large margin of action when dealing with irregular migrants. The judgement gives rise to many conclusions. As some scholars have argued, human rights are ambivalent, they have both “jurisgenerative” and “jurispathic” dimensions (Cover, 1984). We become aware of the “jurisgenerative” dimension of law when existing rights are “reposited, resignified, and reappropriated by new and excluded groups”, as Seyla Benhabib notes (Benahbib, 2006). But it is equally important to look at how human rights law gives rise to “jurispathic” processes when its norms are invoked to affirm the sovereign right to detain or deport rejected asylum seekers and undocumented immigrants. The Khlaifia case shows that the Court recognizes some rights to undocumented migrants, thus extending personhood to migrants, but also upholds the principle of territorial sovereignty that enables a state to expel these migrants, a practice amounting to the unmaking of that personhood.

The judgement also demonstrates that the body has become a crucial site for claiming rights, giving rise to what Didier Fassin aptly calls “biolegitimacy” (Fassin, 2005). It is in the suffering body of the migrant, refugee or asylum seeker that States, courts and refugee advocates will look for some irrefutable truths. The status of the vulnerability as a bodily narrative becomes central also in the reasoning of the Court. The attempt to adjudicate rights claims based on suffering bodies, risks eroding the personhood of migrants who, like the ones in the Khlaifia case, cannot prove any particular suffering (Gündogdu, 2015).

The notion of “vulnerability” closely connected to the suffering body of the migrant points to another arbitrary rule faced by migrants. This new rule is directly related to the compassionate humanitarianism, which can be described as the fact that States, courts and rights advocates turn to compassion to make decisions about suffering. This “new moral economy” risks unmaking the equal personhood of migrants, rendering the rights dependent on a capricious moral sentiment (Gündogdu, 2015). As a result, we are not too far away from Arendt’s argument that the stateless find themselves in a fundamental condition of rightlessness because of their dependence on goodwill or generosity of others (Arendt, 1973). The Court in Khlaifia case reproduces the humanitarian tendency to depict refugees as a vulnerable category, and draw as a consequence a distinction with other categories of migrants who are placed outside the realm of vulnerability. But that move places the dichotomies at the intersection between a moral economy centred on compassion and an administrative rationality directed at the management of vulnerable populations. Thus, from an Arendtian perspective the Court ends up subjecting the rights of migrants to arbitrary decisions about the conditions under which a human body can be considered as suffering and worth of protection (Gündogdu, 2015).

The judgement of the European Court is indicative of the tensions inherent to the contemporary human rights regime and its connection to the notion of State sovereignty. The case also underlines the dangers of “subjecting” the implementation of human rights on moral considerations that can prove to be highly relative or arbitrary. In the next chapter, it is argued that the current “refugee crisis” points primarily to a crisis of human rights within Europe and beyond, implying a need for a reconfiguration of citizenship beyond the nation-state framework and the notion of sovereignty. In this regard, we need to rethink of human rights in the light of a “reinvented” citizenship. The European citizenship, as the first historical precedent with cosmopolitan aspirations, could provide a space for experimentation of this new form of belonging to a truly universalistic human rights regime.

Forming a European Citizenship: The Failure of a Cosmopolitan Ambition or a Chance for the Future of Europe?

How can we overcome the inherent tensions and paradoxes of the human rights regimes and reflect accordingly on the future of citizenship in Europe? Has the notion of European citizenship the potential of reinventing the European polity where equal rights are offered to all? Is the concept of EU citizenship still appropriate today? How can European Citizenship respond adequately to the current challenges and fulfil the cosmopolitan dimension it has?

It is here argued that in the current refugee crisis, the institution of European citizenship could have provided a basis for a unique experience, consisting in stretching social and political bonds beyond national boundaries and permitting the creation of a new, more inclusive political community. However, EU citizenship in its current form needs to be superseded.

Dora Kostakopoulou develops a “constructive approach” to citizenship, as a promise held by the European Union citizenship (Kostakopoulou, 2007). One crucial feature of “constructive citizenship” is that it postulates a vision of inclusion and equal democratic participation in a community where difference is valued and appreciated and not simply tolerated. Such a conception of citizenship embodies a novel and more flexible conception of demos: it separates demos from ethnic and cultural commonalities and reconfigures it as a political process of participatory enactment. According to this vision, European citizenship should carry with it an ethical responsibility: the responsibility to be nourished by institutions, practices, rules and ideas embodying a commitment to social transformation, democratic reform and respect for the Other.

Etienne Balibar proposes to create new modalities and new perspectives of accession to citizenship, which can even transform its definition. He cites for example the generalization of the jus soli in the whole European Union. According to this scholar, it is urgent for the European Union to act in order to respond to the humanitarian crisis at its borders. An ideological change is in this regard necessary. As Balibar notes: “We can say that Europe will either be realized by revolutionizing its vision of the world and its societal choices or it will be destroyed by denying realities and by holding onto the fetishes of the past” (Balibar, 2015).

In this regard, it has also been stressed that it would be more in keeping with the nature of the European entity to relaunch the movement for the “denationalization of rights”. This would benefit European citizens, but also those who do not belong to the “inner” nations and it would progressively transform Europe into the place where a “universality of rights” is achieved, founded in a fractional loosening of the bond woven between nationality and citizenship (Lacroix, 2010). In this sense, granting equal rights to illegal immigrants and asylum seekers, mainly by attributing to them the right to belong to the EU political community is essential for reimagining the symbolic and ideological boundaries of the “European polity” and its “cosmopolitan dimension”.

In her turn, inspired by Arendt, Ayten Güdogdu, proposes an original reading of her “right to have rights”. According to this reading the puzzling formulation of a “right to have rights” can be read as an invitation to rethink human rights in terms of political practices of founding. The author is further drawing on the term introduced by Etienne Balibar “equaliberty” (égaliberté) (Balibar, 2010), which foregrounds the inextricable connection between equality and freedom in modern democracy, affirms a universal access to politics, and animates struggles that contest exclusions from rights and citizenship. This reading highlights that the “right to have rights” marks a new beginning radically interrupting the existing regime of human rights and introducing “a hiatus between the end of the old order and the beginning of the new” (Arendt, 1990).

This approach also underlines that the contemporary institutional mechanisms concerning the protection of human rights cannot always respond to new problems of rightlessness. It also highlights that human rights are not simply normative constrains on an established constitutional order but owe their origins as well as their ongoing preservation to political action (Güdogdu, 2015).

The struggles for the rights of the so-called “illegal immigrants” or the “sans papier” in France, as well as the vague of solidarity raised in Greece and everywhere in Europe in support of the refugees trying to escape from war and suffering reveal that human rights are not simply normative constraints regulating an existing political and legal order but also political inventions that can constitute a new order, bring to view new subjects of rights, and reconfigure existing relations between rights, citizenship and humanity (Güdogdu, 2015). Understood in these terms, human rights have an “insurrectional” dimension, to use Etienne Balibar’s term, because they can turn against the constituted political and normative order for the purposes of founding a new one (Balibar, 2004).

The insurrectional dimension of human rights, configured in the political struggles, changes the boundaries of our political and normative universe, as it introduces us to new subjects who were formerly not recognized as human beings entitled to rights. This point shares similarities with Seyla Benhabib’s proposal to understand human rights in terms of “democratic iterations” that involve practices of contesting and redefining existing prescriptions of rights (Benhabib, 2004). These struggles reveal that human rights understood as a “right to have rights” ultimately depend on a type of citizenship enacted by those who do not have a legitimate standing and yet who thrust themselves into the public spaces from which they are excluded. This paradoxical kind of citizenship involves practices of claiming rights that one is not entitled to according to prevailing legal and normative frameworks (Güdogdu, 2015). The political practices of founding and refounding are important not only for establishing the universal validity of human rights but also for reinventing and reaffirming citizenship, also in the context of the European Union, in the face of global transformations that continue to dilute it.

Inspired by the revolutionary heritage of the 18^th century human rights declarations, Arendt’s “right to have rights” emphasizes the ineluctable historicity of human rights. These rights as products of historical contingency are also founded on the universal validity of the principle of “equality and liberty” (Claude Lefort), animating the struggles that have inspired the modern human rights declarations. In order to move beyond the deficiencies of the contemporary human rights regime, we need to reevaluate the revolutionary dimension of human rights, by considering them as an ongoing achievement that can challenge their instituted configurations, as well as those of citizenship. Enacting those rights presupposes thus a form of active political participation and action. Taking into account that illegal immigrants or asylum seekers have not a recognized legal standing within the instituted polity, political action takes necessarily the form of a political struggle contesting the established limits of citizenship and conditions of acceding to basic rights. A form of political solidarity by the members of the polity is also essential in this respect. Such practices of political action can contribute to the transformation of the practices of belonging, so that people, as the undocumented immigrants, who do not enjoy any rights or who have only limited rights in Europe, can aspire to a place in the European demos and to an extended human rights regime.

….

The responses of the European states to the current refugee crisis, as well as the responses of the institutionalized mechanisms in the field of the protection of human rights, such as the ECtHR, reveal the deficiencies of the system and the fragility of the human rights values on which the idea of the European demos is founded. Rethinking human rights in terms of political practices can help us reinvent the European citizenship, an institution with a cosmopolitan ambition. In an Arendtian framework, the struggles of new subjects challenging current configurations of human rights and citizenship can open the way to a truly cosmopolitan polity.

…….

The author would like to thank the participants of the Winter Session of 24^th-26^th February 2017 of the Nordic Summer University in Wroclaw for their comments, as well as particularly Mogens Chrom Jacobsen for his insightful remarks and suggestions on an earlier draft.

References

Case-Law

Khlaifia and others v. Italy, [GC], n° 16483/12, 15 December 2016.

MSS v. Belgium and Greece, [GC], n° 30696/09, 21 January 2011.

Reports

Human Rights Watch, EU Policies Put Refugees at Risk, An Agenda to Restore Protection, November 2016.

Bibliography

Arendt, Hannah, The Origins of Totalitarianism, Mariner Books, 1973.

Arendt, Hannah, On Revolution, London and New York, Penguin, [1963], 1990.

Balibar, Etienne, “What is a Politics of the Rights of Man?”, In Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, New York, Routledge, 1994.

Balibar, Etienne, We the People of Europe? Reflections on Transnational Citizenship, Princeton, NJ: Princeton University Press, 2004.

Balibar, Etienne, La proposition de l’égaliberté, Paris, Actuel Marx, Confrontations, Presses universitaires de France, 2010.

Balibar, Etienne, “Borderland Europe and the Challenge of Migration”, www.opendemocracy.net, 8 September 2015.

Benhabib, Seyla, The Rights of Others: Aliens, Residents and Citizens, Cambridge and New York: Cambridge University Press, 2004.

Benhabib, Seyla, Another Cosmopolitanism, Robert Prost (ed.), Oxford and New York, Oxford University Press, 2006.

Cohen, Jean L. “Changing Paradigms of Citizenship and the Exclusiveness of Demos”, International Sociology 14, no. 3, September 1999.

Cover, Robert, “Foreword: Nomos and Narrative”, Harvard Law Review, (1983-1984).

Duez, Denis, L’Union européenne et l’immigration clandestine: De la sécurité intérieure à la construction de la communauté politique, éditions de l’Université de Bruxelles, 2008.

Fassin, Didier, “Compassion and Repression: The Moral Economy of Immigration Policies in France”, Cultural Anthropology 20, N° 3, 2005.

Fassin, Didier, Humanitarian Reason: A Moral History of the Present, Berkeley and Los Angeles, University of California Press, 2012.

Gündogdu, Ayten, Rightlessness in an Age of Rights, Hannah Arendt and the Contemporary Struggles of Migrants, Oxford: Oxford University Press, 2015.

Henkin, Louis, The Age of Rights, New York: Columbia University Press, 1990.

Kapartziani, Chryssoula, Papathanasiou, Katerini, “The Refugee Crisis as a European Democratic Crisis”, Globalism: Journal of Culture, Politics and Innovation, 2016.

Kostakopoulou, Dora, “European Union Citizenship: Writing the Future”, European Law Journal, Vol. 13, No 5, pp. 623-646, September 2007.

Lacroix, Justine, “Is European Citizenship feasible?”, La vie des idées, 2010.

Lefort, Claude, “Human Rights and Welfare State”, Democracy and Political Theory, Cambridge, Uk, Polity Press, 1988.

Soysal, Yasemin Nuhoglu, Limits of Citizenship: Migrants and Postnational Membership in Europe, Chicago: University of Chicago, 1994.

Tassin, Etienne, « L’Europe cosmopolitique et la citoyenneté du monde », Raison publique n° 7, October 2007.

Venturi, Denise, “The Grand Chamber’s Ruling in Khlaifia and Others v. Italy: One Step Forward, One Step Back?”, Strasbourg Observers, January 2017.

The Politics of Victimhood in Human Rights Violations: The Case of the Erased Residents of Slovenia

10/08/2017Conference proceedings (double non-blind peer review)Slovenia, erased, human rights, nationalism, resident, victimhoodBarbara Gornik

The article analyses the political practice of human rights in the case of the erased residents of Slovenia. The term “Erased” refers to the 25,671 individuals, ethnically mainly Serbs, Croats, Bosnians, Macedonians, Montenegrins and Roma, who were unlawfully erased from the Register of Permanent Residents of Slovenia by the government after the break-up of the Socialist Federal Republic of Yugoslavia in 1992. The Erased were Yugoslav citizens who either did not apply for Slovenian citizenship or whose application was denied in the process of Slovenian state building. At that point, they were formally given the possibility to apply for a permanent residency permit, but in reality the newly adopted Aliens Act did not enable them to maintain their residential status. Hence, many of them became irregular foreigners and lost the political, social and economic rights they had once enjoyed.

The erasure was committed in secret and from 1992 to 1999 the general public was unaware about this event. It was only in 1999 after several unsuccessful legal complaints filed by the Erased that the Constitutional Court declared Article 81 of the Aliens Act unconstitutional and revealed the crime in its entirety. Paralysed by the futile political process of human rights reconciliation, eleven individuals filed a complaint against the Republic of Slovenia at the European Court of Human Rights in July 2006, which reached its final judgement in the case of Kurić and others vs. Republic of Slovenia (2012) and held unanimously that there had been a violation of the 8^th, 13^th and 14^th Articles of the European Convention on Human Rights. It took altogether twenty-one years for the political process of human rights redress to be concluded by establishing a compensation scheme for the Erased in 2013.

Close observation of the case of the Erased over the last decade has prompted significant questions about how human rights actually work in practice. Sadly, this case alludes to the fact that when faced with a situation wherein human rights are at risk, those responsible may not take immediate action nor offer the response needed to abolish the elements of human rights violation and abuse. This casts doubt on the efficiency of human rights, for if these rights which are supposed to represent the minimum standard of dignified life can be ignored for so long and with such particular lightness, even after the violation had been already legally established, we must then question and expose the factors which obstruct their implementation and diminish their potential for the individual and humanity.

This paper offers an analysis of the human rights practice in the case of the Erased focusing in particular on the political construction of their victimhood. By adopting the standpoint of anthropology of human rights, the article contextualizes the erasure and demonstrates how universal human rights were vernacularized (Engle Merry 2006), appropriated (Speed 2006, 2008) and reinterpreted within the Slovenian political setting in order to align with the values of the local community and the rules flowing from the existing political and legal order. The article begins with a brief introduction into the main ideas of the anthropology of human rights and continues by charting the context of the erasure. This is followed by an examination of the significance of legal residence in relation to human rights implementation. Thereafter I introduce the process through which the Erased became recognized as victims of a human rights violation and thus human right-bearing subjects. Finally, I examine the criteria for dividing “true” and “false” victims of the erasure revealing how human rights and victimhood construction operate within a political setting. In this manner, I expose elements of human rights discourse that are not seen as an obvious part but nevertheless a play major role when putting rights into practice.

An Anthropological Approach to Human Rights Practice

Human rights can be considered separately from the political structures by which they were formed and beyond the situations in which they are practised. If considered in a vacuum of legal documents, conventions and declarations regardless of their implementations, we note that human rights law generates a figure of rights built upon the human as its main subject and basic principles such as universality (Donnely 2003) human dignity (Carrozze 2013; Klein and Kretzmer 2002; Kateb 2011), human integrity (Rodley 2014) and equality (Clifford 2013; Moeckli, 2014). Human rights are often understood as legal categories in the instrumentalist sense as a tool for protection against the arbitrary power of the state, especially within the idea that the power of the state is not unlimited, that each individual has some autonomy and rights with which no authority can interfere (Osiatynski 2009: 1; Donnelly 2003).

Stemming from this, we can assert that human rights law constitutes a kind of culture in the sense that the discourse on rights is defined by particular characteristics—for example, a way of speaking, thinking, a construction of the self and sociality (Covan, Dembour and Wilson 2001; Riles 2006). Human rights law, however, is only one part of human rights articulations in a nearly endless array of human rights practices. Although I take human rights to be those rights enshrined in international human rights law, I also recognize the significance of the wider social and historical context which led to the emergence of human rights and their current practices. Therefore, I tend to rely on Goodale’s (2009: 378) description of rights as “a phrase that captures the constellations of philosophical, practical and phenomenological dimensions through which universal rights, rights believed to be entailed by common human nature, are enacted, debated, practised, violated, envisioned, and experienced”. This formulation is in line with anthropologists such as Cowan, Dembour and Wilson, (2001), Riles (2006) and Engle Merry (2006), and points to the position that human rights culture is best understood as a discourse with its own logic of operation, its own possibilities and limitations, which is not limited to law but also reflects and contributes to the understanding of perceptions about who we are, and what our social ideals and cultural values are.

In adopting an anthropological view of human rights it is important to recognize two relevant approaches that broaden the above position. The first approach is that of the ethnography of human rights, which examines how the global culture of human rights is subject to transformation by adopting and adjusting to the existing social values, power relations, and powerful structures, when used at the micro-level in a particular socio-cultural context (Cowan, Dembour and Wilson 2001; Engle Merry 2006, 2009; Goodale 2006, 2007, 2009) giving it a specific character that may depart from the official framework of universal human rights. At the heart of the focus here is the “translation” of the human rights principles into local situations by integrating local concerns into the interpretation and implementation of human rights. In line with Speed (2008) and her term “local appropriations”, and with Engle Merry (2006) and her concept of “vernacularization” of human rights, special emphasis is put on examining the processes of justification and actualization of human rights within the context of local settings and the never-ending negotiations between agency, culture, and power.

The second approach – critical anthropology of human rights – is complementary to ethnography, but tends to reflect critically on the concepts of society, culture, and human rights beyond their manifest declarative level to discover the power relations which reside within the human rights framework itself (Goodale 2009). Human rights law often operates with categories that at a first glance may appear to be self-evident and unproblematic. In this sense, recognition of the political element of the human rights regime is essential; as observed by Žižek, human rights as a supposedly “non” or “pre-political” phenomenon demonstrate “that every naturalization of some partial content as “non-political‘’ is a political gesture par excellence” (Žižek 2005: 125). Such an approach builds upon establishing a critical distance to human rights law in order to examine the political dimensions and power relations that reside within and reproduce a political world order that may finally not be entirely in line with the principles of human rights.

The category of a victim of a human rights violation is undoubtedly one place where a myriad of political dimensions and power relations intersect. If we take a closer look at how the figure of a victim is articulated in practice, either in international law or local contexts, we soon realize that victimhood is far from being clear-cut and unambiguous. Instead it points to the very issue of power relations by raising significant questions such as who counts as a victim of a human rights violation, what are the elements of the criterion for establishing victimhood, who determines the human rights redress and what constitutes the legitimacy of a human rights claim.

An anthropological approach to the question of victimhood construction draws attention to examining how political tensions which appear during the process are navigated in different ways. In this paper, I will demonstrate that the notion of territorial attachment, political loyalty and compliance with the legal order, readily entering the process of victimhood constitution and operating as an important element of interpretation and implementation of human rights despite having little or nothing to do with the idea of human rights as such. Following the standpoint of anthropology this should not surprise us, for if victimhood construction takes place in political discourse – the prime place for exhibiting nationalist rhetoric, pride, and self-glorification (van Dijk 1990) – it is expected that through the process of vernacularization, the values of human rights will be entangled with the values of the local political setting.

The theories of human rights which take humanity as their base obviously aim to create a connection of essentialism where it does not exist. We must agree with Foucault on his view that throughout history men have never ceased to construct themselves and their subjectivities in multiple series that never end and can “never bring us in the presence of something that would be “man.”” (Foucault 2002: 276). Human rights, as they exist in international law are rights constructed as a result of the knowledge and power relations of contemporary society and not something that exist beyond or independent of that knowledge and power. Victimhood is, in the same vein, a social construct, consisting of views, opinions, perceptions and social practices which define and demonstrate our understanding of humanity. The anthropological approach to victimhood construction is therefore not about examining the process of applying the language enshrined in international legal documents as a one-way process with an aim to resolve the cases of human rights violations. An analytical look beyond the essentialism offered by the rationality of human rights on the declarative level is required. Consequently, the task of analysing victimhood within human rights can therefore not be setting the interpretation to a level showing primarily how things should be – although this cannot be entirely avoided – but mainly to exposing how things are and why.

A Contextualization of the Erasure

The erasure from the register of permanent residents of the Republic of Slovenia in 1992 befell citizens of other republics of the former Yugoslavia who had not applied for Slovenian citizenship, whose application for citizenship had not been accepted by officials at the administrative units, and for those whose application for citizenship was rejected. Among the Erased, there were 20,311 adults and 5,360 minors, of whom 14,775 were men and 10,896 were women. They represent a heterogeneous group of people; some were internal immigrants from other republics of the former Yugoslavia who held common Yugoslav citizenship, while others were born and raised in Slovenia. Most had spent a significant part of their lives there and had developed personal, social, cultural, linguistic and economic bonds in their private and family lives.

The story of the erasure begins in the early 1990s’, after the separation from Yugoslavia. One of the first documents of Slovene statehood, the Statement of Good Intent (1990), guaranteed, “the members of all other nations and nationalities their right to an overall cultural and linguistic development, and to all those who have their permanent residence in Slovenia that they can obtain Slovene citizenship, if they so desire”. On 25^th June 1991, the Republic of Slovenia formally declared its independence and adopted legislation related to internal affairs, citizenship and sovereignty. In line with Article 40 of the Citizenship Act (1991) individuals who held citizenship from other republics of former Yugoslavia and who had permanent residency in the Republic of Slovenia were given the possibility to apply for Slovenian citizenship without additional requirements related to length of stay, language proficiency and material status or similar[1]. Under this article, approximately 171,000 out of 200,000 citizens of other Yugoslavian republics gained Slovenian citizenship (Zorn 2009).

Although the Slovenian government proved to be liberal in this regard, it had expressed exclusivist tendencies toward permanent residents of Slovenia from other Yugoslavian republics who did not wish to, could not, or were not eligible to obtain Slovenian citizenship. These individuals came under the rules of the Aliens Act (1991). They reasonably expected to be able to maintain their permanent residency status, however, Article 81 of the Aliens Act stipulated that a permanent residence permit could be granted if a person had been living in Slovenia for three years on the basis of a temporary residence permit. The decisive fact was that no such permits were needed for citizens of other republics of former Yugoslavia before the break-up of the country. This bureaucratic banality was used as an argument for taking away their status as permanent residents.

But the legal void of the Aliens Act was neither a mistake nor an unfortunate coincidence. The transcript of the 19^th session of the then Assembly of the Republic of Slovenia from 1991 demonstrates that parliamentarians were conscious of the difficulties foreigners would face if the Aliens Act was passed without preliminary provisions for Yugoslav citizens which allowed them to keep their permanent residency. Member of Parliament, Metka Mencin, proposed an amendment to article 81 of the Aliens Act which could have prevented the erasure by suggesting that:

Citizens of the SFRY who are citizens of other republics and have not filed a request for citizenship of the Republic of Slovenia, but who do have a registered permanent residence or are employed in the Republic of Slovenia on the day this law takes effect, will be issued a permanent residence permit in the Republic of Slovenia.

(transcript of 19^th Session of the Socio-political Chamber, 3^rd June 1991).

On the 3^rd of June 1991, they turned down the amendment to article 81 of the Aliens Act by two votes. On the 27^thof February 1992, Minister of the Interior, Igor Bavčar, dispatched the Official Communication to local administrative units, instructing them to start “clearing up the records” and managing the status of all citizens of other republics of former Yugoslavia who did not apply for citizenship in the Republic of Slovenia by the stipulated deadline (MI, 1992a). Even though the Aliens Act did not provide a legal basis for such a procedure, 25,671 individuals were erased from the Register of Permanent Residents of Slovenia. These persons became known as the “Erased.” Some were deported, some left Slovenia of their own accord, others stayed on the basis of temporary work permits, while others had no choice but to live without legal residency status or even found themselves stateless. Three months after the erasure Bavčar, acquainted with the difficulties the Erased had been subjected to, argued in another Official Communication to the government that the previously existing rights of the individuals who had not applied for Slovenian citizenship or whose application had been rejected, needed to be ignored (MI, 1992b) as his standpoint was that they needed to be treated as foreigners entering Slovenia for the first time.

Legal Residence as a Condition of Human Rights

The Erased experienced a number of adverse consequences, such as the destruction of identity documents, loss of employment and health insurance, the impossibility of renewing identity documents or driving licences, difficulties in claiming pension rights, etc. Those who did not meet the conditions necessary to obtain a temporary residence permit were simply unable to overcome the legal vacuum caused by their irregular residency status and the consequences it had upon their lives. When attempting to arrange their status at the administrative units they faced innumerable formal and informal obstacles (see Lipovec Čebron and Zorn 2011). The situation in local courts was similar; between 1992 and 1999 the courts operated as a subsidiary of the state’s executive power. Even the Supreme Court, which accepted several complaints on behalf of the Erased, did not respond to the restrictive measures of the Ministry of the Interior but instead uncritically followed the laws which were clearly unfair (Kogovešek Šalamon 2011). The question arising in regard to this situation is why it was so difficult, even impossible, for the Erased to overcome the situation of absolute rightlessness (Arendt 1976) which rendered them superfluous and “out of place”.

The case of the Erased demonstrates that the legal residence given to an individual by a sovereign state on the basis of its sovereign right to decide who shall be admitted to its territory proves to be an important condition for full access to human rights. The status of (ir)regular foreigner remains as one of the most far-reaching “common-sense” inclusions/exclusions even when human rights are at stake. Kesby (2012: 108) notes that irregular or undocumented migration status is absent from the prohibited grounds of discrimination, which can be understood as a deliberate exclusion of irregular migrants from the position of the right-bearing subject. If a person does not hold permission to be in the territory of the state, the state is not deemed responsible for protecting and ensuring his or her rights. This is a stance which is clearly evident, for instance, in the International Covenant on Civil and Political Rights – that the obligation of the state is to respect and ensure rights to individuals who reside lawfully within its territory or are subject to its jurisdiction. The relation between the state’s responsibility to protect and the lawfulness of the individuals’ residence thus puts legal residence as the very source of a human rights claim, the source of the paramount of all human rights i.e. the “right to have rights” (Arendt 1976).

Legal residence in this sense is a crucial element in the practice of making and unmaking an individual a bearer of human rights. Many contemporary authors have been successful in exposing the complex relationships between states, sovereignty and human rights law (e.g. Arendt 1976; Kesby 2012; Agamben 2008; Ranciere 2004; Gündoğdu 2012, 2015; Vincent 2010) and have explained the difficulties arising from this as well as the consequences for the universal recognition of human rights. Although, as Gündoğdu (2015) notes, individuals within contemporary human rights law are not completely robbed of their legal personhood when ejected from the “the old trinity of state-people-territory,” – as notably believed by Arendt (1976) – they are nevertheless often deprived of their rights by the normalization of deportation of irregular foreigners, the illegalization of residency, or other forms of state population control. Kesby (2012) and Bosniak (2006) assert that the illegalization of residency constitutes internal borders so that even if a person may be physically present, they are to be socially and legally absent through the denial of key rights or formal and practical impediments.

As seen in the case of the Erased, legal residency provides a person with a legal personality, which is key to having the right to action and speech. Noted by Arendt (1976: 296) “the fundamental deprivation of human rights is manifested first and foremost in the deprivation of a place in the world which makes opinions significant and actions effective.” This is precisely what happened to the Erased – their lack of a legal residence permits in practice stripped away the significance of their arguments, which were considered void and worthless, having neither legitimacy nor importance. Hence the paradox, despite the fact that the human rights of the Erased were violated, they could not be recognized as victims of a violation as their claims were not considered legitimate. So it is that the construction of victimhood is inherently linked to the question regarding who has the right of a “speaking subject” (Foucault 1982)[2], and consequently to the concept of who is considered to be “in place” and who is “out of place” (Kesby 2012: 7). In other words, irregular residency constitutes a position of profound victimlessness, which can only be overcome by “gaining a voice” by the legalization of resident status. This means that a victim of human right violations can only be constituted in line with the rules of the recognition of the victim, as set out by sovereign nation states.

The exclusion of the Erased through the illegalization of their resident status points to the boundaries of humanity and human rights, which in this case overlap the boundaries of the state. Although human rights are often explained as moral entitlements people possess by virtue of common humanity, we can note here that having access to human rights is not linked to the question of being human. The idea of humanity providing the right to have rights or the right of every individual to be a member of humanity is not provided by humanity itself. As the case of the Erased shows, the idea of humanity is beyond the current realm of international law, as the latter still operates on the basis of the decision-making of sovereign states (Arendt 2003: 379). The concept of universal all-encompassing humanity is thus under question as it is evident that humanity in reality is not sealed from the exclusionary practices which nation-states employ (Kesby 2012: 103).

It appears that the right of a nation-state to control the admission and residence of non-citizens rests above the humanity postulated in international human rights law. This works not only through border control and restricted access state territory but also through the construction of the illegality of persons who are territorially present, but nevertheless expelled from humanity (ibid). Having the right to stay in the territory of a country functions in this case as a vital entry point that endows the individual with “the right to have rights” and “the right to be heard” (Arendt 1976) and thus become the subject of human rights in a full sense. In the case of the Erased it can be seen that the principle of territorial sovereignty based on controlling the admission of foreigners to the territory of the state, justified as legitimate acts of sovereign statehood, ended up creating divisions within humanity itself.

Becoming a Right-Bearing Subject

In the two decades following the erasure, the Erased were represented in the media and especially in political discourse as disloyal and potentially dangerous; they were repeatedly represented as criminals, calculating and speculative individuals, national enemies and aggressors, even if there were no objective reasons for such a demonization, as they were mainly ordinary people living Slovenia. In the years following the erasure, journalists who wrote about the Erased in Mladina, a traditionally liberal weekly newspaper, were often confronted by questions from their editors, “Why do we need to write about this at all?”, “After all, they are the aggressors”, “Do you think this will increase the number of our copies?” (Mekina 2007). Devaluation and dehumanization excluded the Erased from political life, left them without the rights of a speaking subject and pushed them into a “bare life” (Agamben 1998) which additionally diminished the legitimacy of their human rights struggle.

Agamben (2008) recognized that the political order of the nation-state does not offer an autonomous space that would allow for the existence of a “mere” human; according to him, refugees or undocumented migrants can only gain full access to human rights either by deportation or naturalization i.e. inclusion into the polity of a state. Similarly, the claims of the Erased could only be recognized as legitimate by reintegration into the political community; it was 1999, seven years after the erasure, when the Constitutional Court established the unconstitutionality of Article 81 of the Aliens Act (CC 1999). This had a significant impact in that it provided legitimacy to the claims of the Erased, although only by including them into the national polity according to the rules of the nation-state – not as mere humans –could they enforce their human right claims. In its decision, the court ordered the government to resolve the inconsistency within a period of six months and demanded the abolition of unconstitutional conditions taking into account ‘the status that the Erased should have had but due to the improper legislation did not have’ (ibid).

As the court explained in its judgement, Article 81 of the Aliens Act was unconstitutional because it did not specify the conditions for obtaining a permanent residence permit after the expiration of the deadline for citizens of other republics of the former Yugoslavia. The Constitutional Court’s Decision had a decisive impact on transforming the Erased into rights-bearing subjects: (1) it revealed the actual extent of the erasure; (2) it created a potential core for developing a new subjectivity of the Erased as victims of human rights violations; (3) it formed a legitimate position from which the Erased could claim their rights; (4) it brought the issue to the political and parliamentarian agenda. The decision was the first document that clearly articulated the Erased from the perspective of constitutionality and also had a binding request to eliminate the injustice. What is more, it discontinued the silence and the political ignorance and in this respect succeeded in exceeding the impacts of the totalitarian elements of power previously shown in the Slovenian legal system (Kogovšek Šalamon 2011: 177).

Despite the ruling, the human rights struggle was far from over. Most politicians indeed emphasized their distance toward human rights violations, not only because these are generally against the law but also because this would most likely result in constructing their negative self-presentation. What they failed to do, however, was to adopt genuine human rights positions. What could be traced in the case of the Erased was that in general, politicians acted humanely and in a tolerant manner towards those among the Erased whom they perceived as victims of rights violations, but at the same time strongly defended the national interests indicating how conflicting ideologies of cosmopolitan humanitarianism and nationalism intertwine. The political debates that followed demonstrated the classical ‘firm, but fair’ position (van Dijk 1993), where the fairness served as a cosmopolitan disguise intended to avoid impressions or accusations of nationalism, whereas the firmness was the actual aim being pursued from their standpoint. Within the political setting of the human rights redress of the Erased, we were actually faced with simultaneous support toward human rights values, on the one hand, and the denial of human rights claims to a particular group within the Erased on the other hand.

In this respect, it is not important to establish whether individual politicians were xenophobic and intolerant toward the Erased, but to focus on the systematic flaws, elements in the processes, activities, and cognitions involved in the construction of victimhood. For instance, politicians applied various means to adjust the values of human rights, discredited the human rights holders and justified the crime of erasure with relativization. As highlighted by Jalušič (2008: 97), dealing with mass human rights violation involves several approaches and one of them, and also the most problematic one, is to explain the violent crime “through “contextualization” and their apologia – sometimes even in the form of an open justification of what has been done which can serve to legitimize further exclusion”. Indeed, there was an obvious attempt to represent the erasure as an administrative injustice which happened unintentionally during the state-building process, which also implied the reluctance of Slovenian political actors to determine objective or subjective responsibility for the violation of human rights.

Another way of dealing with mass violation of human rights, Jalušič notes (ibid), involves denial and silence about the criminal past and attempts to exculpate oneself using negative propaganda, powerlessness, and nationalist politicians as a pretext. As typified by Cohen (2007) in relation to other atrocities and human suffering, the case of the Erased likewise exhibited various states of denial such as outright denial (the erasure did not happen), discrediting (they were aggressors, criminals, and speculators), renaming (they were not erased but transferred from one register to another), and justification (they did not wish to reside in Slovenia anyhow). In this way, the politicians simultaneously denied the meaning of the erasure, claimed that it happened independently of their will and justified it in nationalistic terms. Politicians invented a particular discourse in relation to the Erased that was highly coded, full of references to political loyalty, territorial attachments, right and wrong, good and bad, and the responsibility to protect the state against its opponents.

The shift in recognition of the Erased as victims of a human rights violation has been to a large extent a result of the Constitutional Court’s decision from 1999 as well the critical approach of academics and legal experts, however, it turned out that the fundamental problem of the Erased was that the issue was being solved on the political and not the legal level. The political process of the recognition of the human rights violation following the constitutional court decision indeed demonstrated how much human rights are not just a matter of law, but are to a great extent dependent on the will found within a political setting where the battle to determine the final interpretation of human rights takes place. To grasp this troublesome development, we can examine the key milestones in the political process of human rights reconciliation.

In line with the constitutional court decision from 1999, the first political initiative to resolve the status of the Erased occurred the same year when the government filed the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia (the Status Regulation Act 1999). In 2000, the Constitutional Court ruled that this act was unconstitutional as it lay down stricter conditions for obtaining a permanent residence than those laid down in the Aliens Act of 1991 (CC 2000) in 2003, when it declared the unconstitutionality of the Status Regulation Act because it recognized the Erased’s residence only from the date of the re-application for residency and not from the date of erasure (CC 2003). The constitutional ruling returned the Erased to the parliamentary agenda debates in 2003 when the government attempted to pass two acts. One was adopted but later rejected in 2004 in a public referendum, while the legislative procedure of the other was suspended in 2004 due to a right-wing government. Under the rule of this government, i.e. from 2004 to 2008, all procedures for granting residence permits to the Erased on the basis of the decision of the Constitutional Court in 2003 was suspended. After the change of government in 2008, the Status Regulation Act from 1999 was finally amended and adopted in 2010. In 2012 the European Court of Human Rights (2012) delivered its final judgement in the case of Kurić and others vs. Republic of Slovenia. The Grand Chamber unanimously held that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human Rights and ordered the Slovenian government to set up an ad hoc domestic compensation scheme within one year of the final judgement. Following a six-month delay, the Slovenian government passed The Act on Restitution of Damage for Persons who were erased from the Register of Permanent Population (the Restitution Act 2013).

As evident from the brief sketch, becoming a rights-bearing subject may not be achieved immediately after the legitimacy of the rights claim is constituted in legal terms. It points to the fact that the violation of a right, even after it has been recognized by the court, does not provide an immediate solution to the problem. The whole process indicates that human rights are not simply a question of legal recognition, but more than that, a political decision of those in power to decide about whom human rights belong to and under which conditions. This brings us immediately to the question of victimhood construction along with an examination of who counts as a victim of a human rights violation and what constitutes the legitimacy of the human rights claim. As we shall see in the next section, the political setting and its approach to human rights violations may be deemed particularly ineffective, since it does not necessarily stem from human rights law and human dignity but builds upon a particular political interest justified outside human rights discourse.

Construction of Victimhood of the Human Rights Violation

The Constitutional Court as well as the European Court of Human Rights recognized the erasure per se as a human rights violation, essentially applying to all individuals affected. The Slovenian government, however, did not recognize every erased person as a victim. On the contrary, during the reconciliation process, members of parliament were constantly “sifting the wheat from the chaff” by establishing differences between the “true” and the “false” victims of the erasure. Their debates had been generally rather technical in the sense that they discussed what the precise rules were, the conditions and other measures which needed to be applied so that only the “most loyal” among the Erased could obtain a residence permit and essentially, to cut down the number of individuals eligible to claim compensation for suffering and loss of rights. At the same time, and what is especially worrying, the basic notions of human rights discourse such as human dignity and human equality as well as the inalienability and universality of the rights of the Erased were more or less absent from the process of victimhood construction. Instead the political construction of victimhood was intersected with references to political loyalty, legal compliance and territorial attachment.

Victimhood through Territorial Attachment

In the case of the Erased, territorial attachment turned out to be one of the prime features of the process of the victimhood construction. Article 1 of the Status Regulation Act determined that the Erased “who were registered as permanent residents in the territory of the Republic of Slovenia on 23 December 1990 and are actually resident in the Republic of Slovenia, and foreigners who were actually resident in the Republic of Slovenia on 25 June 1991 and have been living there continuously ever since, shall be issued with a permanent residence permit” (The Status Regulation Act, Article 1 2010).

The Act also stipulated that the condition of actual and uninterrupted residence was likewise met if the person left the Republic of Slovenia as a consequence of erasure from the Register of Permanent Residents and if the person left the Republic of Slovenia because he or she could not acquire a residence permit in the Republic of Slovenia owing to non-fulfilment of the relevant conditions and the application for a permit was rejected or dismissed or the procedure was terminated (The Status Regulation Act, Article 1č 2010).

Following this, an erased person who had left Slovenia and had not attempted to return did not meet the conditions for obtaining their lost permanent residence and consequently could not be counted as a victim of a human rights violation. Such a condition, entirely incompatible with the principle of universal human rights, created a differentiation within the victims of the erasure. The logic behind this is that the human rights of individuals who had emigrated from Slovenia after the erasure were not violated since they did not wish to live in Slovenia anyhow, which is evident from the following transcript:

Everybody who expressed some kind of interest to live in Slovenia in the period of ten years after they left Slovenia and those who regardless of the erasure remained living in Slovenia have the opportunity to arrange their status as permanent residents

[…] I believe the selection of rightful claimants has been thoughtfully determined. […] we have individualized our approach so that the eligibility of claimants depends on the fact that they have tried to arrange residential status, that is to say, they have expressed interest. Those who have not expressed any interest, those who have left Slovenia and have not attempted to return and to live in Slovenia, those have not suffered a loss and it would be absurd to give them financial compensation.

(Transcript of 17^th parliamentary session, 24 September 2013)

Such an argument is not only inconsistent with the basic orientations of human rights law but also shows a lack of understanding and knowledge about the life situations of the Erased; a considerable part of those in question had not actually and uninterruptedly resided in Slovenia because in many cases, this was impossible owing to the erasure (Kogovšek Šalamon, 2007). From the view of the erasure itself, it is absolutely absurd to require from the Erased that they return and live in Slovenia as it was precisely because they were erased that they did not meet the conditions to do so. In other words, by this condition the government actually required them to do something against the law, i.e. to return to Slovenia illegally (Krivic 2013). By this measure the government denied the Erased who had left Slovenia their right to be heard before any action concerning the violation of their rights was taken. In this manner, they were stripped of the possibility to explain their individual circumstances as well as the reasons for leaving Slovenia as if the actual impact of the erasure on their lives was a priori irrelevant.

In the same way the compensation scheme, which was set by the government by adopting The Restitution Act in accordance with the final judgement of the Grand Chamber of European Court of Human Rights, admitted compensation exclusively to individuals who had put at least some effort into settling their status in Slovenia, or in the words of a member of parliament:

Speculators, meaning those who have left the country and never cared, never wished to come back to Slovenian territory, cannot just appear and demand some kind of compensation. This [the compensation] is meant for the people who made an effort, who endeavoured to arrange their statuses.

(Transcript of 17^th parliamentary session, 24 September 2013)

On the basis of this argument approximately 13,000 of the erased individuals who had left Slovenia were not eligible to regain their status or be indemnified for the loss and damages inflicted upon them by the erasure. From the human rights point of view, however, whether an individual has lived in Slovenia, left, or attempted to return is of no significance. It does not change the fact that by erasing them from the register of permanent residence the state had robbed these people of their human rights. The members of parliament now tried to put forward an interpretation which translated as the rights of those who had left Slovenia was not really violated as they wanted to leave anyhow.

Such an explanation truly modifies and denies the real meaning of the erasure and consequently also modifies the meaning of human rights. The fact remains that the erasure inflicted a violation of human rights no matter if the Erased left Slovenia afterwards and had not attempted to return. But the case of the Erased demonstrates what happened after the violation of rights, that in this case, the individual place of residence has the ability to confirm or deny the violation itself. What one must understand in this regard is that territorial residence here does not merely operate as geographical location, but primarily as an objective signifier of belonging, attachment and membership that at the same time serves to indicate loyalty to the values of the Slovene nation state. For this reason, introducing the territorial dimension into victimhood construction, which appeared as a result of the power of the nationalist discourse, must be understood in the sense that the territorial identity of the Erased was also considered a way of expressing loyalty and defining group membership. In the last instance, this means that the victims of the erasure could only be the ones who proved to be those most loyal through territorial attachment.

Territory has another important political aspect from the view of human rights victimhood construction. As Elden (2013) convincingly proposes, territory cannot be understood as a part of a land in the simple political-economic sense of rights of use, appropriation, and possession attached to a place. Territory can be thought of as the extension of the state’s power or as a mechanism though which state power is exercised. The practice of human rights is clearly not particularly successful in diminishing the idea of the territory in regard to exercising state power. To be in the territory is to be subject to sovereignty and to be subject to sovereignty is to be recognized as entitled to human rights protection. One is subject to sovereignty while in the territory and not beyond (Elden 2013: 329). In other words, the state legitimizes itself as the supreme legal institution in charge of the protection of all inhabitants in its territory, regardless of their nationality, which gives rise to problematic distinctions between those in the territory and those who are outside it, even when it comes to the question of who is entitled to rights (Gündoğdu 2015: 43). In the same vein, Kesby (2012: 110) highlights that the territorial border is distinctive in that it eclipses the question of one’s humanity in that it bestows human rights obligations exclusively to those under its jurisdiction in a territorial sense, so that only those physically present in the territory trigger a state obligation to protect their human rights. The result is that the Erased who left Slovenia and never tried to return did not appear to the state as a ‘human’ to whom human rights obligations were owed, despite the fact that they were unlawfully erased from the Register of permanent residents and as a result of that erasure, their human rights were violated.

Victimhood through Deviancy and Imprisonment

Another problematic condition for settling the status of the Erased was the provision of the Status Regulation Acts determining that a residency permit could not be granted to anyone among the Erased who had been convicted of an offence resulting in imprisonment of at least three years or sentenced to more than one term of imprisonment with a total length of more than five years (Status Regulation Act, Article 3 2010). There is no official data regarding the numbers of the Erased who would be denied permanent residency on the basis of the above provisions, but it can be assumed that the number is very low or even zero. For this reason in particular it is thought-provoking that such a provision exists despite the fact that in reality there were not many cases, if any, to which they could have been referring. The restrictions on human rights protection on the ground of deviancy are indeed illustrative of the connotative content of the victim figure; my concern here, however, is also related to the role of international law in overcoming exclusions on the basis of deviancy.

What is most important is this regard is that international human rights law does not interfere with the right of the sovereign state to control the entry of aliens into its territory nor to set the rules of their residence and expulsion. The role of human rights law in this regard remains tenuous as it considers the matters of citizenship and the residence of foreigners to be within domestic jurisdictions insofar as they are consistent with international conventions and customary international law (Ersboll 2007: 253) i.e. as long as the state action is not arbitrary, discriminatory or has statelessness as a result. It has to be noted that the same reasons – imprisonment of three years or a total imprisonment length of more than five years – were listed in the Aliens Act from 1991 as the reason for possible renouncing permanent residence to a foreigner (Aliens Act, article 24 1991); from this aspect it cannot be claimed that the provisions related to the Erased are arbitrary or discriminatory.

The implicit message of the exclusion of prisoners from the victimhood construction of the Erased therefore is that they could lose their permanent residency in any case no matter if the violation of their human rights was recognized. That may be true, however, to deny erasure as a violation of human rights in the case of former prisoners actually means to deny the true meaning of the erasure – as an act of violation of human rights law per se. Such provisions namely make a statement that among the Erased, some do not deserve to be recognized as victims of a human rights violation and that their human dignity and equality may perhaps be disregarded when it comes to recognition of their right claims. The problem lies in that it is not the state that appears to be a “savage” who violated human rights, but the former prisoners who appear to be “savages” not worthy enough to have their rights fully respected.

We may turn to the question of why is it reasonable to restrict the human rights of prisoners, if these are the rights that everybody is supposed to be entitled to on the basis of being human, and why such discrimination against prisoners is not deemed discrimination but as a reasonable restriction? The main point of the criticism here is the automatic denial of human rights victimhood on the basis of deviancy alone. Recognition of human rights is not a privilege and also a convicted prisoner remains the bearer of human rights (Kesby 2012: 72). Within this relationship and these exclusions, we find a profound expression of the existing values of modern societies we come across when dealing with prisoners. Kesby (2012: 71) illustratively depicts prisoners as society’s outcasts, forcing us to reflect whether human rights are a privilege to be denied to those who are deviant and undeserving and thus not worthy of being placed inside a political community. Although everybody is considered a bearer of human rights which do not depend upon individual moral worthiness, the fact of being imprisoned, especially in the case of a grave offence, reveals “the “natural man” beneath, says Kebsy (2012: 78) by lifting the veil of formal equality stemming from humanity, the distinctions between deviant and law-abiding individuals come to the front.

The distinction between victims of human rights violations justified in terms of deviancy is used to define the preferred human rights bearers and to outcast those deemed unworthy. In the case of the Erased this can be seen as the arrogance of power over morality, especially from the point of view that it was the state which broke the law and violated human rights in the first place, and that the same state then denied the recognition of those human rights violations and once more acted against the idea of the universal human rights. The civilizing mission comes to the fore here, which strips away the full humanity and dignity of prisoners who are depicted as “savages” and defined as undesired, unwelcome, and dangerous and as such clearly impossible to be considered victims of human rights violations as they are themselves represented as the negation of humanity.

Victimhood through Political Loyalty

The case of the Erased revealed another significant element within the process of victimhood construction, i.e. political loyalty. The Status Regulation Act determined that the status of a permanent resident could not be returned to individuals who had been convicted of an offence directed against the Republic of Slovenia, irrespective of where the crime was committed (Status Regulation Act 2010). While loyalty does not appear to be in any way a factor of respecting human rights – as already explained human rights are not something that is either earned or can be lost – here it played a crucial role in the construction of victimhood in the case of the Erased. Although the provisions related to the actions against the sovereignty of Slovenia have no real significance in actual life, since no individuals were convicted of such criminal acts, the process of victimhood construction nevertheless shows what society generally understands as legitimate reasons for denying one’s human rights.

The Status Regulation Act namely denied access to permanent residency to an erased person if he or she was, “after 25 June 1991, convicted of an offence under the 15^th or 16^th chapter of the Criminal Code of SFRY, directed against the Republic of Slovenia […], irrespective of where the crime was committed; […] or convicted of an offence under the 33^rd, 34^th or 35^th chapter of the Criminal Code of the Republic of Slovenia” (Status Regulation Act, 2010). The 33^rd, 34^th and 35^th chapters of the Criminal Code, include acts such as damage to commercial buildings, means of transport and equipment and public facilities in order to undermine the constitutional regime or security of the Republic of Slovenia; invasion of the territory of the Republic of Slovenia for infringement of its territorial integrity; collection of confidential military, economic or official information for foreign countries; failure to respond to the call to fulfil defence duties when an emergency or state of war had been declared; careless handling of weapons, which can lead to damage or destruction; recruitment for foreign armies, etc. (Criminal Code 2008). I do not claim that the recognition of human rights has no restrictions whatsoever nor that freedom of action should not be limited by the human rights of other people, but what stems from the above list is that human rights are to be denied to those who have committed an act against the sovereignty of a particular state. The irony of this relationship is that human rights do not operate as a protection of the individual against the state but as protection of the state against the individuals.

The exclusion of the Erased as legitimate human rights bearers was thus targeted at those individuals who did not prove to be “loyal” residents, did not share “our” values and acted against the Republic of Slovenia. Moreover, denying human rights based on the above described arguments essentially means denying human rights on the basis of a person’s political opinion, especially in the context of the Yugoslavian break-up and related political confrontations. Such exclusion therefore casts doubt on the recognition of political opinion as a category within the prohibited grounds of discrimination, particularly if one’s political opinion opposes the sovereignty of a particular state. A contradiction of this kind can never be part of human rights and morality; denying human rights to political opponents does not contribute to greater respect for human rights, as Douzinas (2000: 141) says “in these circumstances, the righteous commit the crime they set out to prevent” i.e. they violate human rights in the name of preventing the human rights violation. But the approach applying the distinctions in regard to political loyalty of the Erased was, in fact, the only acceptable approach for parliamentarians. Recognition of all the Erased, including the “disloyal” ones, as victims of human rights violations would in their opinion mean high treason and betrayal of the Slovene national community as well as denial of the values of Slovene statehood and independence. The members of the parliament were essentially saying that:

The individuals, who suffered injustice due to the loss of resident status, these [injustices] will be abolished […] in a selective style and holds guarantees that those, who acted against the interests of the Republic of Slovenia in an unlawful mode and threaten the highest values, acknowledged by the civilized world, those will not be able to regain the status under provisions of this [Status Regulation] act.

(Transcript of 30^th parliamentary session, 28 October 2003)

We do not deny the right to enforce his or her rights deriving from Constitutional Court Decision, of course, selectively, in a manner, which will clearly examine what these people did in 1991, when the country bled/…/all of them who operated against the country, this [recognition of their rights] needs to be prevented.

(Transcript of 2^nd parliamentary session, 29 January 2009)

The discourse was evidently not merely ideological but messianic: ultimately, the exclusion of disloyal individuals from the victimhood of the erasure was a defence of the “civilized world”. Such exclusion may be one of the most “common sense” exclusions throughout the history of the modern nation-state; however, it is incompatible with the idea of human rights. By using such an approach, politicians acted against the universality and inalienability of human rights and the equality of the Erased. Instead, the legal provisions subordinated their just claims to the operation of the state, exemplifying the dominant logic of the state’s supremacy. Such conditions, useful in terms of distinguishing between loyal and disloyal individuals, point to the weakness of the idea of human rights, especially because they apply a selective approach where the recognition of human rights is subordinated to the logic of the state. Humanity as the basis for inalienable rights was replaced by a community of people loyal to the legal system and the sovereign power of the state. An analogy may be drawn from Kesby’s (2012) explanation in regard to disenfranchised prisoners that individuals may be denied rights because they have assaulted the special relationship of rights and duties which exist between a community and its citizens. This illustrates the dominant logic according to which the sovereignty of the state operates contrary to the universality of human rights, thereby showing that human rights, which are supposed to be the cornerstone of the rule of law, are actually protected only when a person proves to be a good citizen.

Conclusion

Human rights are thought to be the rights protecting individuals against the excess power of the modern nation state, obviously pointing to the fact that one of the problems in this regard is the nation-state itself. Yet, paradoxically, observes Vincent (2010: 106), if human rights are to be successful they require states to bring them into practice and enforce them. What can be noticed in relation to this is precisely that the dependency of human rights upon the state, i.e. that the implementation of human rights is so intensely intertwined within the state which provides the space and infrastructure for their implementation, that at times human rights operate through bypassing the considerations related to humanity, dignity and equality, turning to notions that have little to do with human rights, such as territorial attachment, political loyalty and compliance with legal order.

The case of the Erased proved the reason the State functions as a resilient argument for adjusting the values of international law, modifying the claims for legitimacy and altering the morality of human rights. By focusing less on the equality of individuals and more on the State as an end in its own right, politicians covertly implied that individuals matter only insofar that they prove to be somehow relevant for a reinforcement of state power. In this sense, the political discourse of victimhood construction manifestly contributed to the particularity of the state-centrism prevailing over human rights and confirmed the political logic of human rights discourses, which are often expressed in exclusionary practices that deny full participation to those who fail to support the interests of the dominant group (Evans 2005).

As shown at the beginning of the paper, the construction of victimhood is inherently linked to the question of a right-bearing subject and consequently to the conceptions of who is considered to be “in place” and who is “out of place” (Kesby 2012: 7). A nation-state constitutes a mode of exclusion manifesting through a differentiation between legal and irregular residents which is at the same time also an exclusion from the position of a legitimate human rights bearer. Irregular residency constitutes a position of complete victimlessness, which can only be overcome through legalization of resident status. It is equally important to note the contradiction between human rights recognition and practices of exclusions in the process of victimhood construction which are justified by diminishing the moral capacities of individuals who were subjected to a violation. Although human rights are not rights which are to be “deserved with proper behaviour”, the case of the Erased proves that this might be the case in practice.

Mutua (2001: 228-9) explains that the typical image of a victim in human rights discourse is founded on a helpless and innocent subject, abused by the state, its agents or pursuant to an offensive cultural or political practice. Distinguishing characteristics of the victim are powerlessness and inability to defend oneself against the state. The victims are usually represented as nameless, desperate and pitiful individuals, many of them poor and uneducated. This image corresponds with the part of the Erased who lived in Slovenia and tried to retrieve their permanent residence but were unsuccessful, who suffered due to their life without rights, who were violently separated from their families or who for many years hopelessly wished to return to Slovenia. In this manner victimhood could not be recognized to anyone who proved to be convicted, imprisoned or who had been deemed politically disloyal or who had acted against the sovereignty of the Republic of Slovenia, as such a person could not be acknowledged as a helpless suffering subject but instead seen as an immoral individual. From this aspect, it turns out that the construction of victimhood in the case of the Erased ironically demonstrates not the protection of the individual against the state but the protection of the state against the individuals.

The idea of the nation-state overruled the idea of universal human rights which was evident in the fact that members of parliament adopted legislation that stipulated criteria for selectively admitting violations of international law. The problematic provisions of the Status Regulation Act and The Restitution Act set the criteria for dividing legitimate and illegitimate victims of the erasure and thus lost the opportunity to develop a genuine discourse on human rights by introducing the dichotomy between the “real” and “false” victims of the erasure. The construction of the victim in the case of the Erased did not stem from the basis of human nature or the dignity human equality. As seen, the victimhood evolved around the notions linked to the relationship between the individual and the state, especially to a person’s obedience to the state’s legal and political order, avoidance of deviancy, loyalty and territorial attachment.

This whole process of victimhood construction demonstrates how parameters which are in fact antagonistic to the idea of human rights play an important role in the implementation and interpretation of the right on a micro-level. Local concerns shaped and determined the ways in which universal rights were implemented, resisted and transformed, while the specificities of particular struggles demonstrated the tangible limitations of the global human rights law in a local context. The discrepancies between universality of human rights and the selectivity of the nationalist state-centric logic revealed the fact that even if everybody should enjoy the same human rights, the case of the Erased demonstrates that in contemporary societies, particular groups or individuals are viewed as victims only with great difficulty. Even those parliamentarians who argued for protection of the human rights of the Erased did not recognize the difficulties and inconsistencies that the selective approach brings in terms of the principle of universality. What is particularly intriguing is that such an implementation of human rights does not undermine the concept of those rights itself but transforms their interpretation by introducing the values of state sovereignty into the human rights idea.

Such a mode is problematic as it employs the power of the state-centric discourse to modify the meaning of human rights according to its own values; it turns and transforms the ‘universal’ into the ‘particular’, without denying the universality of human rights so that in the end, the final impression is that justice has been done and human rights have been fully respected. This approach, hidden behind the mask of human rights as a discourse that follows the norms and values of human rights law, leaves little or no space for an effective political human rights struggle. The conclusion then brings us to the question whether the victims of the erasure in fact reclaimed their human rights – as they actually were given rights which could not be justified on the basis of their humanity, equality and dignity. In this sense Arendt (1979: 293) appears to be particularly illuminative in her thought-provoking statement that “although everyone seems to agree that the plight of these people consists precisely in their loss of the Rights of Man, no one seems to know which rights they lost when they lost these human rights.”

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Speed, Shannon. 2009. »Gendered Intersections: Collective and Individual Rights in Indigenous Women’s Experience«. V: Human Rights: An Anthropological Reader, ur. Mark Goodale, 229–245. Malden (Mass.): Wiley-Blackwell.

Teun A. Van Dijk, Elite Discourse and Racism (1993).

The Aliens Act. 1991. Official Gazzete RS No 1/1991. 5 June 1991, Ljubljana. Http://www.uradni-list.si/1/objava.jsp?urlid=19911&stevilka=9.

Transcript of 19^th Session of the Socio-political Chamber, 3^rd June. 1991 https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=0&type=sz&uid=236CE1425EF8B79DC1257C01003FD28D

Transcript of 30^th parliamentary session, 28 October. 2003. Http://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=III&type=sz&uid=1CBDB2DB111B8DE9C1256DD500387EE6 .

Transcript of 2^nd parliamentary session, 29 January. 2009. Https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=V&type=sz&uid=F52C99CDF6B6BC1FC125755B003D6FF3.

Transcript of 17^th parliamentary session, 24 September. 2013. Https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=VI&type=sz&uid=01F9F3D8497AFE00C1257C4600535D16.

Vincent, Andrew. 2010. The Politics of Human Rights. Oxford: Oxford University Press.

Zorn, Jelka. 2009. “A Case for Slovene Nationalism: Initial Citizenship Rules and the Erasure.” Nations and Nationalism, 15(2): 280–298.

Žižek, Slavoj. 2005. »Against Human Rights«. New Left Review 34, July–August: 115–131.

Endnotes

1 This provision was applicable to citizens of other Yugoslav republics (Serbs, Croatians, Macedonians, Bosnians, and Montenegrins) who held permanent residency in Slovenia on 23^rd December 1990 i.e. the Plebiscite Day, when the people voted for an independent state.

2 Foucault (1982: 52) says in his lecture that “in society like ours, the procedure of exclusion are well known. […] We know quite well that we do not have the right to say everything, that we cannot speak of just anything in any circumstances whatever, and tht not everyone has the right to speak of anything whatever.

Humanity and Human Rights: The Contours of International Law

10/08/2017Conference proceedings (double non-blind peer review)human rights, humanity, international human rights law, international humanitarian lawEyassu Gayim

There are compelling reasons for being content in living at a time when the basic requirements of humanity and human rights have been recognized by the ratification of most of the international human rights and international humanitarian law instruments. Clearly, the existence of disparity between the recognized norms and the actual behavior of states cannot be denied. There are also states that are not willing to subscribe to what is widely accepted or political actors that have interests in reversing the gains made this far. Despite all this, no one can doubt that a mile-stone has been reached in recognizing the values of humanity and human rights. The credit for this goes to those that have struggled for these goals, including through their writings and struggles and the conducive, post-World War II political atmosphere which stimulated the inter-state agreements.

Giving credit to the role played by the past thinkers does not necessarily mean that there is no longer any need for intellectual debate relating to this matter. If the requirements of human rights and humanity are to be critically appraised, it will be necessary to examine closely the thoughts of scholars, past and present, on this subject. Then and only then will we be able to fully recognize the inter-play between humanity and human rights as perceived in the past and present and to appreciate the direction international law has taken or should take.

This article sheds light on the path which international law took in responding to the requirement of human rights and humanitarianism (as dictated by humanity). This is done by reflecting on international human rights law and international humanitarian law. If these laws were developed to protect the dignity and worth of the human being, as is claimed, why make a distinction between them? Are there areas of convergence between them? Before attempting to respond to these and other questions it will be necessary to clarify not only what is understood by human rights and humanity, but also who the human being is in the first place.

Human being, humanity and human rights – conceptual issues

Human being: Dictionaries define ‘human being’ typically as a member of the Homo sapiens species that is “distinguished from other animals by superior mental development, power of articulate speech and upright stance.”[1] Since there are species in the animal kingdom with a capacity to reason and communicate, it important to look for other distinguishing attributes which merit protecting our unique qualities, values, rights, freedoms. Are we social? Are dignity, empathy, sensibilities and sympathy for our fellow beings part of our nature? If not, what do people mean when they say ‘this person lacks humanity’? While there is no problem in identifying the human being by the looks, appreciating our nature has always been a matter of controversy.

Thomas Hobbes, for instance, believed that the human being was not social, e.g., like ants or bees, or a peaceful and compassionate being. Rather, he took him/her as individualistic, competitive, envious, hateful and belligerent. The mere fact that human beings were equipped with the power of reasoning led Hobbes into believing that this quality leads them to think that they are wiser than others and to use it for manipulation and hurting one another. According to him, this nature and inclinations is responsible for the perpetual state of conflict in which we find ourselves in, a situation which Hobbes described as ‘war of all against all’. This was why he called for the surrendering of ‘natural rights’ in favor of tyrannical rule based on social contract.[2]

Immanuel Kant dismissed this negative description of the human nature since it ignored our obvious social nature and our many positive inclinations and attributes which enabled us to evolve by forming stable communities. As Kant saw it, the human being is a rational and moral being, one who complies with duties, whether based on the needs of complying with external laws or self-constraint which limits the freedoms of action using “practical reason, (i.e., according to humanity in his own person)”.[3] This uniqueness entitles the human being to exercise their ‘natural’ rights and freedoms based on the recognition of “the dignity of humanity in every other man.”[4]

If humans are a self-consumed evil species constantly at war with one another, as Hobbes claimed, then humanity cannot exist or cannot be anything more than a mere collection of hostile human beings inhabiting the world. If, on the other hand, we are rational moral beings, as Kant believed, then our shared rationality, morality and sense of solidarity should make us feel as ‘one’, very much like members of ‘a family’.

Humanity is defined in Dictionary.com in at least three different ways: i. “all human beings collectively; the human race; humankind”, ii. “(T)he quality or condition of being human; human nature” and, iii. “(T)he quality of being humane; kindness; benevolence.”[5] The first definition avoids specifying the essential elements in humanity by merely considering it as the equivalent to human beings, collectively. We see this approach taken in some international instruments, e.g., in article 1 of the 1966 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, which considers outer space as “the province of all mankind”, or article 1 of UN General Assembly resolution 43/53 of 1988 which regards climate change as “a common concern of mankind”. The second definition also side-tracks what humanity is by merely pointing out the root word it came from – i.e., from human.

More specific and giving is the third definition which refers to kindness, benevolence, and being humane as examples of the virtues of humanity. David Hume elaborates further by adding more virtues, including “generosity, gratitude, moderation, tenderness, friendship”.[6] According to him, these “are not only the same in all human creatures, and produce the same approbation or censure; but they also comprehend all human creatures”.[7] Why the receivers get such gestures is not hard to understand, since this is explainable by the simple fact that there must have been a need for it, irrespective of whether that need has arisen from situations or incidents caused by the forces of nature, by others, by accident or by the fault of the receivers. More interesting is what motivates or compels the givers to share the pains or problems of the receivers in that predicament. It makes one wonder whether one can feel or suffer from the conditions or problems faced by others, and if so why and how? Michel Ager answered this question in the following manner:

“Like the god Janus, humanity has a double-sided identity, which, however, does not express any alterity (no “other” is allowed in this bounded and total representation). Its double is only the reflection of a wounded, suffering, or dying humanity. It becomes the “absolute victim,” who is nothing else or other than absolute and essentialized humanity when it is suffering. This figure of humanity, both unique and split—absolute humanity vs. absolute victim—dominates contemporary thought: the representation of a world generally treated as a totality, with no representation of difference, is the foundation of our present as a humanitarian age, a world of nameless victims whose identities do not differ from the common humanity…” [8]

To say that sensibilities, generosity, gratitude, empathy and tenderness are examples of the virtues of humanity, does not necessarily mean that human beings cannot display the opposite characteristics such as to be evil, cruel, insensitive and inhuman. If this is the case, how can we still say that there is humanity? The defendants of humanity seek to resolve this dilemma by underscoring the point that who we are by nature should not be confused by how we sometimes behave in defiance of our nature. Christian theologians, for instance, explain this puzzle by reference to the Bible (Genesis 1:26-28) which considers us as created in the image of God, who is merciful, considerate and good. However, in reality we choose to commit sins (or because of the sins which we inherit) and behave in evil ways. Charles Sherlock explained this in his book on The Doctrine of Humanity: Contours of Christian Theology in this way:

“Whatever theory of the transmission of sin and its origin we hold, the reality is that everyone who reads this book is a sinner. Each of us needs constantly to turn to Christ, admit our need for forgiveness and healing, renounce sin and evil, and so live gladly the life which the Holy Spirit brings in us. Only in that way can the old humanity be killed off, and the fruits of the Spirit flourish (cf. Col. 3:1-17). Our prime concern is not with the transmission of sin, but (with) the humanity in Christ.”[9]

Most Liberals, libertarians and primordialists are at odds with the emphasis that is placed on the selective positive inclinations of human beings used to validate or glamorize the existence of humanity. Libertarians, such as Ayn Rand, have no problem with selfishness. What they regard strange is selflessness, altruism and sacrificing for others. ”Altruism holds death as its ultimate goal and standard of value”, wrote Rand in her publication entitled The Virtue of Selfishness, “and it is logical that renunciation, resignation, self-denial, and every other form of suffering, including self-destruction, are the virtues it advocates.”[10] According to her, “if civilization is to survive, it is the altruistic morality that men have to reject.”[11]

Richard Rorty, a liberal American professor, questioned the arguments used by Immanuel Kant in defense of humanity and human rights based on morality and rationality because people choose frequently to act in irrational and immoral ways to protect their interests. He provides numerous examples of this, such as how the Nazis tried to exterminate Jews in the 1930s, how Moslems were treated by Serbs during the Balkan wars, how most men see women and why “(F)or most white people, until very recently, most black people did not so count”[12] According to Rorty, these are all examples that show that people do not always want to see others, outside their own groups, as humans, let alone to feel their pains or share their sufferings. This was not always because of ignorance or misunderstanding but the determination to treat them in that way or as sub-human. As he put it:

“Resentful young Nazi toughs ere quite aware that many Jews were clever and learned, but this only added to the pleasure they took in beating such Jews. … For everything turns on who counts as a fellow human being, as a rational agent in the only relevant sense – the sense in which rational agency is synonymous with membership in our moral community.“[13]

Primordialists reason in similar ways in dismissing the existence of humanity, as a concept that embraces all human beings, by attaching heavy weight to membership in ethnicity. As they see it, members of ethnic groups reject those outside their own groups, because of competition, fear of the unknown or past conflicts.[14] Loyalty to one’s own group itself hinders the development of broader feelings of solidarity, sensibilities and generosity which are generated by humanity. That we are social is not, strictly speaking, in doubt, since one cannot imagine ethnic conflict without ethnic bonds and loyalty. If this is the case, one can wonder why members of one ethnic group migrate to places inhabited by other ethnic groups or to foreign countries. Why do families from one ethnic group adopt children from other groups? Why do millions of students study abroad or tourists spend so much money to see and enjoy alien cultural places?

Liberals and libertarians are more consistent in their approach when belittling humanity because for them groups do not exist. What matters for them is the individual. Our social attributes and interests are neglected for the sake of maximizing individual rights and freedoms. But the question remains that the individual cannot develop intellectually, emotionally and socially outside social interaction and enrichment. How else did we end up using a common language, culture or professing a common religion? If groups do not exist, why do states invoke ‘public’ morality or security to restrict individual rights or freedoms, and why are families given the power to choose the schools for their children? Why is solitary confinement used as a means of punishment? Why are we attracted to foreign cultures and values? Simply walking on a street in a foreign country and seeing a stranger fall, bleed or cry can arouse feelings within us of sympathy or concern as if our own life was endangered. What one stranger does on the street or TV can make us laugh, weep, stimulated or depressed simply because we are social.

If we were not social, we would not see so many people and organizations dedicating their time, energy, resources and services to help ‘others’, out of love, compassion and altruistic motives. For most of these people and humanitarian groups even the age, gender, race, ethnicity, nationality or ideological orientation of the receivers do not matter. Nor do they care whether the cause they are responding to is natural calamities (earthquakes, floods, drought, hurricanes, etc.), or man-made problems (conflicts, internal displacement or refugee exodus) or the fault of the receivers. The generosity is extended out of “a vision of humanity as unique”.[15]

The presence of special bonds between human beings is now recognized in important international instruments and by international institutions. The Rome Statute of the International Criminal Court, for instance, justified the needs for the establishment of this Court by underscoring the point “that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and … (the presence of fear) that this delicate mosaic may be shattered at any time”.[16] UNESCO justifies the protection of the ‘common heritage of mankind’ by designating historically significant cultural heritages (e.g., ancient monuments, pyramids, ruins and architectural complexes) as belonging to all of us although we have not seen them or will ever see them or have a clear knowledge of how we were shaped by them.

Rights. When used as an adjective the word right means correct, just, righteous, true, fair, etc.), If it is used as a noun, it can describe entitlement, privilege, title, guarantee, power, autonomy, freedom or benefits. The right-holder can be a human being, a legal person (corporation, labour union, religious or cultural entity, etc.), a political ruler (a king or a president), an institution (e.g., a parliament or a supreme court), or even animals. Human rights are only some of the rights that are recognized and enforced in the political world. Some of these rights may even be inhumane or inhuman. There were legal rights that were enforced for centuries, permitting people to purchase, sell, inherit and exploit fellow beings as slaves. Even today, we find countries who use laws entitling a grown-up man to marry a child or several minor girls, or to benefit from the misery of desperate prostitutes or trafficked migrant workers. However, morally bankrupt such legal rights might be, they remain to be valid in the countries that recognize them by law to regulate social relations, order and stability

Human rights simply state that humans have rights as if the source of the right is “humanity, human nature, being a person or human being’.[17] The discourse on human rights has complex, controversial and ideologically charged sides.[18] Why people have aspired or struggled for rights and freedoms in the past or present is not difficult to understand, since this is linked to what has prevented them from enjoying the desired rights and freedoms: e.g., to end oppression and discrimination. People do not struggle for no apparent reason. This is why “human rights do not define a unitary, universal human condition but designate rather a field of heterogeneous practices that help to constitute the array of subject moments or subject effects that comprise citizens and sovereigns.”[19] It is no wonder, therefore, that the narratives of human rights have changed over the years and why we find them framed differently during the French Revolution, the American Civil War, the post-World War II or in the Cold War periods.[20] Whichever way rights might have been framed in the minds of scholars or those who struggled for their rights, in the real political world they have always been political. It is no wonder, therefore, that even after the popular political struggles have emerged victorious, what was achieved were sometimes later denied or diluted by subsequent political actors. A case in point are the British Magna Carta, the U.S. Bill of Rights and the French Declaration of the Rights of Man and the Citizen.

In 1215, the rebellious English barons secured from their autocratic, King John, concessions acknowledging rights for the ’free men’ of his realm. These included the right not to be arbitrarily “seized or stripped of his rights or possessions, or outlawed or exiled” and not to be denied justice (clause 63). These rights and protections were not extended to the majority of “unfree peasants known as ‘villains’, who could seek justice only through the courts of their own lords.”[21] The pledges that were given were disregarded by subsequent kings who repealed most of the clauses contained in this Great Charter, making the struggle for rights open-ended.

The 1776 American Revolution was justified to put an end to the oppressive and tyrannical rule of the British King and to affirm the self-evident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and that governments should derive “their just powers from the consent of the governed.”[22] Shortly thereafter a Bill of Rights was adopted in 1791 to put this vision into practice, by guaranteeing the rights to the freedom of speech, assembly, religion, privacy, fair and speedy trial, to petition the government and the protection from ‘cruel and unusual punishment’. However, these ‘unalienable’, God-given rights were not interpreted as being applicable, at the time, to women or blacks or the indigenous populations. They were politically framed rights that were secured for the white men, whose rights to privacy included owning blacks – for nearly one more century. Both George Washington and Thomas Jefferson owned slaves. Even after the institution of slavery was legally abolished in 1865, blacks (and American Indians) continued to be excluded from political participation until their uprising in the 1960s.

The much-celebrated 1789 French Declaration of the Rights of Man and of the Citizen too was really not intended to make all human beings the holders of full rights, although its title suggests that non-citizens also have right. As Susan Maslan noted:

“The inclusion of man, as opposed to, say, Frenchman, as a subject of rights within the Declaration is what distinguishes it so radically from the American Bill of Rights, a document that makes no claim to apply beyond the confines of its national authority. It is a wonderful sort of irony, one that demands serious reflection, that the invention of the Rights of Man played and continues to play such a predominant role in the creation and perpetuation of French national identity.”[23]

This Declaration affirms the principle of equality and the “natural and imprescriptible rights of man”. But the beneficiary remained to be the politically situated French man.[24] French women (the ‘passive citizens’) continued to be excluded from political participation, and the problem of slavery in the French colonies was left out. This was why the betrayed slaves started to rebel. French women too protested, which was why the Declaration of the Rights of Women and the Female Citizens which was published in 1791, and still fell on deaf ears.

The international regime of human rights considers human rights as being applicable to all human beings without distinction. As stated by the Office of the United Nations High Commissioner for Human Rights:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.… Universal human rights are often expressed and guaranteed by law, in the forms of treaties…and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.“[25]

This fits Donnelly’s definition which makes human rights applicable to everyone ”simply because one is a human being.”[26] It makes the language of human rights, if not human rights themselves, (essentially)… universal” because the members of the international community claim to respect its core value: i.e., human dignity.[27]

The contours of international humanitarian law: evolution and features

Humanitarian values and rules were developed out of the awareness of our social nature and the determination to protect values of broader concerns based on our sensibility and feeling of solidarity. There are two movements of interest to mention, both aiming at alleviating human suffering, broadly speaking. They are the anti-slavery movement and the campaigns used to mobilize support for ending the cruel manner of conducting wars.

In her illuminating essay entitled “Humanity without Feathers”, Lynn Festa, highlights the background of the movement which led to the abolishment of slavery in Britain. The force behind this movement, she notes, was the sympathy and sensibility of people in England had to the sufferings of black slaves in the distant English colonies. “Inasmuch as sympathy involves experiencing another’s feelings (that is, feelings that are by definition not one’s own),” she wrote, “it breaks down the division of self and other”.[28] This scenario shows how the ’free’ white European come to the rescue of the enslaved African at the cost of the economic interests of the English slave master. The pains which the abolitionist felt appears to be personalized in that the black victims were ”marginalized by the fact that it is not the slave but the personification of ’humanity’ that bleeds and longs to vindicate her rights”.[29] Obviously, sentiments were not the only ’playbook’ used by the abolitionist, the writer notes, as ”calls for sympathetic feeling— then as now—were tempered and supplemented by appeals to reason, to policy, to interest, to principle, to faith.”[30] In his celebrated publication entitled The Social Contact Rousseau describes the ironies of slavery by noting that “(M)an is born free, and everywhere he is in chains. One man thinks himself the master of others, but remains more of a slave than they are.”[31]

The other example mentioned above to explain the movement defending humanity is that which led to the prohibition of the savage ways of conducting warfare. Some of the champions of this cause were not soldiers or people who lost loved ones in battle fields or those whose personal safety was directly or indirectly affected by wars. As in the case of the anti-slavery activists, their campaign was to rescue the victims whom they did not know personally and wherever they were. There was no question that those who were behind the development of rules prohibiting these kinds of cruelties shared the agonies of the victims as if they themselves had been victimized.

Perhaps the most famous scholar who laid the foundation for the emergence of humanitarian law was Hugo Grotius (1583–1645). Like other writers before him (such as Francisco de Vitoria and Alberico Gentili), Grotius was concerned about the dignity of human beings and about how wars were conducted. He was especially puzzled and annoyed by why “men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes”.[32] According to him, the kinds of cruel and inhumane behaviour that revealed itself during his time, when the Thirty-Years religious wars were raging, were irreconcilable with Natural Law. He took this law as valid because it was based on morality (rationality). It was natural because it was universally applicable to all human beings. His writings identified elaborate rules of conducts that should be followed by all states at all times, in connection with conflicts.

The efforts made by Grotius to mobilize wider support through his writings and travelling to different countries, inspired many others, like him, to be engaged in humanitarian work. Among these was Henry Dunant, who was awarded the first Nobel Prize, and the establishment of The Red Cross in 1863. In 1899 and 1907 two important international conferences were held in The Hague (Holland) on the conduct of warfare. These paved the way for the conclusion of the first and second conventions. The horrors of the First World War led states to appreciate the importance of broadening the scope of the existing humanitarian instruments, by adding the 1925 Geneva Protocol to these Hague prohibiting the use of certain weapons.

The establishment of the United Nations in 1945 speeded up the legal evolution of international humanitarian law. The UN Charter expressed concern over the “scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (preamble para. 1), and considered the achievement of “international co-operation in solving international problems of “… humanitarian character, and … respect for human rights” (art. 1(3) as one of the purposes of this organization. The pursuit of these goals and the mandates given to its General Assembly to promote “the progressive development of international law and its codification” (art. 13) gradually led to the adoption and ratification of numerous conventions transforming humanitarian law qualitatively. Examples of these include the 1948 convention on the prevention and punishment of the crime of genocide, the four Geneva Conventions of 1949, the 1951 Refugee Convention, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1968 treaty on non-proliferation of nuclear weapons, the 1972 Biological Weapons Convention, the 1980 Convention on the use of certain weapons causing excessive injuries, the 1993 Chemical Weapons Convention, the 1997 Ottawa Convention on anti-personnel mines, and the 2008 convention on cluster munitions. The effort to galvanize support for banning weapons of mass destruction (by using biological, chemical, and nuclear weapons) deserves special attention. The refusal of states to abandon such weapons and the efforts which they continued to make to produce and stockpile these weapons continue to endanger mankind as a whole. In this sense one can say that humanity has never been threatened as it is now.

This aside, one can say that many of the international humanitarian law instruments that have been ratified have now clarified practices which should not be tolerated during conflicts. Some of them, e.g., the genocide convention, prohibit the commission of genocide even in times of peace, a prohibition which includes complicity, attempts and conspiracy to commit this crime. The refugee convention encourages states to protect those who face a fundamental fear of persecution. Other humanitarian rules mentioned in The Hague and the Geneva Conventions outlawed the use of weapons such as poison, chemicals and expanding bullets. Abusing prisoners, hostage-taking, rape, forced relocation and the destruction of civilian properties such as pillaging, destroying hospitals and heritage were also prohibited by the same conventions.

The establishment of the International Criminal Court represents another mile-stone in the defense of humanity, since it created a forum for prosecuting the violators of international humanitarian law. Prior to this, the prosecution of these kinds of international crimes was left to the UN. This was why the UN had to create special tribunals to prosecute those who committed international crimes during the conflicts in the former Yugoslavia, Rwanda, etc. By the end of last year, 124 states had ratified the statute of this Court, making that institution a widely recognized body for monitoring respect for international humanitarian law.

The preambles of the statute of the International Criminal Court recognize “that all peoples are united by common bonds, their cultures pieced together in a shared heritage”, and express the fear that exists “that this delicate mosaic may be shattered at any time.” It recalls, further, that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that henceforth “the most serious crimes of concern to the international community as a whole must not go unpunished”. This instrument defines and elaborates the kinds of acts or conducts that should not be tolerated, namely genocide, aggression, war crimes and crimes against humanity. Article 7 specifies the recognized crimes against humanity’ if they are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. They include extermination, enslavement, attacks directed in an organized way against any civilian population, deportation, torture, forced pregnancy, collective persecution, enforced disappearance. In short, this statue has codified the pre-existing rules of international human rights law by crystallizing what were vaguely formulated before.

International human rights law: legal evolution and features

Human rights emerged as universally applicable legal rights thanks to the efforts made by civil societies, humanitarian organizations, political activists, progressive writers and states as a response to the gross human suffering and destruction seen during the Second World War. In the course of mobilizing the masses to defeat the Fascist and Nazi states militarily, the galvanized masses and political actors were compelled to question the totalitarian and racist values and ideologies promoted by the aggressive powers. Thus, what started out as a military campaign for self-defence ended up in questioning the very structure and ideologies of the Aggressive Powers. If the new international organization that was to be established after the military campaign was to be legitimate and durable, it had to usher in a new world order which was sensitive to human rights. It was, therefore, not surprising that the UN Charter had to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (preamble) and considered the promotion of “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as one of its purposes, in article 1(3).

This was clearly a novel development for a world that had never had a truly universal organization, let alone one that was mandated to promote this goal. The achievement can even be perceived as revolutionary since the great majority of the member-states had poor records of respecting human rights and were not equipped with human rights sensitive laws and institutions. What pushed them in this direction was the memories of the Second World War and the determination to co-operate with the UN to achieve this goal as pledged under article 56 of the Charter.

Indeed, as it turned out, it did not prove to achieve broader international co-operation once attention was turned to developing the general standard settings when the first universal document was prepared (later known as the Universal Declaration of Human Rights). This instrument was adopted on 10 December 1948 with no opposition, though eight states abstained. A factor that explains this wider base of support could be that its provisions were broadly formulated. The obligations of states to respect the proclaimed rights and freedoms were also avoided. There was the recognition that this document was not intended to be legally binding since the UN General Assembly had no power to adopt legally binding instruments. As the last preamble of this document states, the whole point was to use it as “as a common standard of achievement for all peoples and all nations” so “that every individual and every organ of society… shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance”.

The Universal Declaration recognized that “All human beings are born free and equal in dignity and rights” (article 1) and that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion or social origin, property, birth or other status” (art. 2). It lists the different civil, political, economic, social and cultural rights that should be promoted for all without discrimination. Using this standard setting, the UN General Assembly adopted numerous other declarations and later legally binding conventions crystallizing the recognized rights and freedoms and state obligations flowing therefrom. In 1966, for instance, the two international covenants (one on civil and political rights, and another one for economic, social and cultural rights) were adopted and both entered into force in 1975. Thus, within three decades of the establishment of the UN mankind had secured two legally binding universal human rights instruments even if the number of states that ratified them was not that impressive at the time. In the years that followed, more conventions were adopted strengthening the rights of vulnerable groups such as children, women, persons with disabilities and migrant workers, and addressing problems connected with discrimination.

One of the important feature of this development is the individualization of the recognized rights and freedoms (i.e. as the rights of every person), very much as recognized in the West traditionally. The only exception was that this time around the scope of the rights was broadened to encompass political, economic, social and cultural rights and the right holders were to be all under the jurisdiction of the ratifying states. There were a few recognized rights with collective character. They include the rights of peoples to self-determination (mentioned in article 1 of the two covenants), and minority rights (mentioned in article 27 of the covenant on civil and political rights).The other feature of these international legal instruments is the manner in which the obligations of the ratifying states were elaborated and the mechanisms established for monitoring how these obligations are complied with by considering regular reports and the submission of petitions.

Except for the right to life, equality, thought and religion, and the prohibitions of torture, cruel, inhuman and degrading treatment or punishment, the great majority of the recognized human rights are subject to restriction. The prohibition that is mentioned in article 4 of the civil and political rights covenant prohibits derogation from the obligations to respect the above-mentioned rights. This suggests that some of these rights have an ‘absolute’ character. The validity of this legal presumption is in line with article 53 of the Vienna Convention on the Law of Treaties which recognizes the existence of a pre-emptory norm of general international law (Jus Cogens) – i.e. “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”.

While the international community can take pride in having developed an international regime of human rights by adopting a long list of binding conventions, and developing the monitoring mechanisms, the actual record of states in complying with what is ratified is not that impressing. This monitoring system uses two separate paths to consider how states are complying with their human rights obligations. The treaty-based monitoring bodies examine the reports of states, and the communications that are sent by victims or state parties alleging human rights violations. The UN Charter-based monitoring bodies also consider the reports of states and those of the special rapporteurs, working groups and others. Using these and other sources of information, the UN Human Rights Council publishes its periodic reports on the human rights situation inside the member state. There are also other offices that play important roles in promoting or monitoring human rights. These include the High Commissioner for Human Rights, the High Commissioner for Refugees, UNICEF etc. Obviously, the effectiveness of these methods can be questioned and there is a long way to go when it comes to improving the system.

Humanitarian and human rights law: areas of intersection

The fact that international law has followed two distinct tracks when it comes to developing the rules related to international human rights and humanitarian law does not mean that there is no convergence between the two. Both derived their justifications from the need of protecting the dignity and worth of the human being. Both provide protection from slavery, forced labour, torture, cruel, inhuman and degrading treatment or punishment and rape. Both require humane treatment in prison. Humanitarianism looks at the broader context of what concerns us all and is guided by the values of humanity. These values arouse sympathy, empathy, love and compassion. The human rights laws are framed as the rights of the individual in the political context, rights which everyone is entitled to. Some of these rights are justiciable and even empowering (e.g., the rights to vote and take part in government).

Needless to say, the monitoring mechanisms of the international regime of human rights and international humanitarian law require improvement. There is a new doctrine which has been invoked lately to enable the international community to protect those that are exposed to serious international crimes: the international responsibility to protect (R2P). This doctrine has been invoked by the Security Council and the General Assembly (e.g., in the 2005 World Summit) in relation to serious conflicts and tragedies where states are seen to be either unable or unwilling to protect their own populations. This idea suggests that serious international crimes should be viewed as special concern to mankind as a whole. This fits the claim that there is humanity.

One can wonder, at the same time, whether the doctrine of R2P which has been invoked to ’rescue’ oppressed victims from the cruelty of their political leaders is always non-political, one that is just moved only by humanitarian considerations? If the intervention in Libya was triggered only by the urgency of saving Libyans, why abandon them now when the humanitarian situation facing them is much worse than before? If those that are intervening in the Syrian conflict are really moved by the tragic plight of Syrians in the hands of their cruel regime, and cruel it is, why are some of the states that are intervening in that conflict hesitant to even give asylum to Syrian refugees? Having said this, just because this doctrine can be abused by states does not mean that the international community should abandon it. If developed well, it can be used to vindicate the rights of humanity, irrespective of whether the crisis was brought by breaches of international human rights obligations or those flowing from international humanitarian law. In this sense, one sees a convergence between these two spheres of international law.

*Eyassu Gayim, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was presented at the Nordic Summer University conference held in Wroclaw, Poland, on 25 February 2017. The author is grateful to the Nordic Summer University for the support given to him to participate in this conference, and for the valuable comments given to language of this paper by Reverend Ezra Gebremedhin and Mogens Chrom Jacobsen.

Endnotes

[1] English Oxford Living Dictionaries https://en.oxforddictionaries.com/definition/human_being; and also http://www.dictionary.com/browse/humanity

[2] Thomas Hobbes, Leviahan (1651), Part II, Of Common-wealth available in the internet (http://www.philosophy-index.com/hobbes/leviathan/17-of-causes.php

[3] Immanuel Kant, Thomas Kingsmill Abbott, translator, The Metaphysical Elements of Ethics (Cambridge, Cambridge University Press, 1991), in, http://www.philosophy-index.com/kant/metaphysical_ethics/introduction.php

[4] Immanuel Kant, The Metaphysics of Morals, p. 255; and Richard Dean, The Value of Humanity in Kant’s Moral Theory (Oxford: Clarendon Press, 2006), especially pp. 7-8.

[5] Dictionary.com, in https://www.merriam-webster.com/dictionary/humanity Likewise, in Merriam-Webster (https://www.merriam-webster.com/dictionary/humanity) we see this term defined either as “the totality of human beings or the human race” or “The quality of being human or humane” in the sense of being “compassionate, sympathetic, or generous behavior or disposition” See further Encyclopaedia Britannica, vol. 11 London: Encyclopaedia Britannica, Inc., 1969), p. 825; Peters, Pam The Cambridge Guide to English Usage (Cambridge: Cambridge University Press, 2004), p. 256, and Joyce M. Haukins & Robert Allen, The Oxford Enclopedic English Dictionary (Oxford: Clarendon Press, 1991).

[6] David Humes, An Enquiry Concerning Principles of Morals. (London: Strand, 1751- 1777 edition of the Essays and Treatises on Several Subjects reproduced in http://www.davidhume.org/texts/epm.html), conclusion M9.13.

[7] Ibid., conclusion, M9.7.

[8] Michel Agier, “Humanity as an Identity and Its Political Effects”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development > Volume 1, Number 1, Fall 2010 (https://muse.jhu.edu/article/394858), p. 31.

[9] Charles Sherlock, The Doctrine of Humanity: Contours of Christian Theology (Leicester: Inter-Varsity Press, 1996), p. 238.

[10] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: An Nal Book, 1962 (1964), p. 33.

[11] Ibid, p. 34.

[12] Richard Rorty, Human Rights, Rationality, and Sentimentality, reproduced in www.nyu.edu/classes/gmornan/3/RoRTY.pdf pp.167-169 and 177.

[13] Ibid., pp. 177.

[14] Geertz, Clifford. 1963. ‘The Integrative Revolution: Primordial Sentiments and Politics in the New States’. In Clifford Geertz, ed. Old Societies and New States: The Quest for Modernity in Asia and Africa. London: London Free Press, 255–310.

[15] Agier, p. 30

[16] See the first preamble of the 1998/9 Statute of the International Criminal Court, in http://www.un.org/law/icc/index.html

[17] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 16.

[18] Eyassu Gayim, “The Discourse on Human Rights and the International Regime of Human Rights”, Nordicum-Mediterraneum Vol 11, no. 4, 2016.

[19] Lorrin Thomas, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Volume 6, Number 2, Summer 2015 pp. 337 – 340: James Dawes, Samantha Gupta, ”On Narrative and Human Rights”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2014, Vol.5(1), pp.149-151 (https://muse.jhu.edu/article/536275); and Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism, Frontiers of Anthropology, vol. 6 (Newbury: Sage Publication, 1990), p. 17.

[20] Austin Sarat and Thomas R. Kearns, Human Rights: Concepts, Contests, Contingencies (Ann Arbor: University of Michigan Press: 2001) p. 11.

[21] Claire Breay, Julian Harrison, Magna Charta: an introduction, in https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction.

[22] https://www.archives.gov/founding-docs/declaration-transcript

[23] Susan Maslan, “The Anti-Human: Man and Citizen before the Declaration of the Rights of Man and of the Citizen”, South Atlantic Quarterly, Spring/Summer 2004 103(2-3), p. 360 available in http://saq.dukejournals.org/content/103/2-3/357.full.pdf+html

[24] http://www.historyguide.org/intellect/declaration.html

25 UNHCHR, ”What are Human Rights?”, http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[26] Donnelly, p. 1.

[27] Austin Sarat and Thomas R. Kearns, p. 2.

[28] Lynn Festa. “Humanity without Feathers”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Vol. 1, no. 1 Fall 2010, p. 7, in https://doi.org/10.1353/hum.2010.0007

[29] Ibid., p. 9.

[30] Ibid., p. 19.

[31]Jean-Jacques Rousseau, The Social Contract, opening part of chapter 1, in http://www.sparknotes.com/philosophy/socialcontract/section2.rhtml

[32] Reproduced in, Micheline R. Isyay, ed., The Human Rights Reader: Major Political Essays, Speeches, and Documents from Ancient Times to the Present, 2^nd ed. (New York: Routlege, 2007) p. 128, available in google.com.

Human Rights Education for Lawyers: A Case Study into Universality and Its Relativism

10/08/2017Conference proceedings (double non-blind peer review)Human Rights House Network, United Nations, advocacy, education, human rights, implementation, relativism, standards, universalityLiudmila Ulyashyna

The 1993 World Human Rights Conference asserted “the universal nature” of human rights and identified human rights education and training as an essential tool for the promotion of universal respect for, and observance of, all human rights and fundamental freedoms for all, in accordance with the principles of universality, indivisibility and interdependence of human rights.*

Disagreements and even attacks on the universality of human rights, however, are widespread. The strongest argument of opponents against the universality principle is essentially the contestable claim about the universal enforcement/implementation of human rights. These opponents propose to reconcile the universality of human rights by rooting these rights in different cultural and legal traditions.

The diversity of civilizations, religions, cultures and traditions has been accepted by states via their legal obligations since they have already been reflected in the universality of human rights and thus contributed to the international normative universality. The global human rights regime has a subsidiary character and relies mainly on national implementation of the universal human rights standards. However, there is a great gap between the “high inspiration of human rights and the sobering realities on the ground”[1]. The lack of the proper national implementation has negative consequences: human rights law loses its regulatory functions and people’s trust. As a remedy, human rights education should become a driving force in their national implementation. The national judiciary, including lawyers, has a primary role in protecting human rights and providing means for their enforcement at the national and international level. This is why human rights education for lawyers is of vital importance and may serve as a means for effective conveyance of human rights knowledge, awareness and skills.

Will the process of internalization of the international norms by communities and individuals be more effective if the universal standards are translated into local culture and legal traditions via human rights lawyers as agents of change? The present article provides a case study of two educational projects for lawyers (hereafter “the Projects”) and draws conclusions on whether human rights education for lawyers may bring about reconciliation between universality and relativism by strengthening connections of domestic legal systems with international human rights standards and values.

The paper is set out in six sections. The first section presents the outlines and the relevant sources for the concepts of “universality” and “relativism”. The second section is devoted to the framework and concept of “human rights education” (HRE), and here I place special emphasis on the HRE for lawyers (HREL). The third section outlines the frameworks of the two educational projects for lawyers (the Projects) – “Electronic Human Rights Education for Lawyers” (EHREL) and “Bring International Standards Home” (BISH), which are the main subject of the case study. The next three sections explore several specific doctrines, namely, “International Human Rights Standards”, “Implementation” and its lex specialis in the human rights law – “de facto implementation”, “Human Rights Defender”.

These concepts served as support for the education objectives of the human rights education Projects and have as such been incorporated into the curricula and educational activities of the Projects. These sections provide examples, relevant statistical data and facts on the increased learners´ educational outcomes in terms of knowledge and understanding, attitudes, values and skills in promotion and protection of human rights. The content and the outlines of the last three sections emphasize that international human rights law, when taught to lawyers properly and systematically, provides considerable space for national implementation activities in the various paths of domestic legal and cultural environments, while aiming at the same time to promote and protect universal human rights for all.

I defend the view that the universality of human rights in training for lawyers is a key principle and a tool for legal professionals. The application of the universal human rights standards in de facto implementation is effective if the awareness and understanding of the principle of universality is rooted into the national legal context and “owned” by lawyers as “providers” of legal assistance to victims of human rights violations.

Universality and Relativism: Outlines

The article does not aim to provide a broad introduction to all arguments in the adversarial debate on universalism and relativism. However, since these two concepts will often be used in the article, it is important to explain them in more detail.

For the purpose of the paper, “universalism” is defined as universal respect for, observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations and other instruments relating to human rights and international law (para 1, the Vienna Declaration and Program of Action, 1993). As a departure point for the universality of human rights, I take the Universal Declaration on Human Rights (1948), Preamble, para 8.

The concept of “relativism” is regarded as a space for national, regional, cultural particularities and other forms of diversity and relativity (J. Donnely, 2007). The intensive study of cultural relativism was conducted under the auspices of the UN Human Rights Council in 2010 and 2012 (A/HRC/16/37 and A/HRC/22/71).

Relativity has different dimensions – cultural, religious, historical, traditional, etc. For the purpose of this paper, I will refer mainly to the legal relativity, meaning particularities of national legal systems, including legislation, practice and legal culture.

The academic research on the principle of universality in light of traditional values has been studied in depth and taken into account in the analysis of the main subject of the current case study.

Human Rights Education

The global normative framework for HRE was finalized with the adoption of the United Nations Declaration on Human Rights Education and Training in 2011.

The Declaration defined the main objectives, principles and responsibilities of States and other stakeholders. Particularly, it specified that HRE aims at promoting universal respect for and observance of all human rights and fundamental freedoms and thus contributing, inter alia, to the prevention of human rights violations and abuses by providing persons with knowledge, skills and understanding and developing their attitudes and behaviours, to empower them to contribute to the building and promotion of a universal culture of human rights.

Later, the aims were interpreted in the Report of the Office of the UN High Commissioner for Human Rights as follows:

Human rights education and training encompass: (a) knowledge and skills – learning about human rights and human rights mechanisms and acquiring skills to apply them in practical ways in daily life; (b) Values, attitudes and behaviour – developing values and reinforcing attitudes and behaviour which uphold human rights; (c) Action – taking action to defend and promote human rights.

HRE was recognized in international law as an individual human right and as a concept much earlier.

Indeed, the Universal Declaration on Human Rights (1948) was the first international document, which shaped the right for education and made an important step in recognizing a “special” right – the right for human rights education and awareness (Preamble and Art. 26 part 2).

The Vienna Declaration and Program of Action (1993) called national States to direct education towards the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms. It called on all States to include “human rights education programmes” as subjects in the curricula of all learning institutions in formal and non-formal settings.

The United Nations Decade for HRE (1995-2004) was the first global program and became a predecessor of the currently on-going World Programme for Human Rights Education.

The findings and lessons learned of the UN First Decade were of interest for those who deal with HRE: “Formal education is traditionally knowledge-based, and this approach alone is not conducive to attitudinal changes which are the objective of the human rights efforts”[2]; Lack of synergy between jurists and pedagogues, as well as the lack of coordination between Governments and NGOs; No effective coordination in place at the international level; Lack of human and financial resources to implement human rights education programs; Donors’ inconsistency in supporting programs conducted by civil society organizations; Lack of political will of some authorities and unwillingness to empower population with knowledge and awareness on universally recognized normative set of rights which might be claimed by individuals, etc.

Using the experience of the first decade and results of its evaluation, international and regional institutions have developed numerous guidelines and education standards for human rights education for different professional groups and levels of education.

The international framework for human rights education for lawyers (HREL), however, is still limited to the single reference in the Basic Principles of the Role of Lawyers (1990) stating that “governments, professional association of lawyers and education institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideas and ethical duties of the lawyer and human rights and fundamental freedoms recognized by national and international law”.

The Special Rapporteur on independence of judges and lawyers in her report submitted to the UN General Assembly (2016) referred to the duty and responsibility of lawyers to “uphold human rights and fundamental freedoms recognized by national and international law” as it was stated in the UN Basic Principles of the Role of Lawyers (1990). She has also reiterated that legal education and training should also include the study of international human rights at the domestic level, as well as to make use of international mechanisms, including regional mechanisms, for the protection of human rights.

During the last decade, the European initiatives – to ensure the most effective application of the European Convention of Human Rights at national level – resulted in designing and developing the pan-European training platform assisting all the member States in their action for effective integration of the Convention into the domestic legal judicial training. The aims and methodology of the HELP program based on the UN Declaration on the HRE and the World Program for HRE contribute significantly to the current landscape of HREL in many Council of Europe countries.

Bring International Standards Home and Electronic Human Rights Education for Lawyers

The case study presents the analysis of the results of the two human rights education projects: the first one, “Bring International Standards Home” (BISH, started in 2006 and ongoing), was tailored to lawyers and other professional groups from Belarus, while the second project, “Electronic Human Rights Education for Lawyers” (EHREL, 2009-2016) was designed for legal professionals of several CIS countries. Both projects have been implemented under the “International Law in advocacy” (ILIA) umbrella program of the Human Rights House Network (HRHN), which is well known in the countries participating in the Projects.

The current section describes the frameworks, conditions and features of the Projects, with references to some quantitative results. The qualitative outcomes of the training, with a focus on the universality principle, will be presented later in the sections regarding the specific concepts embedded into the curricula.

The Projects were developed by partners of the international human rights network – the Human Rights House Network – and experts who shared the common understanding of the need to improve the level of implementation of human rights obligations in the region and to provide better protection for civil society organizations, human rights defenders and the population at large. The Projects and their curricula were designed before the UN HRE Declaration was adopted. However, the international commitments and documents in the field of human rights education had been studied. Later on, the cooperation with the CoE HELP Program´s team contributed to strengthening the Projects´ outcomes. Remarkably, the Projects´ education framework implemented principles, which were very much similar to those included in the current UN HRE Declaration.

There is a good explanation for this fact, since the authors of the Projects’ curricula based them on the principles of the Universal Declaration on Human Rights and the relevant human rights treaties, with a view to:

Raising awareness, understanding and acceptance of universal human rights standards;
Applying the human rights-based approach and legal standards in daily professional activities;
Contributing to building an environment where everyone is aware of the rights of others and promoting the conception of the individual as a responsible member of a peaceful, pluralistic and inclusive society;
Pursuing the “de facto implementation” of the States’ international obligations, with the knowledge and clear understanding of the opportunities and limits of the national legislation and practice and, nevertheless, drawing inspiration from the diversity of the national legal systems participating in the training;
Contributing to the prevention of human rights violations via the dissemination of knowledge, awareness of and skills in the international human rights standards and instruments via professional lawyers’ networks and building bridges between lawyers and human rights organizations.

The diversity of cultural and legal traditions of the selected countries was taken into consideration and enriched the joint training of lawyers from these countries. Via a comparative method, the differences between the legal traditions and specific provisions of the domestic legislation and practice were interpreted and measured by the application of the international human rights standards.

The authors of human rights education and post-educational (follow up) activities for lawyers from the above-mentioned countries took into consideration the similarities between the legal systems in the participating countries. As it is commonly known, the CIS countries reappeared as independent states due to the collapse and the dissolution of the former Soviet state. However, they still have common features, including those related to the international human rights law instruments:

The Constitutions and national legislation of most CIS countries declare the entitlement to invoke the international law directly as a standard for cases when it provides higher protection for human rights;
The extensive sets of international and regional human rights binding instruments are formally recognized by the governments of the countries;
Most countries follow the monistic system in respect what regards the interrelation between international law and national law;
The judiciaries of these countries have rather poor knowledge of and skills in direct application and interpretation of international human rights standards;
Human rights education programs for lawyers, both in universities and conducted by professional lawyers´ associations have not been sufficiently developed;
The recent assistance of the CoE HELP Program can not cover all target groups of lawyers; etc.
In some countries, like Belarus, participation of lawyers in human rights education programs, unless approved by the Bar Association, might cause disciplinary measures against the lawyers;
Generally, in all the CIS countries, bar association’s lack understanding of the need for continuing human rights education of lawyers;
The last but not the least important point is that the population and the lawyers show high respect for the international human rights standards and acknowledge the legitimacy of the international and regional human rights judicial and quasi-judicial bodies ensuring justice in cases of human rights violations.

New information and communication technologies have been used to create an online learning platform (http: ilia.humanrightshouse.org) available for lawyers from different countries and remote regions.

The training for lawyers have used a combination between the online format of training and offline activities most suited for professional lawyers. The methodology and formats of the training were chosen taking into consideration the specific needs and working conditions of learners and their expectations regarding the improvement of the individual level of knowledge and skills and the widening of their professional network:

In-person introductory seminars in each of the countries;
Online distance learning seminars and lectures as the core teaching method;
Home reading and research;
Online forum discussions;
Home assignments and online tests;
Consultations with experts and evaluations of their home assignments; and
The final international conference including a moot court.

The Project partners conducted careful planning and fundraising activities to get the necessary resources, and undertakings to follow up on the training activities and support the alumni networking, advocacy and solidarity actions. The cross-border and international activities were designed and conducted in online and offline formats.

An important note: it is very difficult to evaluate the impact of education in general, and it is a very true statement for HREL as well. Some numbers (collected in 2015), however, may give an understanding of the quantitative results of the Projects’ alumni:

4,860 consultations on human rights violations
172 strategic litigation cases in the area of human rights
325 people participating in the “Human Rights Lawyers as a Group at Risk” online forum run by the alumni
394 alumni and experts participating in online discussion fora and knowledge sharing in the ILIA-Club
27 reports and documents written or co-written by the alumni and submitted to international organizations
90 % of the alumni collaborate with the Human Rights Houses within the Human Rights House Network or with other human rights organizations
97 % of the alumni use the knowledge gained in ILIA in their professional activities.

While education in the field of human rights generally has the ultimate goal to increase respect for human rights leading to social changes, the evaluation of the results of HREL might be measured by identifying the changes at different levels:

Individual: what knowledge, skills, attitudes and behaviours has a participant acquired, reinforced and modified?
Organizational: have the participants shared their experience with their professional environment and in what way?
Social: changes, which have occurred to a broader community.

As mentioned above, there are difficulties with tracing the results of the changes that have taken place. At the same time, the focus of the current paper on the principle of universality of human rights and its application in the context of the national implementation allows us to present the most relevant selected data, which reflect the social and attitudinal changes in the learners in this regard.

Common (Universal) Standard(s)

Now, therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948), Preamble.

The term and the concept of the “Universal Human Rights Standards” or “International Human Rights Standards” (IHRS) are broadly used in political and public life. There is no definition of the term in place and, for the sake of clarity, lawyers need to understand the concept in order to use it in their professional activities. This is the main reason why the term has been presented to and studied by the learners of the two HREL Projects.

The importance of the concept in terms of its adherence to the universality of human rights was also taken into consideration:

After being proclaimed in the Universal Declaration on Human Rights, the notion has been effectively used in the legal turnover both at the international and national levels.
By virtue of the principle of universality, the IHRS perform regulatory, control, protective, informative and educative functions regardless of whether the concrete international norms give rise to a legal obligation for a specific country.

The persistent application of the term and the expression in the legal practice has even expanded during the last two decades. International bodies “…have made remarkable progress in standard setting, institution building, and programme implementation“[3]. The CIS member states reiterate that “… the observance of international standards in the field of human rights by all Member States of the Commonwealth of Independent States, and the development and fostering of respect for human rights and fundamental freedoms for all, regardless of race, sex, language, political beliefs, religion and social origin, contribute to the deepening of democratic reforms, economic and social growth and the strengthening of law and order“[4].

The sustainable application of the term “International Human Rights Standards” in the CIS region plays an important role for the process of effective practical acceptance of legal sources of international law.

One should know that Article 38 of the Statute of the ICJ, generally accepted as a list of sources of international law, does not have the same importance in theory and practice of the CIS countries. Scholars and practitioners of these countries tend to apply the IHRS as a generic term for the cases where there is a need to apply a combination of different sources of international law, as well as a “mixture of hard and soft instruments”.

The challenge to define legally the term “International Human Rights Standards” has been taken by the authors of the curriculum as an opportunity to discuss with the learners some important features related to the term.

Lawyers study the process of standard setting at the international level. They start out trying to understand the principle of legal certainty (inspired by legal positivism) and further on the need for a broader perception of the rights-oriented concept (human rights as a product of “natural law”).

Since the generic term IHRS brings together different types of international instruments (such as those that are recognized sources of international law and the so-called “soft law” and “case law” instruments), the learners are invited to make a comparative study and select the “hard” and “soft” law instruments such that they will be able to combine them in their professional activities, defending victims of human rights violations and interpreting the national legislation applying the IHRS.

Discussions in forums and home assignments help the learners to understand that IHRS is a “live” concept, which combines different universal norms and serves as a tool for identifying human rights violations and applying the standards to actual situations at the domestic level.

As a result of the training, all the alumni look for the “standards” in their professional activities when they need to challenge and/or examine the national legislation and/or practice. They know that the IHRS may assist the national legislators when preparing amendments to the national legislation; they use international standards as a scale to analyse the compliance of the national law with the international obligations, they consult not only to provisions of the treaties, but also to the concluding observations and decisions of the human rights mechanisms, such as the treaty bodies and regional human rights courts.

98.2% of the alumni gave a positive response to the question, “Do you refer to the norms of the international human rights law in your professional activities?”. The following quotes illustrate the responses:

“Before my training in the project “Electronic Human Rights Education for Lawyers”, I did not use the human rights approach and international human rights law. Now, I refer to provisions of the international human rights treaties, but also to the customary rules, general principles of law and the soft law instruments. Unfortunately, in our country, the court and judges are not used to applying the international norms. Sometimes, I see a lenient or even a hostile attitude towards references to the international standards. We need to change the situation and I see my role in this as well.” (alumnus from Belarus)

“My current pleads to the courts are based on the international human rights standards. I noticed that the judges and persecutors listen to my pleads with higher attention and interest since the international human rights law is a new topic for them. My clients have trusted me even more since I started referring to the international standards. I have become more confident in my professional activities since I know that if the national courts fail to ensure justice I will be able to restore it using the international human rights regime” (alumnus from Ukraine)

Implementation – De facto implementation – Bring standards home

A wide interest to the legal concept of “implementation” and the relevant term arose after the adoption of the “post-communist” constitutions. Most of the constitutions have propositions on the monistic approach towards international law and declare human rights as the aim and the priority of the States.

However, the narrow definition of the legal concept of implementation as organizational activities undertaken by national governments and covering mainly legislative procedures still prevails. There is a need to define the broad meaning of the process of domestication of the international treaties in the national legal systems. The broader understanding of the process of implementation will stimulate manifold activities, planned and conducted by different actors and targeting the full compliance of the national legislation and practice with the international human rights standards.

Thus, the direct application of the international human rights norms in the defence of people´s rights by a wide range of actors is called by the author de facto implementation and is considered as a lex specialis of the general concept of implementation.

The first human rights training curricula of the Projects for lawyers were designed in 2005 under the long title ”De facto implementation of international obligations of the Republic of Belarus in the field of civil rights and freedoms”. Although the title clearly reflected the main idea of the human rights training for lawyers, it had a disadvantage – it was too long. The current brief name “Bring International Standards Home” suits the Project even better since it conveys the major message – the aim to train lawyers in the application of IHRS in the national practice.

Lawyers were invited to study the problem of the national implementation in depth and to discuss possibilities regard the national implementation of the universal model.

In reality, the international human rights law has designed an algorithm, which may influence the national implementation process. Lawyers have to know it. An attempt to lay out a model for the national implementation approach was made in Article 2 of the ICCPR.

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

The Article, together with the interpretation provided by the UN HR Committee, constitutes a model of the national implementation process. The wording “giving effects to the rights” expresses the true meaning of the process of national implementation. Learners are provided with the knowledge of and skills in how to interpret the provisions and strengthen a claim through direct application of international human rights provisions. The authors of the BISH curriculum for training of the Belarusian lawyers included the following topics:

National mechanism of the implementation of international obligations, including constitutional and ordinary law provisions and safeguards for primacy of human rights and international obligations in case of their non-compliance with national legislation,
Interpretations of provisions of international treaties as legitimate tools and applying international provisions directly in national litigation and practice.

Later, the EHREL project also included the above-mentioned topics in the curriculum and additionally issued a comparative analysis of the national legislation regarding the implementation mechanisms in several countries prepared by national experts. The entire distance education EHREL cycle included nine separate courses; the first stage of the cycle focused on human rights doctrine, law, standards and mechanisms, while the second stage focused on the implementation of human rights at both the international and national levels.

The term and the concept of “implementation” were studied in depth. In addition to the previous clarifications, several other reasons for that should be mentioned. First of all, in the international law, there is no unified definition of the “implementation” concept. Moreover, the term overlaps with some other legal notions, such as enforcement, application, compliance, etc. The term “implementation” is furthermore avoided in the official Russian translations of the UN documents, since they would rather use the word “osuschestvlyat” that is not a legal notion and has a broad meaning closed to the word ”realisation”. As a result, the CIS national legal systems, which use the Russian language in legal transactions, have difficulties with the practical and doctrinal application of the term and the concept ”implementation”.

Since the legal mechanisms and specific legal acts on domestication of the international law often contradict each other and show signs of dualism, it is crucially important for practising lawyers to be aware of the superior role and power of the international human rights provisions in their national legal orders.

Finally, since the traditional “implementation” concept of the international public law has been significantly changed in the realm of the international human rights law, lawyers need to understand this new framework.

The application of a broad concept of implementation of the international human rights law supports the principle of universality and makes it alive. Indeed, in cases where the national legislation and/or practice fail to comply with the IHRS, lawyers may invoke the universal propositions directly on human rights and provide higher protection to a victim.

Several different methods and training activities have been used for training on the subject:

The learners were invited to study the national legislation, as well the relevant reports to the international bodies, in a search for the term “implementation” and its sense of “giving effect to the rights”.
The learners from all five countries had a joint discussion on the monist and dualistic approaches towards international human rights law in conjunction with the provisions of the Universal Declaration on Human Rights, as well as the Preamble and Article 2, part 3 of the International Covenant on Civil and Political Rights. The aim of the exercise was to show the learners that the principle of universality, embedded into the above-mentioned provisions, provides a monistic approach for the direct application of international human rights law.
Finally, lawyers had a home assignment to prepare a plan of activities with aiming at implementing the recommendations given to a country within the Universal Periodic Review procedure. The task required from lawyers a good understanding of implementation as a concept and as a set of activities. It is assumed that the “de facto” implementation embraces not only legislative measures, but also a broader spectrum of activities including strategic litigation, public campaigns and dialogue with the authorities and the civil society organizations.

In the course of the training, consequently, the term “implementation” was applied in the broad meaning, i.e. it includes manifold activities which aim at ”giving effect to the rights” and are to be conducted by national governments, but motivated by other actors as well, including lawyers and individuals.

One should take into account that in the previous periods a number of publications were prepared within the Projects framework. These publications address the scope of practical aspects in the implementation concept, including those connected with the institute of individual complaints. The authors of the publications have disseminated knowledge on the interrelation between the international law and domestic law provisions and clarified the issues related to the legal force of the views of the UN treaty bodies and admissibility of individual complaints to the UN Human Rights Committee and other treaty-bodies. These publications have been distributed among and were highly popular among the Project alumni, legal professionals, human rights NGOs, students, etc.

The concept of “implementation” has become familiar and practical. Lawyers do use it with the awareness of the fact that once a national legislation was adopted as a result of the international treaty domestication process, it does not stop being scrutinized regarding its compliance with the universal human rights standards. The implementation process continues and lawyers have to play an active role in it.

According to the survey statistics, the alumni use the knowledge and skills in their professional activities: when preparing legal documents, for argumentation in pleadings, in teaching/sharing knowledge, in consultations, analytical work, to enlighten the authorities, in law making, reporting, etc.

Everyone, Individual, Human Rights Defender, Human Rights Lawyer

Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.

Declaration on human rights defenders (1998), Article 1.

The human rights law has changed several doctrines of the “classical” public international law. One of the important changes is the recognition and institutionalization of the status and role of individuals in the process of standard setting, monitoring and other activities related to the implementation of the states’ obligations in the field of human rights obligations.

In his review of the international human rights system, Thomas Burgenthal (Judge of the International Court of Justice from 2000 to 2010) writes that while previously the activities in the field of international law were related only to the activities of the states, now an individual or a group of individuals may replace or supplement the role of the states in the international legal regulation. “New technologies and growing complexity of solving global problems have increased the level of uncertainty in decision-making, contributed to the ‘blurring‘ of authority in decision-making at the international level”, “technology destroyed the state monopoly on the collection and dissemination of information”[5]— all these factors have contributed even more to the process when the new actors take on some of the operational functions in contemporary international law.

The legal doctrine and university curricula of the CIS countries, for many reasons, fail to highlight these changes. As a result, lawyers, graduating from the state universities, have a limited or vague understanding of the current composition of actors and subjects in international law and still rely on the tenets and practices of the classical public law where only states are recognized as full-fledged subjects of international law.

Neither have they professional confidence in pursuing legal claims and processing claims for social changes at the national and international levels. In reality, to work on cases on alleged human rights violations, lawyers need to understand that their status, immunities and protection guarantees will be expanded to their new role as representatives of victims of human rights violations at the international level.

Among the Projects’ educational goals are those enabling lawyers to influence the standard setting process, to improve the level of the national implementation of the international standards and to raise the awareness of the civil society and professional community regarding the role of lawyers and the guaranties and immunities surrounding their work on human rights promotion and protection.

Since the training is conducted within the international network of non-governmental entities sharing the common mission – to support human rights organizations and human rights defenders – the participants are motivated to learn more about the legal mechanisms eligible to support and provide better protection for human rights work.

From the very beginning of the training, the learners are made familiar with the concept of ”Human Rights Defenders”. They study the legal framework for human right defenders’ work, starting with the “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”, often referred to as the “Declaration on Human Rights Defenders” (1998).

The issue of the role of individual and the legal representation of victims of human rights was studied during all the thematic courses included in the curriculum. Particularly, the training made the learners familiar with the procedural instruments for individual complaints in the framework of the international (UN) and the regional (CoE) mechanisms within the courses “Human rights protection system established by the UN” and ”Human rights protection system established by the European Convention on Human Rights”. The training also developed lawyers’ practical skills in preparing legal claims for submission to the international bodies. It made them understand that individual communications fill the gap, which is a result of the failure by the states to take action as parties to the human right treaties.

“The ILIA programme encouraged me to think in new ways. In Ukraine, the European Court of Human Rights is used quite frequently, but not the UN mechanisms. Sometimes they can be the right remedy. For instance, I learned about the Working Group on Arbitrary Detention – and that is an important tool in my current work with refugees. Submissions to the Working Group are quite effective for prompt advocacy”. – Lawyer, Ukraine

However, the increasing numbers of individual communications to the international bodies, prepared by the Projects alumni, are not the most important indicator in the Projects’ evaluation framework. Indeed, HREL aims mostly to raise awareness of lawyers in terms of promoting and protecting the conditions in which the activities of individuals might be more efficient.

The awareness of the alumni of their human rights work as well as their knowledge and skills in advocacy, including the solidarity and promotion of human rights standards for legal professionals have also been developed during the training and follow-up activities.

Let me briefly describe an example of the alumni’s joint work on a case concerning protection, monitoring and standards setting. Lawyers studied and discussed the international set of principles and guaranties for lawyers (UN Basic Principles on the role of lawyers) during the online training. Later, at the conference “Lawyers: human rights protection and guaranties for professional activities”, the alumni discussed the problems of the status of and guaranties for lawyers in the CIS region and decided to conduct monitoring activities.

Soon after the conference, the conference moderator, Intigam Aliev – the best-known lawyer in Azerbaijan, who embodies justice in the country, and the EHREL Project expert and partner – was arrested. In 2015, he was sentenced for his work to seven and a half years in prison. In his plead to the court he said:

“My activities related to the European Court, in particular, the cases on violations of electoral rights, have played a big role in my arrest. That work irritated the authorities badly, and I was repeatedly informed about the possible unwanted consequences of that work for me and for our organization” (A quotation from the final speech of the prominent human rights lawyer Intigam Aliyev in court, Baku, Azerbaijan, April 2015).

Immediately after the arrest, the alumni and experts launched online solidarity actions and sent communications to the national authorities reminding them about the international human rights guarantees and lawyers’ immunity.

In September–November 2014, lawyers, mainly the Projects’ alumni, organized an online analytical group to monitor the situation in the CIS region and to conduct an online survey (more than 100 lawyers answered questions).

In 2015, the alumni participated in the legal consultations, in the preparation of an amicus curia letter to the European Court on Human Rights. They contributed to the formulation of the legal position of attorneys defending Intigam Aliyev and other human rights defenders arrested and persecuted in Azerbaijan. The position was based on the findings of the analytical group and highlighted the special status of human rights defenders including human rights lawyers. Later their findings were reflected in the ECHR case law.

Lawyers from all five countries continue to participate in solidarity actions against repression in Azerbaijan. The report “Human Rights Lawyers at Risk” was finalized and dedicated to Intigam Aliev.

This specific example illustrates several important competences, which have been acquired by the lawyers during the training and owing to the professional cross-border networking activities:

Ability to critically analyse the national legislation;
Ability to conduct comparative analyses of practice between five countries with respect to professional standards and the implementation of international professional standards in these countries including Azerbaijan;
Vision and knowledge of international mechanisms on human rights defenders and readiness to contribute to the standard setting and development of the existing standards on lawyers’ professional guaranties;
Appreciation and readiness to start a national implementation by applying both international standards and the findings of the Report with a view to enforcing the standards at the national level;
Understanding the importance of joint solidarity campaign and legal assistance for special cases protecting human rights defenders and human rights lawyers
Rendering legal aid with the application of the international standards developed for human rights work;
Issuing a report, which revealed problems and indicated that lawyers who work on human rights are less able to enjoy the professional immunities and guarantees, which should protect them. The main finding of the report is as follows:

Human rights lawyers are both lawyers and human rights defenders. Guarantees and immunities for lawyers enshrined in national and international law must be implemented and respected, while human rights guarantees must extend to all who work within human rights, including human rights lawyers.

After the Report was presented at the OSCE Conference and in the CoE in 2015, the authors of the report were invited to the regional consultations with the UN Special Rapporteur on the Independence of Judges and Lawyers. In August 2016, the Report of the Special Rapporteur on the Independence of Judges and Lawyers was submitted to the UN General Assembly.

Among the trends and challenges highlighted by the Special Rapporteur, there are several issues, which may become newly updated universal standards – and which have been extracted from the report “Human Rights Lawyers at Risk” and the recommendations prepared by the participants of the consultations:

The right of access to clients imprisoned, even if lawyers are not members of bars that is when they represent clients before international and regional human rights courts (p. 52 of the UN SR Report); Lawyers engaging in representation of clients before international and regional courts should be awarded the same guarantees and protection as lawyers litigating in local tribunals regardless of whether they are or are not members of their national bar associations (p. 53 of the Report UN SR); Lawyers shall be regarded as human rights defenders if the work of the lawyers is closely related to the promotion and protection of human rights; Guaranties for human rights defenders shall embrace lawyers if they conduct human rights work (part 4 of the “Lawyers as human rights defenders” Report UN SR).

Conclusions

Normative articulation of human rights with emphasis on their universality is a great achievement of the international community, which was crowned by the adoption of the Universal Declaration on Human Rights. The further development of the international human rights regime, however, was and will be challenged by practitioners, politicians and academics who point to the unsatisfactory level of national implementation of international commitments and look for ways to root common standards into local contexts.

Human rights education has a fundamental importance in contributing to promotion, protection and realization of all human rights. The international framework includes different educational and training activities, which might be tailored to specific groups. Human Rights education for lawyers is essential. International law, however, leaves it mainly to national governments and bar associations to ”ensure that lawyers receive appropriate education and training” and are ”aware of the ideals and ethical duties of the lawyer and human rights and fundamental freedoms recognized by national and international law” (UN Principles on the Rule of Lawyers). In the last decade, the CoE has started to disseminate programs and online courses for pan-European countries in order to improve levels of human rights education and decrease a flow of individual claims to the ECHR.

The case study of the two educational Projects conducted by the Human Rights House Network shows that a systematic training for lawyers might have a great potential in terms of bringing the universal human rights standards home. Evaluation of results of educational Projects on human rights for lawyers of five countries of the CIS region (Azerbaijan, Belarus, Moldova, Ukraine and Russia) reveal changes at the individual level in knowledge, skills and attitudes gained during the training. Quotes of participants´ replies included into the main part of the paper demonstrate that the changes also concern the learners´ increasing awareness and respect for human rights and observance of the universal standards at the national level.

Evaluation of results also show that changes at the individual level pushed lawyers to disseminate their knowledge through professional and social activities.

The following brief overview reminds us about the impact:

97% of alumni use the knowledge gained in the Projects in their professional practice.

90% of alumni collaborate with Human Rights Houses in their countries or/and with other civil society organizations.

Most of them report that they changed their professional methods and start to apply international human rights standards in litigations, but also in other activities aiming at the transformation of their national systems: “I see the prospect in the implementation of international standards to amend national law… We have to explain to people what we need to change in our national legislation that it will be good and useful for us, and then, after these changes are made, our law will match the international standards. The way to change should come from people and their understanding, not from international bodies.” – Alumni Belarus

394 alumni and experts have regularly communicated via online channels to exchange knowledge and take part in solidarity actions. Alumni provided almost 5000 legal consultations (in 2015) to victims of human rights violations and conducted 172 strategic court cases to address acute problems with national implementation of international obligations in the field of human rights. 325 alumni have contributed to developing international standards for guaranties and immunities of human rights lawyers.

To prepare lawyers for the practical application of the principle of universality, the human rights education program shall include topics, which form lawyers´ understanding of international and national legal regimes in their interdependency. The gained experience shows that lawyers of the CIS region often lack the knowledge on peculiarities of international human rights law which makes it different from”classical” public law. Concepts such as ”International Human Rights Standards”, ”Implementation and de facto implementation” as well as ”Status and Role of Individual/Human Rights Defender” shall be delivered to learners to ensure their understanding of the direct applicability of international human rights norms and about the eligibility of individuals in promoting and protecting human rights at the national and international levels.

After lawyers have ”appropriated” the doctrinal and practical issues on international human rights law and have restudied the national provisions with respect to the effective implementation of international standards, the lawyers will become effective actors of the two-way process facilitating “a cross-fertilization” between national law and international human rights standards.

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Индивид v. государство:практика обращения в договорные органы ООН Том II (2016) Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

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Acknowledgements

This research is results of analysing and introducing generally available data at:

http://humanrightshouse.org/Projects/ILIA/index.html; and

http://ilia.humanrighsthouse.org.

The quotations from interviews of alumni due to anonymity are not individually listed in the bibliography.

The Projects and the ILIA Program have been supported by the Norwegian Ministry of Foreign Affairs; Matra/KAP Small Embassy Projects Programme, the Netherlands Embassy in Warsaw, The National Endowment for Democracy; the USA The German Marshall Fund of the United States, The Nordic Council of Minister’s Support Programme for NGOs in the Baltic Sea Region Council of Europe; Fritt Ord Foundation, Norway International Renaissance Foundation; Ukraine Irish Aid Konrad Adenauer Foundation Germany; ODIHR/OSCE/European Commission; Open Society Institute; France Civil Rights Defenders Department of Foreign Affairs; Trade and Development (DFATD) Canada; The Swedish International Development Cooperation Agency (SIDA); US Agency for International Development (USAID); German Embassy in Ukrain Khariv; Human Rights Protection Group U.S. Embassy in Ukraine; American Bar Association (ABA, Justice Defenders Program); OSCE Mission to Moldova; UN Development Programme (UNDP Moldova); Norwegian Mission of Rule of Law Advisers to Moldova (NORLAM); Stefan Batory Foundation; Poland Polish Ministry of Foreign Affairs via Polish Aid Programme; Forum Syd.

Comments

* The author of the paper is a co-author and an acting expert of both the Projects curricula and several courses of the Projects. Since 2006 until now, I manage the ”International Law in advocacy” Program, the Human Rights House Foundation, Oslo, Norway. All examples and data used in the Report are available in open sources. Only in some cases, I used my own archives and former publications.

** In this paper, I used the terms “post-communist” countries and “CIS countries” (the Commonwealth of Independent States) as synonyms for the countries of the former Soviet Republics, reappeared during and after the breakup of the Soviet Union.

*** It is worth referring to the main sources of inspiration for this paper and specifically:

on the principle of universality in light of traditional values:

Jack Donnelly “The Relative Universality of Human Rights” (2007), Anja Seibert-Fohr
“Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to Its Article 2 Para 2” (2001), Tom Zwart “Using Local Culture to Further the Implementation of International Human Rights: The Receptor Approach” (2012),
Report: “Human Rights Standards: Learning from Experience” issued by the International Commission of Jurists & the International Service for Human Rights ICHRP, International Council on Human Rights Policy (2006), Vladimir Kartashkin
“Preliminary Study on Promoting Human Rights and Fundamental Freedoms Through a Better Understanding of Traditional Values of Humankind” (2011), Sally Engle Merry “Human Right and Gender Violence: Translating International Law into Local Justice” (2006), Abduhlahi Ahmed An-Naím, “Towards a Cross-Cultural Approach to Defining International Standards of Human Rights” (1992), Study on Promoting Human Rights and Fundamental Freedoms Through a Better Understanding of Traditional Values of Humankind, UN Human Rights Council Advisory Committee, 2012,A/HRC/22/71;

on the Role of Lawyers and human rights education:

Report “Human Rights Lawyers at Risk” (2015) issued by the Human Rights House Foundation in cooperation with several international organizations and experts, Report of the UN Special Rapporteur Monika Pinto Report of the Special Rapporteur on the independence of judges and lawyers, 2016, A/71/348.

Endnotes

[1] Nowak, M. «Challenges to National Implementation of International Human Rights Standards –Background Paper WG I». Global Standards – Local Action. 15 Years Vienna World Conference on Human Rights. Eds: Benedek, Wolfgang and others. Wien-Graz, 2009.126–127.

[2] United Nations Decade for Human Rights Education (1995-2004): Report on achievements and shortcomings of the Decade and on future United Nations activities in this area. E/CN.4/2004/93, 25 February 2004, p.25.

[3] SECRETARY-GENERAL, IN ANNIVERSARY MESSAGE FOR WORLD CONFERENCE ON HUMAN RIGHTS, UNDERSCORES IMPORTANCE OF STRENGTHENING RELEVANT EDUCATION AT ALL LEVELS Retrieved from http://www.un.org/News/Press/docs/2008/sgsm11763.doc.htm

[4] КОНВЕНЦИЯ СОДРУЖЕСТВА НЕЗАВИСИМЫХ ГОСУДАРСТВ О ПРАВАХ И ОСНОВНЫХ СВОБОДАХ ЧЕЛОВЕКА, 26 мая 1995 года, преамбула.

[5] Burgenthal, Thomas. «The Evolving International Human Rights System», in International Law: classic and contemporary readings edited by Charlotte Ku London. 2009. Р. 289–319; Charnovitz, Steve. Nongovernmental Organizations and International Law. Ibid. Р. 117–137. Mathews, J.T. «Power Shift», Foreign Affairs,76, № 1 (1997). Р. 50–66.

Protestant Origins of Human Rights Challenged

09/08/2017Conference proceedings (double non-blind peer review)Boutmy, Jellinek, Luther, Protestantism, Witte, human rightsMogens Chrom Jacobsen

This paper argues that certain core elements in Protestant theology are incongruent with human rights as they were understood by the 18^th-century declarations. These declarations expressed a liberal understanding of society that would leave the individual a rather extensive sphere protected from government intervention. Protestant theology exacerbates the sinful nature of man and in order to do this it sets a very high standard for morality which eliminates the classical distinction between command and counsel (strict and loose duties). Such a distinction was the basis for limiting the intervention of government into the individuals’ private life. The absence of such a distinction does not oblige the state to intervene, but there is no generalized guarantee against such intervention. We are not arguing that Protestants cannot be liberals, but that they are not liberals in virtue of their religion and by moral principle.

First, we will give an outline of the discussion on the Protestant origin of human rights starting from Georg Jellinek going all the way to a recent defender of the theory in the person of John Witte. Many arguments have been compounded against the theory, but it is surprisingly tenacious. We will try to challenge the theory, as explained above, from a theoretical rather than a historical point of view, in order to show its incongruity. To do this we will discuss Luther’s conception of command and counsel and how this position reverberates in Protestant political philosophy and notably in such thinkers as Hugo Grotius and Samuel von Pufendorf. We will conclude with some consideration on the role of John Locke in establishing the liberal position of the 18^th century declarations.

Protestant Origins of Human Rights

The idea that 18^th century human rights could somehow originate in Protestantism was launched by Georg Jellinek in 1895. His dissertation, Die Erklärung der Menschen- und Bürgerrechte, Ein Beitrag zur modernen Verfassungsgeschichte, argued that Rousseau’s Contrat social could not be the source of The Declaration of the Rights of Man and of the Citizen adopted in France in 1789. He insisted that the model for this declaration was the American declarations and notably the Virginia Declaration adopted a decade or so before the French declaration. He argued further that freedom of religion in the American colonies was responsible for the idea to state universal human rights in a declaration. (Jellinek, 1895)

Jellinek is reacting to a view put forward by Paul Janet in his Histoire de la science politique (1887). Janet presents the declaration of rights as the very terms of Rousseau’s social contract. (Janet, 1887: 457) Jellinek argues that this could not be so, since Rousseau knows nothing about rights which individuals have before and independently of the state. In Rousseau’s state, individuals ony have those rights, which emerge from the general will. (Jellinek, 1895: 5) Jellinek concludes that the declaration must have another source and he finds it in the American declarations. He notes that such a declaration was demanded in the Cahiers de doléance and the first one was proposed by Lafayette, a war hero from the American War of Independence. He notably points to the Virginia Declaration (1776) as model for the French declaration, but he compares the French declaration carefully with several American declaration and concludes that both ideas and form derives from the American declarations. (Jellinek, 1895: 7-22). Emile Boutmy responds vigorously in the Annales des sciences politiques (1902 – Georges Fardis translated Jellinek’s dissertation into French that year, see Jellinek, 1902). These two points have, however, been conceded by scholars by now. (Rials, 1988: 352, 357; Gauchet, 1989: 14; see also Joas, 2003: 258-260)

He then asks how such ideas about declaring universal human rights came to the Americans and notes that they could not come from England, where only English rights were proclaimed. He also excludes natural law which, he says, had no problem approving slavery and such things. (Jellinek, 1895: 30-31) His own solution is to find the origin of such rights in the assertion of universal religious tolerance and freedom of thought. The first Protestant settlers refused ecclesiastical hierarchy and considered the church as a community of believers. Jellinek sees herein the seeds for a democratic polity. Since the individual believer had to relate directly to God without any hierarchical middle ways, Protestantism also emphasized individualism, and from this, he thinks, unlimited freedom of thought followed, which in its turn had to be proclaimed as a universal right. (Jellinek, 1895: 31-41) From this initial right several political rights came along. (Jellinek, 1895: 43) This relation between freedom of thought and political freedom was already noticed by Madame de Staël in her posthumous work on the French Revolution. (de Staël, 1871: 61)

It is not clear, however, neither in Jellinek nor in de Staël, how we get from the one to the others. Considering that Frederick II of Prussia, reportedly, could say, ”Argue as much as you will and about whatever you will, but obey!” (Kant, 1996: 18) without any apparent contradiction, the relation must be a rather loose one. For de Staël it is the free enquiry which leads to representative government. (de Staël, 1871: 61) It supposes that free enquiry in one area would lead to free enquiry in all areas and this would somehow make people think that they should have a say in political affairs. Jellinek emphasizes the absence of ecclesiastical hierarchy and religious individualism as decisive, and he seems to assume something similar, since specialization of other freedoms would somehow crystallize themselves around freedom of thought. (Jellinek, 1895: 43) Joas states frankly that the other rights do not emerge organically from freedom of religion, but he still wants to give it some preeminence as the foundation of the entire constitution. (Joas, 2003: 263)

Whatever the relationship might be between freedom of thought and religion and the other rights of man, it will lose much of its significance if Protestants showed little interest in religious freedom and tolerance. On this point Jellinek receives criticism from Ernst Troeltsch, who argues that Protestants churches had little such interest, while certain Protestant sects were more serious about religious freedom. Calvinism, which was the dominant Protestant denomination in the Colonies at this time, did only accept a limited kind of tolerance. According to Troeltsch, full acceptance of other religions was only embraced by spiritualists like the Quakers, Baptists and Roger Williams. They were the only one who could conceive freedom of thought and religion as an inborn human right. (Troeltsch, 1923: 758 ff.) Jellinek takes account of this in the second edition of his work, but insufficiently, Troeltsch suggests. He would attribute a much larger importance to Enlightenment thinkers. (Troeltsch, 1923: 764-765 see the note.)

In fact, religious toleration was rather limited in the American colonies. Troeltsch notes that the New England Puritans wanted free religious communities and forced no one to enter the church, but they did not tolerate any other church or denomination and important citizen’s rights was conditioned on membership of the church. (Troeltsch, 1923: 759) Ralph E. Pyle and James D. Davidson present a schematic overview regarding toleration of dissent and restrictions on citizens’ rights in 17th and 18th century colonial America. In most cases there is no toleration of Catholics. In some cases nonconformist, Quakers and Baptists are not tolerated. Office-holding and voting rights was nearly always denied Catholics and often reserved for a particular denomination or more generally for Protestants. (Pyle & Davidson, 2003: 66-68) More colourfully, Kenneth C. Davis denounce what he calls the myth about religious tolerance in colonial America. The Puritan fathers did not tolerate opposing views. Dissidents such as Roger Williams and Anne Hutchinson had to leave. Catholics and other non-Puritans had to leave as well. He recounts the misfortune of four Quakers who were hanged in Boston in 1659-1661 for insistingly returning to the city. Catholics were discriminated against regarding property and voting rights. As late as 1834 a Catholic convent was burned to the ground by an anti-Catholic mob. In the 1844 Bible Riots in Philadelphia two Catholic churches were destroyed and two people died. In the same period Mormons were also victims of persecution and massacre. (Davis, 2010)

Some states, however, did exercise a rather general tolerance; like Rhode Island, founded by Roger Williams, and Pennsylvania, founded by William Penn, a Quaker. In the first everybody was tolerated, but voting and office-holding was reserved for Protestants. In second all monotheists were tolerated, though Catholics were not tolerated for a short period. They were nonetheless excluded from office until 1776. (Pyle & Davidson, 2003: 66-68) These were the communities which according to Troeltsch and later on Jellinek saw as the champions of a human right to freedom of thought and religion. To this Gerhard Ritter answers that it is not possible to trace the human rights declaration of 1776 in Virginia to the demand for religious tolerance in the American colonies. The 17th-century charters from the founding of the colonies do not show any general human rights. They are about royal privileges and traditional English freedoms. They suppose the colonies to be essentially Christian communities. He adds that the article on freedom of thought was a latecomer to the Virginia Declaration and not without resistance from the tenants of state churches. (Ritter, 1949: 240) To this, Hans Joas adds that a staunch defender of religious freedom such as Thomas Jefferson was a Deist and no direct heir to Puritan thought. (Joas, 2003: 262; see also Davis, 2010) As Troeltsch suggests, Enlightenment thought is probably a more likely source of Jefferson’s commitment to this cause.

At this point one would say that this discussion is by now long dead and buried, but somehow phantoms are still hanging around refusing to disappear. Valentine Zuber gives a useful outline of how Jellinek’s ideas were received by French Protestants. (Zuber, 2014) The commemoration of the 400 years of the birth of Jean Calvin in 1909 was a great occasion to link the rights of man and the citizen directly to Calvin. Emile Doumergue proclaims that the Declaration of the Rights of Man and the Citizen comes neither from America nor England, but, first of all, from Calvin’s French disciples and Calvin himself. (Doumergue, 1910: 22-23) The position is argued in more detail by Jules Emile Roberty. He believes that ideas about human rights should be traced back to the Huguenot disciples of Calvin generally referred to as the Monarchomachs. They defended, according to him, the rights of the people against absolute rulers. They were defeated in France, but their ideas poured into Puritan thought in England and travelled with them to America, and they travelled back to France at the time of the American Revolution. (Roberty, 1910: 33-39) This connection between Calvin and human rights is greatly nuanced by Roger Mehl writing in 1978. He admits that neither Luther nor Calvin took any special interest in human rights. On the level of discourse such a connection is not discernable, but he thinks it can be made at the level of events. The fact that the Reformation broke the unity of faith that had hitherto existed, leads, according to him, to freedom of thought and therefrom to the other rights. (Mehl, 1978)

Mehl is not prepared to admit that Protestantism had no special relation to human rights. We are left with the idea that freedom of thought and religion, which was caused accidentally by the Reformation, is some kind of paradigmatic right from which the other rights are created by analogy. John Witte, writing in 1998, take up the same idea and go as far as to describe the Reformation as a human rights movement. (Witte, 1998) He pursues the same program in more nuanced ways in his 2007 book on The Reformation of Rights, Law, Religion, and Human Rights in Early Modern Calvinism. (Witte, 2007) We will try to dispel these phantoms of a long-deceased theory with a different kind of argument, which, in our view, grips the problem by its roots. Approaching the matter from the concept of rights itself, instead of emphasizing particular rights which might have had more or less prominence in various Protestant writers, will make clear that core tenets of Protestant theology is incongruent with the concept of rights deployed in the 18th century declaration of rights.

The Concept of Rights in the 18th-Century Human Rights Declarations

However important Huguenot writers were for developments in England and later on in America, the notion of rights had been developed to a much higher technical level in earlier scholastic tradition, and thinkers on both sides of the Channel could draw on this tradition. William of Ockham and Conciliarist thinkers like Pierre d’Ailly, Jean Gerson, John Mair and Jacques Almain employed a permissive notion of rights developed by the canon lawyers of the 12th century. (Jacobsen, 2011: 169-176, 189-199, 125-128) The permissive conception of rights equal rights with permissions, such that permissions presuppose duties. We are permitted, in the strict sense, to do everything which is not commanded or forbidden. If no duty commands us to take a walk in the park at this particular moment and there is no duty forbidding us to do so, then we are free to do it. We can do it or not as we like. This is permission which is also called a right. Upon this basis the above mentioned writers construct a consensus theory of government. Since there are no duties concerning property and government (at least after the Fall) these matters must belong to the area of permissions and people would then have to agree about how to settle these matters. They agree to share up the common property and to institute judges and governors. This scheme probably had as its purpose to bolster up the secular power against the Church. Having an independent legitimization in consent and its own area of competence, the secular power could avoid being a subsidiary of the Church. What Huguenot writers did as something rather new was to turn the very same scheme against the secular power (although John Mair had already done something similar in a Scottish context). However, the Huguenots did this opportunistically, and as soon they got one of their own on the French throne in the person of Henry IV they returned to the principle of authority.

Ockham and the Conciliarist writers had the idea, common in theological thought at the time that one should distinguish between mortal and venial sin. Only mortal sin should be enforced by the secular power. To mortal sin corresponded a limited number of duties such as not to kill, rob, etc. The result was that the secular state had limited functions, and seen from the perspective of the secular power the individual had a very extensive liberty. Everything not within the sphere of the secular power was left to the individual or the discipline of the Church. The Church had a huge social power, of course, but at the time it was exercised rather leniently. The secular power therefore left the individual with a large free space in the form of permissions. This is exactly what the18th century declarations of rights do as well. They are centred on freedom. They limit the functions of the state and create a space of liberty where the individual is free to do as he pleases. The right to publish one’s opinions (freedom of the press) limits the way the state can intervene in this kind of activity and permits the individual to exercise the very same activity. He is not obliged to do so; it is an option he has to be used in case he wishes to do so. (Jacobsen, 2011: 271-278, 281-286)

In order to delimit the sphere of the secular power, we would need a way to distinguish between duties which are enforceable by the state and other kinds of duties. Augustine of Hippo spoke about command and counsel, while modern philosophers would speak about strict and loose duty. More elaborate distinctions between duties were also possible, Gerson thus distinguished between the prescriptions of justice with strong obligation incurring mortal guilt and eternal death, lesser prescriptions with little obligation such as to honour one’s parents, slight obligation such as to observe good manners and the smallest obligation concerning perfection. (Gerson, 1706a: l. 5, c. 61-63) Only the duties of justice were enforceable by the state, while the others were considered too difficult to ascertain precisely or too demanding for ordinary man. Gerson, and his fellow theologians of the Sorbonne, had a rather forbearing attitude to human frailty. This would change radically with Martin Luther, and at the same time he renders useless the distinction which made it possible to establish for the individual a guaranteed sphere of freedom.

Martin Luther[1]

Luther does not as such abolish the distinction between command and counsel, but he only acknowledges one counsel, namely celibacy. According to the ordinary understanding of the distinction, counsels are about these things Christ teaches in Matthew 5: not to take revenge, not to return evil with evil, not to be litigious, giving one’s coat when one’s tunic is taken, turning the other cheek, going another mile with the person who obliges you to go one mile, not to resist evil persons and to be benevolent towards your enemies. In Luther’s view all this was not counsels, but commands. (Luther, 1889: 580-581) Among the counsels the ordinary view also adds poverty, obedience and celibacy. Luther reinterprets poverty spiritually as detachment from worldly things and saps the basis for monastic life. Obedience is evangelical obedience and incumbent on everyone. Only celibacy survives, since both Christ and Paul expressly praise celibacy. Celibacy, however, does not make anybody perfect, but can be advised for other reasons. (Luther, 1889: 583-644)

What Luther is saying is that the limits imposed as sufficient for salvation has been set too low, for what is in reality commands has been interpreted as counsels. The traditional view considered only the transgression of the duties of justice as a mortal sin barring one’s way to heaven. This is clearly expressed in the censure of Luther’s work by the theologians of the Sorbonne. If the duty not to revenge oneself was not just a counsel, but a command the Christian law would become too burdensome. (Luther, 1889: 592-593) This is uninteresting for Luther for he is not concerned with the accomplishment of the commands, but they should instead reveal our impotence and drive us into the arms of Christ. Only faith can save us and faith is a free gift from God. The utter impossibility of the commands should disclose for us how profoundly sinful we are and make clear for us that only God’s grace can save us. (Luther, 1889: 208-209, 211; Cristiani, 1946: 74)

This stress on human sinfulness and our inability to overcome it by our own means is a key feature of Protestant theology and this feature has some interesting consequences for political philosophy. Luther is not saying that the commands should not be accomplished, but any attempts to do that will fail if it is not guided by faith. Those who have faith will have no need of the law; they will accomplish the law spontaneously. There are, however, few such people, so the law has two functions. It should show us how incapable we are to fulfil the law perfectly thus making us humble and receptive to God’s message. The other function is restraining keeping all those who are not true Christians, that is the majority, from doing evil deeds. This second function belongs to the secular power, and it should preserve peace, punish sin and restrain evildoers. (Luther, 1889: 606-608; 1888: 213-214; 1900: 253-268) We must assume that sin is here understood as the external breach of the commandments, since the secular power only rules over the external affairs in this life such as the life and property of persons. This power cannot command us to believe something in particular, since people’s beliefs are out of its reach. (Luther, 1900: 262-268)

This would suppose a distinction between those prescriptions which can be enforced and those which cannot, such as believing or being generous. The enforcement of the secular power should preserve peace and repress sin. In some sense this is not very different from what the Parisian doctors would say, but in between the notion of sin has changed. Luther renders the notion of counsel utterly useless and eliminates at the same time the distinction between mortal and venial sin. (Holl, 1932: 211) There being no distinction between mortal and venial sin, all sins, at least in their external expression becomes punishable by the state. Before, sin, that is mortal sin, was a minimal standard for salvation. Now, sin is a much more demanding notion. We would then expect the Protestant state to be much more invasive, while the Sorbonne theologians would be much more lenient and indulgent towards human frailty. Luther actually castigates in this spirit the existing Church for laxity. They do not preach, teach, forbid or punish anything. He insists that the spiritual power should punish and correct adultery, indecency, usury, greed, worldly luxury, unnecessary dress and the like with excommunication and legal measures. (Luther, 1888: 255) Max Weber notes something similar when he says that the Reformation did not do away with ecclesiastical power. It replaced a formal, but in fact barely sensible domination, with an extensive domination penetrating into both the domestic and public domains in order to regulate the whole conduct of life. (Weber, 1999: 20) According to Troeltsch, Lutheranism left it to the secular power to exercise this control, while the Calvinist congregations exercised this control themselves. (Troeltsch, 1923: 629)

Protestant Political Philosophy

This more invasive state is also recognizable in Protestant political philosophy. Even though the distinction between command and counsel returned to prominence it was considerably reworked. A distinguished Protestant political philosopher is Hugo Grotius. He adhered to Arminianism, an outgrowth from Dutch Calvinism. Arminians maintained that only faith could save, but allowed man some freedom to accept or reject God’s grace. However, this does not save man from total depravity. The difference from orthodox Calvinism lies only in the remedy for this depravity. In spite of this slightly more lenient position, Grotius maintains the overall position outlined by Luther. All in all Grotius presents a political philosophy compatible with a rather illiberal society.

Grotius adopts a permissive conception of rights. These rights are permissions seen from the perspective of a range of duties. (Grotius, 1646: I.1, 3-4 II.2-3, 20, III.4, 10) These duties can have different origins. Some originates in natural law as inherent in man’s social nature. Others depend on divine will and originate in divine positive law. (Grotius, 1646: Prol. § 6-9) Other again stems from human or civil law established by the social contract. Just as they can enter the social contract they can also oblige themselves further by particular contracts. (Grotius, 1646: Prol. § 16-17, 40; II.15 vi.1 p. 265) These different origins of human obligations relate to each other a bit like Russian dolls. The innermost duties of the natural law leave a certain space of freedom to individual man, but divine positive law can restrict this freedom further (without contradicting the duties of the first law). The remaining space of liberty can, however, be further restricted by human law and particular contracts. What is important to notice here is that there is no limit to how this freedom can be restricted.

Grotius does distinguish between different kinds of duties, but this does not lead to any important limits on state power. He does exclude people’s beliefs and virtues such as generosity, gratitude and compassion from public enforcement as far as they are inner states. (Grotius, 1646: II.20 xx.1 p. 329) He does distinguish between justice, strictly speaking, which can be exercised between equals in the natural state and duties which can only be enforced by a superior in a state. These duties are self-regarding virtues and charity and both of them can be enforced by the state. (Grotius, 1646: II.25 iii.2-4; I.2 i.3 p. 16) He emphasizes that the state could use amendatory punishments in order to make people better, and he mentions an example from the Locrian Code where someone was punished for drinking wine against the prescriptions of the doctor. (Grotius, 1646: I.1 ix.1 p. 3-4) He is not saying that they should always do this, but there is clearly no general limit that would bar the state from doing it.[2]

This position does not change very much when we consider a Lutheran political philosopher such as Samuel von Pufendorf. He espouses the same permissive rights. He explains that some things are lawful or indifferent things, and as such they are a medium between commands and prohibitions, but he specifies that they are not like lukewarm water, which partakes in both hot and cold. The indifferent should be distinguished from good and bad and does not partake in any of them. Indifferent actions are optional and can be performed as one pleases. The laws permit what is neither commanded nor prohibited, and in this way it defines a general liberty modifiable by new laws. (Pufendorf, 1716: I.2.9; I.4.7-8; I.3.14; I.7.2; I.6.15)

He distinguishes between perfect and imperfect obligation. The first kind of duties is necessary for the very existence of society, while the others only contribute to its well-being. The first can be asserted by force, while the second cannot, and he mentions piety, reverence, gratitude, humanity and beneficence. (Pufendorf, 1716: III.6.10; I.1.19; I.7.7-8) It seems like the first kind of duties is enforceable in their own right even outside the state, while other kinds of duties like assisting people in need, which is only obliging imperfectly, can be enforced by the state and then turned into a perfect obligation. (Pufendorf, 1716: II.6.5-6) He explains that law is not only about strict justice incurring perfect obligation, but also concerns the self-regarding virtues, and that is the reason why laws are often made against drunkenness, sumptuousness and the like. In this way many duties imposing only imperfect obligation are strengthened by laws. (Pufendorf, 1716: I.6.4; III.3.8) [3]

We have here the same general scheme as with Grotius. We are obliged to all virtues by universal justice and everything outside the mind is in principle enforceable by the state. Some duties suppose a particular attitude, such as generosity, and cannot as such be enforced, but the external part of it, namely helping the needy can very well be enforced by the state. However, some duties are such that they can be upheld in the state of nature, and they are inherently perfect, while other (external) duties can only be perfect in virtue of the state. The distinction between enforceable and non-enforceable duties now turns only on the external and internal side of the duties, such that only the attitude is inherently out of reach of the state. The distinction we found with the Sorbonne theologians did not operate uniquely on this count, but delimited materially the proper functions of the state, such that a large amount of external behaviour was out of reach of the state.

John Locke subscribed to this view as a young man (Locke, 1967) but later he made an important move which somehow returned the situation to the time of the Sorbonne theologians. Locke reintroduced the distinction between strict and loose duties such that the functions of the state were limited materially. (Locke, 2006: 140-144, 283, 235, ; 1870: 14, 29; King, 1830: I p. 206-215) The context was, of course, different now. The huge social power of a unitary Church had disappeared, and this added a new dimension to freedom. It was the life, property and freedom, religious freedom included (to some extent) that should be protected against the state, and not the state against the ecclesiastical power. Like many of his contemporaries he had moved away from salvation from faith alone and embraced some version of work righteousness. (Baker, 1985: 129-130, 133) We are not suggesting that work righteousness was the cause of this move, but Locke did no more have a theology which would impede such a move. The reason probably has to be found in the political context of the time.

Conclusion

In order to highlight human sinfulness Luther set the bar much higher. The prescription of the Sermon of the Mount (Matthew 5) is not taken as two levels of obligation, one for ordinary people, and one for the perfect. We should never take revenge, never return evil with evil, never be litigious, always give one’s coat when one’s tunic is taken, always turn the other cheek, always go another mile with the person who obliges you to go one mile, never resist evil persons and always be benevolent towards your enemies. In fact, we should not even think about doing evil things. Clearly, no one is able to do this, and this is exactly Luther’s point. However, in setting the bar at such a high level, he also abandons the individual to the secular power which is entrusted with the task to ensure the external compliance with this ideal. We no longer have any other criteria for limiting the extent of the secular power. This is the price to pay for exacerbating human sinfulness. This appears as a core element in Protestant theology, and this would bar Lutheranism, Calvinism, Arminianism, most Baptists and other Protestant denominations subscribing to the total depravity of man, from establishing general material limits to the secular power. The only distinction they could make was one between belief as something of the mind and other matters, and this could lay the foundation for freedom of religion, as it did with Roger Williams, but this would still leave the high moral standards to be enforced, thus making a more invasive state possible. It is difficult to see how the other freedoms could be produced by some kind of gemmation from religious freedom. We are here far from the liberalism of the 18^th century declarations. They left moral matters out of the realm of the state.

One might object that the Quakers were a special case, challenging the notion of total depravity, but they are, on the other hand, notoriously uninterested in theoretical questions, and therefore an unlikely candidate for having developed the theoretical language of universal rights. Even though they are an outgrowth of Calvinism it is disputable to which extent they are Protestants. What we have tried to argue here is that core Protestantism is an unlikely originator of universal human rights in the 18^th century sense. It does not caution an extensive space of liberty as they do.

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Endnotes

[1] This and following sections reproduces ideas presented in chapter 8 of Jacobsen, 2011.

[2] For a more detailed interpretation, see Jacobsen, 2011: 216-225.

[3] For a more detailed interpretation, see Jacobsen, 2011: 225-233.

Brexit Coup d’Etat: Tracking the Overthrow of EU Rule of Law in Britain

16/06/2017Additional contribution (Philosophy and World Affairs) (editorial review)Brexit, Democracy, EU, UK, agribusiness, finance, human rights, terrorismJohn McMurtry

Historical Note

This analysis was researched and written days before the snap June 8 UK election which was about to lock in the electoral minority of the ‘Brexit referendum’ with no public understanding of the immense historical stakes and dominant powers involved behind the political scenes. Least of all recognised was that the hard Brexit led by the now minority-government Tories allows massive de-regulation of the most powerful transnational private financial and agri-food interests in the UK and the EU. Yet no sooner had I completed the body of the following analysis than the London terror attack struck on Saturday night June 3, with PM Theresa May pointing at all opposition who sought causal understanding of the terrorist attacks as showing “far too much tolerance”. The first pages of the analysis below bring this pre-election turn of events into explanation of the slow-motion ‘Brexit coup’ that continues today before it is fully understood. While the June 8 2017 election turned against the Tory-May government as anticipated by this June 5 diagnosis in media res, the global struggle for life-protective law still remains under more systemic threat than since 1945. The purpose of this publication (the article has been published widely in post-election form) is to share with fellow scholars how thinking-through within the immediacy of events can make an historic difference before a managed turning point of history is instituted into a no-turning back de-regulation attack on life-protective laws and common life assets to serve only very powerful financial interests with the public and opposition kept blind to, in fact, the biggest single attack on the civil commons of Britain in its history.

In the Midst of the London Terror Attack

It is June two days before the snap June 7 UK General Election is set to lock in a referendum to leave the European Union unsupported by a vast majority of British voters and – with little or no notice – reversing 50 years of evolved financial, labour rights and environmental regulations. These little discussed facts are spelled out in depth ahead. All the dots are joined from the start of the Leave campaign whose overthrow objective, strategists and behind-the-scenes money and interests are only beginning to be known.

It might seem too late for British voters to do anything about it, but much that is unexpected has occurred since the snap election was called and whited out in the press until recent days. The 24-point lead for new PM Theresa May and the Tories over grass-roots Labour and Jeremy Corbyn long seemed a sure thing, and so it was planned. But the lead has collapsed towards less than a few points and still dropping. Then the London terrorist massacre on Saturday night June 3 struck on cue. For the public was awaking to the dressy mock-up Margaret Thatcher, and the rising Jeremy Corbyn opposing her is a near unique leader in British politics – an honest man based on a grass-roots movement for workers and the poor.

The Corbyn Labour Threat

Corbyn is not only honest, which none have denied. He has showed himself over a year capable of standing up to a non-stop corporate media barrage of official loathing. He has not backed down from the near public ruin of his grass-roots movement in which war-criminal Tony Blair and his ‘New Labour’ ilk have led in trying to sabotage his movement – barking out front, ostentatiously resigning from cabinet, tearing apart the reclamation of the Labour Party from the corporate boardrooms where it had become Blair’s Murdoch-press lap-dog and a neo-liberal shell. The reason Corbyn was and remains an enemy of the ruling castes in the media, politics and the boardrooms is that he unapologetically stands for traditional socialist values. His program is not contaminated as almost everywhere else by trendy post-modern culture, saucy relativism and politically correct diversions from economic life substance. Even worse to official media-and-political culture and its submergence in capitalist globalization with no alternative, Corbyn and his politically grounded movement actually stands for British workers’ interests, the public sector, social services, and environmental safeguards as developed within the European Union – all of which are on the chopping block now in Britain and across the world.

The Ruling Agenda

The problem is that majority of citizens in the world support these long-developed and popular social infrastructures and life standards. So the only way of continuing to defund, privatize and erase them is by pretending there are much more modern and flexible marketable versions for corporate and bank profit. One way or another, and there are many ways, this process consists in historical reversal and laying waste to over a century of social evolution and life standards as the ruling agenda of establishment political parties in power. This hidden agenda has increasingly spread and ruled the world. All the degenerate trends of extreme inequality, private money power over all, rising youth unemployment, pervasive state corruptions, massive dispossessions, override of long-established workers’ rights, and multiplying ecocidal production and products stem from it. The vast profile of one-way degeneration of social systems across borders is, however, never connected across the dots by corporate media, states or the academy itself. Rather the underlying agenda euphemized as ‘globalization’ is put on fast-forward.

New Right-Wing Nationalism is Another Brand for the Same Hidden Agenda

It may seem that the erupting new ‘nationalist’ movements in US and Britain, Eastern Europe and Russia, and so on, are the great swing back against corporate and bank globalization. This is the Great Illusion of our time. What is hardly yet seen is that, in fact, these ‘nationalist’ movements, as in Tory Britain or Trump US racing ahead today, do nothing to connect or to solve any of these life-and-death social system problems and the cumulative pollutions and razzings of organic, social and ecological life organization across the globe. They are only a speed up of the global eco-genocidal processes under new operations and pretexts of new national recovery and freedom. Yet always the same transnational corporations and banks make even more money than before, mostly from transferring public wealth to themselves by vast tax-cuts, increased subsidies, steep cut-backs on social services and spending, and elimination of everything that is not needed for short-term profit cycles. Of course the opposite is pretended in many ways varying with cultures, but always good for the working people. Still, one can always tell the real agenda by whether or not the ecocidal processes and products are effectively ruled out rather than accelerated in fact, and whether or not societies are so governed that more citizens become better off in life work security and free development rather than the opposite in fact. This is where the facts as opposed to pervasive system rhetoric and claims show systemic degeneration and dispossession in human and ecological life terms. Seek exception in scientific fact. Seek anywhere that Tory (or Republican) rule meets even one of these problems rather than diverting from them in endless ways – most of all today, by Islamic terrorists. They are the ever-recurring Enemy to be waged war against – and typically is when the popularity of the ruling party is dangerously in question.

London Terror Spectacle 5 Days before Election as Brexit-Tory Polls Collapse

The June 3 massacre of innocent and unarmed Saturday revellers on iconic London Bridge and Borough Market came at such a time. PM Theresa May and Tory party polls for the snap June 8 national election were in free fall as Corbyn Labour support unexpectedly and dramatically rose by over 20 points from the surprise Spring date that the new and secretively advised PM May had called against all prior commitment and earlier schedule of May 7 2020. Although only 7 people died – in Moscow at the same 9 people were murdered without much notice – the absolute panic of the central city of London and Europe was unprecedented. A white van ran over people on London Bridge’s festive and pub-crowded Saturday night, and many were seriously injured – though fewer than in US drone or air strikes happening in Arab countries on a regular basis. The modus operandi was quintessentially monstrous in action. It could have come from an ISIS video – of which there has been many with no evident interruption by the immense counter-terrorist operations, advanced electronic capabilities, and ever-rising budgets for war upon ISIS terrorists. The three soon-dead men were maniacal as if drugged, but no drug tests were ever reported. They not only viciously ran over as many people as they could with the signature white ISIS van in the 10 PM Saturday night happy hour, but they leapt out of this careening kill van with long Arab stabbing, cutting, slitting throats, multiply stabbing one young women, and – in short embodying the most murderous nightmare conceivable on all in London and around the world soon watching the globally televised aftermath including the dead bodies.

The Most Basic Questions Are Never Asked

Strangely, the suicide murderers wore fake suicide vests, never explained. Certainly the theatrical touch fitted the stereotype for both sides. Yet no-one in all the total coverage everywhere ever mentioned the abundant evidence of US-led funding, arming and orchestration of ISIS – although the mystery still remained of how their original appearance in spanking-new white vans lined to the horizon waving machine guns could have escaped the notice over the endless parade in a highly surveilled open desert area not far from Israel’s borders. In any case, the horrific downstream event and mysterious origins and orchestrated funding, training and arming of the very same terrorist organization perpetrating one atrocity after another with uninterrupted e-video broadcasts and propaganda over years were all unmentioned in all the allied analysis from the major networks across the globe. Only the international outrage and absolute denunciation pouring in and out from every quarter continued around the clock for days all the way to the two days left before the election. Since the main question was and remains how to stop these horrible terrorist spectacles, there was no time for causal analysis. There never is. Somehow the evidentiary matters of including who funded, armed, trained and orchestrated the terrorists are never investigated by those who report on and benefit from the terror attacks. Somehow the terrorists’ very accessible propaganda, videoed columns of ferocious operatives, internet movies of killings, and strange coincidence of attacks with falling popularity of state leaders are not connected by anyone in official society or mainstream media or even scholarly journals.

That all this has kept happening from years ago in full view of television and internet audiences around the highly militarized Western world is not an issue which is publicly raised. Even when the murderous terrorists have been known and identified immediately afterwards, from the 9-11 bombings on, still there are no questions in the pervasive media coverage of the events, including in the June 3 London massacre. How they were and are identified so very quickly, even after such an historic surprise attack as 9-11 and even when the bodies of the alleged terrorists have been completely incinerated, how and why are these issues never mentioned? Cui bono? – the first question of forensic justice – is never posed of anyone after the murderous terrorist spectacles. Failing parties and leaders who benefit enormously from such show-stopping distractions which put them in far more command of popular support and power than before the attacks, are never even slightly exposed to this question. It is taboo to do so. Not even opposing politicians dare to ask the question. This gives us the clue to why all the other issues are not raised. No such basic forensic question is ever posed because it cannot be publicly asked without every media of record accusing the questioner of folly or menace, thus perfectly diverting the issue again from the ruling taboo subject. There is no evident way through this closed circle. It is foolproof. So it follows that this is well known in ruling circles as well as by those interested in truth. Why would it not be used by a national regime whose public support is falling just before an election?

Free-Falling Tory and PM Polls and the London Terrorist Attack

Scientific hypothesis looks for disconfirming evidence more than confirming evidence in order to test it. This is why science works when it does. It takes all the relevant facts into account, forms an hypothesis, and tests it against the best possible counter-evidence. (Corporate science and regime propaganda do the opposite. They look only for what confirms their claims to profit them. So coming just 5 days before the snap British general election which her regime called when it was 24 points ahead in the polls – now continuously falling days before election – this regime has very good cui bono reason to re-set the polls upwards. The known best way to do this with no questions asked is for a terrorist attack to occur on the regime. A terrorist attack usually guarantees a spike of citizen solidarity with national government, from France to Turkey to 9-11 Bush US. No-one dare pose the cui bono? Question in any case. It is known that a grisly terrorist attack, and a strong condemnation of it from the regime in power, along with allied regimes in unanimity, will produce a significant rise in the next poll. In this case, the poll of the June 8 British general election comes less than 5 days later. This does not mean that the front political leader, now – PM Theresa May, the longest Home Affairs minister in memory, plans the terrorist attack, or even knows about it. It would be better that she did not, so as to carry through without compromise or leak. But she knows the territory of Home Affairs very well and the dark state’s capabilities, as well as British public opinion over many years as a cabinet minister.

If her polls are suddenly collapsing, as the polls of the long-belittled Labour leader Jeremy Corbyn rise just as fast, it makes very good sense for her regime to find a terrorist attack incomparably useful just before the election. She can stand tall and resolute as the lead warrior of the British people, like Margaret Thatcher against the Generals of Argentina over the Falklands. But here the enemy is far more immediate, visibly evil and mass murderous before our eyes – the archetypal enemy of Islamic terrorism, threatening and murdering Britons inside the very celebrating centre of their most populous and globally popular city, spreading mass panic to thousands in a barbarously brutal killing and wounding rampage that no-one will ever forget. It also provides the ideal opportunity to excoriate the poll-closing Jeremy Corbyn and Labour, who can be insinuated into the terrorist menace by his connection of terrorism to past government actions.

PM May Leaps to Attack Democracy as the Unseen Brexit Coup Closes In

PM May has all the credentials and image to rise to this occasion, and to pull off what no-one has really yet seen –the greatest reverse of British social and environmental standards and law in history that is about to be locked in by the June 8 election. The half century of evolved EU workers’ rights, life-protective laws, and scientific environmental norms is about to be overthrown. The London terror massacre occurs on June 3 as Tory and PM May polls relentlessly slide down and the turning-point snap election is just hours away. State authority is restored in a blinding flash of action. Police command people “to run for your lives and hide”. They command people to lie down in the areas they control, and to hold their hands over their heads as they are herded in large obedient numbers. Loud explosions are heard all over the place where there are no terrorists, and it is only 8 minutes before the terrorists are all dead for all to see on TV. Dead men cannot speak. PM May is strict and aggressive to rally the masses against the Enemy – and to reverse the Labour opposition’s rising polls. Election campaigning is suspended. PM May accuses those who sought have causal understanding of the terrorist attacks as showing “far too much tolerance”. She warns that there is “a new trend in the threat we face” – although there is none evident, except raising the indisputable facts of its causation, as Corbyn had done just before his polls began to overtake her. PM May scolds, “Enough is Enough”. The same old circle of blame-the-enemy while doing nothing effective to stop it is redrawn deeper than before. But she darkly warns others that things “cannot continue as they are”. She suggests that “pluralistic British values” are at fault. She leaves the cause of the endless terrorist spectacles behind to accuse the free internet itself, demanding once again the new Tory policy of sweeping new state regulations across citizens and borders, rather than honing in on ISIS and other long scot-free channels. “There is”, she says, “to be frank, far too much tolerance of extremism in our country”. “So we need to become far more robust in identifying it”, she proclaims in police-state code, “and stamping it out across the public sector and across society”.

Public sector? Across society? Is this a declaration of war against those in the public sector who dissent from the program? Is this a foreshadowing of the social-sector stripping to come with the Brexit coup d’etat? Where does the attack end? It does not. There are no definitions, no criteria, no evidence. There only more insinuations of who must be labelled and stamped out as ‘too tolerant’. There are only more demands for more state powers diverting completely from every issue involved not only in terrorist killing, but in the end of EU rights and laws in Britain. Most of all and most profoundly, every word and position of PM May, the Tory party and the forces behind them have distracted from the ultimate geostrategic game afoot that the London terrorist spectacle has diverted from and covered up. What could the huge and unexamined stakes be here that none discuss? Who alone stands to benefit from every step since PM May was promoted?

Why Brexit?

There has been endless commentary on Britain’s “Stay or Leave the EU” referendum and the narrow victory of the ‘Leave’ side after 44 years of partnership in which Britain’s GDP, human and workers’ rights, and environmental protections have only increased, and by far more than the US. Even in gross market money terms, the record is clear in fact. In a letter to the London Times one year ago, Oxford researchers Professor Sir David Hendry, Professor Doyne Farmer, and Dr Max Roser refuted with no reply the Leave EU campaign led by financial and political playboy Boris Johnson. “Since 1973, the year in which the UK joined the EU, the per capita GDP of the UK economy grew by 103%, exceeding the 97% growth of the US. Within the EU, the UK edged out Germany (99%) and clobbered France (74%). The UK’s growth has exceeded the US while tracking it, even since the crisis of 2008”.

Yet Leave the EU still narrowly won the UK referendum a year ago with nothing to go on except propaganda, and its very dubious result is about to be cemented into British government and history by the June 8 election in 3 days. On every level on which we analyse this decision now being led by PM May and the Tory state, it is a fails every smell test. But the real motive force and private money-party interests behind it are all but invisible to the public – not only in Britain, but around the world. There is virtually no recognition that the snap June 8 election in three days is going to reverse every life-serving law and regulation that has lifted Britain up over half a century from the doldrums of the early 1970’s when Britain was regarded as ‘the sick man of Europe’ in economic performance. How could this happen?

To begin with the referendum itself, the original wording of the ‘Brexit’ referendum was (italics added) “Britain should remain in the EU – Yes or No”. Few observed that this framing of the Tory question appeals directly to the tidal wave of popular resentments that have built up against transnational trade treaties and mass immigration everywhere, Britain included. “Should remain” is re-set to “Leave” as the dominant choice in this negative social context with, in fact, no connection to life co-ordinates. On the surface, the visible movement of foreign-speaking cultures into everyday rural Britain for new benefits and low-wage competition with British workers has widely inflamed anti-passions, as anyone familiar with British culture knows. The near daily featuring of Islamic ‘terrorist attacks’ has stigmatized the EU system along with such continuous disorders as the torturous financial ruin of Greece. Leave on the ballot in a mysteriously well-funded and media-captivated campaign triggered enough of a primordial anti-EU sentiment that a very slim majority was won. It did not matter that false claims and demagogic showmen were given immense publicity in the Leave campaign in which the most important issues were completely out of the discussion. Nor did it not matter that the Leave vote was mainly rural England, nor that remaining Scotland was thereby propelled into breaking up Great Britain itself. There were no editorials exposing the facts that the new-PM Theresa May had herself warned UK voters that Brexit was “dangerous” and could have seriously damaging effects on the economy, the security, and the survival of the United Kingdom. There was no media memory that she had said that leaving the EU would be “fatal for the Union with Scotland” and that she had formerly proclaimed “as Home Secretary [that] remaining a member of the European Union means we will be more secure from crime and terrorism”. Nothing seemed to matter except the new fait accompli of Britain ending its half-century partnership in the European Union on the flimsy basis of a referendum for which the overwhelming majority of citizens did not vote or approve.

Minority Brexit Vote = Massive De-Regulation of Finance and Food

No-one seemed to report that this Leave vote itself (17, 410,742) represented only 37% of the total electorate (46,500, 001) as enumerated by the Electoral Commission. No mainstream media featured the 12, 948,018 voters left out of the count, over two-thirds the number of those who voted Leave. Only one source clearly reported that those whose votes were not cast in the single June 23 event voted 2:1 against leaving once the results were known (cf. http://blogs.lse.ac.uk/brexit/2016/10/24/brexit-is-not-the-will-of-the-british-people-it-never-has-been/). Most deeply and unspeakably, there was no hint of media attention to the first question of forensic inquiry, cui bono or who stands to gain most from British government leaving the European Union all its common regulation? Even up to June 2, no-one has joined the dots that show the Leave EU referendum and vote has been an ideal political bludgeon to force Britain’s departure from the historical European Union just as its long-evolved Directives are in the process of enforcing policies and regulations on all-powerful London private banks and finance, and on industrial Big Agriculture and GMO-contaminating crops and fake foods . What no-one has evidently understood is that Brexit ensures that the very same dominant financialization forces that have hollowed out Britain’s working people, the productive economy and its green environment since 1979 are now freed from any EU regulation or accountability just as effective new financial oversight mechanisms as well as organic agricultural and food policies are due to be further implemented, monitored and enforced. This is the undertow historical meaning of the near-hate campaign that has been waged for endless months on the ‘EU bureaucracy’ larded in selective anecdotes without principled substance. Such is the standard method of big-money campaigns against public regulation for the public life good. If more private profit is not fixed into the new regime, it is relentlessly attacked and denounced as ‘suffocating red tape’ and a ‘ruinous burden on business’. This is the signature demand and condition of transnational corporate rule.

Cui Bono? Remembering the Past to Now

The rootless global money party centred in London has long run Britain with flagrant Thatcherite governance for transnational banks and corporations, overthrowing the post-War labour-capital settlement in Britain. Big London money backed by the Murdoch press was then consolidated in Blair’s ‘New Labour’ capitulation to corporate power through Gordon Brown Labour-light to the election of financier-scion David Cameron. PM Cameron then took the Brexit spectacle as the occasion to resign to avoid, insiders say, the outing of his unexposed financial fraud as PM. Now the government of Great Britain is in the hands of a secretively advised Theresa May. Although as Home Secretary she was unequivocally anti-Brexit, something happened. Despite the very dubious results of the leave-the-EU referendum, she reversed field from support of the EU once in the PM office, and was instantly re-branded as full-square behind Leave as “Brexit is Brexit” and “the irreversible decision of the British people”. Now-PM May has led official erasure of the fact that the winning vote was only by (official Electoral Commission tally) 37 % minority of voters. In the same vein of memory-hole command, PM May and her backers ignored the LSE scientific survey reporting that non-voters polled 2-to-1 against Leave once they learned the outcome. The reigning protocol, as with Trump with whom she became bonded in ‘the special relationship’ of the US and the UK that runs British politics, is to annihilate life-protective regulations as new freedom, and enforce follow a bigger corporate tax-cut than Reagan or Trump to a 10% level. Where did the mandate come from for such radical hollowing out of government capacities to govern on behalf of the common interests of society, citizens and their environment? There has been no mandate, but only a one-off 37% popular referendum result with no legally binding force until it is locked into the ‘Great Repeal Act’ and June 8 UK election to legitimate it with no public understanding of the meaning.

The die had been cast behind the scenes. A 37% vote against the considered will of the majority to stay in the EU was going to be used as a no-alternative mandate for massive deregulation and de-taxation of big money powers across the UK without public debate on these issues or even recognition of them. An Orwellian erasure of facts and totalitarian silencing beneath conscious choice continued right up to the election without anyone evidently knowing it. The PR cover-up since the ever-more lavishly suited Theresa May became PM has been to brand her office in Maggie-2 resonance as a resolute and honourable defender of the democratic will of the British people and an anchor of stability to steer Britain’s new future. PM May and advisers have accordingly changed the 2017 general election –she had committed to 2020 before her behind-the-scenes management took over – to an ad hominem vote over her character as PM, not about the radical de-regulation of finance, the environment and the tax code to, in essence, serve the rich while dispossessing the great majority of their labour, social and environmental protections and rights. It is the sort of action from the top that the original Magna Carta stopped by regulating an out-of-control King, only now the unaccountable ruler is bank and corporate money profit seeking even more unequal and total rights over the soon- to-be rump England. The money party cares nothing for nation including Great Britain except as it fits their divide-and-rule agenda over the trillions of dollars they control daily in play for more asset control over the world. Now firmly in the supreme office with cabinet and media support, PM May’s office has masterfully managed transition to doing the opposite of what she formerly stood for. The Brexit program for private money control over public forces and rules of how society is to live has remained unflagged by even the Opposition and radical left voices. None see through to the ultimate ruling party behind political scenes, nor to the ultimate fact that it is not economically efficient or even productively capitalist. Its hidden financialization forces and anti-labour-and-ecological agenda of radical de-regulation are, in principle, counter-productive, parasitic and self-multiplying against the common interest of its social and environmental life hosts.

The Unasked Questio: Who Wins Now?

On the PR face of it, Theresa May is the clergyman’s daughter soundly risen to PM office. But she is, more deeply, the perfect foil behind which to sneak a Brexit end to the threat of EU regulation of the most life-destructive private money powers of Britain. Brexit is in sinister parallel with the life-blind deregulatory forces of the Trump/Republican forces letting the ruling money party run free to become multiply richer while stripping scientific environmental regulations, monitoring and prevention of cumulatively ecocidal externalities of global financialization and environmental toxification. The difference is that the English financial and factory-food lords are far stealthier and unseen in their demonstrable strategic plan to Leave the EU because it leads the world in scientific method, life-protective regulation and implementation. No-one seems yet to recognise this in the UK, unlike the rising US awareness of at least the Trump-Republican threat to the US and global environment and – more specifically – the Environmental Protection Agency and even the century-evolved and world-leading US national parks. “Making America great again” excludes the life ground. When PM Theresa May now hard-presses Leave the EU even when formerly opposed to it – most of all because of its weakening of Britain’s defences against terrorism – who can doubt something has re-motivated her to reverse the agenda.

The tell-tale avoidance of truth is seen when she lashes Jeremy Corbyn for even connecting the terrorist operation of Manchester back to the facts of Britain’s war-waging in poor foreign nations from which the suicide bombers come. “Many experts, including professionals in our intelligence and security services,” Labour leader Corbyn observes, “have pointed to the connections between wars our government has supported or fought in other countries, such as Libya, and terrorism here at home“. Joining the dots is taboo. In such closure to facts, PM May implicitly justifies government actions on the basis of the legitimacy of past state actions which are war-criminal under international law, and – beneath notice again – stopped Libya specifically from its gold-dinar Bank of Africa plan based on oil revenues to lend to other African countries without the debt enslavement long coveted by London-connected private financing of states (including the British government itself). Who do these actions of repression of war-criminal facts and seizure of other people’s assets serve?

In this light, consider PM May’s capacity to carry Leave the EU as PM compared to its most charismatic leader on the ground, Boris Johnson. Although he has long been London finance’s man as Mayor as well as leader of the Brexit campaign, the master plan cannot go forward with him any further because, as a known liar and bounder, he is completely unfit as a credible finisher in PM office. Those who lead here know very well how to rule behind effective public relations to keep their control acceptable on the public stage– as Wall Street has done with one elected US president after another. This is why the known libertine and shameless US-born self-promoter Boris Johnson was – however charming and useful – stopped for the job of ‘Prime Minister of Great Britain’. He might indeed provoke cross-party reaction against pushing a onetime minority poll into a reversal of modern British history which took away the EU passports and future opportunities of England’s young professional classes.

There is much to cover up here that needs a steady woman ruler with a better manner and more socially just in bearing. So Prime Minister Theresa May it was. Thus the sole regulatory powers in place keeping the private financial superpower of London in check against another 2008 emptying of the public treasury and pensioners’ incomes – not to mention the deregulation de-greening of England by an industrial factory frankenfood system – escaped the public’s attention. To credibly cover up what nobody knows while believing in her mission is made-to- order for PM May, and so the Trump-like mega de-regulation and de-tax agenda has gone all the way to days before the June 8 British general election with far less fuss. Boris was meanwhile made Foreign Minister to insult the EU onto their heels in England’s revolution backwards for the unproductively and villainously rich. Few noticed that all these political shenanigans served a unifying function. The new EU financial regulations on London’s big banks could not be implemented, monitored or enforced with Brexit stopping it all in its tracks. EU Organic Agriculture Regulations protecting the environment and natural ecosystems from genetic contaminations and industrial clearances of green life was simultaneously terminated with hardly any notice. That foods themselves are released from safe and scientific EU standards has remained a non-issue. For poignant household example, British demands for hygiene standards to be changed to US rules so as to permit chicken meat sanitized only by chlorinated water, to allow beef raised with growth hormones, and to free genetically engineered substitute foods or GMO’s from production and label restrictions have all been stopped dead by Brexit.

With London finance as well as industrial agriculture and false foods freed from codified norms of responsibility to the common life interest long evolved, tested and instituted within Britain and the European Union, the most predatory and counter-productive forces in Britain are allowed to run free with no public notice before the June 8 general election. EU labour rights (eg., 48-hour week), human rights (e.g., employees’ and prisoners’ rights), financial oversight of any independent kind (as we have seen), and virtually all environmental standards developed beyond the US model, all are discontinued by the Great Repeal Act. With no evolved EU standards of economic, social or environmental protection legally obligatory and enforceable any more, the June 8 election will lock it all into the future with no way back that can be reasonably relied on without electoral reversal. With all the historical bearings and force of precedent, independent adjudication and law left behind by Leave, a US-UK deregulation and de-taxation orgy can proceed as ‘democratic’ if PM May wins the election. This is why PM Theresa May as the first head of state to visit the White House came out of their private meeting holding hands with Donald Trump. Demonstrating its confidence in the liberated financial rule of Britain as the Great Repeal Bill proceeded, Goldman-Sachs simultaneously committed to a $500-million headquarters in central London.

London Finance with Goldman-Sachs Escapes All EU Financial Regulation

The very definition of the EU Central Bank’s mandate to investigate and supervise “the business model, risk management, and capital, liquidity and funding”of private-profit bank and financial institutions including London (via a rigorous Supervisory Review and Evaluation Process by elite teams of professional accountants) is anathema to the long unregulated US-UK financial system. London finance like Wall Street is very used to increasingly devouring public treasuries, pensions and savings to become 40% and rising of the entire economy. They have done this through the global financial meltdown they have caused to multiply their money-demand control of the planet in a myriad of algebraically concealed ways with no oversight supervision, no independently verifiable standards, and no real reforms. The European Central Bank has finally moved to institute common standards across the Union – what was done after the Great Depression but has been reversed since. Private London-Wall Street banks and finance will do anything to stop this regulatory reform to protect their many trillions of assets and liabilities running free to continue unimpeded in the greatest unearned and still rising transfer of wealth to the rich in history. The economic stakes are unprecedentedly high, and so the silencing of any notice of the reforms to regulate them has in the UK been total in the mass media and even in Labour policy recognition. Consider the vast treasure involved. “Existing financial rules” in London banks have been officially judged by independent experts as “woefully inadequate”, and all of London’s foreign currency trading (globally dominant and largest in Euros) remains unregulated and untaxed.

Vast investment banking, cross-border sales of securities, Euro liquidity to clearing houses, non-performing loan recognition, coverage and write-offs also escape independent regulation by Brexit and the Great Repeal Act. Revenue-cap norms on skyrocketed financial pay to executives, standards of internal audit, deferred tax assets and credits masked as capital, capital adequacy, liquidity requirements and ability to pay liabilities are all also blocked by post-referendum laws. Unnoticed too are overdue binding norms on regulating the competence of new members of management and key function holders (say, Boris Johnson) and oversight of collective investments in transferable securities by captive states and unilateral tax advantages gained by their public issue and sale for profit. In sum, the Capital Requirements Directive and Regulations are set on fire by the Great Repeal of European Union obligations, now to be locked in by the June 8 election. What are boasted as ‘elegant and sophisticated innovations of investment instruments’ and so on, are in fact systemic methods of fraudulent diversion with no qualified, independent accounting authority allowed into check their schemes fixed to maximally profit powerful private financial dealers against transparency and liability, elected government accountability, and the common interests of everyone else.

The Great Silencing

This whole joining of fateful dots has been covered in silence. Big London bank and finance has so far got away with veiled abolition of all the overdue EU financial rules, monitoring and enforcement to regulate them after the 2008 financial meltdown in which an estimated $26 trillion of public money has been swallowed by the transnational private banking system led by Wall Street and London. In faint contrast, there has been a slight exposure of the Brexit reverse of evolved EU environment protections, monitoring sciences, directive laws, and feed-back enforcement processes. But here too any information has occurred only in fragments, with no connections to the EU’s life-protective binding rules on industrial farming, GMO products, and industrial chemical pollutions and toxins. For example, you will not see in any government press release or corporate mass media any mention of the European Union’s world-leading environmental protection by its Organic Agriculture Regulations setting out “the principles, aims and rules of food production and labelling”. No-one mentions in the media or government that these regulations are precisely what are eliminated from monitoring, feedback and enforcement in Britain once the Great Repeal Act is legitimated by the June 8 election. In similar vein, there is a white-out of pre-and-post-Brexit reference to EU’s historic and definitive Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). It is by far the most advanced environmental and human health protection system scientifically validated in existing government and the world. But it too is made invisible in the ruling discussions and debates. Such jam-it-through strategy with no public understanding and almost all the primary life-protective common legislation effectively concealed has been shrouded throughout in the pervasive media image of PM May vs. hapless Corbyn Labour. This is the only issue raised for voters in the June 8 election. The global media too have consciously or unconsciously collaborated in making this most important election in British history in financial and environmental terms, a non-issue. Yet even all this has not been enough for the great cover-up still in motion. There has been a Lobbying Act to stop informed NGO’s – but not any of the London-based big transnational banks and corporations – from lobbying before the June 8 election, a new law which has frightened them into silence with Greenpeace already convicted and fined.

What Does Not Fit the Life-Blind Program?

One underlying principle governs beneath the political scenes, speeches and choral commentaries on stage. It also governs the UK-US ‘special relationship’ and Wall Street-London axis at the same time, in different ways: De-fund and de-regulate all life-protective laws, agencies and enforcements that cost public and corporate money, and subsidize instead the unproductive or counter-productive private money party’s multiplying growth.

The method is the same at base. Private Wall-Street and London banks behind the scenes print the world’s money by debt issue for maximum profit to the top while producing nothing but multiplying their private money demand over all that exists. Transnational corporate money sequences funded by the banks, in turn, strip and pollute life bases on all levels to produce and sell profit ever more commodities priced for maximum private profit with few or no life standards to govern their extractions, productive processes, products, wastes and life-destructive externalities. For all its faults, the European Union has gone much further than any other unified jurisdiction in human and ecological regulations of these material phases, and the financial drivers behind them. This is ultimately why the UK private money party, especially its non-productive and counter-productive investors, have repudiated EU regulations of them on other pretexts. In general, the connected global forces of life and life means destruction are screened out by the established framework of meaning which is in principle life-blind. In consequence, private financial and corporate forces are released from what modest public regulation has developed to protect organic, social and ecological life systems, and the systemic despoliation of global life-organisation continues to run down biodiverse energy capacities on all levels. The UN Paris Agreement on ‘climate change’ is intended to meet the most dangerous consequences of this system. But it is selective, and ‘climate change’ euphemises hydrological-cycle destabilization and pollution that is the baseline force of world life and life means destruction. Again unifying principles and concepts are screened out of public discussion as well as silo disciplines.

Jeremy Corbyn’s back-to-the basics Labour movement is hopeful in that it is not bound like Tony Blair’s ‘New Labour’ to the dominant Murdoch media and big corporations controlling the agenda via government committees and PFI’s. And this is why Corbyn’s grass-roots leadership is pervasively belittled in the dominant media, and also why the while historic stakes of the June 8 election have been systematically blinkered out. The ruling framework of meaning presupposes the life-blind system, rules out what does not conform to its money-value logic, and attacks what seeks to reform it. So as the stakes keep getting higher as June 8 approaches, they are kept out of the discussion. There has been a systemic blocking out of all the momentous issues in the campaign before ‘Brexit’ and after it to today. The meta program is mind-locked, and compulsively proceeds even when its political leaders have no legitimate ground to proceed, but only a transient minority vote for Leave the EU in a largely apathetic and cynical referendum with no binding force. The Great Repeal Act of EU regulations follows in lockstep fulfilment of the meta program, and an unscheduled snap election while Tory polls are still far ahead is set to cement it all in before the public wakes up to the meaning. Thus proceeds the greatest system-wide reverse and financial boondoggle in modern English-speaking economic history and social-ecological evolution.

There is No Alternative

The re-grounded Labour movement does the best it can for the working people and dispossessed across Great Britain, the only organised institution to do so in the country. But this too is ridiculed and condescended to in the corporate press. And still the deeper and historic issues remain completely out of view. In recent days, nonetheless, Labour has stood for returning the looted national railway system and other privatized utilities to a productive public direction, for taxing the rich more to fund falling public services, and for connecting Britain’s terrorist problem to its armed-force actions in other countries. This has given a spike in the polls to Corbyn labour. Yet still the profound major issues of ‘Brexit’ itself remain covered over. The dots of the essentially phoney Leave the EU referendum are not yet joined. The holus-bolus financial and environmental deregulation by the Brexit scheme remains undefined. The basic outline for the historic hoax has remained undetected into June. “There is no alternative” has thus been reconstituted into the 2017 election. The underlying driver to cement the unaccountable private money power demanding ever more into a de-regulation bonanza remains unnamed. Not even the master slogan of ‘Brexit’ is deconstructed as a public relations mask of the greatest backward move in life-protective norms in historical record: all to serve life-means destroying or unproductive money-party powers that are fronted by photogenic leaders on all planes. The rationally self-maximizing growth of private-profit power over all existing assets is built into the meta program. But it is not comprehended. It exactly follows the inner logic of ruling economic, military and strategic game theory in models and calculations, but there is no linking across the simultaneous phenomena which are life blindly forming the future. The conversion of organic, social and ecological life organisation into more money demand for fewer is now being rapidly instituted into place.

Summary

The June 8 British election is set to lock in the big-money coup against long- evolved regulations and norms protecting human, social and environmental life. The crisis is incomprehension of the meaning. A corrosive cynicism of EU capacity to govern for the public interest (Greece the continuous demonstration), media-debased public perceptions suppressing the historic stakes involved, a US presidency demonized in all the corporate media, NATO-supported Nazism in Ukraine as Western freedom, and other degenerate trends have not been connected in their unifying pattern – within which UK money-party reversal of post-War socio-economic evolution is taking place. PM Theresa May is the political face of the great leap backwards. So far the ruling politics of one distracting spectacle after another has worked right up to the June 8 election, fortified by a diabolical terrorist attack on London 5 days before the vote. y.. Yet there is a growing intuition of the fast slippage of social and ecological life order into chaos with no human centre of gravity in charge. The British public may still see through to the underlying radical program of government de-regulation, de-taxation, and de-funding to further empower the financial looting and life-despoiling forces at work. Joining the dots behind the scenes reveals the emerging plot of meaning. The Great Brexit:

(1) stops the EU Central Bank Regulators and Supervisors from finally checking out the models, risk culture methods, inadequate reserves and so on of big London banks involved including Goldman-Sachs in the 2007-8 financial collapse, and

(2) eliminates the binding force of all the long-evolved and scientific EU regulations structured to prevent, in particular, the corporate industrial food system’s polluting and despoiling US-led methods undermining the British people’s health and environment.

Brexit’s Great Repeal Act and PM May’s snap June election is the only way to achieve (1) and (2) without negotiation or exposing public issue. London financial accountability has most of all been silenced as an issue. Its growing trillions of nano-second fast-dealing to enrich the already rich by unregulated methods and calculations remain immune from any independent oversight. Similarly, the very aims and principles of the binding, monitored and still developing Organic Agriculture Directive are anathema to Britain’s US-led Big Agriculture and Food lobbies, not only around GMO restrictions – which US trade authorities and British GMO ‘science’ have made war on for over 15 years – but around every EU restriction on pesticides and herbicides to clear-cutting environments for monocultural factory methods to commodity motor rackets and pollutions to norms of licensed “food quality” in the corporate market. The very governing EU objectives of “biodiversity”, “animal protection”, and “organic natural systems and cycles” are a threat to Big Food production and products when attached to exactly defined, inspected and enforceable life standards. Long used to pervasive public relations sales pitches of “feeding the world” in place of accountable, life-protective environmental and nutrition standards, this very powerful British lobby is next to London Big Finance as the covertly moving major profit-first force behind the Brexit coup d’etat. Both are in principle life-blind in their mechanical financial models. Both are governed only by self-maximizing private money sequencing in exponential growth with no life-coherent ground or norms to stop their march across the world through organic, social and ecological life hosts. Both have led the Great Repeal of developed EU life standards beneath the radar of media coverage, parliamentary diagnosis, and academic silos. The June 8 2017 UK general election will open or close Britain’s life future under the rule of life-protective law.

Interpretation of Economic, Social and Cultural Rights by Human Rights Bodies in Times of Economic Distress. The case of Greece

03/10/2016Double blind peer-reviewed articleEU, Greece, ICCPR, ICESCR, IMF, Law, constitutional law, crisis, human rightsVasiliki Saranti

Introduction

Economic, social and cultural rights have borne the brunt of the recent economic crisis and the austerity measures adopted to counter it. Due to their gradual implementation and the need of positive measures to implement them, they were the first to be attacked especially in developed countries where certain achievements in the field of labour rights and social security had attained quite a high standard. The proposals to amend the labour law in France and the fierce reaction of the people are indicative of this trend[1]. Given that these achievements were the result of the progressive implementation of economic, social and cultural rights, as stipulated by international human rights treaties, most of the initiatives to restrict them result in prohibited retrogressive measures.

States falsely consider that it is easier to limit economic and social rights instead of civil and political rights for various reasons. First of all there is much discussion regarding the real justiciability of social rights. Secondly, social rights are interpreted by international human rights bodies mainly through an expansive interpretation of civil and political rights. Thirdly, the dire situation of economic, social and cultural rights in most developing countries renders the discussion of their limitation in developed countries somewhat inappropriate or at least awkward. Finally, certain researchers maintain that sometimes social rights are given lower status as a matter of ideological choice[2], while their real protection is difficult due to inequalities especially within the urban centres. After discussing the possible ways of applying economic, social and cultural rights in the first part of the essay, I will then examine their application during economic crises with a special reference to Greece focusing mainly on two fields, labour rights and social security rights, and the case-law produced by international human rights bodies in that respect.

The rise and current protective framework of economic, social and cultural rights in international human rights law

I. The global normative framework: indivisibility of civil and political rights and economic, social and cultural rights

1. At the international level

References to human rights in general and economic, social and cultural progress and development in particular are already included in the UN Charter[3]. The first international instrument – albeit not legally binding[4] – that refers both to civil and political rights and economic, social and cultural rights is the Universal Declaration of Human Rights (UDHR)[5]. Civil and political rights – the so-called “first generation” rights – were distinguished from economic, social and cultural rights or “second generation” rights in that they required no positive action by the state in order to be safeguarded. The latter had only to refrain from interfering with the right. To the contrary, it was deemed that economic, social and cultural rights required the allocation of resources and public expenditure. Therefore, they were not of immediate implementation but could be achieved only progressively. During the Cold War, Western states considered civil and political rights to be the only enforceable rights. There is also a “third generation” of rights that comprises the rights to development, self-determination, healthy environment, natural resources, collective rights etc.[6].

One can easily draw the conclusion that this is an obsolete argument that cannot firmly support a human rights separation theory, since it has already been established in international human rights jurisprudence that abstention is not enough for the protection of civil and political rights but these require positive measures as well[7], while the Vienna Declaration and Programme of Action[8] reaffirmed that: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis”[9]. Even before that, the Proclamation of Teheran in 1968, stressed that “human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible”[10]. Moreover, the Committee on Economic, Social and Cultural Rights has repeatedly reaffirmed that human rights are “interdependent and indivisible”[11].

While most international human rights treaties of special protection contain provisions both for the protection of civil and political rights and economic, social and cultural rights, verifying thus their interconnected character[12], this approach was not followed by the UN Economic and Social Council when the issue of adoption of a universal covenant arose. At that time, the delegates considered that civil and political rights, on the one hand, and economic, social and cultural rights, on the other, could not be implemented in the same way[13]. The former required that states refrain from certain harmful action, while the latter could be implemented only progressively, by means of positive measures and appropriate legislative action.

Hence, the UN General Assembly took the policy decision to request the drafting and eventual adoption of two separate covenants, one dedicated to civil and political rights and the other to economic, social and cultural rights[14]. Both were submitted simultaneously for consideration to the General Assembly so that their unity could be emphasized; it was the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They were adopted on the same day by the same UN General Assembly resolution[15]. However, the two moved hence on separate tracks.

The competent organ to control implementation of the ICCPR, through the consideration of periodic reports submitted by states-parties, is the Human Rights Committee[16]. On the contrary, monitoring of the ICESCR was entrusted initially to the ECOSOC, which had the duty to receive – through the intermediary of the UN Secretary General – and consider reports on the measures that states have adopted and the progress made in achieving the observance of the rights recognized in the ICESCR[17]. The Committee on Economic, Social and Cultural Rights was established only in 1985 under resolution 1985/17 (28 May 1985) of ECOSOC and was mandated to carry out henceforth the monitoring functions assigned to ECOSOC in Part IV of the ICESCR[18].

Furthermore, the ICCPR was equipped from the very beginning with an Optional Protocol which empowered the Human Rights Committee to receive and consider individual communications on alleged violations of the rights of the Covenant. Through the mechanism of individual communications the Human Rights Committee has accumulated a remarkable case-law, which is referred to very often by other international judicial and quasi-judicial human rights bodies. The Optional Protocol to the ICESCR, which established a similar individual complaints procedure regarding economic, social and cultural rights was adopted only in 2008 and entered into force on 5 May 2013. This lack of individual complaints mechanism constituted a major practical obstacle for those that supported the justiciability of economic, social and cultural rights.

2. At the European level

The same separation is prevalent within the European continent, where this differentiation of first and second generation rights was reflected in the adoption of two instruments having a different control mechanism. The main instrument of general human rights protection, the European Convention on Human Rights adopted in 1950 and binding on all Council of Europe member states[19], and its Additional Protocols recognise only civil and political rights (and the right to education from second generation rights by virtue of article 2 Protocol no 1). What is more, the instrument is vested with a unique implementation mechanism. A European Court of Human Rights (ECtHR) is entrusted with considering individual applications on human rights violations, issuing judgments that are binding upon the respondent state, while a political organ, the Committee of Ministers, is responsible for monitoring the compliance of the member state involved, whenever a violation is found by the ECtHR, through the proposal of individual and general measures to remedy the violations. While the ECtHR protects mainly civil and political rights, it also guarantees indirectly economic, social and cultural rights by interpreting them under the prism of civil and political rights[20].

Economic and social rights as such are guaranteed by the European Social Charter (1961) and the Revised European Social Charter (1996), ratified by 27 and 34 states respectively[21]. The instrument is equipped with an Additional Protocol providing for a system of collective complaints (1995). The monitoring organ in this case is not a court but rather a Committee, the European Committee of Social Rights (ECSR), which is composed of independent experts. The latter monitors the compliance of the contracting states through two procedures: the reporting procedure, according to which states are bound to submit national reports regarding the implementation of the provisions of the Charter, and the collective complaints procedure which allows for the lodging of complaints. The ESCR examines the reports and adopts conclusions, while in respect of collective complaints it adopts decisions. Neither of them is binding.

Finally, the Charter of Fundamental Rights, adopted in the framework of the EU and having the same legal value as the founding treaties by virtue of the entry into force of the Lisbon Treaty[22], translates in a binding document the indivisibility of human rights as it was officially recognised in the Vienna Plan of Action: human rights are universal, indivisible and interdependent and interrelated[23]. Therefore, the Charter includes all three sets of rights: a) classical first generation rights (civil liberties, political rights, judicial protection), b) second generation (economic, cultural and social rights), 3) third-generation rights e.g. protection of the environment. And rights that do not fit in any of the abovementioned categories, e.g. data protection, consumer protection. There is however a gap as to which social rights are declared as principles and which as justifiable rights.

II. The justiciability of economic, social and cultural rights[24]

Formerly there was much discussion on whether economic, social and cultural rights could be considered justiciable. The prevalent opinion was that civil and political rights and economic, social and cultural rights remain in two different legal instruments and the latter have not attained the same degree of justiciability and enforceability as civil and political rights. The main arguments against are the following[25].

The “policy argument”

First of all it was considered that the implementation of economic, social and cultural rights was clearly a matter of policy. According to this point of view, courts are an inappropriate forum to adjudicate and pronounce on issues of social policy. And in case they are called to adjudicate, they should accord a considerable margin of appreciation to the state authorities[26].

The “limited resources argument”

Moreover, since their effective protection required resources, it rested solely on the state to realize them progressively. Accordingly, states argue that they do not have adequate resources to provide even the most elementary socio-economic rights to their populations. Therefore, courts could not play an active role in this procedure, because otherwise they would have to meddle in the legislative and executive function by making the law rather than applying it. It would be, in other words, an impermissible form of judicial activism. The partisans of the progressive realization approach had an unexpected ally: article 22 UDHR which stated that “Everyone, as a member of society … is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”.

The “effective remedy argument”

Another argument raised by those maintaining the non-justiciability of socio-economic rights is the fact that the ICESCR does not contain any provision on the duty of states to provide an effective remedy in the national legal order to individuals whose socio-economic rights have been violated. Indeed, the right to an effective remedy is a cornerstone provision in all human rights treaties protecting civil and political rights[27].

Those arguments representing a rather traditional view on the matter have thence been rebutted by the following[28].

The “violations approach”

One alternative, maintained by A. Chapman is the “violations approach”[29]. According to this, one should set aside the progressive realization of economic, social and cultural rights, which does not allow for their monitoring, and rather focus on the state conduct that violates these rights. Thus, violations could result from governmental measures that actually contravene the provisions of relevant international instruments or from the creation of conditions that do not foster or permit the realization of these rights and, last but not least, from policies and legislations that fail to fulfill minimum core obligations. For example, a state in which a significant number of individuals are deprived of essential foodstuffs, of primary health care, of basic shelter and housing or of basic education is failing to discharge its obligations under the ICESCR[30]. In that context, the Committee on Economic, Social and Cultural Rights has also stressed that vulnerable members of society must be protected, even in times of severe resources constraints, caused by adjustment programmes, economic recession or other factors[31].

The evolving role of courts in a democratic society

Another argument in favour of the justiciability of socio-economic rights relates to the role of courts in general in a democratic society. Indeed, a constant disagreement among lawyers is the difference between “legal” and “political” matters. One could seize the courts for the former but not the latter. For a long time it was suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. It is an invalid argument, if we take into account that a great range of matters have always political implications. This should not impede the courts from adjudicating on them. Likewise, courts are already involved in cases which have considerable resource implications. This approach has been also adopted by the Committee on Economic, Social and Cultural Rights, which has pointed out that the active involvement of courts in questions implicating socio-economic rights is imperative, in order to protect the rights of the most vulnerable and disadvantaged groups in society[32].

Economic, social and cultural rights that can be enforced immediately

Furthermore, one could distinguish between those socio-economic rights that could be enforced immediately and others that are by definition subject to progressive realization. The Committee on Economic, Social and Cultural Rights, in its General Comment no.3[33], asked for the provision of judicial remedies with respect to rights which may be considered justiciable. It also enumerated a non-exhaustive list of rights that “would seem capable of immediate application by judicial and other organs in many national legal systems”. These include the equal right of men and women to the enjoyment of all economic, social and cultural rights (article 3), the right of everyone to the enjoyment of just and favourable conditions of work (article 7a)i), the right of everyone to form trade unions and the right to strike (article 8), the rights of children (article 10 §3), the right of free and compulsory primary education (article 13 §2a), of parents and, when applicable, legal guardians to choose for their children schools (article 13 §3), the right of individuals and bodies to establish and direct educational institutions (article 13 §4), freedom indispensable for scientific research and creative activity (article 15 §3). As the Committee stated, “the fact that realization over time is foreseen under the Covenant, should not be misinterpreted as depriving the obligation of all meaningful content”[34].

Domestic application of the Covenant

Fourthly, the absence of a provision on effective remedies does not constitute per se an obstacle to the justiciability of economic, social and cultural rights. Although the ICESCR does not contain a counterpart to article 2 §3b ICCPR, it does stipulate that: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (article 2 §1). Pursuant to General Comment No. 9 of the Committee on Economic, Social and Cultural rights the phrase “appropriate means” also includes domestic legal remedies, which reinforce every other initiative[35]. According to the Committee: “Where the means used to give effect to the Covenant on Economic, Social and Cultural Rights differ significantly from those used in relation to other human rights treaties, there should be a compelling justification for this, taking account of the fact that the formulations used in the Covenant are, to a considerable extent, comparable to those used in treaties dealing with civil and political rights”[36]. In the same vein, the Inter-American Court of Human Rights has used article 25 ACHR to request effective remedies for the demarcation and titling of indigenous land in cases where civil and political rights and economic, social and cultural rights intersect[37].

The “permeability principle”

Another way to address the question of justiciability is through the “permeability principle”[38]. According to this, civil and political rights are used as a basis for admitting complaints concerning economic, social and cultural rights. For instance, allegations regarding the violation of the right to adequate housing could be treated though the right to property or violations of the right to health could be admitted as a possible infringement of the right to life or the right to humane treatment. The contribution of the Inter-American Court of Human Rights case-law to this discussion is priceless. Indeed, the IACtHR cuts the Gordian Knot of the justiciability of socio-economic rights, by protecting them through the dynamic and broad interpretation of civil and political rights. In that way, the indivisibility and interconnected character of the two generations is reinforced, since economic, social and cultural rights are inherent in civil and political rights.

The impact of austerity measures on economic and social rights. Issues of effective protection

I. The position of the Committee on economic, social and cultural rights

The centrepiece of the ICESCR is the obligation on States parties to respect, protect and fulfil economic, social and cultural rights progressively, using their maximum available resources[39]. Moreover, states parties to the ICESCR have an immediate obligation to ensure the implementation of a minimum essential level of all economic, social and cultural rights. This minimum core[40] covers for instance all obligations that ensure an adequate standard of living such as essential health care, basic shelter and housing, basic forms of education etc. In order to achieve this goal, available resources have to be allocated proportionately. Thus, for instance, a budget that relies heavily on military expenditure will save little for education or health care. Even if available resources are totally inadequate, the state bears the burden of proof to demonstrate that it has used all its resources in a proper manner so as to cover the minimum core[41].

However, states enjoy a wide margin of appreciation (to borrow the phrase inaugurated by the ECtHR)[42] regarding the implementation of socio-economic rights. The obligation of progressive realization carries naturally the prohibition – albeit not absolute – of retrogression. According to General Comment no 3, any deliberate retrogressive measure, if not prohibited, requires “the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources”[43]. This obligation remains the same even in times of economic distress or adjustment programmes.

Hence, unlike the International Covenant on Civil and Political Rights, derogations are not allowed from the ICESCR even during times of economic emergency[44]. According to the Maastricht Guidelines on violations of economic, social and cultural rights, states are obliged to respect, protect and fulfil economic, social and cultural rights through appropriate legislative, administrative, budgetary, judicial and other measures and failure to observe this obligation may result in violation of said rights[45]. For instance, arbitrary or sweeping forced evictions, which are frequent in situations of economic crises[46], violate the right to housing. Withdrawal of basic labour standards protecting private employees may amount to a violation of the right to work. Last but not least, denial of basic health care may result to a violation of the right to health in extreme circumstances even of the right to life or the prohibition of degrading treatment.

Despite the fact that full realization of economic, social and cultural rights is achieved progressively, this does not alter the legal obligation of states to adopt measures immediately or as soon as possible to that direction. States are obliged to demonstrate that they are actually taking such measures and that they are making progress for the full realization of these rights. Thus, the notion of “progressive realization” cannot be used as a pretext to avoid full execution of the Covenant’s provisions. Furthermore, certain minimum core obligations such as essential foodstuffs, essential primary health care, basic shelter and housing, or the most basic forms of education have to be satisfied, irrespective of the economic distress or the availability of resources[47]. In a letter[48] addressed by the Chairperson Pillay to all states parties it is stressed that even though states are allowed to adopt austerity measures in order to overcome severe financial crises, however these decisions should not lead to the denial or infringement of economic, social and cultural rights, especially if this results in negative impacts on vulnerable and marginalized individuals such as the poor, women, children, persons with disabilities, older persons, people with HIV/AIDS, indigenous peoples, ethnic minorities, migrants and refugees. Hence, while adjustments in the implementation of economic and social rights are inevitable, these should not lead to regression. It is interesting that the Chairperson referred to “the pressure that is exercised on many States parties” without clarifying where this pressure comes from: the overall economic necessity or third parties?

In her letter the Chairperson also identifies four requirements that have to be met by adjustment programmes: a) they must be a temporary measure, b) they must be necessary and proportionate, c) they must not be discriminatory but they must strive to mitigate inequalities especially with regard to the disadvantaged, d) the minimum core content of economic and social rights, as developed by the International Labour Organization, must be ensured at all times. Strangely enough, these requirements are identical to those applied for derogation measures from civil and political rights during states of emergency[49].

II. The case-law of the European Court of Human Rights

Even before the current economic crisis, the ECtHR had rendered judgments that included an economic dimension: violation of the right to life regarding the death of fifteen children in a home for children with severe mental disabilities due to lack of food, heating and basic care[50], inadequate access to health care for detainees or asylum-seekers raising issues under articles 2 and 3 ECHR[51], health rights of prisoners[52], violation of article 8 ECHR due to the planned eviction of Roma from an unlawful settlement without proposals for rehousing[53], total deprivation of a social pension[54], qualification of all social benefits as possessions even if they are non-contributory, so as to be covered by article 1 of Protocol No. 1 ECHR[55] etc. Of particular interest was a case regarding insufficient amounts of pension and the allegation of the applicant that this amounted to inhuman treatment, although the Court did not find a violation[56].

With regard to austerity measures adopted by states embroiled in budgetary crises and adjustment programmes, the European Court of Human Rights has already set a clear legal precedent. In Da Silva Carvalho Rico/Portugal the outcome was quite predictable: the ECtHR has dismissed the case applying the “proviso of the possible” doctrine[57]. According to this theory, borrowed by German constitutional law and applied by the Portuguese Constitutional Court as well, the state cannot be forced to comply with its obligations in the framework of social rights if it does not possess the economic means to do so[58]. Thus, budgetary constraints on the implementation of social rights can be accepted provided that they are proportionate to the public aim sought and they do not deprive the right of its substance. With a similar reasoning, the Court declared manifestly ill-founded applications against pension reductions for civil servants in Portugal[59] or the temporary reduction in the pensions of judges in Lithuania[60] which had their origin in austerity measures as a response to the economic crisis.

Against this background, we are waiting with extreme anticipation the judgment of the Grand Chamber that will reconsider the case Béláné Nagy/Hungary. The Chamber has already found that the removal of a disability pension through consecutive amendments to the eligibility criteria was considered excessive and disproportionate, thus constituting a violation of article 1 of Protocol No. 1[61].

The global economic crisis of 2007-2008 and its impact on Greece

I. The beginning of the crisis

The causes of the global economic crisis of 2008 have already been extensively discussed and will certainly continue to preoccupy political economists in the years to come, especially insofar as no safe exit from the overall crisis is yet envisaged. Consequently, we will not purport to delve into the multifaceted causes of the financial crisis, but rather to offer an overview of it and most importantly the way it has impacted on Greece and how it prompted the relevant austerity measures.

The financial crisis traces its roots in the USA back in 2007. The crisis hit initially a small segment of the financial markets, namely subprime mortgages, but soon it resulted in global recession[62]. Shortly after the initial blow, many financial institutions mostly in developed countries have been affected. National governments were required to bailout banks; the housing market was affected resulting in evictions, while prolonged unemployment became a quasi-permanent feature of contemporary societies. The crisis has had an adverse impact both in developed and developing countries, the latter mainly through the trade channel or through workers’ falling remittances[63]. According to reports, the losses of gross domestic product amounted to 10% of global output in 2008-2010, while the loss in values of assets and the loss of personal income precipitated by the austerity measures cannot still be calculated with certainty[64].

II. The immediate aftermath: the European sovereign debt crisis

The global financial crisis resulted in a European sovereign debt crisis in the end of 2008-2009 which affected primarily Iceland, Greece, Portugal, Ireland, Spain and Cyprus. The affected countries were unable to repay government debt or to bail out over-indebted banks without the assistance of third parties. Given the particularities of the European integration – the eurozone is only a currency union and not a fiscal union thus member states maintain different tax, remuneration and pension rules – the options available to political leaders to react were limited. In fact, EU and the eurozone in particular had no contingency plan to counter the effects of an economic crisis of such a magnitude.

The first mechanism that was put in place was the European Financial Stability Facility (EFSF). The EFSF was established in June 2010 as a “société anonyme” under Luxembourgish law and has provided financial assistance to Ireland, Portugal and Greece, through the issuance of bonds and other debt instruments on capital markets. It has 17 shareholders, namely the eurozone member states. Since 1.7.2013 the EFSF is not allowed to engage in new financing programmes or enter into new loan facility agreements. The EFSF assistance programme for Greece expired on 30 June 2015[65].

It was replaced by the European Stability Mechanism (ESM), a permanent international financial institution, established by an intergovernmental treaty signed by the euro area member states on 2 February 2012[66]. ESM is a crisis resolution mechanism, providing stability support to eurozone countries threatened by severe financing problems. Its financial assistance is not funded with taxpayer money; the funds are rather acquired by issuing capital market instruments and engaging in money market transactions. ESM has 19 shareholders – the euro area member states – and is open for membership to all EU member states that will adopt the euro as their sole currency in the future. Since 1 July 2013 it is the sole mechanism for responding to new requests for financial assistance and has thus far assisted Greece, Cyprus and Spain, the first two through loans subject to macroeconomic adjustment programmes and the latter through a loan to government for bank recapitalization. Greece is the sole eurozone member state that has received support from both institutions and the only one to remain in the ESM stability programme. Cyprus has exited successfully the programme on 31.3.2016, while the financial assistance programme for Spain expired on 31.12.2013[67].

Participation in these financial stability mechanisms entails as a short- and long-term consequence the adoption of austerity measures and far-reaching privatization programmes. In fact, austerity measures were the primary political choice of governments in their effort to stem the effects of the economic crisis and reduce deficit and public debt[68]. Even when applied with restraint, austerity measures have an adverse impact on the enjoyment of acquired economic and social rights and thus on our ordinary and everyday life. This approach was inaugurated by the International Monetary Fund that implemented the Structural Adjustment Facility in 1986 and the Enhanced Structural Adjustment Facility one year later, making financial assistance conditional on the implementation of neoliberal structural adjustment programmes impacting adversely on human rights[69].

III. The impact of the economic crisis on Greece

1. The financial assistance provided to Greece

Due to its macroeconomic imbalances[70] and the lack of flexibility resulting from its status as a eurozone member state, Greece was the first eurozone country affected by the global economic crisis. Overcoming the “no bail-out” clause of article 125 of the Treaty on the Functioning of the EU, which prohibits the Union and individual member states from assuming the commitments of governments and other public authorities[71], the first financial assistance package for Greece was agreed in April 2010 and consisted of bilateral loans from eurozone member states and the International Monetary Fund (the so-called Greek Loan Facility).

However, the Greek Loan Facility was inadequate to counter a more or less systemic crisis. Therefore, in March 2012 the Eurogroup approved a second support programme for Greece, provided again by the Eurozone member states and the IMF. This time, the Eurozone assistance was not provided though bilateral loans but through the EFSF. Furthermore, the Eurozone member states decided to apply the procedure of the Private Sector Involvement (PSI) in the restructuring of the public debt. Thus, in May 2012 about 97% of privately held bonds took a 53,5% cut of the face value of the bond, corresponding to an approximately 107 billion euro reduction in Greece’s debt.

Overall political instability and reluctance of the Greek governments to adopt and implement measures and reforms requested by its lenders led to another impasse in the summer of 2015 when Greece, unable to repay its debts, arrived very close to official insolvency. Controls were imposed on Greek banks to avoid a massive flow of capital and the Greek government decided to submit a request for financial assistance to the ESM. After laborious negotiations of 17 hours the parties reached an agreement (the Financial Assistance Facility Agreement) on 13 July 2015. The agreement was approved by national parliaments and on 19 August 2015 by the ESM Board of Governors. The precise amount of ESM financial assistance will depend on the IMF’s decision regarding its participation in financing the programme, and on the success of reform measures by Greece, including the privatisation of state assets[72].

2. The measures adopted

In order to receive the financial support packages, Greece was requested to adopt a series of specific measures of adjustment the implementation of which was monitored in the first two phases (Greek Loan Facility and EFSF) by officials from the European Commission, the European Central Bank and the IMF, the so-called “Troika”, a unique institution of an ad hoc nature whose establishment lacked an appropriate legal basis in primary EU law. For this purpose a Memorandum of Understanding was signed between the member state concerned and the “Troika”, whereby the member state – in our case Greece – undertook to carry out a number of actions in exchange for financial assistance. The assistance was provided on the basis of strict conditionality; thus the successive Greek governments enjoyed limited leeway in the adoption of the measures required to overcome the crisis[73]. The same stands for the ESM: a set of prior actions were requested urgently in order to enter into negotiations for the reform agenda as it was set out in the most recent Memorandum of Understanding which was approved by the ESM Board of Governors on 19 August 2015 following its endorsement by ESM members according to their national procedures. The MoU of August 2015 focuses on four key areas: restoring fiscal sustainability; safeguarding financial stability; boosting growth, competitiveness and investment; and reforming the public administration.

Given the urgency of the situation, the measures adopted at the national level in the course of the three successive financial assistance packages were not carefully balanced leading to restrictions on economic and social rights. A series of laws, presidential decrees and ministerial decisions form the backbone of the austerity legislation. Due to their high number and lengthy content a detailed analysis of the said legal documents is beyond the scope of the present article. We will provide a selection of the most representative legislations adopted and we will focus on the ones that are detrimental on the social rights selected for analysis in the present article: social security and labour rights.

The first set of social rights attacked by austerity measures were labour rights and social security rights. A set of laws[74] introduced tectonic changes, amongst which figure the following[75]:

modifications to both public and private pension schemes;
reduction of public sector wages by 12% and later a further reduction of 3%.;
remuneration of special apprenticeships for people between 15-18 years old with 70% of the general minimum wage, while new entrants in the labour market under the age of 25 would be remunerated with 84% of the general minimum wage;
establishment of the wage setting system by law, whereas the minimum wage would be determined by a government decision, after consultation with the social partners;
reduction of the general minimum wage by 22% for workers older than 25 years old and by 32% for younger workers;
precedence of the company level CEAs over sectoral or occupational ones even if the latter contained more favourable provisions, provided that the safety net of the National General Collective Agreement is observed;
arbitration procedures could be initiated only upon mutual consent of the parties, while the arbiter shall take into consideration the economic distress and the requirements of the adjustment programme;

Austerity legislation and effective protection of economic, social and cultural rights[76] in Greece

I. Social security rights

Article 12 of the European Social Charter guarantees the right to social security. Pensions are a principal branch of social security[77]. Both the European Court of Human Rights and the European Committee of Social Rights examined cases related to pension cuts, reaching totally different conclusions.

In Koufaki and ADEDY/Greece, the ECtHR found no violation of article 1 Protocol 1 ECHR, guaranteeing the right to property. The Strasbourg court reaffirmed the wide margin of appreciation that states enjoy with regard to their social policy and concluded that the reductions pursued a legitimate aim and were not disproportionate[78]. Moreover, there was no evidence that the applicant run the risk of falling below the subsistence threshold, while the removal of the thirteenth and fourteenth months’ pensions had been offset by a one-off bonus.

To the contrary, the European Committee of Social Rights, concluded in five decisions on collective complaints against Greece that the cumulative effect of the modifications of the pensioners’ social protection were a violation of the right to social security under Article 12 ESC[79]. In particular, the Committee ruled that certain restrictions such as those related to holiday bonuses, restrictions of pension rights in cases where the level of pension benefits is a sufficiently high one and in cases where people are of such a low age that it is legitimate for the state to conclude that it is in the public interest for such persons to be encouraged to remain part of the work-force than to be retired, did not in themselves constitute a violation of the ESC. However, the cumulative effect of the restrictions would bring about an overall degradation in the standard of living of the pensioners concerned.

It is interesting that the Greek Government tried to conform to the decision of the European Committee of Social Rights by notifying to the Committee of Ministers the measures it had taken to remedy the violations. The measures had a twofold approach: firstly the protection of vulnerable groups and secondly the improvement of the social security system. As to the first pillar, the government asserted that the pensions below 1000 euros would be guaranteed, the Benefit of Social Solidarity (EKAS) which is a non-retributive benefit for the protection of the elderly with low pensions would continue to be granted, a pension of 360 euros would be granted for the non-insured elderly based on certain conditions, while according to Law 4052/2012, the programme “Pensioner’s homecare” had been established. It had also introduced favourable regulations regarding the payment of the Extraordinary Special Property Tax, tax exemptions for certain types of pensions, as those granted to war victims, war invalids, blind persons or invalids and beneficiaries of EKAS, while cuts on pensions were not made if the beneficiary or members of his family receive small pensions, or are invalids[80]. As to the improvement of the social security system, the government tried to counter problems of fraud in social security and incidents of “contribution evasion”

While the measures notified are in themselves welcome, it is doubtful whether they are going to last, especially as there is no sign of overcoming the crisis and Greece is supposed to introduce further measures in view of the ESM assistance package she is going to receive.

Contrary to the hesitant approach of the ECtHR regarding the right to social security in economic emergencies, the Inter-American Court of Human Rights has consistently applied a different approach. In case “Five Pensioners”/Peru[81] the problem was the reduction by 78% of the pensions of the public sector workers while by law and Constitutional Court judgments their pension was planned to gradually equalize the salary they used to receive. The Inter-American Commission on Human Rights claimed the violation of articles 21 (right to property), 25 (right to judicial protection) and 26 (progressive development) of the Convention. The respondent state, for its part, invoked the argument of the state of emergency due to the economic crisis that it faced at that time.

The Court dwelt upon two questions: a) whether the right to a pension could be considered an acquired right, and b) what parameters should be taken into consideration to quantify the right to a pension, and whether it is possible to cap a pension[82].

Although the first question has been answered in the negative by the ECtHR in Koufaki and ADEDY/Greece[83], the IACtHR followed its own path of reasoning, assisted in part by the Constitution of the country and the jurisprudence of its Constitutional Court. Indeed, the former stipulated in its provisions that the “social regimes established for the pensions of public sector employees do not affect legally acquired rights, particularly the right corresponding to the regimes of Decree Laws 19990 and 20530”[84] (these decrees constitute the legal basis for the granting of the pensions in question). Furthermore, the Constitutional Court indicated that, once the requirements for granting a pension set forth in Decree Law No. 20530 have been fulfilled, the employee: “[…] incorporates into his patrimony, by virtue of the express authority of law, a right that is not subject to recognition by the Administration, that is not something that the law grants in some way, that, as has been recalled, arises from compliance with the requirements established by law. Thus, those who were subject to the regime of Decree Law 20530 and who, until the entry into force of Legislative Decree 817 had already complied with the requirements indicated in the norm, that is, they had worked for twenty years or more, have the right to an equalized pension, in accordance with the provisions of Decree Law 20530 and its modifying provisions”[85]. Bearing into consideration the foregoing, the IACtHR concluded that the right to property, stipulated in the ACHR, protects also the right of the applicants to receive an equalized retirement pension in the sense that it is an acquired right[86]. The Court referred also to the limitation clause of the San Salvador Protocol (article 5), holding that, although states may restrict the enjoyment of socio-economic rights in order to preserve the general welfare in a democratic society, and consequently the right to property, such restriction should take place only through the appropriate legal procedure[87]. However, in the instant case no legal process has been applied.

What is most important in the Court’s reasoning is indeed its approach of the right to property in conjunction with the right to a pension. The Court emphasized that from the time that a pensioner pays his contributions to the pension fund, ceases to work for the institution in question and opts for the retirement regime set forth in the law, such pensioner acquires the right to have his pension governed by the terms and conditions established in such law. It is a very important statement, especially if we take into account the adjustments brought about to pension systems all over the world due to the current economic crisis[88]. The Court applied the same reasoning in another case brought before it by the Commission against Peru[89].

Of particular interest is the dictum of the Court regarding the violation of article 26 of the American Convention on Human Rights. The Court did not deny its violation. Instead, it refused to pronounce upon it, stressing that the progressive development of economic, social and cultural rights should be measured in relation to the growing coverage of the right to social security and to a pension of the entire population and not in the circumstances of a very limited group of pensioners[90]. In any case, it did not preclude a prospective violation of the article in the factual and legal framework of another case[91].

II. Labour rights

The right to a decent remuneration which is enshrined in article 4 of the European Social Charter[92] was examined thoroughly by the ECSR in complaint no. 66/2011. The Committee examined the differentiated reduction of the minimum wage of people under 25 and it concluded that it constituted a violation of the right to fair remuneration[93]. The Committee held that although in certain circumstances it is acceptable to pay a lower minimum wage to young workers, this wage must under no circumstances fall under the poverty level of the country. In the same set of decisions (no 65/2011), the Committee has found further violations of article 4 ESC, in particular para. 4. More specifically, the Greek state by equating the first twelve months of employment in an open-ended contract with a trial period, made dismissal without notice or compensation possible during this period, thus violating directly article 4 para. 4 ESC.

Unlike the decisions on violations of the right to social security, where the Greek Government has introduced measures of remedy, here the Greek delegation before the Committee of Ministers, while accepting the conclusions of the ECSR, it pointed out that the measures were of a provisional nature and that the Greek Government had the firm intention to revoke these measures as soon as the economic situation of the country would allow. However, due to the political and economic constraints, “it was not possible to envisage a set timeframe, although it was unlikely that tangible results in Greece would be apparent before 2015”[94].

In this respect we should also cast an eye on the jurisprudence of the Inter-American Court of Human Rights. The right to salary was central in case Abrill Alosilla et al./Peru[95], regarding the retroactive application of decrees that between 1991 and 1992 eliminated the salary scale system that was in effect. Although the state acknowledged its international responsibility before the Commission (in relation to the right of “amparo” – article 25 ACHR – and not the right to property – article 21 ACHR), the failure to conclude promptly a friendly settlement brought the case before the IACtHR.

In this case, the Court did not make any specific reference to economic, social and cultural rights or the San Salvador Protocol. Nevertheless, the national legal documents examined by the Court (judgments of the Constitutional and Social Law Chamber of the Supreme Court of Justice) and the facts of the case imply the violation of socio-economic rights and in particular the right to receive remuneration.

The issue in question was the repeal, by virtue of decrees with retroactive effect, of the salary adjustment system known as “salary scales”. This system was not subject to collective bargaining and consisted of the automatic adjustment of monthly remuneration for the personnel at that time denominated as Functionaries and Senior Management, taking as its basis a) the remuneration of the unskilled laborer or lowest position at the company and b) the Salary Scales or Indexes, or Variation Coefficients previously established and assigned to each position. In effect, each time the company increased the salary of the lowest positions as a consequence of a collective bargaining process, by necessity it also resulted in increases for the other positions in the company that could not benefit from that process[96]. The suppression of the “salary scales” system had as a result not only the reduction of salaries but also the retroactive collection of payments[97].

The Court reminded that it has developed a broad concept of property and that it has, through article 21 ACHR, protected vested rights, which are understood as “rights that have become part on an individual’s wealth”[98]. It also emphasized that the principle of non-retroactivity of the law meant that the new law does not have the authority to regulate juridical situations that have been duly consolidated. In this respect the IACtHR observed that the “salary scales” system had generated an increase in wages that had become part of the wealth of the victims, i.e. a vested right. The Court differentiated between the system of salary adjustments, which was not a right of the victims per se, and the salary increases already received that had already become part of the workers’ wealth. In effect, the latter constituted a vested right that was affected by the retroactive application of the law, resulting in violation of the right to property[99].

One should note the “human face” shown once more from the Court, regarding the personal situation of the applicants. In effect, the IACtHR paid particular attention to the fact that all workers had organized their finances based on their salaries and that the salary reduction compromised their opportunity to provide, for instance, economic support to sick family members, while some of them were obliged to sell possessions. It is a human approach that we rarely observe in an international tribunal, even a human rights one[100].

Concluding remarks

Even though international bodies reaffirm in every occasion that retrogression in the protection of economic, social and cultural rights is prohibited and despite the reassurances of the Greek government in one set of complaints before the ECSR that it is doing everything possible to guarantee the protection of vulnerable groups, the situation in Greece is far from stabilising or improving. The new request of assistance before the ESM brings along a new series of measures affecting socio-economic rights (Laws 4389/2016 and 4387/2016) and a great array of privatisations in public assets and organisations that touch upon the minimum core of social rights. A salient example is the announced privatisation of the Athens and Thessaloniki Water and Sewerage Company against the ruling of the Greek Council of State[101] that such a move could put public health at risk due to the uncertainty regarding the quality and affordability of the services[102]. We have a long way ahead until we can declare with certainty that socio-economic rights in Greece enjoy the level of protection they did before the economic crisis.

Notes

[1] Loi travail : 17 % de grévistes à la SNCF pour la première journée de grève illimitée, Le Monde.fr avec AFP, 01.06.2016, http://www.lemonde.fr/economie/article/2016/06/01/loi-travail-debut-d-un-mouvement-de-greve-illimitee-a-la-sncf_4929935_3234.html

[2] Garcia Pedraza P., Crisis and social rights in Europe. Retrogressive measures versus protection mechanisms, Institute for Human Rights, Åbo Akademi University, 2014, p. 18.

[3] See articles 1, 55, 56, 61, 62, 68.

[4] There is a general consensus that most of the human rights norms enumerated in the UDHR have acquired a status of customary law, see in particular, Henkin L., The age of rights, Columbia University, New York, 1990; Meron T., Human rights and humanitarian norms as customary law, Clarendon Press, Oxford, 1989. This argument is further corroborated by the fact that the UN Human Rights Council in its Universal Periodic Review mechanism (established in 2006 by virtue of UNGA res. 60/251) is using as a reference instrument not only the human rights treaties binding upon states and the UN Charter but also the UDHR.

[5] UNGA res. 217 A/10.12.1948.

[6] For this categorization see Karel V. Human rights: A thirty year struggle. The sustained efforts to give force of law to the Universal Declaration of Human Rights. UNESCO Courier, 30:11, Paris, November 1977. Contemporary scholars have overridden this conceptualization (see infra).

[7] Mowbray A., The development of positive obligations under the European Convention on Human Rights, Human Rights Law in Perspective, vol. 2, Hart Publ., Oxford-Portland Oregon, 2004.

[8] Adopted by the World Conference on Human Rights in Vienna on 25 June 1993.

[9] ibid. Part. I, §5.

[10] Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

[11] See for instance, General Comment no 9 “The domestic application of the Covenant”, UN doc. E/C.12/1998/24, 3.12.1998: “The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent”, §10.

[12] International Convention on the elimination of all forms of racial discrimination, UNGA res. 2106 (XX), 21.12.1965; Convention on the Elimination of all forms of discrimination against women, A/RES/34/180, 18.12.1979; Convention on the rights of the child, A/RES/44/25, 20.11.1989; International Convention on the protection of the rights of all migrant workers and members of their families, A/RES/45/158, 18.12.1990; Convention on the rights of persons with disabilities, A/RES/61/106, 24.1.2007.

[13] See for an account of the relevant discussion, Craven M., The International Covenant on Economic, Social and Cultural Rights: a perspective on its development, Clarendon Press, Oxford, 1995; Eide A., Economic, social and cultural rights as human rights, in Falk R., Human rights: critical concepts in political science, Routledge, London, 2008, p. 299-318.

[14] See A/RES/6/543, 4.2.1952.

[15] A/RES/2200(XXI) A, 16.12.1966. ICCPR has 167 ratifications, whereas ICESCR 160.

[16] Arts 28 et seq. ICCPR. Similar committees of independent experts have been set up by all core human rights treaties.

[17] Art. 16 ICESCR. The procedure of examination is described in arts 16-23 ICESCR.

[18] “Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, Economic and Social Council resolution 1985/17.

[19] Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols no 11 and 14), Rome 4 XI 1950, ETS 005.

[20] The Council of Europe promotes the indivisibility of human rights and the ECtHR has emphasised already in its very early jurisprudence that “there is no water-tight division” between social and economic rights and civil and political rights, Airey/Ireland, appl. no. 6289/73, judgment 9.10.1979, para. 26. The regional court that has an extensive jurisprudence on economic, social and cultural rights through an expansive interpretation of civil and political rights is the Inter-American Court of Human Rights, see in that respect Saranti V., Economic, social and cultural rights in the Western Hemisphere under the prism of the Inter-American Court of Human Rights case-law, Annuaire International des Droits de l’Homme, VII/2012-2013, p. 515-553.

[21] Greece ratified the European Social Charter on 6 June 1984 by virtue of Law 1426/1984 accepting 67 of the Charter’s 72 articles. The Revised European Social Charter has been ratified on 18 March 2016. Greece has also ratified the Additional Protocol and has accepted the system of collective complaints on 18 June 1998. However, it has not made the declaration that would allow non-governmental organisations to submit collective complaints.

[22] In 2000 the European Parliament approved the Charter which was given legally binding force in 2010 when it was incorporated into the consolidated version of the TEU, by virtue of article 6 TEU that declared that the Charter shall have the same legal value as the Treaties. However, UK and Poland have chosen for a special status through the Protocol on the Application of the Charter of Fundamental Rights of the EU to Poland and to the United Kingdom. Pursuant to this instrument, the ability of the Court of Justice of the EU or any other court or tribunal of Poland or of the United Kingdom is not extended to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that are reaffirmed by the Charter. Thus the Charter does not create justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom have provided for such rights in their national law. See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:0156:0157:EN:PDF

[23] Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, §5, http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx

[24] See for a general discussion Coomans F. (ed.), Justiciability of economic and social rights. Experiences of domestic systems, Intersentia, Antwerp, 2006; de Schutter O., International human rights law, Cambridge University Press, 2010, p. 740-771; Langford M. (ed.), Social rights jurisprudence: emerging trends in international and comparative law, CUP, 2009; Liebenberg S., The protection of economic and social rights in domestic legal systems, in Eide A., Krause C., Rosas A. (eds.), Economic, Social and Cultural Rights. A textbook, 2^nd ed., Martinus Nijhoff Publ., 2001, p. 55-84; Matscher F. (ed.), The implementation of economic and social rights: national, international and comparative aspects, N. P. Engel, Kehl am Rhein, 1991; Ramcharan B.G. (ed.), Judicial protection of economic, social and cultural rights, Martinus Nijhoff Publ., Leiden, 2005; Scheinin M., Economic, social and cultural rights as legal rights in Eide A., Krause C., Rosas A. (eds.), Economic, Social and Cultural Rights. A textbook, 2^nd ed., Martinus Nijhoff Publ., 2001, p. 29-54.

[25] Dennis M.J., Stewart D.P., Justiciability of economic, social and cultural rights: should there be an international complaints mechanism to adjudicate the rights to food, water, housing and health? 98 AJIL, 2004, p. 462-515 ; Bossuyt M., La distinction juridique entre les droits civils et politiques et les droits economiques, sociaux et culturels, 8 Revue des Droits de l’Homme, 1975, p. 783-820; Vierdag E.W., The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights, 9 Netherlands Yearbook of International Law, 1978, p. 69-105.

[26] For instance, the European Court of Human Rights has repeatedly reaffirmed that states parties enjoy a wide margin of appreciation, when they determine their social policy, especially if their resources are limited and they have to set priorities, see Koufaki and ADEDY/Greece, nos. 57665/12 and 57657/12, decision 7.5.2013, §31 ; Terazzi S.r.l./ Italy, no 27265/95, 17.10.2002 ; Wieczorek/Poland, no 18176/05, 8.12.2009 ; Jahn et al./Germany, nos 46720/99, 72203/01 and 72552/01; Mihaieş and Senteş/ Romania, nos 44232/11 and 44605/11, decision 6.12.2011 ; Frimu and 4 other applications/Romania, nos 45312/11, 45581/11, 45583/11, 45587/11 and 45588/11, decision 7.2.2012, §§40, 42 ; O’Reilly et al./Ireland, no 54725/00, decision 28.2.2002 ; Pentiacova et al./Moldova, no 14462/03, decision 4.1.2005 ; Huc/Romania and Germany, no 7269/05, decision 1.12.2009, § 64.

[27] See art. 2 §3 ICCPR, art. 13 ECHR, 25 ACHR. The African Charter on Human and Peoples’ Rights does not contain an equivalent provision. However, article 26 of that instrument stipulates that: “States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter”.

[28] See, van Hoof G.J.H., The legal nature of economic, social and cultural rights: a rebuttal of some traditional views, in Alston P., Tomasevski K. (eds.), The right to food, Martinus Nijhoff Publ., 1984, p. 97-110.

[29] Chapman A., “Violations approach” for monitoring the International Covenant on Economic, Social and Cultural Rights, 18 Human Rights Quarterly, 1996, p. 23-66. Also, Chapman A., Russell S. (eds.), Core obligations: building a framework for economic, social and cultural rights, Intersentia, Antwerp, 2002.

[30] Committee on Economic, Social and Cultural Rights, General Comment no. 3, “The nature of states parties’ obligations (art. 2 §1 of the Covenant)”, UN doc. E/1991/23-E/C.12/1990/8, Annex III, §10.

[31] ibid. §12.

[32] General Comment no. 9, “The domestic application of the Covenant”, UN doc. E/1999/22, §10. See also decisions of national courts that give effect to socio-economic rights such as the right to housing, the right to education and the right to food, Government of the Republic of South Africa/Grootboom and others, Constitutional Court of South Africa, judgment of 4.10.2000; Yated – Non – Profit Organization for Parents of Children with Down Syndrome and 54 Parents/Ministry of Education, Supreme Court of Israel, judgment of 14.8.2002 (HCJ 2599/00); People’s Union for Civil Liberties and another/Union of India and others, Supreme Court of India, judgment of 2.5.2003. Relevant excerpts are quoted in de Schutter O., International human rights law, Cambridge University Press, 2010, p. 751 et seq.

[33] “The nature of states parties’ obligations (art. 2 §1 of the Covenant)”, UN doc. E/1991/23-E/C.12/1990/8, Annex III, §5.

[34] ibid. §9. See also the Limburg Principles on the Implementation of the ICESCR, UN doc. E/CN.4/1987/17, “Although the full realization of the rights recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time” (principle no 8).

[35] Similarly, despite the absence of a clause on effective remedies in the Convention on the Rights of the Child, the respective Committee has emphasized that effective national remedies must be available to redress violations, underlining that “economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable”, see General Comment no. 5 “Implementation of the Convention on the Rights of the Child, arts 4, 42 and 44 §6, UN doc. CRC/GC/2003/5, 27.11.2003.

[36] General Comment no. 9, “The domestic application of the Covenant”, UN doc. E/1999/22, §7.

[37] See, for instance, Mayagna (Sumo) Awas Tingni/Nicaragua, 31.8.2001.

[38] Office of the UN High Commissioner for Human Rights, Economic, Social and Cultural Rights. Handbook for National Human Rights Institutions, New York and Geneva, 2005, p. 50.

[39] Art. 2 para. 1 ICESCR.

[40] See General Comment no 3 The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), §10, “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant”.

[41] Sepúlveda Carmona M., Alternatives to austerity: a human rights framework for economic recovery, in Nolan A. (ed.), Economic and social rights after the global financial crisis, CUP, 2014, pp. 25-27.

[42] In the “Maastricht Guidelines” it is described as “margin of discretion”, Masstricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997, para. 8.[43] General comment No. 3: The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), Fifth session (1990), UN doc. E/1991/23, para. 9.

[44] See, Press Release no 71/16, Inter-American Commission on Human Rights Expresses its Concern Regarding the Declaration of a “State of Exception and Economic Emergency” in Venezuela, June 1, 2016.

[45] January 22-26, 1997, para. 6. “On the occasion of the 10th anniversary of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter ‘the Limburg Principles’), a group of more than thirty experts met in Maastricht from 22-26 January 1997 at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, USA) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands). The objective of this meeting was to elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies”, Maastricht Guidelines, Introduction. See, https://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html

[46] Almost 100 families evicted daily in Spain – statistics, Published time: 6 Mar, 2015, https://www.rt.com/news/238349-spain-families-lose-homes/

[47] “Maastricht Guidelines”, para. 9.

[48] CESCR/48th/SP/MAB/SW, 16.5.2012, http://www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf

[49] Human Rights Committee, General Comment no 29, States of emergency (article 4 ICCPR), UN doc. CCPR/C/21/Rev.1/Add.11.

[50] Nencheva and others/Bulgaria, appl. no. 48609/06, judgment 18.6.2013, paras. 117 et seq.

[51] Nitecki/Poland, appl. no. 65653/01, judgment 21.3.2002.

[52] Alexsanyan v. Russia, appl. no. 46468/06, judgment 22.12.2008

[53] Yordanova and others/Bulgaria, appl. no. 25446/06, judgment 24.4.2012. See also Winterstein/France, appl. no. 27013/07, judgment 17.10.2013.

[54] Kjartan Ásmundsson/Iceland, appl. no. 60669/00, judgment 12.10.2004; Moskal/Poland, appl. no. 10373/05, judgment 15.9.2009, Larioshina/Russia, appl. no. 56869/00, decision 23.4.2002; Kutepov and Anikeyenko/Russia, appl. no. 68029/01, decision 25.10.2005; Budina/Russia, appl. no. 45603/05, decision 18.6.2009.

[55] Stec and others/ the United Kingdom, appl. nos. 65731/01 and 65900/01, decision 6.7.2005.

[56] Larioshina/Russia, op.cit. See, in general, ECtHR, Seminar Background Paper, 25 January 2013, Implementing the European Convention on Human Rights in times of economic crisis, http://www.echr.coe.int/Documents/Seminar_background_paper_2013_ENG.pdf; Steering Committee for Human Rights (CDDH), The impact of the economic crisis and austerity measures on human rights in Europe, Feasibility study, 84th meeting 7 – 11 December 2015, CDDH(2015)R84 Addendum IV, http://www.coe.int/t/dghl/standardsetting/cddh/CDDH-DOCUMENTS/CDDH%282015%29R84%20Addendum%20IV_EN.pdf

[57] “Vorbehalt des Möglichen”. See, for this doctrine in constitutional law Perlingeiro R., Does the precondition of the possible (Vorbehalt des Möglichen) limit judicial intervention in social public policies? NLUO Law Journal, vol. II, issue I, August 2015, pp. 20-45.

[58] Da Silva Carvalho Rico/Portugal, appl. no 13341/14, decision 1.9.2015, par. 44.

[59] Da Conceiçã Mateus and Santos Januário/Portugal, appl. nos. 62235/12 and 57725/12, decision 8.10.2013

[60] Savickas and Others/ Lithuania, appl. nos. 66365/09 et al., decision of 15.10.2013.

[61] The dissenting judges contented that the majority has expanded the scope of the right to property, since article 1 of Protocol No. 1 has never been interpreted “by this Court as obliging member States to provide persons with the right to social security benefits, in the form of disability pensions, independently of their having an assertable right to such a pension under domestic law”, Béláné Nagy/Hungary,appl. no 53080/13, judgment 10.2.2015, joint dissenting opinion of judges Keller, Spano and Kjølbro, para. 1.

[62] Priewe J., What went wrong? Alternative interpretations of the global financial crisis, in UN Conference on Trade and Development – Hochschule für Technik und Wirtschaft Berlin, The financial and economic crisis of 2008-2009 and developing countries, 2010, p. 17-18.

[63] Dullien S., Kotte D., Márquez A., Priewe J., Introduction, in UN Conference on Trade and Development – Hochschule für Technik und Wirtschaft Berlin, The financial and economic crisis of 2008-2009 and developing countries, 2010, p. 1.

[64] Priewe J., What went wrong? Alternative interpretations of the global financial crisis, op.cit.

[65] See for further details and legal documents, http://www.efsf.europa.eu/about/index.htm

[66] T/ESM 2012-LT/en.

[67] See for relevant information and legal documents, http://www.esm.europa.eu/index.htm

[68] Garcia Pedraza P., Crisis and social rights in Europe. Retrogressive measures versus protection mechanisms, Institute for Human Rights, Åbo Akademi University, 2014, p. 7.

[69] Skogly S., The human rights obligations of the World Bank and the International Monetary Fund, Cavendish Publ. Ltd, London/Sydney, 2001.

[70] In October 2009, the incumbent greek government discovered a high fiscal deficit amounting to 15,7% of GDP and a public debt amounting to 129,7% of GDP. These unexpected high numbers resulted in the downgrade of Greece’s sovereign debt by Fitsch, Standard & Poor’s and Moody’s which had as a consequence the inability of the government to receive funding from the financial markets. See for a brief account of the facts, ELSA, International legal research group on social rights, Final report: austerity measures and their implications. The role of the European Social Charter in maintaining minimum social standards in countries undergoing austerity measures, July 2015, pp. 647-648.

[71] The assistance was finally provided on the basis of article 143 TFEU according to which when a member state is in difficulties regarding its balance of payments either as a result of an overall disequilibrium in its balance of payments or as a result of the type of currency at its disposal and where such difficulties are liable to jeopardize the functioning of the internal market or the implementation of the common commercial policy, the Commission shall recommend to the Council the grant of mutual assistance.

[72] ESM Programme for Greece, http://www.esm.europa.eu/assistance/Greece/index.htm.

[73] See in that respect P7_TA(2014)0239, Role and operations of the Troika with regard to the euro area programme countries, European Parliament resolution of 13 March 2014 on the enquiry on the role and operations of the Troika (ECB, Commission and IMF) with regard to the euro area programme countries (2013/2277(INI)).

[74] Law 3833 of 15 March 2010, Law 3845 of 6 May 2010, Law 3847 of 11 May 2010, Law 3863 of 15 July 2010, Law 3865 of 21 July 2010, Law 3866 of 26 May 2010, Law 3896 of 1 July 2011, Law 3986 of 1 July 2011, Law 4002 of 22 August 2011 and Law 4024 of 27 October 2011, Law 4046/2012, 4051 of 28 February 2012, Law 4093/2012 of 12 November 2012, Law 4172/2013. Joint Ministerial Decision 6/28.02.2012

[75] See for a detailed description of the measures adopted, ELSA, International Legal Research Group on Social Rights, Austerity measures and their implications. The role of the European Social Charter in maintaining minimum social standards in countries undergoing austerity measures, July 2015, pp. 646-754.

[76] See for a general reference to Europe, Poulou A., Austerity and European Social Rights: How Can Courts Protect Europe’s Lost Generation?, 15 German Law Journal, 2014, pp. 1145-1176; Jimena Quesada L., Adoption and rejection of austerity measures: current controversies under European law (focus on the role of the European Committee of Social Rights), Revista catalana de dret públic, núm 49, 2014, pp. 41-59.

[77] Committee on Economic, Social and Cultural Rights, General Comment No. 19,The right to social security (art. 9), E/C.12/GC/19, 4.2.2008, par. 15.

[78] Koufaki and Adedy/Greece, appl. no 57665/12 and 57657/12, Decision 7.5.2013, par. 31, 41, 44-46.

[79] Federation of employed pensioners of Greece (IKA-ETAM) v. Greece (no. 76/2012); Panhellenic Federation of public service pensioners v. Greece (no. 77/2012); Pensioner’s Union of the Athens-Piraeus Electric Railways (I.S.A.P.) v. Greece (no. 78/2012); Panhellenic Federation of pensioners of the public electricity corporation (POS-DEI) v. Greece (no. 79/2012); and Pensioner’s Union of the Agricultural Bank of Greece (ATE) v. Greece (no. 80/2012). All decisions on the merits were rendered on 7 December 2012.

[80] Resolution CM/ResChS(2014)7 et seq. adopted by the Committee of Ministers on 2 July 2014 at the 1204th meeting of the Ministers’ Deputies.

[81] C-98, 28.2.2003.

[82] ibid. §95.

[83] With regard to the right to property it stated that it should not be interpreted as giving right to a pension of a determined amount, §33 (with further references to the Court’s case-law).

[84] Five pensioners, op.cit. §97.

[85] ibid. §98.

[86] ibid. §102.

[87] ibid. §116.

[88] See in that respect the judgment of the European Court of Human Rights in Koufaki et ADEDY/Greece, op.cit.

[89] Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller”)/Peru, C-198, 1.7.2009.

[90] ibid. §147. See, also the Reasoned Concurring Opinion of Judge Sergio García Ramírez.

[91] However, in case Acevedo Buendía (§106) that followed it did not find a violation of article 26 ACHR, stating that the issue under consideration was not a measure adopted by the State that hindered the progressive realization of the right to pension but it was rather the non-compliance of the state with the payment ordered by the domestic courts. Therefore, the violated rights were only the right to amparo and the right to property. This was a landmark judgment in that the Court, shortly after the adoption of the Optional Protocol to the ICESCR, emphasized the existence of the “principle of non regression” regarding the limitations in the exercise of a right, Burgorgue-Larsen L., Úbeda de Torres A., op.cit. p. 632-635.

[92] With a view to ensuring the effective exercise of the right to a fair remuneration, the Contracting Parties undertake: 1 to recognise the right of workers to a remuneration such as will give them and their families a decent standard of living; 2 to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases; 3 to recognise the right of men and women workers to equal pay for work of equal value; 4 to recognise the right of all workers to a reasonable period of notice for termination of employment; 5 to permit deductions from wages only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards. The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wage fixing machinery, or by other means appropriate to national conditions.

[93] General Federation of Employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece (no. 65 and 66/2011), decision on the merits of 23 May 2012, “As such, the provisions of Section 74§8 of Act 3863/2010, and now Section 1§1 of Ministerial Council Act No 6 of 28-2-2012, are not in conformity with Article 4§1 in the light of the non-discrimination clause of the Preamble of the 1961 Charter”.

[94] Committee of Ministers, Resolution CM/ResChS(2013)3, Adopted by the Committee of Ministers on 5 February 2013 at the 1161st meeting of the Ministers’ Deputies.

[95] C-223, 4.3.2011.

[96] ibid. §53.

[97] ibid. §64.

[98] ibid. §82.

[99] ibid. §§84-85. The case was recently closed (21.6.2013), when the last payments were received. The remedies for material and moral damages, costs and expenses, as a whole, amounted to a total of nearly 3 million dollars, see Resolución de la Corte Interamericana de Derechos Humanos, 22.5.2013, Caso Abrill Alosilla y otros vs. Perú, Supervisión de Cumplimiento de Sentencia.

[100] There is no doubt that the IACtHR case-law has been influenced a great deal by the enlightened long-year presidency of judge A.A. Cançado Trindade, who is a dedicated figure of the “human face” of international law, see in particular his book, “Le droit international pour la personne humaine”, Pedone, Paris, 2012.

[101] Judgment no 1906/2014, 28.5.2014.

[102] Realising the human rights to water and sanitation: A Handbook by the UN Special Rapporteur Catarina de Albuquerque, 2014, Book 6: Access to justice for violations of the human rights to water and sanitation, p. 9.

The Discourse on Human Rights and the International Regime of Human Rights

26/09/2016Conference proceedings (triple non-blind peer review)UN's political philosophy, human rights, human rights lawEyassu Gayim

Introduction

The controversies surrounding the rights and freedoms which we are entitled to have complex sides, and often depend on the justification used for recognizing the rights. The common justification used in defense of these rights is our nature, which again triggers many other questions. Do we have unique attributes justifying the recognition of certain rights? Is the human being a social being or a self-centered, autonomous unit? Is s/he a nice or humane person? If the latter is not the case why punish inhuman or cruel behavior? Who is to decide what the requirements of the state of nature are for purposes of forming the human rights law, and how? Should this be left to religion, culture, reason, governments or the requirements for survival? Is the human rights talk basically a religious talk? Is it essentially a political subject-matter? Do human rights exist? If they do, are they universal, to be interpreted and applied in the exact same ways globally, or are they relative – to be harmonized with the local religious, cultural, political and other requirements? How were these questions answered by the international community when it developed the international regime of human rights?

The existence of the international community itself is sometimes questioned, especially by the adherents of realpolitik, mainly because there is no centralized legislative and law enforcing body. Instead, the skeptics speak of the presence of ‘international societies’ and the anarchical international order. Yes, international law is weak because its foundation is state sovereignty, and it lacks a centralized law-enforcing body. However, that in itself does not prevent the emergence of an international community. No one denies that international law is disregarded by some or many states now and then. Individuals and political actors too violate or disregard national laws, yet, we hardly question the existence of these laws or the national communities when this happens. Just as national laws and national communities are socio-political constructions, international law and the international community too are socio-political construction that exist because we need them.

The fact remains that the overwhelming majority of states use international law on a daily basis – to facilitate trade and commerce, to regulate health issues, to facilitate communication, to stimulate tourism, to promote educational, cultural or other activities. All the sovereign states are members of the United Nations, and meet regularly to discuss matters of common interest. This organization has clear-cut purposes and principles and monitoring bodies. It is true that the system is based on state sovereignty (article 2(1) of the Charter). However, there is also the requirement to comply in good faith with obligations assumed under the ratified legal international instruments (art. 2.2 of the Charter). Failure to do so has political consequences, because disruptive or anarchical conducts are not accepted. When international peace, security and order are threatened, the UN Security Council is required to respond to restore the international order (collective security). Its decisions are binding on all states (articles 24 and 25 of the Charter). The UN and its members have always proceeded on the assumption that there is an international community that is legally formed.

The UN is not the only international organization that is responsible for the international regime of human rights. The International Labour Organization, UNESCO, WHO, FAO, regional organizations and non-governmental ones too influence the direction in which the regime of human rights regime is developing. ILO uses more than 180 conventions related to economic and social rights (and recommendations), more instruments than those adopted by the UN. The same can be said about the mandates, laws and activities of the other specialized agencies. Their relationship with the UN is coordinated by the UN Economic and Social Council, as provided by articles 63 and 64 of the UN Charter. Regional organizations and non-governmental organizations also cooperate with these agencies and with the UN even if they have their own human rights mandates, bodies and activities. While it would be wrong to claim that there is no tension in how all these organizations operate when pursuing their respective human rights agendas, the differences that exist are sometimes exaggerated.

The existence of the international regime of human rights is questioned or belittled mostly because of skepticism towards international law. The factors which speeded up the evolution of international human rights law are linked to the horrors endured during World War II. The peoples of the world were alarmed by the grotesque instances of inhumanities and the sufferings of that time as well as by the disorder and devastation that accompanied it, evils which took the lives of well over one hundred million people. By the end of that war, the insecure and militarily exhausted states, including the victorious powers, had to take a pause for soul searching to find the formula for ensuring lasting peace and stability without sacrificing human values. It was abundantly clear that the ideological and political goals of the aggressive powers were hostile to the human rights values. There was no international human rights regime in place to challenge their conduct. The earlier organizations were not fit for this, which is why the Concert of Europe or the League of Nations failed to guarantee international peace and justice. If the new international organization that was contemplated for the post-World War II era was to be legitimate and endure, it had to embrace human rights values. The only problem ahead was on whose image this world order should be shaped. Both the Western and the Eastern powers were determined to use their political and diplomatic weapons to win the hearts and minds of the peoples of the world.

The drafters of UN Charter justified the universal promotion of human rights based on “faith in fundamental human rights, in the dignity and worth of the human person (and), in the equal rights of men and women”. Now that the professed racist powers were militarily crushed, it became inconceivable to tolerate the kinds of inhumane political systems these states once had or to resist the emergence of an international order based on the promotion of respect for human rights. It is true that the Allied Powers were forced to enter that war for self-defense rather than in opposition to racist policies and conducts. However, once the war was in full swing, the narratives had changed to that of a military campaign against Fascists and Nazis and their sympathizers: a struggle between good and evil (progressives and reactionaries).

The inscription of human rights in the UN Charter, in 1945, transformed the idea of human rights from a philosophical and national legal concept to a universal legal concept. The UN was also given the mandate of “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (article, paragraph 3) More specifically, its General Assembly, and the Economic and Social Council, under it were assigned to promote: “Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” (art. 55, and 60. Emphasis added).

Further, the members of the UN gave their pledge, under article 56, “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” Although the political and legal pillars for constructing the international regime of human rights were clearly made, in 1945, it took time before this regime emerged since it could not operate without defining the rights and obligations and developing the monitoring mechanisms.

The UN Charter does not list the human rights that should be acknowledged, although reference is made, in broad and vague ways, to the obligations to respect the principle of equal rights (art. 1(2), 1(3)) and some of some economic and social rights (article 55, 73 and 76), especially in the context of the dependent territories (colonies). The task of preparing the document which lists these human rights was left to the General Assembly which was expected to initiate studies and make recommendations for “the progressive development of international law and its codification” and “assisting in the realization of human rights and fundamental freedoms” (art. 13.1.a. and c. of the Charter).

When the UN started to prepare the first universal instrument which would identify, define and proclaim the human rights that should be recognized (by the Universal Declaration of Human Rights) the ideological controversies relating to discourse on human rights surfaced in highly politicized ways. As expected, the Western states defended the individualized civil and political rights in line with their national laws and political traditions. The Socialist states propagated for economic and social rights, loyal to the Marxian traditions. The Latin America states stood behind the Western position since they had similar political systems to that of the West. The Organization of the American States even proclaimed its own Declaration on the Rights and Duties of Man before the UN proclaimed the Universal Declaration of Human Rights. Most of the remaining Third World countries backed both positions, although they were worried about the political implications of some of the political rights. Since it was known from the outset that this instrument was not intended to be legally binding (because under article 10 of the Charter the UN General Assembly resolutions are only recommendatory) the insertion of both these sets of rights did not prove to be problematic. After all, as the last paragraph of this Declaration makes it plain this instrument was to serve merely “as a common standard of achievement …to promote respect for these rights and freedoms and by progressive measures… to secure their universal and effective recognition and observance”. Still, the six Socialist States, South Africa and Saudi Arabia abstained when the Universal Declaration was proclaimed on 8 December 1948.

Using this new standard setting, the UN General Assembly proceeded to prepare and adopt other non-binding declarations which were intended to provide protection from race and gender-based discrimination and to defend the rights of the members of vulnerable groups, such as, children, refugees, the disabled, etc. While these instruments defined the rights of the beneficiaries and mentioned the kinds of measures that should be taken to make them practical, they lacked the enforcement mechanisms precisely because they were not perceived to be legally binding.[1] Later, however, this ‘soft-law’ political approach was complemented by preparing and adopting binding human rights conventions which came into force through ratification.[2]

We now have not only an international regime of human rights which uses international law, but also two separate paths to monitor how states conduct themselves in accordance with their human rights obligations. The convention-based monitoring bodies consider the reports of states submitted pursuant to the ratified legal instruments and publish their reports. They also examine the petitions sent by victims and state parties who allege the existence of human rights violations, provided that the concerned state has accepted this system. The UN Charter-based monitoring bodies consider the reports of states and those submitted by states, by special rapporteurs (country-rapporteurs and thematic rapporteurs), by working groups and others. Bearing this in mind the UN Human Rights Council publishes country reports on the human rights situation inside states. The High Commissioner for Human Rights represents the UN on matters concerning human rights also by visiting states, conducting inquires or fact-finding missions, to inspire states to ratify human rights instruments, etc.. The UN High Commissioner for Refugee follows developments concerning refugees, including when it comes to mobilizing contributions for the welfare of refugees, urging states to share the burden of accepting refugees and ending the involuntary deportation of asylum seekers whose lives could be endangered. There are many other UN offices, units and programs that also provide important functions or monitor human rights issues. Among these are UNICEF, World Food Programme, UN-Habitat, and the Commission on the Status of Women. Complementing these are also the human rights mechanisms that are used by the specialized agencies and the regional organizations.

With all this evidence at hand, it is difficult to deny that we now have an international regime of human rights which is politically and legally constructed in the process of giving effect to the purposes and principles of the UN Charter. This regime governs how states behave in the field of human rights by monitoring the application of the adopted international instruments. This is not to deny that this regime has weaknesses emanating from the absence of centralized legislative and enforcement bodies. If the existence of regimes is measured on the basis of the strength of the applicable laws or the strength of the monitoring bodies and mechanisms of these laws, then the existence of many national regimes would also come to doubt. Clearly, there is a long way to go before one is fully satisfied and the political roads ahead may not be that smooth. Bridging the ideological and political gaps surrounding the human rights debate is far from easy. But it is equally important not to forget or deny what has been achieved. The UN has managed to navigate through the past troubled waters. How this was done will be clarified later after first examining closely what the contentious ideological and political positions are.

The discourse on human rights

Right: As can be seen from the long list of definitions provided in dictionaries the word ‘right’ is understood differently depending on the context in which it is used. Its adjectival usage means accurate or correct (as in the ‘right answer’), exact or perfect (as in it ‘fits right’), reasonable or sound (‘right mind’), immediate (‘right now’), fair (‘right share’). It is also used to describe directions (the opposite of left) including political or ideological stands (as in ‘right wing’).[3] Its noun form (‘a right’) denotes title, privilege, guarantees, power officially recognized.[4] The New International Webster’s Comprehensive Dictionary of the English Language adds one other definition of a right which is described as that which is given “in accordance with or conformable to moral law or to some standard of rightness; equitable; just; righteous… ”[5]

Indeed, most leaders want to convince us that the rights which are recognized in our national laws have a just character or are also correct, morally speaking. This, however, may not always be the case, since a right that is sanctioned by law or culture can be wrong morally speaking, depending on the frame of reference one uses. The right to buy and sell human beings, which was legally recognized in some countries in the past, or that which tolerates the freedoms of men to ‘buy sex’ from desperate women is morally wrong. The justness of the traditional rights of parents to arrange for the marriages of minors or that of a man to inherit the wife of his deceased brother in accordance with cultural norms or traditions in some countries, are equally questionable. It is interesting to note that these rights continue to be exercised although there are also laws which require full consent for marriage in these states. In other words, one observes a certain tension between rights that are derived from culture and traditions and those emanating from laws.

Human: One of the reasons why scholars disagree on the kinds of rights and freedoms that should be acknowledged is the divergence of views on the nature of the human being and hence on what is due to him/her as just. Inseparable from this is the requirements of responding to order and stability when living in social settings. For Thomas Hobbes (1588-1679) human beings were, by nature, evil-minded, ego-centric, jealous and power-driven individuals. Although he starts by accepting the existence of ‘natural rights’ he concluded by calling for their surrender – in favor of a chosen despot for the sake of peace and the general welfare. If this is not done, the cycle of envy, hatred and competition would only further war of all against all.[6]

Hobbes’s premise was rejected by Immanuel Kant (1724-1804) because it reduced the state of nature to “a state of absolute injustice, as if there could have been no other relation originally among men but what was merely determined by force…””[7] For Kant to relinquish the natural inborn rights amounts to relinquishing being human. The purpose of civil union should therefore be to protect those “inborn” rights based on social contract by ensuring “the right of every citizen to have to obey no other law than that to which he has given his consent or approval.” ”[8] His thoughts were inspired by the positive impression that John Locke (1632-1704) had concerning human nature, and his call for the protection of natural rights. As Locke saw it, the aggressive behavior which Hobbes noted were only consequences of defying the demands of nature to respect life, liberty, possession and other interests which create self-defense, retribution and hence disorder. .[9]

Theologians consider humans as social creations that should live in peace and harmony, and that have duties towards one another (inside their communities). Since religion also prescribes what the acceptable rights and duties are, theologians see the talk about human rights as basically a religious talk.[10] For Christians, this means following those Divine commands stipulated in the Bible. For Moslems, it is that which is provided by the Islamic Shari’ah and the “divine commands, which are contained in the Revealed Books of Allah.”[11]

Atheists and most liberals or libertarians do not subscribe to this point of view for different reasons. For atheists religion is fictitious, and man’s creation. Liberals and libertarians are interested in empowering individuals by maximizing the enjoyment of individual freedoms, rather than restricting them. According to Ayn Rand (1905-1982), rights emanate from ‘man’s nature’ (‘the law of identity’). She considered them to be “the property of an individual”, and “a man’s freedom of action”[12], which are used to secure the “human good”, including the protection of selfishness without requiring sacrifices for anyone. [13] This is why she insisted that right should always be articulated as individual freedom of action and thus as something individualized.[14]

Socialists approach mankind as social. Egocentric and inhumane characteristics are inherited from the conditions of life, rather than being natural attributes. As Karl Marx (1818-1883) saw it, Hobbes had confused class war with ‘war of all against all’ and wrongly linked the conflicts which he observed with the state of nature. Although Marx was in full agreement with Rousseau’s observation that mankind was born free but lived in chains, he rejected Rousseau’s prescription calling for defending ‘the rights of man’ because these rights were framed in the context of the appropriation of private property inside the political state. For him, as long as social relations are based on private property relationships, we can only behave as representatives of property. These rights, as articulated by Rousseau and the other supporters of the capitalist order, should be rejected because they do not “go beyond the egoistic, man as he is, as a member of civil society; that is, an individual separated from the community, withdrawn into himself, wholly preoccupied with his private interests and acting in accordance with his private caprice.”[15]

Human rights: sources/foundation/origins. The sources, foundations or origins of human rights are generally approached from the perspectives of the two opposed schools of thoughts: Natural Law and positivism. Proponents of the former are sub-divided between those who follow the spiritual line (Divine Law) and the secular path (higher reason or morality). The former is defended by theologians who rely on religion as the primary source for valid rights, freedoms and duties. For them conducts and social relationships that defy the tenets of religion constitute sins that are punishable. There is no room for fetish-driven ways of living, and deviations determined by individual morality. Even if the law permits this by protecting the right to privacy, it should not be followed for such laws are not proper “but a corruption of law.”[16]

Natural Law is also defended on secular grounds by those who invoke “higher reason” or “rational nature” – from which concepts such as justice, equity, modesty and the likes are derived from.[17] Thomas Hobbes used this when he defended the existence of natural liberties and freedoms in the state of nature, and which he wanted us to surrender in favor of despotism for the sake of peace and order.[18] John Locke too believed that we had inherent rights, such as those protecting life, liberty and property, those that should not be taken away.[19] Kant distinguished between natural or innate rights and positive or acquired rights. He called the former innate rights, derived from “practical laws of reason” and that constitute “the Birthright of Freedoms” of every person..[20] He approached natural rights from “a pure practical conception of the reason in relation to the exercise of the will under laws of freedom”[21], as those that should neither be restricted nor denied by man-made constitutions since they are “deduced from principles a priori as the condition of such a constitution.” [22]

Liberals and libertarians vigorously defend individual liberties because the ontological core of their school of thought is individualism. “It is from this premise that the familiar commitments to freedoms, tolerance and individual rights are derived.” [23] Their point of departure may vary but the end point is similar in that both see individual rights as inalienable. “If we are serious about the idea of human rights,” maintained Jack Donnelly, “there is no alternative to holding firm on the principle that they are the rights of individuals and of individuals only.”[24] Rand, a libertarian, offered the following explanation: “If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his value and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being; nature forbids him the irrational.”[25]

Rand was unapologetic in defending individual morality, in praising unregulated capitalism and in dismissing group rights or economic, social and cultural rights not least because they are ‘solidarity’ rights that are financed by unjustly sacrificing individual rights (through heavy tax) to benefit others. According to her:

“There is no such thing as ‘a right to a job’ – there is only the right of free trade… no ’right to a home’ …There are no ‘rights to ‘fair’ wage …There are no ‘rights’ of special groups’ … There are only the Rights of Man…Property rights and the right of free trade are man’s only ‘economic rights’ (they are, in fact, political rights…)”[26]

In essence, the position which regards the individual as autonomous unit and which questions his/her social nature consider human beings very much like finished industrial product like a car or a piano that is ready to operate, as if we are not continuously enriched or developed mentally and emotionally from birth to death. If we are not social how do we end up possessing linguistic, religious and cultural identities? How can loyalty, nepotism, fanaticism, social prejudice, racism and extreme nationalism be explained? Why bother to take part in cultural festivities, or pay a high price for expensive cars, cloth, perfume or watches or get satisfaction from providing altruistic or humanitarian assistance? Why use prison for punishment (including for offending ‘public morality’)? Why bother about problems emanating from social isolation? The fact remains that a person who is totally isolated for too long from others can end up being mentally derailed – if not suicidal.

Communitarians reject the liberal and libertarian viewpoints of the autonomous nature of the individual. Instead, they proceed from the premise that all individuals derive their identity and wellbeing from their social environment.[27] “The highest conceivable form of human society”, according to Huxley, “is that in which the desire to do what is best for the whole, dominates and limits the action of every member of the society.”[28] Those who reject the social nature of mankind are not only dishonest since they know how social they are, but are actually hiding behind individualism for purposes of obstructing the efforts that are made to protect and promote the rights of those marginalized groups.[29]

Positivists dismiss inalienable natural rights as nonsense. According to Jeremy Bentham, the father of positivism, the proponents of Natural Law are very good at fabricating fictitious rights and ‘laws’ using passions.[30] Real rights exist only in the political world and are recognized and enforced by laws. “There are no rights without law”, he wrote, and “no rights contrary to the law.”[31] For Bentham, governments were established because there are no rights “anterior or superior to those created by the law”[32] Legal rights which are enacted by governments determine legitimate freedom of action and the enjoyment of the benefits to be given to the right-holders.[33] To be practical, ‘right’ would have to be complemented by obligations, and when the latter are violated they become offenses.[34] In short, “law, offence, right, obligation, service, are therefore ideas which are born together, which exist together, and which are inseparably connected. …”[35]

Karl Marx appreciated the manner in which Natural Law was ridiculed by Bentham. He also discredited Bentham for accepting the legitimacy rights made by governments. This was why he dismissed his intellectual contributions as nothing more than a “pedantic, leather-tongued oracle of the ordinary bourgeois intelligence”[36] As Marx saw it, the political state enacts laws recognizing rights and freedoms to protect the interests of the oppressing class by subordinating the oppressed groups. The kinds of rights which Marx and his followers endorsed were those that helped the proletarian class in achieving their revolutionary goals. They also supported national self-determination as a means of bringing about emancipation from their oppressive, alien rulers. Marx did see the advantages in the few ‘illusive’ ‘rights of man’ proclaimed by the American and French revolutionaries, except those that can be used to speed up the proletariat’s revolution.[37] The writings and campaigns of Karl Marx and his followers did serve as powerful engines for stimulating the revolutionary changes seen in Europe, during the second half of the 19th century, including the emergence of national states.

The divergent approaches to the definition. With so many differences in the perception of the sources, justifications, objectives and nature of human rights, the definition of ‘human rights’ can only be confusing, to say the least. Much depends on which side one takes when speaking about this contentious subject. Thomas Perry understood this subject in the religious sense, calling it a religious talk.[38] Jack Donnelly saw it as a set of socially constructed “moral claims” relating to entitlement “held by all human beings simply because they are human and exercisable against the state and society” and that is used to shape “social and political relations.”[39] According to R.J. Vincent, these rights represent “the moral possessions to which all human beings are entitled, and each of them equally.”[40] For Alan Gewirth they constitute “a species of moral rights” or requirements that are derived from valid moral principles.[41] And in the opinion of Justice Stayton this “means nothing more nor less than a claim recognized or secured by law.”[42]

One of the reasons why writers link claims to rights is their desire to give the kinds of practical support that strengthens rights. “Having rights, of course, makes claiming possible; but it is claiming that gives rights their special moral significance …”, states Feinberg. “Having rights enables us to ‘stand up like men’, to look others in the eye, and to feel in some fundamental way the equal of anyone.”[43] Claim is here given a normative character, as if right cannot stand without it. Feinberg also admits “(I)t will not help to attempt a formal definition of rights in terms of claims, for the idea of a right is already included in that of a claim, and we would fall into a circle.”[44]

The academic rivalry. Because human rights are explained in political, philosophical, religious, moral, legal and other senses, the disciplinary rivalry to claim it or to exclude others is serious. There are philosophers who take pride in the roles played by earlier philosophers in elucidating and popularizing this concept, a task which requires the input of contemporary thinkers. Jurists are happy that human rights are regulated by laws, not least because this fact makes them the only competent experts in the field. As one professor of politics, David Beetham, conceded “all these are eminently suited to analysis from a legal perspective” and “political science as a whole should have preferred to keep the subject at arm’s length.”[45]

For Michael Freeman the concept of human rights cannot be seen outside the political framework since these rights are “made and interpreted by a political process”, which is why he warns legal positivists not to be carried away by legal stipulations alone: “He maintains:

“The legal-positivist approach to human rights not only misrepresents their character but also has dangerous implications. …Legal positivists sometimes say that the only rights are those that are legally enforceable … it is not necessary that they should be so, and the concept of human rights implies that often they are not.”[46]

There are social scientists, especially social workers, that have expressed regret over the attempts that are made to exclude them from this field. According to Professor Elisabeth Reichert, a professor of social work, “Not only are politicians muddying the waters regarding human rights, but lawyers, too, speak of human rights in legalese that is more applicable to the courtroom or an academic treatise than to everyday life”[47], stated one professor of social work, Professor Elisabeth Reichert. In her view, “social workers have at least as much claim to the exercise of human rights principles as do politicians and lawyers.” [48]

Universalism and relativism: The debate relating to this topic may be intellectually stimulating but it is also politically divisive and toxic. This is not simply because it is approached with emotionally charged arguments, claims and acrimonious language, but also because the ideological and political interests behind the debate are obvious. The roots of most of these controversies go back to the familiar core issues concerning who the human being by nature is, what the sources, foundations and origins of human rights are, and the weight that should be given to cultural values. We shall lift forth three core issues around which most of the past debates have been rotating. These are i., whether there are inalienable or fundamental rights that should be accepted as universal and others that are relative; ii. whether there is a room for interpreting the rights recognized in the international regime of human rights bearing in mind the requirements of local religions, cultures, traditions, and the economic and political conditions, and iii., whether the origins of human rights are to be traced only to Western ideals and traditions alone and if, assuming that that is the case, whether this Western model should serve as a universal model for rights.

Before addressing these issues, it is necessary to identify who is behind the opposing camps. The literature on this subject reveals that universalism is strongly supported by the Western countries and echoed by most Western scholars. Relativism is vehemently defended by the governments of Third World countries and scholars engaged in the subject. However, this simplistic division can be misleading there are Western scholars that share the views of moderate relativists, as there are Third World relativists who defend aspects of universalism. This in itself reveals the existence of a third front which seeks a middle-of-the-road approach to reconcile the two extreme positions. Interestingly enough, one also notices a meeting point where the extremists on both sides converge, as will be explained later.

Linked to the issue of avoiding the dangers of oversimplification is the problem of how to interpret the word ‘Western’. Is this a geographic designation? If so, who is included in and who is excluded from this understanding of the term? Can Marx be included in the Western camp, as some claim [49], even when though his writings were so hostile to Western capitalism and to individual rights? For him, his writings were ‘scientific’, derived from the use of dialectic and historical materialism which any other person from any corner of the world could have written. If the term ‘West’ designates an ideological tradition, should the countries of Eastern Europe and Russia and all of the Latin American countries be included?

This is not to suggest that there is no such a thing as ‘the West’. In our political world we do see political camps and a harmonization of policies between states described as ‘Western’, ‘Eastern’, ‘Non-Allied Nations’, etc. also when human rights approaches or issues are debated at the universal forum. We have regional organizations, such as the European Union, the African Union and the Arab League operate, and these groups also join like-minded ones outside their own organizations when they operate in defense of their common interests. However, equally important to note is that reducing the discourse on human rights to issues of political confrontation between the West and the rest could blur the complex nature of this subject. Regrettably, this is how this debate has been used and this is how we shall proceed in approaching it now.

Universal human rights is presented by most Western writers and governments as that originated from the West and which reflects Western ideals, values and traditions. As Sir Stephen Sedley understood it, “human rights are historically and ideologically the property of the liberal democracies of the West”[50] According to Forsythe, “human rights as intellectual construct … was indeed associated with the west.”[51] Jack Donnelly traced this to European writings, ideals and values, those which entered “the mainstream of political theory and practice in seventeenth-century Europe.”[52] Michael Freeman pin pointed this to“(T)he first systematic human-rights theory” as formulated by John Locke who ”assumed that God was the ’source’ in question.”[53] The proponents of this position also dismiss the notion that non-Western societies have contributed to the human rights concept as “historically inaccurate.”[54] Underscoring this same position, Forsythe wrote: “Other regions or cultures displayed moral principles and some movements in favor of some version of human dignity but they were not grounded in a right discourse”[55]

More concretely, Donnelly described the nature of these rights which have originated in Europe and which should be regarded as universally valid as those that are: “inalienable rights: one cannot stop being a human being, and thus cannot stop having these rights … (they) rest on and seek to realise a particular conception of human nature, dignity, well-being, or flourishing. Human beings are seen as equal and autonomous individuals rather than bearers of ascriptively defined social roles”[56]

The refusal of non-Western governments and writers to endorse the position above has been viciously attacked by some of the proponents of universalism. Rhoda Howard, for example, had difficulties in understanding why African elites have “to adopt a defensive posture, arguing for the uniqueness of African culture, to explain why Africa cannot implement all of the Western and United Nations’ ideals of human rights”.[57] As she saw it: “The advocacy of a theory of African communalism by African intellectuals may well be in their own self-interest. In general the defence of ‘indigenous’ customs by African intellectuals may facilitate their ‘big-man’ domination over local groups who find their cherished value threatened.”[58] Likewise, discrediting the arguments used by the Asian leaders and intellectuals who defended “the Asian value”, Michael Freeman stated: “Many individuals and groups throughout history have claimed to speak for ‘the people’, but we have theoretical and empirical grounds for being quite skeptical of such claims. Theoretically, elites may well lack the capacity to understand the culture of the people and may well lack the incentive to understand it. Empirically, we know that elites have commonly been unconcerned with, or hostile to the culture of the people.”[59] Endorsing this position Jack Donnelly calls the defense which the leaders and elites of the Third World countries as ”cynical manipulations” since they themselves often embrace the Western ways of life..[60]

Relativists dismiss the premises and conclusions made by universalists to market the Western model of human rights to the rest of the world. According to them, if Europe is the origin of human rights just because John Locke and the others Western Natural Law thinkers wrote about it, then the sources of rights are incorrectly presumed to be these writers, when what they wrote claim that rights are derived from nature or the Creator. If the latter is the case, the origin of human rights cannot be geographic, as if rights are patented products. Relativists did not question the significance of the contributions made by Western thinkers for the evolution of the human rights that are recognized in the West or for the political process that led to the emergence of the Western model of rights. What they are saying is that the six thousand or so societies outside the West too had their own thinkers and have constructed their own models of human rights reflecting their needs and interests.

The other problem with the approach taken by Universalists in this regard is their refusal to accept the validity of collective and group rights that are acknowledged by non-Western cultures just because they differ from the individualized approach to rights. If human ideals, aspirations and values are derived from morality, as most of the defendants of universalism maintain, there must surely be different ways of constructing human aspirations, rights and obligations based on the prevailing conditions and mores, other than those which work in the West. The fact remains that different societies use different types of moral codes. What is acceptable in one place is not necessarily acceptable elsewhere.

Viewed from this perspective, it is not difficult to understand why scholars from the non-Western societies feel offended by some of the remarks that are made discrediting relativism and belittling the significance of the non-Western value systems for human rights. “Before seeking to criticize practices in another culture in the name of human rights” stated one Nigerian professor, “one should ask how we might feel if people from other cultures questioned practices within our own cultural community.”[61] As these scholars see it, respect for social values and the collective interests have crucial importance and are linked to the enjoyment of economic, social and cultural rights. Without the latter, human dignity and worthiness cannot be guaranteed. This is also why most Third World scholars regret to read many Western writings without understanding the very context the peoples in the Third World live. Professor Hountondji from the University of Benin, wondered:

“Who has decided from now on, human history must reproduce everywhere the choices or, at best, the alternatives of European history, that these alternatives were the only ones imaginable and practicable…?”[62]

As this scholar saw it, individual morality as appreciated in many Western societies is at odd with the collective morality valued in African societies. The distinction between these two value systems should not be belittled, since in the African societies:

“[T]he individual is nothing in himself and has value only when linked to his people. Above the rights of man is therefore the right of peoples. No conflict between these two orders can be tolerated: the individual has rights only in so far as he fulfils his obligations towards his people, and wherever there might be a conflict, the rights of the individual must naturally be sacrificed. What is more, it is not Europe’s role to dictate to us what we ought to do. It is in our traditional cultures themselves, in the standards and values they have bequeathed to us.”[63]

According to Professor Ife, the calls of some of the universalists urging the absorption of the Western model human rights by the Third World, represents a dangerous, dubious and ‘one-directional’ positivist worldview, one that “raises the danger of colonialism”[64] Ife, like other moderate relativists, supports universalism as long as its tenets take into consideration the particular regional characteristics and priorities. Bearing this in mind, he calls for a dialogue where one is prepared to listen to and learn from the other side, instead of assuming that one knows all the answers to controversial questions. By such an approach one could be better equipped to appreciate “what it means to be human and what it is that we value in our own humanity and that of others.”[65]

As stated earlier, there are many Western Universalists that are sympathetic to the concerns of relativists. R.J. Vincent, an ardent defender of universalism, for instance, concedes that the moral and political dilemma which universalism poses are obvious. “After all, “the argument provided by cultural relativism against imperialism appeals not merely because it is an argument against imperialism, but because it seems true. There is a pluralistic of cultures in the world, and these cultures produce their own values. There are no universal values.” [66]

Professor Antonio Cassese also believes that universalism sounds like a ‘myth’ that conceals “underlying disputes and differences” since it is obvious that Socialists, Islamists, Buddhists, Hindus, etc., just like the West, have all differing perceptions of what legitimate rights are.[67] Langlois went a step further in arguing that “as long as human rights is centred around a particular non-universal tradition – Western liberalism (in all its variety) – it cannot be universal: it fails on its own terms.”[68] According to Susan Mendus, “of course, an understanding of human rights as merely manifestations of a particular tradition is entirely at odds with the universalism implicit in the language of rights”.[69] Professor David Kennedy of Harvard University also states that: “The human rights tradition might itself be undermined by its origin … perhaps we should downplay the universal claims, or look for parallel developments in other cultural traditions, etc.”[70]

Likewise, as far as Professor Reichert is concerned: “Applying human rights universally, without deference to specific cultural principles, diminishes a nation’s cultural identity – a human rights violation in itself…. Culture, by necessity, often shapes the way individuals and groups view human rights, and this complicates the idea of human rights as universal.”[71]

The convergence: Both the above extreme positions link the origins of human rights to the West. This is why extreme relativists reject it as ‘alien’ and disruptive of their societies. They rely on their own religious and cultural values to oppose the equal rights of women and men and the different social groups (e.g., when opposing the termination of the cast system). Like extremist universalists, they also question the validity of economic and social rights since their realization could end up disrupting the existing social order. If women are educated and trained for work, then they may not end up spending the rest of their lives as housewives subordinated to their husbands. If the victims of the cast system get education and the freedom to choose the work they prefer, then they could end up taking up work other than the type that they have been compelled to engage in traditionally.

Extreme relativists and universalists have also one other thing in common, i.e., to perpetuate problems which the human rights law seeks to resolve by responding to needs, aspirations, justice and order. Extreme relativists do this by clinging to past traditions, beliefs and by linking politics with religion and culture by refusing change which liberates the oppressed. Extreme universalists agitate for individualism by underlining the importance of defending almost unrestricted freedoms of expression and privacy, often to the extent of fomenting anti-social conducts and undermining dignity and social and religious values and identities. They are insensitive to the collective interests of the marginalized groups and social conflicts because groups do not exist for them. What matters is the interests and morality of the individual, which should override collective morality. When social order is poisoned or disrupted through excessive individualism, extreme universalists have no solutions for the consequences. Their campaign for individualism appeals to the new generation in the South or East, who long to escape from the tentacles of the collective life (requiring the discharge of duties). However, once these youth are dislocated in their country or if they end up migrating to the ‘promised land’ (the West), and become vulnerable, extreme universalists have no human rights based solutions for their miserable state, since they do not recognize the legitimacy of economic and social rights. Individualism is preached aggressively mostly for disruption.

The regime of human rights and the discourse: critical assessment

The definition of human rights. While UN instruments generally avoid providing clear definitions for politically divisive terms, it is not difficult to see how the UN understands the concept of human rights. From some UN publications and the manner in which the provisions of some of the international instruments are construed one can see the general definitions that have been accepted. For instance, the opining paragraph of the 1993 Vienna Declaration and Programme of Action refers to human rights and fundamental freedoms as “the birthright of all human beings.” In one 1987 UN publication we see this concept defined as “those rights which are inherent in our nature and without which we cannot live as human beings … (which) allows us to fully develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual and other needs.”[72] More recently, the Office of the UN High Commissioner for Human Rights, provided the following broad definition:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. … Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law.., general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.” [73]

As will be explained later the reference that is made to “inherent”, “birthrights”, ‘general principles’ above does not please positivists since they accept rights that are recognized by governments only. Equally important and noteworthy is perhaps not so much what was said, but also what was not said. Does the fact that religion or culture was not mentioned imply that the UN has taken an a position dismissing the view which regards human rights as a religious or cultural talk? What about the fact that human rights are not said to be moral or legal or political ‘claims’ as some writers have argued?

The reasons why the UN did not regard claims and rights as the same are apparent. On the one hand, seeing rights in this manner gives the impression that legal rights are empty words awaiting to be activated through claims, as if claims have a normative character. On the other hand, it also gives the impression that rights are recognized but not framed as claimable before courts (e.g., economic, social and cultural rights) are not legitimate (not real rights but mere aspirations).

Claims obviously strengthen the practicality of rights. However, rights do not necessarily depend on claims. If rights are claims, what happens if they are not claimed? Infants, mentally challenged persons or the terminally ill in the hospitals cannot claim their rights personally. People sometimes fail to claim their rights because of shortage of money or time, because there are no courts in the vicinity, or because they were simply unaware of their rights or of the fact that they had been violated. Black Americans were prevented from exercising their civil rights for nearly two centuries. To argue that they did not have rights during those years because they did not claim them is to approve of the violations of their constitutionally recognized rights on technical grounds.

If claims bring rights, one can very well ask what the point would be in having rights at all. This, in fact, is how some relativists defend rights based on moral, religious or customary requirements. The fact remains that people approach courts to ask for remedies for the violations of their rights. In states that use the civil law system, courts are not mandated to make or distribute rights based on claims. They are there to interpret and apply existing laws. The body that enacts rights is the legislative branch (the parliament, and in some countries the Executive branch as well). When claims are made before courts, what is at issue is redress or remedies for the rights that are violated or disregarded. The victims are generally are free to exercise their rights their claim for remedies, unless the case involves crimes, which the prosecutor may pursue in the interest of the public. The fact that the victims have chosen not to press claims does not belittle their rights. These rights and the option to claim should not be equated as one and the same.

The view which ties rights to claims actually describes the legal situations in some of the common law countries, such as the United States, whose courts (at least at the level of the Supreme Court) are given wider powers to expand the regime of rights by interpreting the constitutional guarantees. The fact that economic, social and cultural rights are not claimed before courts in many Western countries, like the U.S., is frequently used as an important reason for questioning the validity of these rights.

The international regime of human rights recognizes civil and political rights as well as economic, social and cultural rights as universally valid. Unlike the former, that can be delivered immediately, the latter, as stated in article 2(1) of the covenant on economic, social and cultural rights, are realized progressively by using the “available resources”. Assuring education, health, adequate standard of living and the other benefits to all overnight is unrealistic. To weaken the arguments used by the skeptics of economic and social rights on the basis of the view that such rights cannot be claimed before courts, the UN introduced a protocol to the covenant on economic, social and cultural rights, allowing individuals and states to send petitions to the Committee on Economic, Social and Cultural Rights. The latter, which monitors how the recognized rights are promoted or disregarded, could consider if the formalities set for this process had been complied with. The covenant on civil and political rights also has a similar protocol. In addition, it requires that states which are parties to that instrument provide effective remedies to the violations of rights (article 2.3.b).

The justification used by the UN for promoting human rights universally is the conviction in ‘the dignity and worth of the human person’ which is stated in the preamble of its Charter. This is a clear philosophical statement by a political organization. This is because all the schools of thinking which question the equal dignity and rights of human beings based on race, gender or other consideration are rejected. Aristotle, for example, believed that some people were born free by nature and others as slaves. Rousseau dismissed this idea and claimed that all were born free by nature. Apparently, the UN has taken sides here by rejecting the former and accepting the latter. But this is not the creation of the UN. As the records of the drafting committee states: “That faith has never faded away. … But that faith needed reaffirmation in our Charter, especially after it has been trampled upon in Europe by Nazism and Fascism”[74] The word ‘worth’ was introduced to replace the original suggestion to use ‘value’ because the latter has economic connotations. [75]

The Universal Declaration of Human Rights elaborated this further by recognizing that: “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace”. This formulation can be interpreted in at least two different ways. On the one side, it can mean that dignity is the basis or source for freedoms, justice and peace. It can also be understood to mean that if rights are denied (whatever their sources is) dignity, peace and justice would be undermined. The relationship between rights and peace is elaborated further in the third preamble of this same declaration, in the following words: “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”

What the sources of dignity and worthiness are is not stated clearly. Do they arise from rational thinking (reason) or from beliefs based on religious or cultural values or norms? During the drafting of this declaration suggestions were made by some to make an explicit theological reference by mentioning that we are created in the image of God, but this was not acceptable to others who preferred to use Nature as a source or to leave this matter open.[76] It goes without saying that beliefs that question the dignity and worth of the human being on whatever ground was not be tolerated. Evidently, this political organization has taken a clear philosophical stand against beliefs or ideologies that question the equal worth and dignity of people, on the basis of factors like race, gender, age, and disabilities.

International human rights and the foundations/sources of rights.

Is positivism endorsed? Positivists do not feel that their position has become weakened by the international regime of human rights. The fact that the UN Charter has reaffirmed faith in the dignity and worth of the human being only reflects the shared belief or faith on this matter. Moreover, it merely reaffirmed what states agreed upon and recognized before. Furthermore, this is stated only in the preamble, which is not legally binding as are the operative paragraphs of that legal instrument. The fact that this faith has been echoed in the preambles of the Universal Declaration of Human Rights and the international conventions does not change anything as these preambles are not legally binding and what is stated in them is what the state parties merely agreed upon. In other words, there is nothing to suggest that Natural Law thinking has been crowned.

What is clear is that the recognition of the principle of sovereignty in the Charter protects their right to ratify or not to ratify the human rights instruments. When they do decide to ratify these instruments, they can make reservations to the provisions of the treaty by explaining how the obligations they have assumed are to be understood or interpreted. The only exception to this rule would be instances where the reservation that is made defeats the purposes and objects of the instrument. If one looks closely at some of the reservations which some states have made, one is led to wonder what the whole point was in ratifying the instrument in the first place. There are those who opt not to ratify the instruments and defend their stance by reference to their ideological convictions. For example, the U.S. has not ratified the covenant on economic, social and cultural rights, and China has not ratified the covenant on civil and political rights.

This is by no means to say that states are free to commit serious international crimes, such as genocide, war crimes, crime against humanity, or even to resort to widespread systematic and persistent cycles of human rights abuses. The Charter-based mechanism and the international criminal court can be used to respond to such challenges if abuses do occur. Such violations are deemed to be of essential concern to the international community.

Is Natural Law endorsed? The defenders of Natural Law appreciate the inscription of human rights in the international human rights instruments not least because some of these documents make a clear reference to “the inherent dignity and the equal and inalienable rights of all members of the human family” confirming the existence of the rights prior to governments. Added to this is the reference that is made to the relevance of ‘general principles’ which is included in the human rights definition provided by the office of the UNHCHR, which is taken from article 38 of the Statute of the international Court of Justice (as one of the sources of international law). However, the fact remains that it is the political actors who are entitled to interpret these ‘inalienable’ and ‘inherent’ rights: This, however, cannot be done through arbitrary methods but “according to due process” [77]

There are also expressions in the international instruments which could be interpreted to strengthen the viewpoint which claims that human rights respond to the requirements for survival. The recognition of the right to life, work, health, to freedom from cruel and inhuman treatment or punishments etc. support this. Furthermore, the third preambular paragraph of the Universal Declaration of Human Rights states that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. This suggests that rights are protected out of necessity – because there is no choice but to do that – to avoid rebellion.

Individualization: When the UN turned attention to the preparation of the first universal instrument recognizing the legitimate human rights and freedoms, one of the challenging questions was whether the rights that are legitimate are only those that belong to individuals, thus questioning the validity of collective rights. Should these rights be articulated only as individual rights? The first two articles of the Universal Declaration of Human Rights laid down the ground for this individualized approach to rights by proclaiming that ”All human beings are born free and equal in dignity and rights” (art. 1) and that: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (art. 2. Emphasis added)

The catalogue of rights that are recognized in this Declaration include the civil, political, economic, social and cultural rights which ‘everyone’ has and the prohibition of exposure to slavery, torture, cruel, inhuman and degrading treatment or punishment etc. This instrument also defends the principle of equal rights and non-discrimination when it comes to the enjoyment of the proclaimed rights, including equality before the law, the equal protection of the law and recognition as a person before the law.

This approach was repeated in more elaborated and legally binding languages when the covenant on civil and political rights, the covenant on economic, social and cultural rights and other conventions were prepared and adopted. For instance, the covenant on economic, social and cultural recognizes the rights of everyone to education, health, work, adequate standard of living and participation in culture. The covenant on civil and political rights acknowledges the rights of everyone to life, liberty, security, privacy, freedom of thought, expression, association, assembly, political participation, effective remedy and protection from slavery, torture, cruel, inhuman and degrading treatment or punishment.

The ‘social’ nature of mankind is not questioned by the international community for obvious reasons. On the contrary, the human rights instruments provided protection to the family, and recognized the existence of duties to the national communities. States have reserved their rights to limit most individual rights in the interest of protecting ‘public’ order, ‘public’ moral or ‘public’ safety. ‘Public’ connotes a social or collective entity. The right of peoples to self-determination, which is recognized in the UN Charter, and later used for purposes of decolonization is an obvious group right. In 1950 the UN General Assembly reaffirmed this right by considering it as human right (res. 421 D (V), on 4 December 1950) and as a pre-requisite for the full enjoyment of human rights (res. 637 (VII) 16 Dec. 1952). This right was finally included into the two international covenants (article 1) on the basis of the instruction given to the drafting Commission by UN General Assembly resolution 545 (VI).

However, this right to self-determination was not meant for smaller groups, such as minorities possessing linguistic, religious or ethnic identities. The minority rights that are recognized in article 27 of the International covenant on Civil and Political Rights, merely states that:

This twisted and negatively construed provision is evidently shy when it comes to acknowledging that minorities do exist and have their group rights. Instead of affirming their rights explicitly it refers to the rights of their individual members that should not be denied. True, the provision mentions that states should not prevent individuals from expressing their characteristics which can be exercised “in community with the other members of their group”. The Human Rights Committee, which monitors how the states that have ratified this convention, give practical effect to their undertakings, also by making sure that these characteristics are protected. By so doing, this Committee endeavored to strength the weakly formulated minority rights provision used in article 27 of the covenant on civil and political rights. [78]

When the UN was criticized for abandoning minorities, by dragging its feet on the matter of protecting minorities it adopted the 1992 minority declaration. This declaration improved the defective formulation of article 27, by urging states to “protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories” also by encouraging the “conditions for the promotion of that identity” (art. 1(1)). While this is important, it still fell short of empowering the subjects by enabling them to create these conditions. In other words, states are still left free to determine if minorities exist by taking “appropriate legislative and other measures” (art. 1(2)), although this should not be done arbitrarily (defying the objective reality). No reference is made to a right to use minority languages in schools, let alone to establish their own schools. There is the expectation that “states should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.” (art. 4(4)) When it comes to the promotion of participatory rights, what is provided is that states should have “due regard to (their) legitimate interests” when planning and implementing the national policies and programmes (art. 5(1), and to “consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country” (art. 4(5)).

By 2007, the UN has adopted separate declaration for indigenous groups – which up until then were mostly treated as minorities and relying on article 27 of the covenant on civil and political rights for protecting their rights. This non-legally binding instrument protected the collective rights of indigenous peoples to self-determination in the form of autonomy or self-government (arts. 3 & 4) and the use and exploitation of their traditional lands, territories and resources (art. 26). They were also allowed to maintain and strengthen their economic, social, cultural and legal systems and institutions (arts. 5, 20 & 34), and to continue determining the priorities and strategies for exercising their rights to development (art. 23). The declaration also acknowledges their rights “to establish and control their educational systems and institutions” (art. 14), to use “their own media in their own languages” (art. 16), to maintain, practice and develop cultural traditions and customs (arts. 11 & 12). The kinds of protection that are extended for them by this declaration includes from forcible eviction from their traditional lands or territories (art. 10) and from hindrances in using “their traditional medicines … medicinal plants, animals and minerals” (art. 24).

If the UN was forced to take a clear stand in this way by defending the collective interests of indigenous groups, why it is not doing the same when it comes to minorities, when the situation confronting some of them is similar to that of indigenous groups? The ILO appears to be more consistent in this regard since its 1989 convention (no 169) was extended to tribal peoples whose ways of life resemble that of the indigenous. But what about minorities who have neither ‘tribal’ nor ‘indigenous’ characteristics? Is the principle of equal rights and non-discrimination sacrificed here? This discrepancy vindicates the viewpoint which regards international human rights law as a political construct. When it comes to recognizing the self-determination of those that have internationally recognized territories (which were basically used for purposes of decolonization), the UN General Assembly had to instruct the UN Commission on Human Rights in 1950 to insert an article dealing with the right of peoples to self-determination into the covenants (which were being drafted at the time). This was also reaffirmed in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.

Universalism v. relativism. The UN is mandated and obliged to promote “universal respect for, and observance of, human rights and fundamental freedoms”, and the members have pledged “to take joint and separate action in co-operation with the organization.”[79] On the other side, the organization is based on the recognition of the principle of sovereignty which means that states are entitled to protect their national interests. Is it possible for these states to give up these national interests in favor of a uniform human rights policy when these political actors have different ideological, political, economic and other interests including inside other states? Can political traditions based on Natural Law, positivism, religious convictions etc. be harmonized?

The Western ideals and political traditions relating to human rights were inspired by the gains secured from the American and French revolutions. The 1789 French Declaration on the Rights of Man and the Citizens clearly reaffirmed the “natural, inalienable, and sacred rights of man.”[80] Following the occupation of the neighbors of France by Napoleon, the gains of the French revolution were introduced to the occupied countries. The Law of Nature was also invoked in the 1776 American Declaration of Independence as the justification for the independence of the United States and the exercise of the peoples’ “inalienable Rights” including “Life, Liberty and the pursuit of Happiness”, to which “God entitles them”. According to this declaration “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”.[81] The members of the Organization of the American States had already adopted their own Declaration on the Rights and Duties of Man, several months before the adoption of the Universal Declaration of Human Rights by giving a stamp of approval to the Western version of human rights, by defending ”the dignity of the individual” and ”the essential rights of man”.[82]

About a year after the UN adopted the Universal Declaration of Human Rights, Western European countries too adopted their own regional convention to strengthen their civil and political rights. One of the grounds for their resolve to do so was their view that they were ”like-minded” states, possessing ”a common heritage of political traditions, ideals, (on) freedom and the rule of law. They were in a position to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” (the last preamble). The like-minded East European Socialist states too forged their alliance with the Soviet Union by the middle of the 1950s, by establishing, for example, the Warsaw Pact (in response to the formation of NATO). When the UN was debating the human rights agenda these Socialist bloc countries were operating in ways that were harmonious with the Marxist ways of thinking.

In short, although the UN managed to adopt the first non-binding Universal Declaration of Human Rights in 1948 by ‘pleasing’ both sides, all these states had already positioned themselves in defense of their preferences for shaping what should be universal, when it was time to prepare the legally binding covenants. The East was glamorizing economic and social rights, and the West had dug in to protect civil and political rights. Both were engaged in rallying the countries of the ‘Third World’ that were emerging from colonialism. Although this East-West description of the politics of human rights encapsulates the basic features of the diplomatic struggle of that time, the reader should be aware of the dangers involved in over-simplifying this complex subject-matter, not least because ideological pretentions or political propaganda are often deceptive, and what is claimed politically may not always be true in the real political world. After all, two of the Four Freedoms which President Roosevelt of the U.S. defended during World War II and which the U.S delegation supported when the Universal Declaration was drafted concerned responding to wants and needs. The U.S. was behind Europeans even when they were struggling to rebuild their destroyed infrastructure at the end of World War II. Again, even if the U.S. was raising the banners of civil and political rights very high during the debates in the UN, it is dishonest to claim that it was respecting them at home before the civil rights movements of the 1960s. The ratification of the covenant on civil and political rights itself had to wait until the USSR had collapsed.[83]

Following the demise of the socialist order in the USSR and Eastern Europe, in 1991, many observers applauded the triumph of the Western political systems and values, fully convinced that this model will now serve as the basis for the universalizing of human rights. However, what was once an East-West political confrontation now took the form of a North-South confrontation or what latter came to be debated as the discourse on ‘universalism and cultural relativism’. This was because the latter states were vigorously defending their traditions and political systems in line with their values.

The African Union (previously the Organization of African Unity) had already adopted its African [Banjul] Charter on Human and Peoples’ Rights in 1981, making it clear that group-rights, economic and social rights and African values would always matter in Africa. This Charter was adopted with a view to protecting “the virtues of their historical tradition and the values of African civilization.”[84] More specifically, it underlined the duties which the individual had “towards his family and society” [85] and “to preserve and strengthen positive African cultural values”. The features of relativism could not have been clearer.

When the Member States of the Organization of the Islamic Conference met in Cairo, in 1990, and adopted their Declaration on Human Rights in Islam they too had made it clear that the rights and freedoms which they recognized would be those that could be harmonized with Islamic Shari’a and the “divine commands, which are contained in the Revealed Books of Allah”[86] The Asiatic governments too had adopted their own Bangkok Declaration [87] defending relativism, shortly thereafter. Although this document recognized the universality, indivisibility and interdependence of economic, social, cultural, civil and political rights, it also stated: “that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.” [88] This document rejected the promotion of human rights through “the imposition of incompatible values” [89] and regarded intervention on the pretext of human rights as a violation of the principle of national sovereignty and non-interference in internal matters.[90]

However fragmented the political scenario presented above may appear, it did not hinder the UN from devising a formula that would reconcile the deadlocked positions. Thus, when international communities met in Vienna, in 1993, and adopted the Vienna Declaration and Programme of Action, the deadlock between the universalists and relativists was reconciled on the basis of the following formula:

“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. “[91]

This passage raises two interesting points. On the one hand, it appears that the UN had retracted its earlier assumption, mentioned in the 1968 Tehran Proclamation, which stated in operative paragraph 13, that “the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.” Secondly, if all human rights are universal and interdependent and indispensable for protecting human dignity, then those who reject either civil and political rights or economic, social and cultural appear to be relativists. True universalists recognize both these categories of rights. The rejection of the formula embodied in the above quotation would have left states deadlocked on how to proceed. One can also view this formula as one that has not broken any new ground, since the paradox of universalism and relativism have always been vivid in the international system. In support of this conclusion the following points could be mentioned.

Universalism was the obvious point of departure for the recognition and development of the international regime of human rights. The UN Charter has affirmed the dignity and worth of the human person and has mandated the organization to promote human rights universally and without discrimination. The manner in which the international instruments have been framed underline the assumption. As the title used for the Universal Declaration of Human Rights suggests, the rights and freedoms that are proclaimed in these instruments are intended to be universal. This was reaffirmed by the UN General Assembly in the 1968 Tehran Declaration when it celebrated the twentieth anniversary of the adoption of the Universal Declaration of Human Rights and on other similar occasions (such as the adoption of the 1993 Vienna Declaration and Programme of Action). Like the provisions of the Universal Declaration on Human Rights, the provisions of the ratified core conventions also acknowledge that ”everyone” is entitled to the rights and freedoms that are recognized therein and the obligations of the ratifying states, include to respect and promote these for “all” under their jurisdiction. Because human rights are universal, they remain of concern to the international community, as it has the mandate to promote them universally – especially when the ratified instruments are disregarded.

Relativism is also firmly anchored in the international system and the human rights instruments. The fact that the whole international system rests on state sovereignty furthers relativism, since states are free to choose the convention they want to ratify or reject. When they choose to ratify, they have the power to make reservations by explaining how their obligations are to be understood.

Respect for “the principle of equal rights and self-determination of peoples” which is recognized in article 1(2) of the UN also supports the relativist stance since it entitles all nations the right to use the individualistic or collectivistic political and cultural system. Paragraph 5 of the 1970 UN Declaration on Friendly Relations among Nations elaborates this principle to mean recognition of the rights of all peoples “to determine, without external interference, their political status and to pursue their economic, social and cultural development”. This right is also restated in article 1(1) of the two international covenants. Article 5 of the 2001 UNESCO Universal Declaration on Cultural Diversity, considers cultural rights “an integral part of human rights (art. 5) Moreover, according to art. 4 of this Declaration: “The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples.”

The interests of relativists are further served by the fact that the great majority of the recognized human rights and freedoms are framed not only in broad and general ways, but also by recognizing the rights of national authorities to restrict them on grounds, such as, national security and morality. If states are free to do this at the national level, to require some nations to change their political, social and cultural systems to fit the traditions of foreign states will be unjust and a violation of the principles of sovereignty and self-determination.

Conclusion

There is no question that what was once dismissed as ‘the human rights talk’ has now taken center stage as an integral part of the international regime of human rights. This regime is a political construct, one that is shaped by states and inter-governmental organizations. These actors recognize the political nature of human rights and use political tools to promote these rights. The road forward was long and twisted. What was started as broad and generalized standard setting based the Universal Declaration of Human Rights gradually led to the adoption of a long list of legally binding conventions. Needless to say, the fact that human rights are legally recognized now does not mean that they have ceased to be political.

The political nature of human rights is obvious from the fact that they provide the foundation for order and stability. Some of the recognized rights are used for political ends, e.g., the rights to the freedoms of expression, association and voting rights. States also rely on human rights to criticize or undermine other political entities, especially their opponents, even when their own human rights records are not any better. Until the end of the Cold War, the U.S. was perceived as the leader of the civil and political rights movement although it did not even ratify the covenant on civil and political rights prior to 1992. Communist Soviet Union, which was critical to the legitimacy of the individualized ‘rights of man’, ratified the civil and political rights covenant in 1973 to gain political currency.

Because human rights are political, the states that developed the international regime of human rights had to be careful in navigating between the religious, cultural and ideological currents hindering consensus. The factor that was used to unify the diverse political actors behind a common platform to justify the development of the human rights law was conviction in the dignity and worth of the human being. Where this is derived from was left open. If human beings are worth, life has to be protected, including also by recognizing the rights to the freedoms of expression, association, assembly, religion, movement, and other rights. If dignity and worthiness are to be appreciated, then the rights to health, food, water, shelter, adequate standards of living, education, etc. cannot be questioned. This was why the international regime of human rights had to acknowledge all these rights, and why the international community viewed civil, political, economic, social and cultural rights as interdependent and universally valid. This is a political philosophy which takes a clear stand by dismissing the different schools of thought which rejected or belittled economic, social and cultural rights or civil and political rights or the principle of equal rights. This is not to say that the goals set in 1945 have been achieved. It is merely to acknowledge the gains made by transforming ‘the human rights talk’ to an international emergence of regime that follows its own political philosophy. There is still the need of sharpening the language of some of the human rights instruments, since they are infested with vague and general formulations, making them susceptible to ideologically and politically inspired interpretations. If this international regime is to strengthen its legitimacy, it should respond to the needs and interests of all the beneficiaries, also by developing more efficient mechanisms for monitoring the promised rights.

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Notes

*Juris Doctor, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was submitted to the human rights conference arranged by the Nordic Summer University in Finland on 24 July 2016. The author is grateful to the Orfalea Center for Global and International Studies, University of California Santa Barbara for welcoming him as a visiting scholar to complete the study especially to the Director, Professor Michael Stohl, the Program Director Victor Faessal and to Professor Alison Brysk.

[1] See Declaration on the Elimination of All Forms of Racial Discrimination (res. A/RES/1904 of 20 Nov. 1963), Declaration on the Elimination of Discrimination against Women (res. A/RES/2263(XXII) of 7 Nov. 1967), the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (res. A/RES/36/55 on 25 Nov. 1981), Declaration of the Rights of the Child (res. 1386(XIV) of 20 Nov. 1959), and Declaration on the rights of disabled persons (res. 3447 (XXX) of 9 Dec. 1975).

[2] See the International Convention on the Elimination of All Forms of Racial Discrimination (res. A/RES/2106 A(XX) of 21 Dec. 1965), the International Covenant on Civil and Political Rights (CCPR) (res. A/RES/2200A(XXI) of 16 Dec. 1966), the International Covenant on Economic, Social and Cultural Rights (CESCR) (res. A/RES/2200A(XXI) of 16 Dec. 1966), the Convention on the Rights of the Child (res. A/RES/44/25 of 20 Nov. 1989), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (res. A/RES/45/158 of 18 Dec. 1990).

[3] Burton’s Legal Thesaurus, 3rd ed. William C. Burton, ed., (New York: McGraw-Hill, 1980 {1989}); Random House Webster’s College Dictionary, 2nd ed., (New York: Random House, 1991 (1998)).

[4] Burton’s Legal Thesaurus…; Black’s Law Dictionary, 7th ed. Bryan A. Garner, el al, eds., (St Paul: West Group, 1999).

[5] The New International Webster’s Comprehensive Dictionary of the English Language (Florida: Trident Press International Law, 1971 {1999}).

[6] Thomas Hobbes, Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}), pp. 85-8 & 100 – 103 & 116.

[7] I. Kant, The Science of Right” in, Great Books of the Western World, Vol. 42, R. M. Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952), p. 435 (Author’s Emphasis).

[8] Ibid., p. 436.

[9] John Locke, “An Essay Concerning the True Original Extent and End of Civil Government”, Great Books of the Western World, Robert Maynard Hutchins el al, Vol. 35, p. 27.

[10] Michael J. Perry, The Idea of Human Rights: Four Inquiries. Oxford: Oxford University Press, 1998), pp. 12-21.

[11] Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, University of Minnesota Human Rights Library, in http://www1.umn.edu/humanrts/instree/cairodeclaration.html

[12] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: The New American Library, 1962{1964}), pp. 124-5.

[13] Ibid., p. 28.

[14] Ibid, pp. 124-5; See also Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 214; & R.J. Vincent, Human Rights and International Relations, Cambridge: University Press, 1986 (1988), ch. 1.

[15] Marx, ‘On the Jewish Question’, in K. Marx/F. Engels, The Marx-Engels Reader, 2nd ed., Robert C. Tucker ed., (New York: Princeton University, 1978) pp. 42-43.

[16] Thomas Aquinas, The Summa Theologica, in, Great Books of the Western World, Vol 20, p. 228. See further, John D. van der Vyver, “Introduction: Legal Dimension of Religious Human Rights: Constitutional Texts”, in, John D. van der Vyver and John Witte, Jr., eds. Religious Human Rights in Global Perspective: Legal Perspectives (The Hague, Martinus Nijhoff Publishers, 1996), specially pp. xxx-xxxi.

[17] Hugo Grotius, The Law of War and Peace: De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey (New York: The Liberal Arts Press, 1925), pp. 38-9.

[18] Hobbes, pp. 86-7 & 101.

[18] Locke, pp. 26-30, & 46-47.

[20] Kant, p. 401.

[21] Ibid., p. 405.

[22] Ibid., p., 409.

[23] Anthony Arblaster, The Rise and Decline of Western Liberalism (Now York: Basil Blackwell Inc., 1984), p. 15.

[24] Jack Donnelly, “Human Rights, Individual Rights and Collective Rights”, in Jan Berting, and el al., eds Human Rights in a Pluralist World: Individuals and Collectivities (London: Meckler, 1990), p. 45. According to Donnelly “We do not need a human rights to cultural identity”. Ibid., p. 59.

[25] Rand, p., 126, citing her own work, in Atlas Shrugged. See also R.J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), pp. 7-9 & 13-14; Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca: Cornell University Press, 2003), pp. 1-2 & 13.

[26] Rand, Ibid, pp. 130-131. See further pp. 31 and 129

[27] “If the desires, values and development of the individual are socially determined”, wondered Crowley, “then in what way are his ‘choices’ morally significant and sovereign?”. Crowley, p. 57. By rejecting collective rights, added Crowley, those who dismiss the social nature of people actually obstruct the basis for formulating the legal language for resolving the problems faced by the marginalized groups.

[28] T. H. Huxley, Science and Christian Tradition, Prologue, in Mortimer J. Adler & Charles Van Doren, eds., Great Treasury of Western Thought: A Compendium of Important Statements on Man and His Institutions by the Great Thinkers in Western History (London: R. R. Bowker Co., 1977), p. 693.

[29] Crowley, p. 57.

[30] The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, reproduced from the Bowring editions of 1838-1843, by John Bowring), Vol. III, pp. 218-220. This collection will hereafter be cited as Works… ).

[31] Ibid., Vol. III, p. 221.

[32] Ibid… See further pp. 221 & 219.

[33] Works …, Vol. III, p. 159; and An Introduction to the Principles of Moral and Legislation, pp. 2-4, & 224-225.

[34] Works, Vol. III, pp. 217-218, 220-1; & Vol. 1 p. 301.

[35] Ibid., Vol. III, p. 159.

[36] Quoted by H. L. A. Hart, in Essays on Bentham: Studies in Jurisprudence and Political Theory, (Oxford: Clarendon Press, 1982), p. 2.

[37] Letter of Marx to Engels, dated 18 Feb. 1865, in Karl Marx & Friedrich Engels, Correspondence: 1846-1895. A Selection with Commentary and Notes (Bristol: Western Printing services, Ltd., 1934?), p. 193.

[38] Perry, pp. 12-21, especially p. 20.

[39] J. Donnelly, The social construction of international human rights, in Tim Dunne and Nicholas J. Wheeler, eds. Human Rights in Global Politics (Cambridge: University Press, 1999) p. 81.

[40] R. J. Vincent, “Introduction” in Vincent ed., Foreign policy and human rights: Issues and responses (Cambridge: Cambridge University Press, 1986), p. 3. The source of human rights, according to Vincent is Natural Law, ibid., pp. 11 & 33.

[41] Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: The University of Chicago Press, 1982), pp. 1 & 3.

[42] Statement of Mr. Justice Stayton, in Mellinger v. City of Houston (1887), 68 Tex., 37, 45; 3 S. W., 249, 253, sited by Wesley N. Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, Walter Wheeler Cook, ed. (New Haven: Yale University Press, 1919 {1966}), p. 71, note 16.

[43] Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980), p. 151.

[44] Ibid., p. 139.

[45] David Beetham, “Introduction: Human Rights in the Study of Politics”, Political Studies (1995), Vol. XLIII, special issue p. 3.

[46] Michael Freeman, Human Rights: An Interdisciplinary Approach, 2nd ed Cambridge: Polity, 2012, p.11.

[47] Elisabeth Reichert, “Human Rights in the Twenty-first Century: Creating a New Paradigm for Social Work”, in E. Reichert, ed. (2007). Challenges in Human Rights: A Social Work Perspective. New York, University Press p. 5.

[48] Ibid, p. 6.

[49] David P. Forsythe, Human Rights in International Relations, Cambridge, Cambridge University Press, 2012 2nd ed., p. 6.

[50] Sir Stephen Sedley, “Human Rights: A 21st Century Agenda”, in Robert Blackburn and James J. Busuttil, eds., Human Rights for the 21st Century. London: Printer, 1997, p. 1.

[51] Forsythe, p. 40.

[52] Donnelly, The social construction of international human rights, p. 82.

[53] Freeman, Human Rights…, p. 11

[54] Donnelly, Universal Human Rights p. 87.

[54] Forsythe, p. 40.

[56] Donnelly, The social construction of international human rights, p. 80.

[57] Rhoda Howard, Rhoda Howard, “Is there an African concept of human rights?”, in R. J. Vincent, ed., Foreign Policy and Human Rights: Issues and responses, p. 25.

[58] Ibid., p. 24.

[59] Michael Freeman, “Universal Rights and Particular Cultures”, Michael Jacobsen and Ole Bruun, eds., Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia (Richmond: Curzon Press, 2000), p. 49.

[60]. Donnelly, Universal human rights p., 119.

[61] Jim Ife, “Cultural Relativism and Community Activism”, in E. Reichert, ed., Challenges in Human Rights, p. 79.

[62] Paulin J. Hountondji, “The master’s voice – remarks on the problem of human rights in Africa”, in Philosophical foundations of human rights, (Paris: UNESCO, 1986), p, 326.

[63] Ibid., p. 328.

[64] Ife, pp. 77-78. Obrad Savić also took this as an example of Western hegemonism. Obrad Savić, Introduction: The Global and Local in Human Rights: The Case of the Federal Republic of Yugoslavia”, in Savić, ed., The Politics of Human Rights, Verso, 1999, p. 7.

[65] Ibid., p. 88. See further Mohammed Allal Sinaceur, “Islamic tradition and human rights”, in Philosophical Foundations of Human Rights, p. 199; Fouad Zakaria, “Human Rights in the Arab World: the Islamic Context”, ibid., pp. 227-228; & Ryosuke Inagaki, “Some Aspects of Human Rights in Japan”, in ibid., p. 187.

[66] R. J. Vincent, Human Rights and International Relations, p. 38.

[67] Antonio Cassese, Cassese, “Are Human Rights Truly Universal?”, in Savic (ed.), The Politics of Human Rights, p. 161 & pp. 162-164.

[68] Anthony J. Langois, The Politics of Justice and Human Rights: Southeast Asia and Universalist Theory (Cambridge: Cambridge University Press, 2001); p. 7.

[69] Susan Mendus, “Human Rights in Political Theory”, Political Studies Vol XLIII (1995), Special Issue, Politics and Human Rights p. 13.

[70] David Kennedy, “The International Human Rights Movement: Part of the Problem?, (2000), E.H.L.R., Issue no.3, p. 257.

[71] Reichert, Human Rights in the Twenty-first Century, p. 9.

[72] Cited in UN Center for Human Rights, Human Rights and Social Work: A Manuel for Schools of Social Work and the Social Work Profession – Professional Training Series, no 1, 1994 (HR/P/PT/1).

[73] UNHCHR, ”What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[74] Report of Rapporteur of Committee I/1 to Commission I, Doc 944, June 13, 1945, The United Nations Conference on International Organization, Selected Documents, U.S. State Department, 1946 reproduced in https://babel.hathitrust.org/cgi/pt?id=mdp.39015030752813;view=1up;seq=504, p. 493.

[75] Ibid., pp. 490-3.

[76] Tore Lindholm, “Article 1” in Asbjorn Eide, Gudmundur Alfredsson, Goran Melander, ,Lars Adam Rehof and Allen Rosas eds. The Universal Declaration of Human Rights: A Commentary. Oslo: Scandinavian University Press, 1992, pp. 31-55, especially pp. 42-48.

[77] UNHCHR, ”What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.

[78] General Comment 23, Art. 27, para.. 6.1, in U.N. Doc. HRI/GEN/1/Rev.1 at 38 (1994).

[79] Arts. 55 and 56 respectively. Emphasis added.

[80] See the History Guide, Declaration of the Rights of Man and the Citizen, August 1789. in http://www.historyguide.org/intellect/declaration.html

[81] See The Declaration on Independence: A Transcription, The Charters of Freedom, in http://www.archives.gov/exhibits/charters/declaration_transcript.html.

[82] https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm Emphasis added.

[83] This is why one should not confuse human rights ideals with actual behavior. Indeed if the defense for civil and political rights was in line with the ideological orientation and national traditions of the American States as it is often claimed, one may wonder why the members of the Organization of the American states had to wait until late in 1978 to ratify the American Convention on Human Rights. The West European countries did manifest their loyalty for the defense of civil and political rights by adopting the 1950 European Convention on Human Rights. However, a decade later they also adopted the Social Charter recognizing economic and social rights, in haphazard ways. Most of the states that ratified this instrument were also parties to the ILO conventions protecting economic rights. These Western states also gradually ratified the covenant on economic, social and cultural rights blurring the East-West divide relating to the kinds of rights that should have been recognized. The fact that the defectively formulated Social Charter was revised several times and that the European Union too adopted its own Charter on Fundamental Rights also shows further that economic and social rights are not as alien to the West as it is often claimed.

[84] See preambular paragraphs 7 and 4 respectively, in OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

[85] Arts. 27(I) & 29(1).

[86] Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, University of Minnesota Human Rights Library, in http://www1.umn.edu/humanrts/instree/cairodeclaration.html

[87] Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights, in http://www://google.com. This instrument was adopted by the representatives of Asian States, at the end of their meeting (from 29 March to 2 April 1993), in Bangkok, in the context of preparations for the World Conference on Human rights.

[88] Ibid., 8th operative para.

[89] Ibid, preambular para. 10, & operative para. 3.

[90] Ibid, preambular para. 8, & operative para. 5.

[91] Part I, operative paragraph 5 of the Programme of Action. Operative paragraph 10 also states that “While development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.”

The Economic Ethics of Arthur Fridolin Utz

24/09/2016Conference proceedings (triple non-blind peer review)Adam Smith, Aquinas, Buchanan, Castoriadis, Catholic, Catholic Social Teaching, Christian democracy, Dominican, Galbraith, Hayek, Koslowski, Liberalism, McMurtry, Sik, Social Doctrine of the Church, Socialism, Thomism, Walberberg, economics, ethics, human rights, justice, laissez faire, ordoliberalism, social market, third wayGiorgio Baruchello

Introductory remarks

The present essay offers a detailed, reasoned synopsis and a brief discussion of the 1994 book Economic Ethics,[1] written by the German-Swiss[2] social philosopher Arthur Fridolin Utz (1908-2001).[3] Utz is known chiefly in German-speaking theological circles and in Catholic ones in particular. He is also known in those of southern Europe where, to date, only a few of his many books have been translated into Spanish, French and Italian.[4] Utz’s research deserves attention, both for its inherent value and in connection with Peter Koslowski’s reflections on economic ethics, about which Jacob Dahl Rendtorff has recently reported to our NSU research group.[5] Thus, this essay is a spin-off of Jacob’s own foray into economic ethics and an integration of the same, for it deals with a different, well-established approach. Equally, it is an attempt at bringing to the attention of Nordic scholars, especially in the human and social sciences, the work of a thinker that is still hardly known in my adoptive country, Iceland, as well as in Scandinavia. Finally, given the absence of English-language translations and comprehensive studies of Utz’s books, it is also a useful reference work for Anglophone academia at large.[6]

For almost thirty years, Utz taught social and moral philosophy, economic ethics and legal theory at the University of Fribourg in Switzerland, where he also directed the International Institute for Social and Political Sciences of the Union of Fribourg.[7] Together with Austria’s Johannes Messner (1891-1984),[8] Utz was a key-member of the German-speaking Catholic school of thought that, in post-war Europe, exercised considerable influence in the development of both the Social Doctrine of the Church[9] (also known as Catholic Social Teaching; hereafter SDC) and the social market economy, which was promoted by Christian-democratic parties both at a national level (especially in former Western Germany[10], Austria[11] and Switzerland) and at a continental one (i.e. in what we call today the European Union).[12] Among Utz’s interlocutors on economic matters were the World-famous Canadian-born liberal economist John Kenneth Galbraith (1908-2006) and the Czech socialist economist Ota Šik (1919-2004), who is best remembered as the architect of the economic section of Dubček’s Action Programme in the Prague Spring of 1968.

The book is the fourth instalment in the author’s monumental Social Ethics, which comprises five volumes in total: (1) Principles of the Social Doctrine (1958; 2^nd ed.1964); (2); Philosophy of Law (1963); (3) The Social Order (1986); (4) Economic Ethics (1994); and (5) Political Ethics (2000).[13] None of these volumes has been translated into English yet. I myself, being far from fluent in German, owe my acquaintance with Utz to the Italian translations of volumes 4 (1999) and 5 (2008) of his Social Ethics, both published by San Paolo, and to the 1997 French translation of his 1975 book Zwischen Neoliberalismus und Neomarxismus: die Philosophie des dritten Weges (Köln: P. Hanstein).[14] Before engaging in the detailed, reasoned synopsis of the book, I summarise here its main elements.

In his Economic Ethics, Utz applies a Thomistic ethics to the domain of economics. Economic life is thus seen as a sub-domain of human and, as such, of social life—for we are essentially social animals. Henceforth, economic life can be deemed good or bad on the basis of whether it assists coherently in the realisation of the inherent ends of the human person, who is essentially social.[15] Thomistic ethics is a teleological ethics: human actions have a defining material object—for example eating has the acquisition of nourishment as its proper object—and also a defining human end—for example eating aims at sustaining the person towards her achievement of happiness.[16] Human reason, albeit imperfect, is considered capable of abstracting from experience the fundamental principles of organisation of reality, including the aims that are natural and therefore truly positive for creatures, their societies and creation itself to have.[17] Articulate, logical reasoning upon experience can produce knowledge of the deepest layers of reality, while empirical science stays closer to the surface of observable, quantifiable facts.[18] As Utz writes: “The philosopher moves at the level of inherently immutable essences”, provided that she starts her “abstraction” from concrete “empirical-ontological data” (1.2.3).[19]

Humanists be optimists.[20] Our natural faculties, albeit imperfect, are still capable of identifying what “natura humana” consists in, especially if they make use of the body of intelligent reflection on human experience provided by centuries of philosophical and theological study, rather than rejecting it as archaic or unscientific (1.2.4).[21] Building on tradition, intuition, observation (including the scientific one) and reflection, human intelligence can dig deep.[22] This is the specific contribution that philosophy, in its Thomistic understanding, can make to human knowledge. This is what, according to Utz, metaphysicians and ethicists can do that is unique to their profession. In the field of economics too, the philosopher can ascertain deeper and more essential aims of economic agency, which the economist would not consider, for she would limit her investigation to the “technical questions” of economics (1.2.6.2).[23] For example, a philosopher can assess as negative a booming national or international economy, which grants unprecedented wealth to the members of today’s society and yet imperils the wellbeing of tomorrow’s society because of the overexploitation of natural resources.[24] Empirical data are the beginning of reflective wisdom, not its end.

Utz discusses the deeper and more essential aims of personal and social life, of which economic life is but a part, in the first instalment of his five-volume-strong Social Ethics. In the present volume, he merely hints at some of them. In addition to expressing general agreement vis-à-vis Ota Šik’s list of universal human needs (4.1), Utz speaks recurrently of bodily sustenance (e.g. 1.1), meaningful and dignified self-direction (e.g. 1.2.3), family life (e.g. 1.2.4), acculturation (e.g. 1.1) and religious life (e.g. 1.2.6).[25] In typical Thomistic fashion, “God” is defined as “the ultimate and integral end of the human being”, i.e. the true attainment of “happiness” or “perfection” (1.2.6). Having such an ultimate end in the next life means that, in this life, we ought to pursue the penultimate ends of virtuous behaviour (i.e. prudence, temperance, justice, etc.), all of which can be sought only by way of consistent, responsible, personal agency under particular social circumstances (1.2.6). The good life, i.e. the road to human fulfilment, consists in the harmony of coherent natural aims that self-instantiate in each person’s actions within society.[26]

Plurality of aims is generally the case and is often good, i.e. consonant with natura humana. Sometimes, however, the opposite is good too. First of all, not any aim is equally good: some can be better; some can be bad. Secondly, some aims can be good for everyone. Examples of coherent aims that are valuable and common to all humankind are “universal human rights”, which Utz mentions as the most obvious and glaring negation of individualistic and cultural relativism (1.2.4).[27] Though differences among individuals and cultures do exist and may contribute to the proper functioning of human societies, there exists a fundamental shared ground, which the Thomistic tradition would dub rational or natural. It is, in essence, the life-enabling ground identified by the Thomistic “natural law” tradition, upon which human rights jurisprudence was developed over the centuries (1.2.4).[28] Similarly, there may be differences among national economies, their laws, business environments and specific arrangements, but only economic organisations consistent with the nature of the human person can be good, as they succeed in establishing the specifically economic conditions facilitating each person’s pursuit of happiness, or “perfection” (1.1). Thus, after examining the various natural needs of humankind and the main varieties of economic order experimented with during the 20^th century, the book concludes that “the only real” definition of an ethical economy, i.e. one “correspond[ing] to the integral economic ends of man”, is the following: “the competition economy, founded on the universal right to private property, both for production and consumption, with the greatest possible diffusion of productive property, with stability of price levels and full employment.” (7.8.6; emphasis in the original).[29]

Detailed, reasoned synopsis of the book

The Overall Structure

Utz’s Economic Ethics comprises twelve chapters, which are conceptually ordered like a Gothic arch. After the preface, the first chapter articulates a lengthy introduction to possible definitions and studies of the economy, including an ethical study of it. The ensuing five chapters address, in light of Thomistic ethics, seven fundamental categories that apply to any economy: (i) “order” or “system”; (ii) “rationality”; (iii) “need”; (iv-vi) “factors of production” (i.e. land, labour and capital); and (vii) “property”. Other basic economic categories—such as efficiency, growth, want and gain—are also addressed, but as corollaries of these seven. The seventh chapter, which constitutes a sort of apex within the volume, evaluates the main modern economic systems and significant varieties thereof. The successive short five chapters apply the critical wisdom produced in the previous ones to specific issues of modern market economies, e.g. inflation, currency speculation, structural unemployment. A vast, thematically structured bibliography and two alphabetically organised critical indexes of, respectively, cited persons and cited topics, conclude the 379-page-long book.[30]

The Preface

The book’s preface, unlike most, contains some very important statements. Utz—he too unlike most thinkers—shows his philosophical cards from the very start. Instead of feigning neutrality or assuming uncritically theoretical presuppositions that may be shared by his audience and therefore taken as obvious, he states that the “ethics” to be applied in his book is a specific one, namely “the teleological ethics of Thomas Aquinas” (p.5). The reason for this choice is that, after “sixty-five years” of keen philosophical scholarship, “no other ethics” has proven to be nearly as “adequate in order to find the logical path leading from universally valid human norms to the correct solution of concrete practical problems” (id.). According to Utz, Aquinas’ “natural law”, which lies at the heart of the “universal human rights” (1.2.4) cherished by most political and legal thinkers, is also the best theoretical framework to understand and defend them, leaving aside the “superficiality” and “dreadful ignorance” (p.5) of many intellectuals, who discarded Aquinas’ wealth of knowledge without truly studying it, e.g. Hans Kelsen (cf. p.5n). If Utz’s audience will listen to what he has to say, then it is good and well. If they will not, then Utz states that he is bound to sound like “the doctor of a patient suffering from addiction”: correct, but unheeded (p.7).

What does it mean to apply the teleological ethics of Thomas Aquinas to the field of economic phenomena? It means “to investigate more deeply than those who have a merely empirical viewpoint” (p.6). First of all, insofar as we, by studying economics, study cases of voluntary human agency, then we must acknowledge that economics has always and inescapably “a moral background, even when the immediate object [of economic agency] is not of a moral nature” (id.). All voluntary human agency, whether directly or indirectly, has origins (e.g. intentions) and repercussions (e.g. social effects) that are ethically laden.[31] Secondly, following Aristotle’s and Aquinas’ understanding of human agency, there exist universal ends inscribed in nature, including human nature, which ethical reflection can identify. Knowing what these ends are, i.e. grasping “the meaning of creation and of the human being” and how economic agency can help us fulfil these ends, means that “the integral good of the human being” can be served, instead of a partial or a false one (pp.6-7). For instance, economists and businesspeople would be likely to welcome “the pure material success of capitalisation”, as this is shown by a national economy’s conspicuous growth, even if “one third of the persons seeking employment is left out of the labour process.” (p.7) A Thomistic assessment of the same “material success” would not, for capitalisation of this ilk harms both materially and spiritually the unemployed, their families and their communities, and therefore works against integral human goodness by causing, inter alia, “moral degradation… crime [and] addiction to narcotics” (id.).

Chapter One

In the first chapter, entitled “The scientific study of the economy”, Utz defines the economy as “the activity whereby the human being” qua “corporeal being… meets the need for material goods in view of her own perfection”, which, following Aristotle, is understood as the realisation of “her many potentialities” (1.1). Albeit each individual is free, “in general she is already inclined by nature towards her final end” i.e. “perfection” or “happiness” (1.1). Were a person to “seek perfection outside her own nature”, she would find none (1.1). Error is possible, in other words, for our nature is not perfect to begin with, nor is freedom a guarantee of its own good use. For instance, were a healthy person to choose freely to seek perfection without consideration of the interpersonal fellowship or of the rational mind characterising our species, she would find none, as both loneliness and irrationality are pernicious to wellbeing, survival and, a fortiori, happiness. Happiness is the end towards which we are naturally inclined, but from which many men and women distance themselves in real life because of a plethora of deficiencies (e.g. lack of self-control, mistaken conceptions of the good, obtuse selfishness). Natural inclination is not natural determination. Health, knowledge and understanding are needed, among other things, in order to increase the chances of recognising, accepting and pursuing genuine, natural happiness as our key existential goal. Utz’s initial definition of the economy is then refined as follows: “the totality of those actions whereby the human being utilises the material goods in order to meet her vital and cultural needs” (1.1).

Given our social nature and the fact that we share “one and only one World”, any real economy is bound to be “a social economy”, i.e. “the cooperative utilisation of the material goods to meet the vital and cultural needs of all”, as implied by commonplace phrases such as “common good, national wellbeing or shared interest” (1.1; emphasis added). Whether this end is better served by a “communist or capitalist… form of organisation of the social economy” is yet to be seen at this stage of Utz’s argument, but one important substantial conclusion is already reached. “Since humankind” is de facto “without temporal limits” and the “World” that we share is one and limited, “every economic community is duty-bound to use it with parsimony” (1.1). The textbook distinction between “scarce” and “non-scarce” goods is merely contingent (1.1). In absolute terms: “All goods are limited as concerns the needs of the entire humankind” (1.1). Most “economic science” is myopic in this respect, for it focuses upon limited time-frames, despite being traditionally keen on the notion of “scarcity” (cf. textbook definitions of economics such as Paul A. Samuelson’s; 1.1).

The more an “economic good” does in fact “contribute to the fully human wellbeing of all”, the higher is its “value”, which must not be confused with its “price” (1.1). By “all” Utz means all: not only those who are presently “economically active”, but also the inactive members of society (e.g. the infants, the elderly, the ill) and the “generations” to come (1.1). Their “vital and cultural needs” must be computed too, which implies that a “rational” economy would not imperil the chances for a healthy and “socially ordered” existence of the human beings that will come after us (1.1). Their future cooperative efforts to attain “human perfection, i.e. the common good” must be served too, even when this service may involve restrictions over present “liberty” (1.1). Within any well-ordered society, norms that qualify and, at times, restrict freedom are necessary in order to pursue the common good. Liberty is a pivotal human aim, but Utz does not prioritise it above all others, unlike many liberals.[32]

Another point of contention with liberalism is the claim whereby the “classic theory of the national economy” is allegedly “value-neutral” (1.2.1). According to Utz, this liberal theory does in fact “posit surreptitiously determined axiological premises”, as these are captured in Alfred Marshall’s iconic definition of “homo oeconomicus… who is under no ethical influences and who pursues pecuniary gain warily and energetically, but mechanically and selfishly” whilst enjoying “formal liberty” (1.2.1 & 1.2.1n). Albeit “unreal” and unpalatable, this free yet “morally perverted human being” helps us understand “socio-economic processes” in a “market economy”, which is one of several possible economic orders that aim at serving the material needs of humankind (1.2.1). It suffices to say that, given such premises, classic economic theory can and does reveal important aspects of human agency in market economies, but misses out far too much to be able “to offer universally valid advice for concrete political economy” (i.e. policy-making), including significant aims of market agents that go beyond “the desire for profit”, such as the “entrepreneurial drive” studied by Schumpeter (1.2.1). Not to mention some of the major “contradictions” of unfettered market economies that Marx himself had correctly identified in the 19^th century, such as “social misery”, “paralysis of labour”, “moral[,]… social[,]… [and] economic collapse”, “corruption” and, as Utz adds on his part, the devastation of “the ecological pre-conditions for life” (1.2.4).

Political economy too, whether “philosophical” (e.g. Marx) or “empirical” (i.e. the study and “computation of costs and benefits resulting from different alternatives” open to political decision-makers under specific “social and political circumstances”), claims to be “value-neutral” (1.2.2). However, as Utz argues, political economy does in fact “take stock of the many possible aims and therefore also of the values” at issue in any and every “economic computation” (1.2.2). An axiology is present, then. This is even more visible as the economic computations are performed in the name of “efficiency”, i.e. the actual chief aim of political economists, who prioritise it above all other aims, passing ipso facto an implicit “value judgment” (1.2.2). Besides, this implicit value judgment is ethically “debatable”, not least because of its consequences for “distributive justice”[33] (e.g. wider wealth disparity is deemed acceptable for the sake of increased efficiency, despite its negative moral and social impact; 1.2.2).[34] Even though implicitly biased in its axiological presuppositions, political economy remains primarily a descriptive science and, per se, “empirical data cannot produce ethical norms” (1.2.3). The determination of a “hierarchy” of “aims” within society is the province of philosophy, and ethics in particular, for such a hierarchy “can be known only via a[n explicit] moral judgment” (1.2.2).

“Ontological reflection” on economic phenomena can limit itself to studying “human behaviour vis-à-vis goods serving their survival and development”, as many branches in the social sciences have been doing for generations (1.2.3). “Philosophical” ontological reflection, i.e. “economic ethics” (1.2.5.1), must dig deeper, however, so as to unearth “which behaviour[s] can be defined ‘according to nature’… in the sense of classic natural law theory” (1.2.3). It is at this level of reflection, for instance, that we can grasp the socio-economic implications of “the catalogue of human rights emanated by the United Nations”, which is not a mere list of “individual rights”, but rather an articulate expression “of the collective duty to create the preconditions for the realisation of everyone’s fundamental rights” (1.2.4). Besides, understanding the quintessentially “social nature” of the human being can lead us to appreciate as natural, for example, the human “desire to self-realise and develop by one’s own agency and initiative, the search for a global juridical order… [and] solidarity” (1.2.3). More generally, the same understanding can help us realise how any ethics, including an economic ethics, cannot but be a social ethics too. Abstracting towards broader generality is not a move away from reality, but one into a more profound layer of the same—beneath, beyond and above data gathering, from which one must start, though, to avoid empty speculation.

Utz distinguishes three logical levels of reflection in economic ethics. The first one, “value theory”, deals with “the supreme, most general and still very abstract norms of any economic activity” (1.2.5.1). It is an Aristotelian “metaphysics of economics” focused upon the most fundamental personal and social aspects of natura humana (1.2.5.1). It is at this level, for example, that we can retrieve “the imperative commanding that the common good be higher than the private” good, which is in fact ordinarily justified on the basis of its beneficial social outcomes (e.g. eminent domain/compulsory purchase/resumption legislation; Adam Smith’s assumption of a socially beneficial invisible hand; 1.2.5.1). The second level deals with the “actual inclinations and modalities of human behaviour in its relationship with economic goods” (1.2.5.2). Characteristically economic implications of natura humana are considered at this level, e.g. the paramount “organisational principle of economic planning” known as “private property”, the “socially just economic order (or system)” (1.2.5.2), and the inability of centralised “State authority to capture the productive potential and willingness [to contribute] of the members of society” (1.2.5.3).[35] The third level deals with “problems” affecting specific economic orders, such as “contractual autonomy[,]… just price formation[,]… credit, etc.”, i.e. the typical issues of “business ethics” in Anglo-American academia (1.2.5.3). Utz underlines how crucial it is to set in place a rational economic order, which prevents problems from arising (e.g. the conflict between the common good and “the desire for profit of the individual manager”), and a fortiori how it is up to “the politician…not… [t]he entrepreneur” to establish constructively rational “social conditions for the competitive economy” (1.2.5.3).

The first chapter continues and concludes with an overview and discussion of significant 19^th– and 20^th-century theological views on economics, both Catholic (Taparelli, Messner, John Paul II, liberation theology) and Protestant (Weisser, Rich, Katterle, Thielicke, Herms, the German Lutheran Church). In a positively Thomistic perspective, Utz explains how “the harmony of reason and faith” can be established, arguing that the conclusions on economic ethics to be reached by a philosophical ontological investigation are bound to be consistent with those reached by a theological one, as long as the latter is conducted under the guidance of the Revelation in all of its forms (1.2.6.2). Citing Augustine, he states: “anima humana naturaliter christiana” (1.2.6.2). Moreover, thanks to the wealth of wisdom offered by a Christian social ethics, Utz derives further normative elements conditioning the proper functioning of a sensibly designed market economy, i.e. one that works for and not against natura humana (e.g. Sunday rest, human dignity). According to Utz, a religious inquirer can grasp aspects that a purely technical approach to economic affairs would miss: “The pure market mechanism, which liberals invoke under the guise of a complete deregulation, is a failure with regard to social problems, especially unemployment. The person that is inspired by faith and oriented towards the afterlife has naturally, because of her conception of life, a different attitude vis-à-vis development and productivity than the one who thinks in purely economic terms.” (1.2.6.3).[36]

Chapter Two

In general, the existing literature about economic ethics assumes the existence and motivated “rational” agency of “individual[s]”, who pursue their “self-interest” by way of cooperative behaviour, or “solidarity”, in the economic sphere (2.1). Liberals would like to reduce all relevant economic considerations to this level, i.e. “contractual” interactions among assumedly free individuals (2.1; e.g. Hayek, 2.2). All the justice they seek is commutative. Socialists, on the contrary, typically subsume the existence and motivated rational agency of individuals under the higher level of social processes and collective values, which individuals are meant to serve in a more or less self-less manner. All the justice they seek is social (aka general or legal). Utz, in a consistent Thomistic fashion, stands between these two poles, for he assumes, in addition to “individualism”, the notion of “a common good to be realised through economic actions” undertaken willingly and responsibly by the individuals (2.2). Justice, as Aristotle and Aquinas had already argued, is both general and particular, and as the latter is concerned, it is not only commutative, but also distributive.

Pace today’s dominant liberalism, before contracts among assumedly free individuals are considered, one must determine whether the “economic order” allowing for such contracts is morally justified (2.3). Whilst current business ethics presupposes “as obvious… the capitalist system” or “market economy”, Utz’s economic ethics does not. According to him, if we wish to pursue a genuine ethical investigation of economic phenomena, rather than engage in mere “apologetics”, we cannot presuppose the legitimacy of any existing economic order, but rather consider “the philosophical-anthropological premises determining the supreme norms of every systematic construction” (2.3). The structure of the analysis to follow in the rest of the book is announced in 2.3: “I shall focus upon the problem of the economic order, starting with the issue of the common good, e.g. by wondering whether the [centrally] planned economy or the market economy correspond to the a priori principle of the common good, then which institutions may be essential in a market economy as demanded by the principle of the common good, and under which ethical conditions they must operate.” Utz speaks of “two stages” of analysis: “the general principles and the application to the concrete situation.” (2.4). First of all, one must determine which abstract rules pertain to “human nature, in view of the universal common good”; then it will be possible to proceed to their application to specific national and international contexts, with due consideration for the “empirical data” that can be gathered (2.4). If insufficient caution is exercised with regard to national and international specificities, then “unrealistic and excessive expectations” can be forced upon “a nation”, as exemplified by the one-size-fits-all approach of international financial organisations operating in the developing World (2.4).[37]

Chapter Three

Given the glaring and multifarious social failures of 18^th– and 19^th-century classical liberalism, constructive reforms have been sought repeatedly, including Eucken’s “market social economy”, which proved very influential in 20^th-century German-speaking Europe (3). According to this conception of the economic order, next to the “purely economic rationality” à la Marshall (cf. 1.2.1) that liberal “economists far too easily overestimate”, “the life norms of a society” are also to be considered, for they are bound to qualify, condition and even conflict with rational economic activities, hence co-determining their fate (3). Utz suggests that these “life norms”, often exquisitely ethical in character (e.g. fairness, dignity, trust and duty in all domains of social life, business included), should be studied from a Thomistic “rational-teleological” perspective, which would then allow to “harmonise” socio-ethical rationality and “economic rationality” in view of “a single definition of well-being” (3). Thus, and thus only do we attain a rich, deep and true understanding of economic categories qua essentially “socio-economic”—indeed socio-ethico-economic—categories (3).

For example, “productivity” should not be merely the entrepreneur’s or planner’s efficient use of available resources to meet existing demand, but also and above all the economy’s ability to meet “the integral needs of all members of society… for example health[,]… culture[,]… future ecological needs[,]… labour rights[,]… Sunday rest” (3-3.1). Similarly, a sound socio-economic “market order” would not simply tolerate and accept “just social requirements” because of their inevitability, but actually “stimulate… personal initiative and responsibility via-à-vis the establishment of [good/rational/natural] values” (3.1).[38] On an analogous note, proper economic “gain” should not be the satisfaction of whatever selfish pursuit the individual market actor may opt for, including “sheer speculation”, but rather the deserved “remuneration for a rendered service contributing to the common good” (3.3.2). It is on the basis of, and in proportion to, the ability of an economy to be productive and just as per the examples above that the legitimacy of any actual economic order can be gauged.[39]

Failures, in this connection, abound, for allegedly rational economic behaviour can actually be nothing short of insanity. On the one hand, an unfettered “market economy” can lead to “the danger of the economicisation of society”, as witnessed already in the early days of liberalism (3). Human beings are then attributed value solely as means to a profit, and their exploitation is positively sanctioned. However, according to Utz’s Thomistic analysis, the good economy is “a means for the realisation of life values”, not of sheer pecuniary profit (3.1). On the other hand, a “planned economy”, even if well-meaning and explicitly built upon ethically sound social aims, is bound to end in “bankruptcy because of its neglect of self-interest”, which is a powerful natural drive to be taken most seriously in view of a rational organisation of society (3). Productivity, meaningful self-direction and human dignity depend on it. The right path is somewhere in the middle. This middle ground is what Utz’s “teleological rationality” aims for: individual self-interest is to be acknowledged, harnessed and steered towards the common good; it is not to be given into (e.g. the liberals’ justification of callous selfishness), denied or underplayed (e.g. the socialists’ rejection of private property; 3.2).

The intellectual “determination” of the natural “socio-ethical aims” of human life is paramount, for no economic system can transgress repeatedly and consistently “human nature” without leading to “undesirable and inadmissible results”, as best exemplified by the Earth’s “ecology”, which both liberal economists and socialist economic planners neglected for generations (3.3.1 & 3.3.2). Fundamental social equilibria must be paid heed as well. Thus Utz identifies additional, normatively relevant socio-ethical aims: “the free development… of every human being[,]… humane [and] dignified employment[,]… assistance to persons that are unable to work” (3.3.2). These aims too must qualify and, if needed, limit the scope and the typology of allowed economic undertakings. Good norms are imperative. Given our imperfect nature, some stumbling along the logic of “trial and error” is bound to persist in the domain of socio-economic organisation (3.3.2). Nonetheless, to possess a clearer notion of “the objectively founded aims of the economy” is going to reduce the number of trials and the degree of the errors to be encountered (3.3.2).

Chapter Four

If the standard, textbook liberal notion of economic rationality is deemed inadequate to capture the social as well as the diverse natural aims of human life, equally inadequate is deemed the standard, textbook liberal conception of “human needs” (4). In this respect, according to Utz, the empirical research of “anthropologists, ethologists and psychologists” should be used in order to integrate, refine and correct that of “economist[s]”, who seem prone to oversimplification because of factually unwarranted a priori thinking (4). Furthermore, well beyond sheer empirical research, any serious “economic ethics” should reach back to “the essential determination, i.e. the abstract yet real nature of the human being” (4.1). By doing so, it becomes possible, on the one hand, to discriminate between the natural and “unnatural” needs that comprehensive empirical research may come across (cf. Gerhard Merk’s distinction between “goods” and “non-goods”, 4.2; Utz’s own distinction between “factual needs” and “latent” ones “activated” by ethically “disturbing” advertising, 4.3).[40] On the other hand, it also becomes possible to “assess their relative importance”, e.g. “environmental needs” are “primary” under whatever economic order one may wish to establish (4.1), and a starving man’s need for bread has clear priority over the bread’s well-fed owner’s claim of private property (ergo, as Aquinas argued, its furtive acquisition is not “theft”; 6.1.3.1). Granted such a richer, deeper and truer understanding of human needs, political decision-makers can produce, if willing, rational regulations, i.e. consistent with natura humana.

Utz agrees with the socialist economist Ota Šik on what constitutes in abstracto “universal human needs”, that is, “fundamental material needs, needs of safety and health, needs of spiritual development, environmental needs, needs of psycho-physical self-realisation, social needs, needs of rest, needs of self-affirmation, needs of social activity” (4.1). However, he disagrees with Šik on whether even a reformed socialist economic order would be capable of being so efficient as to grant their satisfaction for all “members of society”, whether they are able to participate in “the economic process” or not (e.g. minors, the unemployed, the gravely sick, the elderly, the severely handicapped, future generations; 4.1).

Socialist economies, like monastic orders, presuppose the members’ agreement on “the common end as the end of their own lives” (4.3).[41] Yet, the citizens of a socialist or, for that matter, of any other State have not made a free, thought-through and responsible decision to pursue such an end as their own. In fact, within any State, there can be considerable disagreement on, and diversity of, “worldviews” (4.3). This plurality of “worldviews”, i.e. individual preferences and value-attitudes, is what the market order, unlike the socialist or “communist” one, can acknowledge and deal with, at least to a significant extent, through its polycentric productive and allocative processes (4.3). That is why, according to Utz, market economies are better candidates than socialist ones vis-à-vis the universal satisfaction of genuine human needs.

Still, Utz does not praise market growth for growth’s sake. Citing Aristotle, Augustine and Marx, Utz emphasises how humankind would be better off by needing less and better, rather than seeking endless increases of “productive force” to match insatiable wants, especially if these wants result from the marketing experts’ “manipulat[ion]” of “demand” (4.2 & 4.3). Pursuing endless growth is blatantly unnatural, indeed irrational, as the World’s ecology keep telling us. Rules and regulations of the market order are, then, de rigueur. Without them, “liberalism” can only face a “shipwreck” akin to the one suffered by communism in the 20^th century (4.3).

Chapter Five

The application of a Thomistic rational-teleological ethics to the economy means that, as done with the categories of rationality and need, also the standard understanding of “the factors of production” must change (5).

To begin with, “land”, i.e. “natural resources” in the broadest possible sense (“utilisable nature”), must be considered in light of the “super-temporal” needs of the human race, and not merely in light of the commonplace and yet myopic “economic interest limited in time” commanding its allegedly efficient and yet destructive exploitation (5.1). Once again, Utz highlights the issue of long-term ecological sustainability.

Major emphasis is then placed by Utz on rethinking the second factor of production, i.e. “labour” (to which “management” can be reduced; 5). “Labour”, whether “intellectual” or “bodily”, must not be treated like “investments”, which can be “cut or regulated” at will in order to generate higher returns (5.2). Labour is “part of human activities” and, as such, it is ethically obligatory to “pay heed to the conditions under which human agency preserves its own human dignity” (5.2.1). Starting with Aristotle’s distinction between “actio immanens” (i.e. “an action that serves uniquely the perfecting of the agent” e.g. “play or sport”) and “actio transiens” (i.e. “an action that produces an object that lies outside the agent” e.g. the “toiling and damaging” labour of “slaves”), Utz seeks a mediating conception of human labour (5.2.2). His mediation reads as follows: “the human being, in her economic agency, creates a product that serves the ends of her own nature and that, for this reason, is valued by the members of society because of its utility (use value)” (5.2.2).

“Manchester liberalism”, which Marx rightly rejected, was culpable of lacking “respect for the inseparability of labour qua factor of production” and “the moral essence of the human being”, thus causing “workers’ uprisings” and, eventually, harm to “the economy itself” (5.2.2). There exists therefore a “right to labour”, which is not the right to having jobs created ad hoc for the unemployed by the State (as many socialists have argued), but the tangible expression of each person’s rights “to sustenance[,]… self-affirmation within social cooperation… [and social] integration” (5.2.3). The fulfilment of this right is to be attained by means of a rational, comprehensive regulatory framework that facilitates job creation and, therefore, sets proper incentives and disincentives to all economic agents, such as “invest[ors], entrepreneurs and… even employed workers” (5.2.3).

It follows in practice from Utz’s theoretical analysis that, within a well-regulated market economy, employment must be as broadly available as possible. It is only in this manner that most suitable individuals will take responsibility for their own self-perfection and participate constructively in the social generation of well-being via the economic sphere. Not any line of employment will do, though. This ideally full employment must be in activities that are ecologically (cf. what said about “land” above), socially (e.g. not leading to “uprisings”) and economically sustainable in the long term (e.g. “humanised” working conditions allowing for the “reproduction” of the workforce; 5.2.4). It must be personally meaningful, since “pay alone” is not enough; there is a “spiritual root to all labour” (e.g. “the worker expects to achieve her own social integration” or “social status” through her labour; 5.2.4 & 5.2.7). It must be consistent with the fundamental human needs (e.g. “family life… [and] culture”), aims (e.g. “self-realisation”) and dignity of each human person (5.2.3 & 5.2.4). That is why, in practice, there exist “labour legislation or workers’ protection”, e.g. binding norms on “free time[,]… safety[,]… hygiene[,]… prevention of accidents[,]… unemployment benefits[,]… [and] special protections for women and children” (5.2.5). That is also why there exist internationally codified universal social, economic and cultural rights to be respected, protected and fulfilled. Though costly in the short- and medium term from the perspective of a firm’s bookkeeping, to do away with such binding norms and internationally codified universal rights would mean doing away with workers’ human dignity. No society and, a fortiori, no economic order could operate for long under such inhumane and undignified conditions, which would also destroy the humanity and hence the dignity of the workers’ exploiters and their academic legitimisers.[42] As Utz states, “the individual good must be integrated within the collective good”, that is, whatever businesses and jobs are in place, they must serve the natural aims of human life (5.2.4). It is only under such a rational, comprehensive regulatory framework, i.e. “a juridically ordered economic society”, that there can be “freely stipulated… labour contract[s]” as those advocated by the liberal tradition and, more broadly, an ethically justified market order (5.2.4).

Much progress has been made since the callous ‘iron laws’ of classical liberalism and the industrial horrors of “Manchester liberalism”, but much remains to be done, according to Utz. For one, “international competition leads often to violations of humane labour policies” (5.2.6). For another, “abrupt technological revolution[s]” cause frequently “the social misery of workers” (5.2.6). The respect of the workers’ “teleological” claim over “production”, in addition to the commonly recognised “causal” one, finds still little acknowledgment in legal and business practice (e.g. workers’ “co-management” of enterprises being rare; 5.2.7). In addition, “growing capitalisation creates over time a mass of unemployed”, and although socially responsible “unemployment benefits” may soften the blow, “the problem is not at all resolved” at its root (5.2.6). Indeed, according to Utz, “given the international economic network” emerged with globalisation, “the imperative of the complete respect of the personal-individual character of labour cannot be fulfilled” today (5.2.6).[43]

As regards “capital” (to which “technology” can be reduced; 5), Utz argues that any “economic ethics” trying to be “general” must start with “a definition” that does not “presuppose a given economic or social system” (5.3). At this level of abstraction, “capital” cannot be “productive investments” and even less “money”, both of which presuppose socio-historically specific institutions (5.4). Therefore, the definitions offered by Smith, Weber, Schumpeter and Eucken are rejected by Utz because too system-specific. Only Böhm-Bawerk’s definition is praised, since it would apply “even to Robinson Crusoe” (5.3). Following Böhm-Bawerk’s lead, capital’s “original concept” is defined by Utz as “a reserve of useful services withdrawn from immediate use” (5.3), or “useful service detracted from immediate consumption” (5.4). Qua “factor of production… capital is not a ‘thing’, but rather the function of a thing” (5.4). In this perspective, even a Robinson Crusoe must put aside resources (e.g. food, seeds, timber, time and labour) that, later on, will enable him to produce further means of survival. “Savings” are then the heart of “capital”, i.e. “the presupposition for the possibility of operating on the means of production” (5.3). Contra Keynes, Utz claims that “savings come before investment, not vice versa” (5.3). Moreover, from an Aristotelian perspective, “productive investments” are “capital only ‘potentially’”, for they must find adequate “demand”, which can be absent, as Keynes rightly argued this time (5.4). “[T]he actualisation of means of production” constitutes “capital”, in an Aristotelian perspective (5.4).[44]

In a broader, more complex society, this abstract notion of “capital” implies that a rational regulatory framework must be set up so as to save adequate resources to be employed in later forms of production “leading to a useful growth that benefits the whole population”, present as well as future (5.3). “[E]nvironmental needs” are once more highlighted most forcefully in this context, for both so-called “capitalist” and socialist economies (or “State capitalism”) have been culpable of pursuing alleged efficiency whilst sacrificing the “nourishing basis for the production of the means of production”, i.e. they have “failed to save” (5.4). Similarly, large-scale debts and expenditures, both public and private, are criticised by Utz, for they erode the “capital formation” needed for future useful production (5.4). In a rational market economy, all economic agents, i.e. “investors”, “entrepreneurs”, “State authorities” and “workers” (especially through their “trade unions”), must be free to operate in a self-interested manner, i.e. with their own particular good in mind (5.3 & 5.4). However, they must do so within reason, that is, within a regulatory system that prevents excessive debt and expenditures and that aims at the “real utility for the economic society” in the long term, i.e. with the common good in mind (5.4).

It is only under such premises of sound “political economy” that one can justify “interest” on borrowed credit—a historically thorny matter for Christian scholars (5.3). In order not to be usury or speculation, interest on borrowed credit must be the just remuneration for a rendered service, namely the provision of “real capital”, i.e. “a nourishing basis” for the “production of [further] means of production” benefitting the common good (5.3 & 5.4). It may be olfactorily true that, as the Romans said, pecunia non olet, but it does not mean that “capital formation” is devoid of “an ethical role” (5.4). According to Utz, it too must serve eventually “the perfection perceived in human nature”, for its use to be ethically justified (5.4)

Chapter Six

Utz’s principled revision of basic economic categories tackles property too. Given the importance of this notion, and rather unusually for this book, Utz offers an ample historical overview of the main conceptions and justifications for different property regimes (6-6.1). The list of thinkers cited and discussed is extensive, somewhat uneven, and certainly stimulating. It goes from Plato, Aristotle and the Stoics in classical antiquity to Marx, Taparelli and Rawls in times closer to us, whilst also dealing with philosophers as diverse as Suárez, Grotius, Pufendorf, Wolff and Thomasius—among others. Conceptual differences, but also continuities, are retrieved across the centuries. Some are pleasantly surprising (e.g. the early Church Fathers’ “paradisiac state” and “the original position” in Hobbes, Locke, Rousseau and Rawls, or Marx’s primeval communist societies; 6); others are intriguingly insightful (e.g. modern contractualists’ abstraction from actual individual peculiarities in their thought experiments about “the original position” as “masked natural-law reasoning” i.e. closet metaphysics; 6.1.4).

The centrepiece is, however, Thomas Aquinas’ conception and justification of private property, to which Utz devotes four subsections (6.1.3.1-6.1.3.3 & 6.2.3). The emphasis placed on Aquinas’ understanding is due primarily to Utz’s belief in its ability to offer a point of equilibrium between the ancient approach, which focuses on the needs of society at large or “the common good”, and the modern one, which focuses instead on the “property rights” of individuals endowed with private ownership (especially but not exclusively in the liberal tradition of Locke, Smith, Hayek, Buchanan and Friedman; 6.2.1). The former approach lacks specificity on individual rights and cannot guide “the praxis” of concrete social organisations vis-à-vis “easily controllable property relationships removed from any arbitrary authority, whether the legislator’s or the administrator’s” (6.1.4.1). Too much emphasis on general justice jeopardises particular justice. In the name of socially valuable aims, the former approach can allow, “one piece at the time[,]… the destruction of the order of private property, without a definite criterion delimiting the justification of State intervention” (6.2.2). The latter approach, on its part, concentrates too much upon the claims of individuals who already own property and neglects “those who wish to become property owners[,]… the workers[,]… those who seek employment” and, more broadly, “the utility of all human beings”, present and future, who may not have any “capital” at their disposal, or whose fundamental needs may not be served by owning any (6.2.1). Too much emphasis on commutative justice jeopardises general justice. Utz’s present fears about global dehumanisation by way of societies’ “economicisation” and the past horrors of Manchester liberalism loom largely in the background (3). For one, even if a competitive market economy can produce and allocate resources efficiently across much of society, it does not secure per se genuine “universal wellbeing, in a humanistic and not only material sense” (6.2.1). Good rules and regulations are needed to secure this kind of wellbeing. For another, as Utz writes, persons “are not machine[s] that can be thrown away” once they no longer bring in profits: “rebellion” and its attendant “social costs” are the likeliest outcomes of short-term profit-maximisation by way of economic exploitation, exclusion and insecurity (6.2.3). A more balanced position is required, which is what Aquinas can help us find.

By no means individualistic and contractualistic in the modern fashion, Aquinas’ approach makes use of the classical notion of “common good”, but it also includes a line of argument whereby “the absolute necessity to administer rationally the goods in view of economic productivity” leads to the justification of private property qua “individual… right” (6.2.3). On a general, “metaphysical” hence fundamental or “real” level, Aquinas acknowledges the “duty to consider material goods as a gift from God for the advantage of the whole humankind and to behave accordingly.” (6.1.3.1) Given her “rational nature”, the human being was “chosen” by God as “master of the World… so that she uses it in view of the ends proper to her nature.” (6.1.3.1) Rational creatures ought to make a rational use of the existing resources, i.e. in view of rational ends. Accumulation of wealth for its own sake, or callous and undignified disparities in ownership and derived life-capacity, are irrational, i.e. contrary to human nature, which too ought to express the divine order of the universe. On a specific, historical and pragmatic level, the best system that can secure the goal of using rationally the existing resources for the sake of the common good is, according to Aquinas, one based upon private property. Here, Aquinas no longer thinks of humankind in general, metaphysically, or ‘really’. Rather, he thinks of concrete individuals under contingent socio-historical circumstances, such as those of the “fallen natural state” of humankind, whereby the “deplorable… inclination… to accord preference to one’s own good over the common good” has become almost as “natural” as our inherent rationality (6.1.3.2; a “quasi-nature”, 7.8.2).[45] Taking stock of this situation, hence thinking ‘realistically’ rather than just ‘really’, how can anyone “procure” the material goods needed for “bodily sustenance”? (6.1.3.1) And how should she “use” them, once they have been procured? (6.1.3.1)

As regards the first question, Aquinas argues that a system of private property is preferable to one of “communal property”, e.g. those of ancient “Sparta and Taranto”, about which Aristotle had written in his Politics (6.1.1). Private property “spurs [individual] industry, hence… productivity”; it identifies clearly who is “the responsible person” for given goods and services, and therefore “allows for a better administration devoid of confusion”; and it secures “social peace” by avoidance of “disagreements” thanks to clear “legal bounds” on who owns what (6.1.3.1). As regards the second question, the answer ties back into the metaphysical level and the rational aims fulfilling natura humana. Even if “held in private hands… all existing goods maintain their original destination, i.e. they must serve all human beings.” (6.1.3.1) Therefore, even if “the owner may dispose of her possessions as she wishes”, she is under “the grave obligation of helping those in need” (6.1.3.1). As already recognised by the Church Fathers and, later, by Pope Leo XIII, the founder of the SDC, “in the use of their property, the wealthy must be considered administrators, not owners” (6.3)—and a just administration of their wealth implies “the sustenance of the poor” (6.1.3.1). Similarly, existing pecuniary reserves, once their owners’ “own use and production” have been satisfied, should be made available to “social productivity” as an ethical imperative (6.3).[46] Fundamentally, as Utz states later in the book, “the order of private property” is justified because it serves “social ends” (7.7).

Chapter Seven

No “economic order” or “system” can exist “without plans” (7). Individuals, businesses and societies, unless pathologically lazy or mad, plan ahead all the time. Which forms of planning, however, are the most likely to “overcome or, at least, lessen the burden of the scarcity of goods, in order to meet the needs”? (7) In order to find an answer to this interrogative, Utz outlines and discusses the main known paradigms of economic order, i.e. the liberal and the socialist, and some varieties thereof, assessing their strengths and weaknesses. The result is the longest and possibly most complex chapter in the whole book.

Four economic aims are particularly important in Utz’s ethical analysis of economic systems, i.e. (i) “price stability” qua “duty of justice towards the saver”; (ii) “full employment” qua “human right to labour”; (iii) a “well-ordered balance of payments” qua “justice… [towards] partner States”; and (iv) “continuous growth” qua “duty of the human being to pursue self-perfection” (7.6). In light of the revised economic categories tackled in the previous chapters, Utz’s understanding of these four aims is different from the one found in mainstream economics’ textbooks. For one, “saving” applies to the “correct use” of “ecological goods” rather than to mere money with which a consumer could buy “environmentally harmful… luxury comforts” (7.6.1). “Growth”, on its part, cannot be “merely economic”, i.e. measured by the sheer volume of produced and/or traded goods and services, but must also include our “human perfection[,]… a growing knowledge of the universe[,]… spiritual values… [and] social costs” (7.6.1), “the axiological ends of the human being[,]… the environment[,]… access to labour… [and] the living standards of the whole society.” (7.8.1)

As regards the market economic order of the liberal tradition, Utz tackles first classical and neoclassical economics, the latter with reference primarily to Hayek. Utz praises “the liberal vision… of the pure market economy” for “constructing logically” a “theoretically valid… argumentative scheme of the market economy” based upon “self-interest” (7.1). Utz stresses the theoretical coherence leading from the 18^th– and 19^th-century philosophical roots of “sensualism” and “individualism” to the political and economic doctrine of “liberalism” (7.1.1). On the basis of such roots, “altruism” was deemed inadequate to form the basis for a well-functioning “ramified network of interactions, particularly in the field of economic agency”, and the “self-interest” of “private” economic agents was therefore taken to be the prime “motive of human commitment” in society (7.1.1). A system of “commutative justice alone” emerges from it that demands “perfect competition” and “rational price formation”, so that it is possible for “the goods required for the universal satisfaction of needs to be produced in the most economic manner”, i.e. for the “parsimoniously” generated “supply” to meet most “efficiently” its corresponding “purchasing demand” (7.1.1 & 7.1.2). Within this system, “value”, hence “social value” too, means the “price” of goods and services supplied, as their price is determined by the demand of “purchasers or consumers” (7.1.1). This determination applies to all forms of “goods”, including “labour”, “land” and “capital” (7.1.2), and must operate free from price-distorting State interference on both “national” and “international” levels (7.1.3). Under this perspective, “private” agency is paramount and preferable to that of public authorities at all levels, including “social security”, “unemployment” remedies, “pensions” and “expecting mothers’ protection on the workplace” (7.1.4).

Albeit a mere abstract “image” or “idea”, many liberals have believed this system to be “ethically justified because of its economic efficiency” and therefore worthy of being pursued in reality in a “total”, if not totalitarian, implementation (7.1.1). Were their abstract idea a real one, in the Thomistic sense of reality, then it could be a valuable operation. However, the liberal idea is deficient. Liberals may believe that they are depicting an image akin to the anatomist’s perfect abstraction of a healthy body, but in actuality their depicted body is a mutilated one. Undoubtedly, self-interested “individualism” has firm roots in reality, as also shown by the widespread “loss of honesty” characterising “the modern age” (7.1.5). As such, it cannot be excluded from view, like the Marxists would like to do. However, it is equally true that “individualism” misses out many other aspects of human nature that, pace Hayek (7.8.2), allow for the notion of “common good” to be intelligible and reasonable, our natural sociability in primis (7.1.5). It is not possible to reduce “society” to the “individualistic… market only”, lest we wish to face unbearable contradictions (7.3.1).

For example, liberals miss out the participation of human beings in a greater ecological order, which cannot and must not be sacrificed to “unlimited growth” as “the supreme end of political economy” (7.1.5). Unless we intend to face worldwide environmental, social and, a fortiori, economic collapse, standard economic criteria for “growth” must be revised radically (7.1.5). No major novel scientific discovery is needed to understand this point: “That cars pollute was known since the beginning… The same goes for oil-powered heating” (7.1.5) Rather, “the moral renewal of society is necessary to save the market economy” from sheer short-term self-interest, which has led to profitable venues being sought relentlessly without consideration for long-term ecological effects (7.2.4).[47] Then, a viable “compromise” between standard self-interested economic behaviour and an enlightened notion of the common good should be pursued, which makes an ecologically sound use of “taxes[,]… interest rates” and “subsidies (contra the theory of the pure market economy)” in order to attain an “ethically correct growth” aiming “at the global human ends.” (7.1.5) Pace the liberal idea of homo economicus, “the individual must be able to think beyond her own self-interest in order to save the market economy.” (7.2.4)

Moreover, liberals self-contradict when dealing with the issues of “unemployment” and “poverty” (7.1.5). If it is true, as liberals assume, that “the individual with her desires must be the norm for common behaviour”, why should the unemployed or the poor be prevented from taking over the existing institutions, notably the State, and using them to improve their lot? Liberals claim that these individuals should not seek market-distorting means of coercive wealth “distribution” and wait until “growth” will deliver improvements (7.1.5). Why should they wait, however, if individual self-interest is the fundamental norm? And for how long should they wait exactly, if they are willing to pay some heed to the liberals? There are countries in the World where poverty has been the legacy of several successive generations, despite liberal institutions being the norm in the economic sphere (cf. the United States of America; 7.1.5). At this point, “the individualistic principle placed at the beginning of the argument in favour of economic efficiency… is abandoned” (7.1.5). Utz reveals how the key-criterion at work here is not concrete individual self-interest, but the “highest possible growth” of the “economy as a totality” (7.1.5). As long as economic growth is attained in accordance with the liberals’ criteria, flesh-and-blood individuals can endure prolonged “martyrdom” by way of, inter alia, “unemployment” and ruthless exploitation on the workplace (7.1.5). The self-interested “individual” about whom liberals speak so much is no concrete human being, but the abstract “homo oeconomicus” of their aprioristic textbooks and theoretical models (7.1.5).

This fiction, according to Utz, will not do. In order to function on a vast scale and over the long period, the “market economy” requires “human beings with a certain ethical and cultural level” of competence and performance (7.2.). It is only in this way that they will pursue “a common rational exploitation of the resources” available to them and “advance” beyond the present condition, guided by a “high degree of responsibility[,]… enthusiasm in personal initiative and the willingness to offer personal performances” of the highest standard (7.2). Homo oeconomicus does not possess all these attributes and inclinations. A far richer and more complex socio-cultural milieu generates the kind of individuals that a well-functioning market economy requires to come about, function and endure.[48] Again, on top of being self-contradictory, the image of the self-interested individual lying at the heart of the liberal paradigm is shown to be severely incomplete. According to Utz, “the stability of the market economy depends on the moral behaviour of the members of society: honesty and responsibility” in primis: “The more wanting the respect of the moral conditions becomes, the more necessary prohibitions become and the more expensive the economic process turns out to be.” (7.2.4)[49]

After exploring and exploding the contradictions of liberalism in its classical and neoclassical versions, Utz tackles one variety of liberal thinking and economic policy that has tried to deal with the many elements of human nature forgotten by the classical and neoclassical versions, i.e. the social market economy (hereafter SME) of Eucken, Rüstow and, “above all”, Müller-Armack (7.3.2). Unlike classical and neoclassical liberalism, SME conceives of a market system that takes place within a set of well-specified legal, social, political and economic conditions that State authorities establish, monitor and enforce throughout, such as “an austere monetary order[,]… competitive credit[,]… State policy for competition[,]… labour and social rights[,]… environmental protection[,]… land planning[,]… consumer protection[,]… direct assistance to individual enterprises on a regional or typological basis, etc.” (7.3.2). In particular, SME allows and aims for a “first distribution” of income that “occurs within the economic process as wages and profits”, as well as for a “second distribution” reaching all those members of society that cannot participate in the first one, e.g. “the ill, the elderly, families, etc.” (7.3.2). Within any society, there are individuals whose particular preferences are efficiently reflected in market transactions, but also “those who have no purchasing power… the unemployed” and economically dependent persons whose “needs” too must be “met” (7.8.5). If only a privileged section of society benefits from the liberal economic system, then it is arduous to see the “ethical justification of the commutative justice underpinning the market.” (7.3.2)

Albeit appreciated by Utz for its holistic socio-ethical understanding, SME fails to tackle two major flaws of the liberal approach, with which SME has historically sided (SME is also known as ordoliberalism; cf. 3.1). On the one hand, by accepting international competition and “flexible labour contracts” as positive givens of a well-functioning market economy, SME fails to notice how the global competitive system brings wreckage upon “national economies”, to the point of causing dramatic “sociological” and “political” consequences (7.1.3). According to Utz, a worldwide market economy puts such a “pressure” on the “level of wages” that these can “drop to the minimum needed for subsistence, if not below”, which is a recipe for massive social and political instability (7.3.3). Moreover, whilst legally weak countries are selected by transnational businesses for their competitive low costs of production, stronger ones suffer waves of “unemployment” by way of delocalisation, loss of investments and inability to compete (7.3.3).[50] These horrors being absent from view or neglected, SME’s emphasis is set squarely on the fear of “inflation” instead, thus reflecting the chief preoccupation of moneyed individuals rather than, say, the working poor or the unemployed (7.3.3). On the other hand, SME accepts the trade unions’ “taboo” institutions of “universally binding labour contracts” and labour disputes by way of “strike and closedown” qua normal features of the market order, even if they are disruptive (e.g. harmful to production), ethically dubious (e.g. akin to extortion) and, above all, conceivably replaceable with sounder alternatives (7.3.3; cf. Ota Šik). The combined result of international competition and the trade unions’ power of blackmail is structural “unemployment” which, in the end, cannot be paid for by social provisions, since international competition reduces the resources available to State authorities, such as taxation and inflationary monetary largesse (7.3.3).[51]

It is at this point that Utz introduces the “socialist market economy” (hereafter OS) of Ota Šik as a better, albeit little known, combination of purely economic goals and socio-ethical concerns. Even if Šik does not use the term, OS can be deemed “socialist” because it does not entail “private property in the sense and forms of [standard] market economies” and it is critical of “capitalist… systems” in general (7.4). OS takes seriously the liberals’ “self-interest” qua chief human motive, but also SME’s acknowledgment of the “major importance” of the “State… for macro-level equilibrium”, plus the traditional socialist emphasis on “planning” (7.4.1). According to OS, minor “micro-level disequilibria” are part of normal business life and generally acceptable, but major “macro-level” ones require substantial State monitoring and careful planning by the public authorities (7.4.1). Without such monitoring and planning, “income distribution” goes astray (7.4.1). Specifically, OS observes a systematic “disequilibrium” at the macro level between “supply” and “demand” in the capitalist economic order (7.4.1). This disequilibrium is caused by the capitalists having the upper hand in market economies, where entrepreneurs and stockholders enjoy too large a portion of the pie produced therein, hence leaving the workers with too small a portion of it. As a result, the historical experience of capitalist economies has shown repeatedly how the wealthy seek further profits by means of destabilising speculative manoeuvers and/or industrial “overinvestments” (7.4.1). The latter are investments aimed at production and pecuniary gain that are unmatched by the workers’ actual “wages”, which inexorably “lag behind” and therefore lead into crises of “overproduction”, i.e. a macro-level mismatch between supply and demand, as also signalled waves of dramatic “unemployment” (7.4.1).

As a first, fundamental solution to these problems, OS advises “income distribution” not to be left to the market, but rather carefully “regulated” by the democratically elected authorities, e.g. by means of equal “retributions” for all workers performing the same job, wherever that may be (7.4.1). This way, private demand would be increased by better wages, to which OS adds also better pensions and targeted investments coordinated by State authorities (7.4.2). Additionally, the democratically controlled State authorities should make sure that environmental and workplace regulations are enforced too, as well as shorter working hours for the sake of “full employment” (7.4.2). This democratic macro-level regulation applies also to the “profits of the enterprise”, of which workers should become co-owners (7.4.1). This is OS’ second fundamental solution to the problems of capitalist economies. Property must not be ‘aristocratically’ concentrated in a few hands, but ‘democratically’ distributed as widely as possible. In this way, the opposition between employers and employees can be abolished, so that the paralising industrial conflicts arising from such an opposition are abolished too, whilst at the same time allowing the citizens to acquire more balanced, less sectarian “motivations” in politics (7.4.3). “Democracy” must apply in the economic sphere, not just in the political one (7.4.1). This is possibly OS’ most radical point. According to OS, a new, well-functioning economic system is not going to arise by the mere mixing of elements from the liberal and socialist camps, but from deeper changes in the “political order” and the “mentality” of economic actors (7.4.1).[52]

Utz claims OS to be an innovative and intelligent proposal, which is not immune to critique, however. As Utz argues, the State is granted by Šik considerable power to exercise “pressure” on the private sector, as well as to decide “retribution levels and investment quotas” (7.4.3). This would be all good and well, if and only if democracy’s chief pitfall did not exist, i.e. the voters’ diverse “motivations” and, above all, their diverse short-term self-interests, which could be in mutual agreement only under the unrealistic condition of equal distribution of property among them (7.4.3). Even less likely to succeed are systems where the State possesses the undemocratic power to enjoy the “central planning of the economy” (7.7). First of all, such systems fail to recognise the just and productive institution of “private property” and the self-interested “motivation of the persons involved in the economy” as fundamental to any economic order (7.7). Secondly, by doing so, these systems’ pursuit of “efficiency” and human “happiness” has always ended in failure: “until now, no centrally planned economy has ever succeeded in fulfilling its own proposed plans.” (7.7)

Upon the basis of the previous six chapters and of his extensive analyses and critical assessments in the seventh chapter, Utz concludes by offering the “only real… healthy… ethico-economic definition of the economic order: “the competition economy, founded on the universal right to private property, both for production and consumption, with the greatest possible diffusion of productive property, with stability of price levels and full employment.” (7.8.6; emphasis in the original)

Chapter Eight

The “justification” for the “existence” of the “market economy” pivots around the issue of whether it can also address “those who, for whatever reason, have no purchasing power” (8.1). “[C]lassical theory” focussed on “supply” so much that it became incapable of understanding and dealing with the problems proper to “demand”, including noticing those who may not exercise any (cf. Say, Mill; 8.1). John M. Keynes, studying in depth the issue of “unemployment”, offered a significant and substantial integration of the liberal paradigm (8.1). Still, not even the State’s injections and withdrawals of “investments” and “credit” for the sake of “full employment” and, with it, the balance between market “supply and demand” can address clearly and fully the issues of a “socially” and environmentally “sustainable economic growth”, i.e. a growth that is truly consistent with natura humana (8.1 & 8.2). Quite the opposite, by lack of adequate axiological criteria, Keynesianism remains trapped within a logic of indiscriminate “consumption” that, especially via the powerful means of modern “advertising”, leads to life-disabling consequences on both individual and collective levels (8.2). Its “ethics of demand” is flawed (8.2). And so is its “ethics of supply”, for no genuine commitment is present therein to “the integral human good”, but only a competitive scramble for “profits” that, inherently, “knows no morals” (8.3).[53]

No intrinsic logic of the market economy, or consequence thereof, serves specifically or primarily the good of natura humana, as amply shown by past (e.g. Manchester liberalism) as well as present forms (e.g. car-related pollution) of capitalism. Pressured by morally enlightened persons, the State alone can introduce, monitor and enforce rational “laws… directing supply towards the common good” (8.3). International competition works against State regulations, however. Entrepreneurs, seeking profits in a larger and increasingly competitive business environment, and managers, pressured by the imperative of maximising stockholder value, will resist, bend, circumvent and break the law, or move to countries where none or more “permissive” laws can be found (8.3). Therefore, as Utz concludes, a “socially” and “ecological[ly]… just” economic order requires the enforcement of rational “regulation” at the “global level” (8.3).

Chapter Nine

“Money” qua “universal and atemporal means of exchange” is understood by Utz as both a “claim over goods of the same value” and “a legal right to participate in the fruits of socio-economic cooperation”, present as well as future (9.1). With their money, the economic agents of market economies do not only buy goods and services, but stake claims over contemporary and later portions of the economic system’s productivity (e.g. qua interest payments and dividends). Besides, the value of money is not a mere matter of alloy, as it was in Aquinas’ Middle Ages, or of equivalent purchasable goods, as it is still applicable today, but also of the overall “economic prosperity” to which money contributes (e.g. qua productive investment; 9.1). In modern “dynamic economies”, money is much more than just a useful instrument to operate fair exchanges according to “commutative justice”, for its value ties directly into the “social justice” that “economic prosperity” is meant to serve (9.1).

Keynes had already observed that “the value of money is not determined by its quantity, but its circulation” (e.g. in periods of “stagnation”, the monetary mass may increase, yet the value of money remains unchanged; 9.1). Monetary and fiscal policies are therefore tools that State authorities can use in times of crisis. Yet, too much money poured into circulation may also lead to disruptive “inflation”, which is a “scourge” to be avoided, for it is “unjust” to the people whose rightfully earned money can no longer purchase as many or as valuable goods and services as when they earned that money (9.1 & 9.1.1). Above all, however, stand the social purposes which the circulation of money serves or facilitates. Not any circulation will do, even if conducive to short-term equilibrium between market “supply and demand” (9.1). For one, Utz deplores the increased economic roles and ownership levels attributed to State or other public authorities in the name of “manipulating at will” the monetary mass, for they reduce the room for private initiative, responsibility and ownership (9.1). For another, Utz deplores the historical applications of Keynesianism, which were far too one-sided, i.e. keen on injecting money in times of crisis, but timid in withdrawing it in times of economic boom. The resulting conspicuous “inflation” experienced in many countries caused enduring harm to “the elderly”, whose pensions lost value, and the youth, whose employment was made more unlikely, “the entrepreneurs” preferring their “substitution by technological innovations” to which the higher “retributions extorted by the trade unions” were not to be corresponded (9.1.1).

Concerning “credit”, Utz begins by recalling its Latin etymology (i.e. “creditum”), for it implies a bond of “trust” between borrower and lender (9.2.1). Ipso dicto, a viable credit system cannot do without the moral substratum of inter-personal trust underpinning human cooperation in the economic order. Also, Utz recalls how medieval “scholastics, in connection with [the philosophy of] Aristotle”, did firmly condemn “usury”, but also distinguished it from rightfully earned “interest”, which applied whenever the loan involved: (i) “a loss for the lender” (i.e. “damnum emergens”, e.g. “the owner of a [lent] hammer… for the duration of the loan, had to use a more rudimentary tool”); (ii) “missed profits” (i.e. “lucrum cessans”, e.g. “the lender… [cannot make] an investment”); (iii) the “risk” of loss of part or all of the loan (i.e. “periculum sortis”); and/or (iv) its late “restitution” (i.e. “poena conventionalis”). Important is also for Utz the scholastics’ acceptance of gains derived from “investments” in “somebody else’s enterprise”, which are earned “participation in profits”, not unearned “rent” (9.2.1). Medieval scholastics allowed money to be lent and hence interest to be rightfully gained for the sake of “productive aims” (e.g. lending money to merchants launching a new fleet; 9.2.2). Their condemnation of “usury” applied to “loans for the aim of consumption” (e.g. giving money to a person to let her buy bread to eat; in this case, the restitution of the borrowed sum was all that should be allowed; 9.2.2).[54] Not any profitable economic endeavour is a genuine “productive investment”, however (9.2.3). A good “growth” is not “quantitative”, but “qualitative”, e.g. it avoids “waste and environmental damages” even if doing so reduces consumer “comforts” that we take for granted in today’s societies (9.2.6). Seemingly old virtues need recovered and revaluated for their deep ethico-economic implications, e.g. “parsimony, abstinence and patience” constitute “objective presuppositions” for capital formation (9.2.3).

From Utz’s perspective, serving the common good is the “more profound” criterion that separates an unhealthy market economy from a “healthy” one (9.2.4). In the latter, “the owners of pecuniary patrimonies participate” responsibly and freely with their “productive investments” in a well-regulated market system, which is based upon “profits” and “private property” (contra “communism”; 9.2.5), and yet avoids a number of crucial evils that still plague market economies worldwide: “high taxes on enterprises’ profits[,]… the enterprises’ own exiguous dividends[,]… the stock-market oscillations caused by socio-economically unjustified speculations” (9.2.4), excessive “inflation” (contra “the Keynesians”, 9.2.6), and “the oppressive debt” induced by “the abuse of consumer credit” (9.2.7).

Rational regulation, i.e. laws and rules that have natura humana as their axiological axis, is particularly paramount vis-à-vis “banks and the stock exchange”, for failure to do so leads to major crises “disturbing the whole economic process” both in the short term (e.g. financial losses, unemployment spikes) and in the long one (e.g. post-crisis “recession” brings about “mergers of banks” that “weaken competition” and exercise unjustifiable “influence over the entire credit market, economic policy and State politics”; 9.3.1).[55] It may be true that “money has got its own market”, but it cannot be treated like any other commodity: “the real economy” depends on it in far too many and too crucial ways (e.g. price stability, investment decisions, wages; 9.3.1). For example, transnational “currency speculation” is sternly condemned as disruptive of both national and global economic orders (9.3.3). As Utz argues, “individual self-interest”, which market economies harness to the fullest extent, “must remain inscribed within the general interest” by way of powerful “legal instruments” applying at all levels, so that “the common good” is served by the economic process (9.3.2 & 9.3.3).

Chapter Ten

Rational regulation of the economic order is also at the basis of ethically justified contractual transactions. Without rational regulation, “prices” and “contracts” can far too easily be formed devoid of “good faith”, e.g. unbalanced transactions occurring because of another person’s state of urgent need (“hunger”; 10.1). In this case, speaking of free contracts, free trade and individual responsibility is either naïve or hypocritical; it is like accepting as valid “sport performances” by athletes taking forbidden drugs, or the “legal order” established by “dictators” who violate “human rights” (10.1). For the system of “commutative justice” known as the market economy to be justified, the conditions for “social justice” must be in place first (10.2). These conditions may require some degree of State interference in economic activities, but they are not primarily and certainly not exclusively about that. “Social justice” means that a just economic order presupposes a just social order, within which the former is contained and sustained (10.2).

Following Augustine and Aquinas, Utz accepts the notion according to which an individual’s assessment of the “usefulness” of certain goods is at the basis of price-formation in all commercial exchanges, rather than some abstract “ontological value” (10.2). However, as Aquinas had already highlighted, such assessments and exchanges take place within a “social space” that is not “empty”, but filled instead with “social aims” that ultimately justify the lawfulness and desirability of precisely such price-forming assessments and exchanges (10.2). For any “ethically just price” to be, then, two fundamental conditions must be met, one ex ante and another ex post: (i) “the given economic order [must be] ethically justified”; and (ii) “the price-formation occurring within it makes it possible for the needs of the members of society to be met completely.” (10.3)

Hypothetically, under the ideal textbook conditions of “perfect competition”, the liberals’ market economy might be able to meet both conditions; however, in the real World, “there exists only an imperfect market.” (10.3) Imperfection in the real World is what calls for and justifies State “intromissions” in “market price-formation”, including some that are often “qualified with the disparaging term ‘protectionism’” and yet are ethically imperative, especially when “basic food staples are at stake” (10.3). As to the exact type and specifications of such intromissions, they vary with country, goods, services and time in history.[56]

Chapter Eleven

Analogous considerations apply to the domain of “income” and workers’ “retributions” in particular (11.1). It is not the exploitative desire for profits of the entrepreneur (cf. 11.4), nor the ability for extortion developed by modern trade unions (cf. 11.4-7) that should determine the income of employers and employees in a rational market order. If anything, the inability to consider lucidly the other party’s legitimate interests and their relevance for the long-term well-being of society are the chief source of frequent, deplorable and disruptive forms of “warfare” within market economies (11.3), where the economic party enjoying “superior power” wins the day (11.6). In earlier phases of capitalist history, workers had no other way to make their voice heard and their rights respected. Today, in conditions of widespread prosperity, that justification no longer applies. Utz is vehemently critical of the legally accepted and judicially defended rights to workers’ “strike” and employers’ “lockdown” in the private sector (11.4), as well as of the unfair “double vote” of personnel in “the public sector”, whose “right to… political strike” blackmails “elected politicians” while harming “the public” that is supposedly to be served (11.5).

In lieu of such “civil wars” (11.6), “the supreme norm of justice” vis-à-vis “retributions” should be “the overall economic productivity” of whatever “economic system” is in place (11.1). Once again, this is no mere economic determination in standard liberal terms. Utz’s understanding of “overall economic productivity” requires taking into full account “the global social issues” that justify ethically the economic order, which a fortiori may not: (i) “seek… productivity… by increasing unemployment”; (ii) do without “full employment” qua cardinal “principle of justice”; and (iii) imperil or ignore the imperative “to ensure the future of the whole society”, both in the short- or medium-term (e.g. the “second distribution of income” to “the sick, the elderly, families”) and in the long one (e.g. “population growth… and… cultural needs (schooling, formation, etc.).” (11.1) In order to facilitate the respect of “justice” in employer-employee relations and the consequent determination of due income, workers’ “unions” and entrepreneurs’ “cartels” must stop thinking of themselves as enemies (11.2). Therefore, “joint responsibility”, cooperative behaviour and “trust” within “the enterprise” must be maximised by any available channel (11.2), e.g. novel forms of “contractual autonomy”, Johannes Messner’s plan for a “global economic organisation” independent of political pressures (11.3), or “collaboration in the formation of profit and capital, hence also in the entrepreneurial risk.” (12.3).

Chapter Twelve

In the concluding chapter, the notion of “profit” is also tackled “in connection with the global aims (social and cultural) corresponding to human nature”, i.e. with natura humana according to the Thomistic understanding of it (12.1). Ethically, there is nothing inherently wrong with the “desire for profit” qua “adequately remunerated performance”, this performance being measured according to the “objective” standards of the existing economic order (12.1). If “the aim pursued through the desire for gain” of an individual is (i) “honest”, (ii) contributes to “growth in living standards”, and (iii) sustains “the family[,]… the poor… [and] the State community”, then it is possible to interpret the “profit… sought… [and] need[ed]” by “the entrepreneur” in a capitalist system as the ethically legitimate reward for “individual performance and responsibility” (12.2). Contra liberalism, which often conflates “self-interest” and “selfishness”, Aquinas’ understanding of “profit” emphasises its “justification” on the basis of “the service rendered to the global economy” by “the entrepreneur”, her “enterprise” and, within it, “the workers too”, whose crucial “participation” must be acknowledged not only by means of decent “wages”, but also by “longer paid holidays[,]… a reduction of the working hours[,]… social contributions… [and,] in particular, …invested retributions” that increase the workers’ stakes in the enterprise (12.2 & 12.3).

Concluding remarks

To express concisely Utz’s stance, I adopt and adapt hereby the characterisation of the sort of economic transactions that truly life-enabling market economies should have, as these are described by Canada’s leading value theorist John McMurtry in his famous Cancer Stage of Capitalism (London: Pluto, 1999; 2^nd ed. 2013). In symbolic formalisation, these ideal economic transactions read as follows:

L –> $ –> MoL –> $¹ –> L¹

Which means in extended formulation that:

Textbook for-profit market economic exchanges occur (i.e. input capital “$” generating output capital “$¹”, e.g. profits, interests, dividends, etc.);
but in such a way (i.e. within such a strictly enforced binding legal framework) that the commodities (i.e. goods and services) therein produced, transported, traded, consumed and/or disposed of are always and exclusively beneficial to life (i.e. “MoL”, means of life, e.g. zero-mile organic bread);
that is, they are neither destructive (e.g. weapons, carcinogenic pesticides, junk food) nor blind to life-aims and life-requirements (e.g. financial derivatives);
and they are conducive to broader and deeper levels of life-capacity (i.e. the initial input “L” engenders “L¹”, e.g. healthier, happier and/or more cultured individuals).[57]

This is as succinct and clear a theoretical template as I can provide of a rational, well-designed and well-conducted capitalist economic order that, at global and local levels, aims at securing life-fulfilment for present as well as future generations to the widest imaginable extent. It is the schematic depiction of a capitalist economic order that, via the countless transactions that it engenders and the many institutions that it establishes, takes the World as it is right now and makes it into a better one—a World where the conditions for continued human flourishing are secured.

McMurtry’s Life-Value Onto-Axiology offers an articulate set of criteria to understand and direct such a flourishing (cf. EOLSS, supra: nn24 & 28). On his part, Utz characterises life-fulfilment in relation to the fundamental aims of natura humana, i.e. the “supreme principles” of Aquinas’ “natural law”: “self-preservation, self-perfection, mating, generation and education of the offspring, acquisition of knowledge, (natural) knowledge of God” (6.1.3.2). In this perspective, a good economic order is one that facilitates throughout, say: longer and healthier human lives (cf. self-preservation), peaceful and happy personal existences (cf. self-perfection), a healthy demographic balance (cf. mating), universal schooling and free university education (cf. education of the offspring, acquisition of knowledge), freedom of conscience (cf. natural knowledge of God). The implications for economies and, in particular, for policy-making (Utz’s “economic policy”), are obvious: a good market economy is one that secures the conditions above (and many others); a bad market economy is one that does the opposite (e.g. by facilitating the destruction of the Earth’s life-support systems).[58]

There are implications for the study of economic phenomena too. Once Utz, true to Aquinas’ legacy, has established that the human being possesses a certain nature, which determines de facto and justifies de iure certain socio-ethical and personal goals and not others, it follows logically that no economy we may choose to study can be isolated from its socio-cultural milieu, for it is therein that human agency unfolds, economic agency included. No economic category can be treated as though such a milieu did not exist or were irrelevant to such categories’ conception, selection and/or application. In particular, all forms of economic agency qua human agency are, inherently, morally connoted, for they imply personal motives and social consequences that can be deemed ethically good or bad, whether economists realise it or not. Standard economics grasps and operates upon some important features of human social existence; but equally do other social and natural sciences (Utz mentions anthropology, ethology and psychology), as well as much older disciplines, whose task is to delve deeper than the empirical sciences themselves (Utz speaks in this respect of philosophy, ethics, theology and natural-law jurisprudence). An intelligent economics capable of addressing the human condition holistically—its fundamental needs, rights, duties and aims—will have to be integrated, qualified and sometimes guided by these other disciplines. No discipline is an island, and most certainly not the discipline of economics. Above all, an intelligent economics will have to acknowledge how any legitimate and possibly good economy must serve what is good to the human person, now and in the future, universally.

It is unclear whether the 2008 global meltdown and the ongoing economic crisis resulted thereof have changed the way in which mainstream economics is pursued, not to mention the World’s economic policy-making by State officials. As far as I have been able to ascertain, mainstream textbooks in economics have not been revised yet and it is far from clear whether State officials have stopped prioritising the corporate interests that they had been catering to before 2008 under the banner of globalisation, of which Utz is vocally critical. Perhaps, the powerful economists and the economic powers are as obtuse and as obstinate as the addicted patient who, as Utz mused, keeps harming herself by refusing to be cured. Utz-the-physician may yet be unheeded. Still, Utz’s work does not come across as pessimistic. On the contrary, it is infused with Scholastic optimism in our natural faculties. The book assumes that human reason, albeit imperfect, can identify the essential aims of human existence and conceive of the institutions that are capable of maximising our likelihood to attain such aims.

For a book written by the member of a religious order, Economic Ethics contains no mysticism, no appeal to faith, and very little theological commentary. It is in the paucity of scriptural sources that I observe the most striking difference between Utz’s book and the founding documents of the SDC, namely the Popes’ encyclicals on socio-political, economic and environmental matters.[59] Conceptually, the similarity, indeed the identity of views, is patent to anyone familiar with SDC. Utz’s stance in these matters is the one characterising the so-called “third way” of much European Christian Democracy, which strikes a balance between liberal principles and socialist ones, whilst also endorsing others that are either neglected or opposed by both liberalism and socialism, at least in their historical manifestations (cf. Giovanni Franchi, “Arthur F. Utz als Interpret der pluralistischen Demokratie”, 2013).[60] Thus, Utz’s book can serve as an eminent example of SDC to anyone willing to explore this “third way” and understand its philosophical foundations.

Appendix – A short note on Utz’s Political Ethics

Human actions are never purely economic, purely political, or purely legal; but all are moral (cf. 1.1.3). On the one hand, the agent’s intentions typically combine multiple ends, such as serving one’s own family’s or closest associates’ well-being (i.e. a political end) by conducting intelligently one’s own for-profit business (i.e. an economic end), whilst keeping to the existing laws (i.e. a legal end). Depending on the family’s notion of well-being, the sort of for-profit business and the spirit of the laws at issue, the agent’s actions may be good, better, worse, or bad. For example, the family or associates at issue could be a mafia clan, the business an ecologically devastating one, and the laws to comply with the most permissive that persistent lobbying and generous bribing have bought. On the other hand, the agent’s actions have consequences, which affect individuals, communities, societies, States, animals, natural environments, and the meaningful unity of the whole Creation. Depending on the consequences, the agent’s actions may be good, better, worse, or bad. Maximising shareholder value by ecologically harmful licit business activities, whose legislation is the result of well-meaning business-friendly advice by liberal-minded international experts (cf. 3.1.8), is still going to cause negative consequences for present and future persons, even if no wicked intention is at play. Indeed, if the eventual goodness of the market order is assumed a priori (e.g. the invisible hand’s necessary beneficial spill-overs), such negative consequences may be easily overlooked.

It is logically possible and practically useful to separate different domains of investigation in the social sciences, which began their long path towards disciplinary specialisation in early modernity, thanks primarily to Machiavelli (cf. 3.2.1) and Bacon (cf. 1.1.3). Excessive separation, if not outright isolation, leads to monstrosities, though. Pure law, devoid of anchoring in metaphysics or ethics, accepts as valid the most unjust legal system, as long as it is formally and procedurally correct (e.g. Kelsen; cf. 1.2 & 2.1.1). Pure politics reduces the political arena to an unprincipled struggle for power (e.g. Weber; cf. 1.1.2), if not to preparation for or execution of war against an enemy (e.g. Schmitt; cf. 1.1.2). Unrestrained political struggle can lead to civil strife and/or loss of legitimacy of the political system (cf. 3.2.5). War can be just, but it can be so by fulfilling very strict ethical criteria (cf. 5.2.3). Both must be seen holistically in order to be healthy, i.e. in connection with natura humana. Even in its democratic manifestation, as long as no deeper principled ground is retrieved, politics is reduced to the competition among different aggregates of subjective preferences, which may be as largely and as voluntarily adhered to as possible, and yet remain thoroughly unjust (cf. 2.1.2), hence illegitimate (cf. 2.5.2, 3.16, 3.2.3). States cannot be utterly neutral on matters of fundamental value (cf. 2.2.3).

Not even the broadest shared interest of the democratic polity is necessarily the common good (cf. 3.1.5 & 3.16). For instance, popular votes and elections may bear witness to the widespread support for a leader, party or political programme that exclude, expel or even exterminate an undesired minority. Under such circumstances, we can easily perceive that there is something is amiss. In today’s legal jargon, we would claim that someone’s fundamental rights—human rights—are being violated (cf. 1.1.6). But what justifies and secures these rights against a large democratic consensus set squarely against them? And what justifies and sanctions, positively, open resistance to their negation? (cf. 4.6.2 & 6.1)

Universal human rights are not to be understood as mere individual rights bestowed upon individuals under a democratically run constitutional setting. They are not to be thought of as a matter of sheer agreement among individual citizens, which can change with changing circumstances. Universal human rights are the result of reflective abstractions from prolonged moral experiences, individual as well as collective. They are the fruit of centuries of socio-cultural and politico-legal consideration. They encapsulate our knowledge of the most important dimensions of what it means to be human. They express what makes it possible for us to be human beings, i.e.:

both in terms of our being (e.g. “the right of everyone to be free from hunger” and “to the enjoyment of the highest attainable standard of physical and mental health”, cf. ICESCR arts. 11(1) & 12(1));
and in terms of our humanity (e.g. “the widest possible protection and assistance… to the family”, “the right of everyone to education… cultural activities… periodic holidays with pay… just and favourable conditions of work”, cf. ICESCR arts. 10, 13(1), 15, 7(d) & 7).

Following the Aristotelian and Thomistic traditions, Utz welcomes metaphysics and ethics as pivotal abstractive ontological reflections (i.e. reflections about facts of being) and includes them among the disciplines at our disposal in order to make sense of the World in which we live. Indeed, Utz includes also faith qua knowledge based on good testimony (cf. 4.4.5) and the Christian religion qua repository of axiological wisdom (cf. 6.2). His gaze is set primarily on Thomistic philosophy and the philosophical components of the doctrine of the Catholic Church, however, for they are not a matter of faith, but of rational reflection (cf. 6.2.2). Pace Kant, metaphysical abstraction is claimed not to lead necessarily and uniquely to empty forms of the intellect, but, if properly conducted (e.g. Aquinas’ recta ratio), it can also grasp the fundamental principles of reality, including the aims that are natural to the human being and therefore good for us to pursue (cf. 1.1.1 & 1.1.2).

The natural-law tradition emerged upon the basis of such forms of abstraction is what provides the epistemic and moral foundation of human rights legislation and it explains why, even if all citizens of a democratic human community but one agreed upon the denial of that one person’s fundamental rights, an intolerable injustice would have occurred (cf. 2.4.3). Injustices have occurred in the past and keep occurring in the present, sometimes on a massive scale. Utz claims that these injustices, in the long run, cause major socio-political catastrophes, for consistent and prolonged violation of the nature of things—i.e. attacks on the integrity of their being—is the dark fountainhead of the worst human tragedies (e.g. war, genocide, ethnic cleansing). Ontological error breeds practical horror. It may be true, as Hobbes argued, that “auctoritas, non veritas facit legem”, but bad laws are not going to make such an authority enjoy prolonged legitimacy and success, for they contradict essential characters and aims (1.2.1.3).

The starkest example that Utz discusses in this connection is that of the ecology of the planet, which cannot be treated as we wish, no matter the degree of authority enjoyed, and no matter what extensive democratic agreement there may be (cf. 3.1.7). The nature of the Earth’s ecosystems has to be seen for what it is, taken on its own terms, and allowed the ontological means required for its actual continuation, even if that may signify a considerable change in everybody’s life-style. Though undesired and perhaps even painful for most, if not even for all the members of the present generation, such a considerable change of life-style ought to be accepted and pursued, so that life too, including human life, may continue in the future. The good of Earth is a splendid example of common good i.e. that which is good to human societies, but that cannot be reduced to the individuals therein comprised. Doing what is good for the planet is not the same thing, especially in the short- and medium-term, as what the individuals acknowledge as good and therefore want for themselves. Doing what is good for the planet cannot even be reduced to a matter of agreement, at least in theory. If all citizens of Earth preferred to continue with the current life-destructive life-style and waste away the planet’s ecology, that would be still evil.

The human being has its own nature, which involves ends that are intrinsic to our being (i.e. the analogical final causes of the Aristotelian tradition; cf. 3.1.9). Pursuing happiness (aka perfection, aka well-being) is one of them, which can be delineated in many ways, depending on the specific circumstances that apply to each person, as well as derailed in many ways, given our freedom and capacity to err (cf. 4.2.1). Politics is one of the instruments at our disposal in the pursuit of happiness. Indeed, politics is, in concrete historical experience, one of the essential ends of the human being, for we are inherently social beings and we cannot seek perfection, individual selfishness notwithstanding, but in broader associations, which in large and complex cases take the form of political communities (cf. 4.3.5). States, or better, the societies that they serve, have therefore their own order of perfection, i.e. the common good.

Again, Utz emphasises how the common good is not an aggregate, but that which is good for society (e.g. the rule of law), even if it may not be obviously or immediately good for the individuals inside it (e.g. some individuals would be better off, most certainly in the short or medium term, by having chaos, civil strife, corrupt judges or inept policemen, rather than the rule of law; cf. 2.4.1). Utz believes it necessary to stress this point repeatedly, because modern civilisation, unlike the ancient and medieval ones, has broken the unity between intellect and reality (cf. Descartes, 3.1.3). This break has left our mind uncertain vis-à-vis the validity of the claims of knowledge that we can make, and replaced the strong objectivity of older metaphysics with a weaker intersubjective one (cf. Kant, 4.6.7), which shifts the focus of our attention and admiration away from the World (and its Creator) and onto the individual instead. These are the philosophical roots of modern individualism, with which any contemporary political entity has to deal.

Endonotes

[1] The original version, Wirtschaftsethik (Bonn: Scientia Humana Institut), is available online. All English translations of and from Utz’s works in the present text are mine. I cannot claim major proficiency in German, but I believe my competence to be adequate to the present task. This essay is no in-depth critical study, but a reasoned, detailed synopsis and brief discussion of Economic Ethics, of which I also consulted existing Italian and Spanish translations.

[2] Born in Basel, Utz grew up in Germany and became a Swiss citizen in the 1950s (cf. Wolfgang Hariolf Spindler, “Arthur Fridolin Utz”, Thomistenlexicon, Bonn: Nova & Vetera, 2007: 677-684).

[3] Utz was a member of the Ordinis Praedicatorum i.e. the Dominican Order. His Social Ethics is neither confessional nor clerical, however. It is philosophical, and specifically Thomistic.

[4] His most widely translated books are the eleven volumes of Utz’s Bibliographie der Sozialethik (Freiburg: Herder, 1960-1980). Extensive bibliographies and e-texts of Utz’s works can be found on the websites Helmut Zenz: Arthur Fridolin Utz im Internet and Stiftung Professor Dr. A. F. Utz.

[5] Koslowski knew of Utz’s research, e.g.: his Principles of Ethical Economy (Dordrecht: Kluwer, 2001) refer to the 1982 collection of essays entitled Kann der Christ Marxist sein? Muβ er Kapitalist sein?, edited by Utz (p.264); “The Common Good of the Firm as the Fiduciary Duty of the Manager”, i.e. his contribution to the 2005 book Business and Religion: A Clash of Civilisations? (edited by Nicholas Capaldi; Salem: M. & M. Scrivener Press, pp.301-312), includes a reference to Utz’s 1958 first instalment of the Sozialethik; his essay “Public Interest and Self-Interest in the Market and the Democratic Process” (International Centre for Economic Research, Working Paper No.9/2004) includes another to B. Kettern’s 1992 monograph on Utz, entitled Sozialethik und Gemeinwohl. Die Begründung einer realistischen Sozialethik bei Arthur F. Utz (Berlin: Duncker & Humblot). Also, Koslowski and Utz took part in a collaborative project on economic ethics (cf. Peter Koslowski & Yunquan Chen (eds.), Sozialistische Marktwirtschaft und Soziale Marktwirtschaft. Theorie und Ethik der Wirtschaftsordnung in China und Deutschland (Dordrecht: Physica Verlag, 1996), from the book series Ethische Ökonomie. Beiträge zur Wirtschaftsethik und Wirtschaftskultur, directed and co-edited by Koslowski). As to Utz, Economic Ethics mentions five times Koslowski, whose work figures prominently in the bibliography.

[6] To my knowledge, Utz’s only English-language publication was “The Principle of Subsidiarity and Contemporary Natural Law”, Natural Law Forum 3(1)/1958: 170-183. The present synopsis is therefore likely to be the most detailed English-language text on Utz’s ethics of economics, larger even than Helen Alford’s excellent essay “The Influence of Thomistic Thought in Contemporary Business Ethics” (in Christoph Luetge (ed.), Handbook of the Philosophical Foundations of Business Ethics, vol. 2, Dordrecht: Springer, 2013: pp.227-250).

[7] Based on the older Catholic Union for Social and Economic Studies (est. 1885), the institute was affiliated with the University of Fribourg between 1946 and 1978; afterwards it became autonomous. Utz was also the director of the Institute for Social Sciences Walberberg (1966-1993) and the president of the International Foundation Humanum (1976-1998).

[8] Domènec Melé states: “Utz and Messner have made an outstanding contribution to social and economic ethics from a Thomistic approach.” (“Scholastic Thought and Business Ethics: An Overview”, in Christoph Luetge (ed.), Op. cit.: p.137). Utz was most familiar with Messner’s thought and edited a collection of essays in his honour in 1980. The two thinkers agreed on all crucial issues, while disagreeing on some details. Their divergences in matters of economic ethics are addressed by Utz in the present book. Firstly, Utz adopts a stricter notion of human freedom than Messner (1.2.4). Secondly, albeit praising him for his “unsurpassed… systematic exposition of economic ethics”, Utz criticises Messner for not distinguishing sharply between the level of the “abstract… theory of value” applying to all forms of “social ethics” and the level of the “economic order” best reflecting “the natural or quasi-natural behaviour of social members” (1.2.5.3).

[9] Utz had direct contact with several Popes, before and during their pontificates, especially Pius XII, John Paul II (who nominated Utz founding member of the Papal Academy of Social Sciences) and Benedict XVI (cf. Spindler, Op. cit. & Herbert Schambeck, “The History of the Pontifical Academy of Social Sciences”, Sustainable Humanity, Sustainable Nature: Our Responsibility, Rome: Pontifical Academy of Sciences, 2014, pp.1-8). Important in this connection are also Utz’s 1963 extensive commentary on Pope John XXIII’s encyclical Pacem in Terris and the many volumes on the SDC that he authored, co-authored and edited, such as Die katholische Sozialdoktrin in ihrer geschichtlichen Entfaltung (Aachen: Scientia Humana Institut, 1976), Was ist katholische Soziallehre? (Köln: J.B. Bachem, 1978), and Die katholische Soziallehre und die Wirtschaftsordnung (Trier: Paulinus, 1991).

[10] Utz received in 1968 West Germany’s Federal Cross of Honour.

[11] Utz received in 1991 Austria‘s Great Golden Medal.

[12] Other key-members were Joseph Höffner (1906-1987) and Oswald Nell-Brüning (1890-1991). Utz is also known as part of the Walberberg intellectual circle, which comprised four more Dominicans: Laurentius Siemer (1888-1956), Eberhard Welty (1902-1965), Edgar Nawroth (1912-2010) and Basilius Streithofen (1925-2006) (cf. Wolfgang Ockenfels, “The Walberberg Circle. The Social Ethics of the German Dominicans”, in Francesco Compagnoni (ed.), Preaching Justice: Dominican Contributions to Social Ethics in the Twentieth Century, Dublin: Dominican Publications, 2007: 330-355).

[13] All original versions and partial Japanese translations of volume 5 are available online.

[14] An anonymous reviewer of the Italian translation of Utz’s Political Ethics describes his style as “compact, schematic, clear, assertive”, whilst also praising “the absence of polemics” and concluding: “this style of thought and expression is something that only old wise persons can afford.” (cf. FASS, 2008) The same can be said of Utz’s Economic Ethics, which reads like a series of calm yet trenchant logical steps following from the adoption of the Thomistic ethical perspective and its application to economic affairs. Utz observes and comments upon them in a way that is aloof from current intellectual fashions, priorities and prejudices. Looking at modernity from, so to speak, the 13^th century, leads to remarkable lucidity.

[15] The Thomistic epistemology of our inherent aims is articulate (cf. 6.1.3.2). Firstly, Utz mentions fundamental intuitions in the person’s rational nature, requiring no articulate inference (i.e. Aquinas’ lex naturalis, e.g. the pursuit of happiness). Secondly, he speaks of general principles inferred from the person’s rational nature (i.e. Aquinas’ primary ius naturale, e.g. the common good as prior to the private, human liberty). Thirdly, he speaks of general principles born out of rational reflection beyond the person’s rational nature alone and aimed at fulfilling the previous two levels (i.e. Aquinas’ secondary ius naturale or ius gentium, e.g. private property). Finally, he recalls how such principles apply to mutable circumstances.

[16] Aquinas combined Aristotle’s eudaimonism, whereby human beings seek by nature a fundamental end i.e. happiness (aka perfection, completion, well-being), and Christian belief, whereby final happiness lies in post mortem beatitude.

[17] Utz does not reduce “the common good” to the sheer aggregate of individual goods. Seeking personal perfection is paramount for human happiness, but it must take place within, and in coherent connection with, the good of larger units, e.g. the Earth’s ecology and the communities to which each person belongs and is duty-bound (cf. 3.3.2).

[18] Utz derives from Aquinas the idea that all norms are identified by means of reasoned reflection (i.e. metaphysical abstraction) on the individual’s inner experiences of moral duty and responsibility, which, however, can only be given, understood, formulated and acted upon in a socially established system of interpersonal existence, thought, language and mores situated beyond each individual. No man is an island; not even Robinson Crusoe (cf. 5.3 & 5.4).

[19] Except for the preface, for which I make use of page numbers in the original German edition, in-text references are provided by way of numbers separated by full stops: the first number indicates the chapter, the second the section, the third the sub-section and the fourth the sub-sub-section. This should be an efficient solution for readers coming across different translations of the book, as well as an indication of its systematic organisation. I owe the idea to Giovanni Salmeri and Angelo Lanzoni, the Italian translators of Utz’s volumes 4 and 5, which in the original editions employ respectively, though somewhat idiosyncratically, worded numerals, Roman numerals, Arabic numerals and letters of the Latin alphabet.

[20] In his witty and insightful 1933 book on Saint Thomas Aquinas, G.K. Chesterton writes about Aquinas’ “optimism” vis-à-vis the epistemic potential of human reason (section I). This positive attitude is reflected in Utz’s own confidence, and the Catholic Church’s at large, in the willingness and ability of individuals and institutions to do the right thing, our fallen nature notwithstanding.

[21] Pace today’s ordinalist, post-modernist, relativistic and variously consensus-based World-views, Helen Alford praises Utz’s Thomistic position in light of the on-going environmental collapse of our planet: “the possibility of seeing nature, including human nature, as a guide for human action in general could be more widely recognized” because of “the current recognition of the ‘nature’ of the environment, that is, that we cannot treat our planet only according to our supposed ‘consensus’ (many would say ‘what consensus?’), but that we need to treat it according to its own nature.” (Op. cit.: p.238)

[22] Whether the will follows reason’s discovery and assessment of natural inclinations is a different issue. Given our imperfect condition, there is no guarantee. The Christian revelation, under this perspective, comes to our assistance, e.g. God’s grace, Christian rites and sacraments, character education in religious schools, etc.

[23] As Helen Alford observes in her study of Utz’s book, ethics explores paths that scientists trod upon inevitably but blindly: “Technical disciplines that do not recognize that they are based on more profound assumptions or premises that they take as self-evident (unexamined) and on which they are built do in fact have such assumptions, but their experts are not aware that this is the case, and… [it] is not a question on which they reflect.” (Op. cit.: p.239)

[24] Utz’s book echoes the mounting literature in value theory, environmental thought and ‘green’ economics accusing mainstream economics’ conceptions of aiding the destruction of Earth’s life support systems (cf. UNESCO, Encyclopedia of Life Support Systems (EOLSS), 2002-2015).

[25] These natural or rational aims correspond almost point-by-point to the “supreme principles” of Aquinas’ “natural law”, i.e. “self-preservation, self-perfection, mating, generation and education of the offspring, acquisition of knowledge, (natural) knowledge of God.” (6.1.3.2)

[26] Aquinas’ notion of harmonious inter-connection of moral virtues for the sake of human happiness is possibly the oldest key-theme in the philosophical work of Utz, whose first published book was his university thesis De connexione virtutum moralium inter se secundum doctrinam sancti Thomae Aquinatis (Oldenburg: Albertus Magnus, 1937).

[27] Utz and Šik belong to two different philosophical traditions, both of which acknowledge the fundamental equality of all persons. As such, they stand opposed to traditions that separate them into casts (e.g. Nietzsche), races (e.g. Gobineau), orders (e.g. Adam Smith), makers/takers (e.g. Ayn Rand), proletarians/bourgeois (e.g. Stalinism), and grant them accordingly different rights (e.g. classical liberals’ opposition to universal suffrage), if any at all.

[28] Together with Scottish-Icelandic jurist Rachael Lorna Johnstone, I have described and discussed in 2011 and 2013 the substantial overlap between the human rights legally and internationally recognised by the United Nations’ ICESCR and John McMurtry’s “life ground”. This notion is part of what constitutes to date the most ambitious theory of value developed by any 21^st-century philosopher, i.e. Life-Value Onto-Axiology (cf. UNESCO, EOLSS, 2002-2015).

[29] This definition is the only “real” one, even if it may not describe any concrete imperfect economy: “in anatomy, the physician does not define the sick man, but the healthy one.” (7.8.6)

[30] Helen Alford argues that mainstream economists are likely to find peculiar the thematic order and the areas of emphasis of Utz’s book (e.g. a mere handful of pages on profit “in a book of 300 odd pages”). Yet both reflect the fact that the book is “about the ethics” of economics, not economics as such, as well as its intention to erect “a Thomistic economic system” of great “breadth and coherence”, which she claims Utz to succeed in, thanks to his “encyclopaedic knowledge” (“An Unusual Animal: A Coherent Economic Ethics”, Oikonomia 2(2)/2000).

[31] Garrett Barden and Tim Murphy reach the same conclusion in their 2010 book Law and Justice in Community (Oxford: Oxford University Press), which too reflects the natural-law tradition.

[32] Responsible acceptance of good restraints to freedom is a standard feature of Christian thought. Even from John Milton’s radically Protestant and anti-Catholic perspective, to seek freedom above all was Satan’s misguided aim: “…Here at least / We shall be free… Better to reign in hell, than serve in heaven.” (Paradise Lost, Book I, verses 258-259 & 263).

[33] Utz‘s book addresses frequently “commutative” and “distributive justice”, which are respectively fairness in the exchanges between individuals, and fairness in the distribution of goods and responsibilities among the same individuals. Aquinas described both forms of justice as the two species of particular justice, i.e. virtuous behaviour directed to the good of individual members of the community (e.g. specific customers, employers, spouses, etc.). The book contains also references to general justice, i.e. virtuous behaviour directed to “the common good” i.e. the good of the community in which the individual members operate (e.g. being law-abiding citizens). Following Aquinas’ 19^th-century scholar Taparelli, who mentored Leo XIII, Utz refers to general (aka legal) justice as “social justice” and claims it to have priority over particular justice (5.2.6): after all, a dysfunctional society will inevitably fail the well-being of its individual members.

[34] Such a debatable ethical character explains why, according to Utz, John Rawls developed a novel criterion for the justification of wealth disparity, alternative to the Pareto optimality commonly endorsed by liberals (1.2.2).

[35] Utz’s scepticism vis-à-vis the centrally planning State has old roots in his reflection, e.g. Das Subsidiaritätsprinzip (Heidelberg: Kerle, 1953) and Formen und Grenzen der Subsidiaritätsprinzips (Heidelberg: Kerle, 1956).

[36] Giovanni Bertuzzi argues that Utz’s book shows how Christians should not rely upon the Gospels alone for the understanding of socio-historical phenomena. The Thomistic tradition offers “an objective abstraction-based knowledge[,]… natural law[,]… and the teleological interpretation of human ethics”, all of which, albeit eventually consistent with revealed doctrine, spring out of reason, not faith (“Non basta il Vangelo a guidare il cristiano?”, Oikonomia 2(2)/2000).

[37] Giovanni Pallanti highlights the importance of Utz’s critique with regard to major negative side-effects of “globalisation”, such as the increased job insecurity caused by the “pulverisation of productive systems” into a plethora of “flexible” contractual forms, the widespread varieties of denial of “labour rights” in the name of “competition”, and the return of outright “exploitation” in “Asia, North Africa, Eastern Europe” (“Diritto al lavoro e dignità del lavoro”, Oikonomia 2(2)/2000).

[38] Utz prefers describing the good (aka natural, aka rational) “values” as “teleological decisions based on nature”, so as to separate them clearly from mere individual preferences, which are subjective (contra Scheler; cf. Political Ethics, 6.3).

[39] Paolo Carlotti argues that Utz’s Thomistic interpretation of “financial ethics” leaves the concrete field of business agency open to many profitable operations, as long as “they allow and favour the adequate development of necessary economic functions” and, a fortiori, its “social aims” (“L’etica economica finanziaria di A.F. Utz”, Oikonomia 2(2)/2000).

[40] In a later sub-section, Utz argues that market economies cultivate and exploit immature consumers that are very far from the rational self-interested individuals assumed by liberal textbooks: “Competition among producers degenerates into the advertising market, where the one who wins is the one that can afford the most expensive advertising”, even if the sold “goods” are “harmful to the environment, the health, or the morality of society” (7.2.2). The influence of John Kenneth Galbraith on Utz’s analysis of modern consumer societies is most evident here.

[41] Communist States and monastic orders are compared and contrasted in Utz’s 1982 book Das Wirtschaftssystem der religiösen Order oder: Ist der Kommunismus möglich? (Bonn: Institut für Gesellschaftswissenschaften Walberberg).

[42] Consider, for example, the classical liberal Drummond professor of political economy William Nassau Senior (1790-1864) who, when told that a million Irishmen had already died in the potato famine (1845-1849), famously replied: “It is not enough!”—the iron law of supply and demand had not yet run its full course. Or Adam Smith, who had argued in his 1776 Wealth of Nations: “in civilized society it is only among the inferior ranks of people that the scantiness of subsistence can set limits to the further multiplication of the human species; and it can do so in no other way than by destroying a great part of the children which their fruitful marriages produce.” (I.8.38) In recent times, Lawrence Summers, then Chief Economist for the World Bank, issued on the 12th December 1991 an internal memo, later leaked to the public, in which he claimed that “the economic logic behind dumping a load of toxic waste in the lowest wage country is impeccable.” As he argued, countries where the inhabitants are paid “the lowest wages” and where, even if their natural environments are “UNDER-polluted… compared to Los Angeles or Mexico City”, they statistically die younger than “people” in richer nations, who instead “survive to get prostrate cancer”, are also the countries in which “health impairing pollution” can be “done… [at] the lowest cost”, for such already poorer and shorter-lived populations have less to lose, i.e. lower “foregone earnings from increased morbidity and mortality”. The memo does not address the fact that such an impeccable logic, if followed, would also be self-reinforcing, hence condemning shorter-lived populations to remain shorter-lived.

[43] Utz reiterates his critique of “sudden” and “complete opening of the markets” in the seventh chapter: “each individual national economy was born out of particular social conditions, which cannot be changed abruptly without social and political shocks” (7.6.2). Also, delocalisation into Third-World countries, the US pressures over the EU to establish a common agricultural market despite the US’ less healthily regulated agricultural sector, and the corporation-friendly processes of “GATT and European unification” are all criticised in light of their nefarious “social consequences” (7.6.2). In particular, Utz singles out “unemployment”, “the exploitation of poor populations”, necessity-driven “immigration”, and “identity loss” in the socio-cultural and political spheres (7.6.2; in his Political Ethics he expresses preoccupation vis-à-vis migration from Muslim countries and doubts on its effective integration within Europe, cf. 4.4.4, 4.4.7, 4.4.8 & 6.2.1).

[44] Ferruccio Marzano argues that Keynes’ actual ethico-economic stance was close to Utz’s one, especially as regards the social functions of “money and credit”, the disruptive nature of unfettered financial speculation, and the economic key-role of “savings” and individual “responsibility” (“Il punto di vista di un economista keynesiano”, Oikonomia 2(2)/2000).

[45] Though pivotal, common interest trumps self-interest, e.g. the liberals’ own acknowledgment of the citizens’ duty of military service “in case of war” and the justification of their own policies as beneficial to “the common good” (7.8.2).

[46] This moral duty has legal repercussions that, however, are discussed mostly in other chapters. For example, a person that, “fallen in a state of need”, stealthily alienates some of an unhelping wealthy person’s goods, is no criminal. By failing to meet her “moral duty”, the wealthy person “loses her right over those goods” (6.1.3.1). Costly legal, judiciary and administrative institutions must be established too, in order to ensure that “social justice” is actually served, for “social justice” has “priority over market law” i.e. “commutative justice”, as exemplified by: (i) unemployment benefits funded by a money pool in which “all enterprises” participate (5.2.6 & 7.1.1); (ii) a tax-based “common fund” aimed at integrating the income of low-paid workers so that they are able to provide for “a family” (5.2.7); (iii) a centrally administered monitoring and steering authority that, by means of “fiscal” dis/incentives, leads to “the productive use of the land” (7.7; cf. Summers’s 1991 memo as a reasoning based on commutative justice alone, devoid of social justice: supra n42).

[47] Industrial “research” in market economies has been geared towards “the most powerful engines… the most comfortable heating systems”, not towards “renewable energy sources” (7.1.5). In actual market economies, “industry” keeps resisting “change… because of the previous investments that have been made” and for “fear of unemployment” (7.1.5).

[48] Utz includes in his bibliography Cornelius Castoriadis, to whom our NSU research group devoted three years of study. The great Greek-French thinker had similarly argued that “capitalism… inherited these anthropological types from previous historical periods: the incorruptible judge, the Weberian civil servant, the teacher devoted to his task, the worker whose work was, in spite of everything, a source of pride. Such personalities are becoming inconceivable in the contemporary age: it is not clear why today they would be reproduced, who would reproduce them, and in the name of what they would function.” (“The Rising Tide of Insignificancy”, notbored.org, 1994, p.137)

[49] Consider US president Obama claiming “ethic of greed” as the prime cause of the 2008 international financial meltdown (cf. Jeanne Cummings, “Obama blames ‘ethic of greed’ for economy”, Politico, 27 March 2008). Utz’s stance resembles Michael Polanyi’s: “public liberties” are prior to “private liberties”, since a freedom-loving citizen must be committed to social values (e.g. beauty, justice, knowledge) in order to enjoy room for personal idiosyncrasy, eccentricity, obsession and isolation, which are justifiable insofar as they benefit society (cf. The Logic of Liberty, U. of Chicago Press, 1951).

[50] Because of its nefarious psychological, social and political effects, unemployment was the issue that most preoccupied Utz as regards the dysfunctional traits of actual market economies, cf. Die massive Arbeitslosigkeit und die Wirtschaftsordnung (Berlin: Duncker & Humboldt, 1998).

[51] Keynesianism is treated briefly by Utz as a variation on the liberal theme. It is stated that, in its original formulation, it correctly individuated the “significance of demand”, hence seeking a solution to a glaring and recurring market failure, to be contrasted by “increasing the money supply” for some time; doing it indefinitely would lead to skyrocketing “inflation”, however (7.5). As such, Keynesianism was primarily a temporary solution to one specific problem of the liberal order, not a new overall conception. In its “post-Keynesian” developments, it is praised by Utz as much more realistic than either classical or neoclassical liberalism, for it is capable of considering “the effective constellations of power within society and the economy[,]… the family[,]… regional, social and cultural units and institutions” (7.5). Still, no distinction is drawn by post-Keynesians between “mutable” and “immutable” socio-economic institutions in the way “natural law” would do (e.g. “matrimony and family”); nor have they developed a critique of “the classic liberal conception of growth”, which is “economic” only in a most short-sighted sense (e.g. growth leading to greater human fulfilment versus growth that is life-destructive; 7.5; cf. Summers’ 1991 memo: supra n42).

[52] Utz recommends letting workers “participate” in the “formation” and “ownership” of “capital” in a “market economy”, so that they too be personally “co-responsible” for its proper, productive use (7.8.6). This is a tenet of the SDC that has had a small impact on business life (e.g. cooperatives), which mostly takes employers and employees as two tribes at war with each other. Utz claims this to be the “original sin” of historical market economies, where “capitalists, for the sheer sake of profit, refused capital formation in the workers’ hands.” (7.8.6) The opposition between “capitalist-entrepreneurs” and “workers” ensued, which continues today with its chaotic legacy of uncooperative and conflictual “class spirit” (7.8.6).

[53] Buoyant and balanced buying and selling of goods is all that liberals can perceive as good, including Keynesians. Utz helps us gauge instead the distinction between natural and unnatural goods, i.e. good and bad goods (4.2 & 4.3).

[54] Utz criticises Weber’s superficial knowledge of medieval economics, which Sombart studied much more closely. The latter identified the “root” of “capitalism” already in Aquinas’ thought and age (9.2.2). Following Sombart, Utz highlights the teachings of Antonin of Florence and Bernardino of Siena, who took as “capital” the money serving for “productive investment”, hence setting it aside and above “loans”, some of which could be unjust “usury” (Antonin of Florence studied even the ratio between the “velocity of capital movement” and “profit increase”; 9.2.2).

[55] Utz deals with State capture by private interests, lobbies and pressure groups in his Political Ethics (cf. 2.1.4).

[56] Universal abstract principles, even the most just and most consistent with natura humana, must be applied to particular, concrete contexts. In his Political Ethics, Utz argues that consideration for local conditions means that caution must be exercised not only with regard to the opening of national economies to liberal standards of international trade, but also to their reorganisation around liberal standards of government (e.g. ‘exported’ democracy). The traditional virtue of prudence leads to gradualism, not to revolution, whether the latter is sought in the name of equality or of liberty (cf. 3.1.8).

[57] I presented McMurtry’s work to the NSU audience on a previous occasion (cf. “Capitalism and Freedom: The Core of a Contradiction”, Nordicum-Mediterraneum 8(2)/2008).

[58] Utz’s own list is simple, generic and possibly incomplete, if compared to McMurtry’s comprehensive study for UNESCO. Also, the interpretation of Aquinas’ supreme principles may also vary, e.g. what may constitute a suitable family capable of raising children: a standard Catholic stance would contrast with a standard secular one (Utz’s Political Ethics contains a strong condemnation of abortion as a violation of the unborn child’s rights, for instance; cf. 6.1). Still, I do not intend to pursue here a detailed analysis of the points of disagreement between Utz’s traditional Thomistic account and McMurtry’s Life-Value Onto-Axiology. Quite the opposite, I wish to highlight the points of agreement, or overlap. In particular, Utz’s account is akin to McMurtry’s in denouncing back in the 1990s: (i) the life-destructive consequences of globalisation; (ii) the primacy of environmental concerns; (iii) the asymmetric focus of liberal economists and policy-makers over the risk of inflation rather than unemployment; and (iv) the degeneration of finance into a speculative cradle of instability, which the 2008 collapse of Lehman Brothers and the ensuing international economic crisis have made visible to all today.

[59] SDC began with Leo XIII’s encyclical letter Rerum Novarum (1891) and had its latest instalment in 2015 with Francis’ own Laudato si’. The Compendium of the Social Doctrine of the Church, issued by the Pontifical Council for Justice and Peace in 2004, makes extensive reference to encyclicals, in addition to Biblical, authoritative (e.g. Augustine, John Chrysostom, Aquinas) and other Church documents (i.e. constitutions, decrees and declarations by ecumenical and pontifical councils, documents issued by congregations, the Holy See’s charter of rights, canon law, the Catechism). Prominent in this respect are Rerum Novarum, Pius XI’s Quadragesimo Anno (1931), John XXIII’s Mater et Magistra (1961) and Pacem in Terris (1963), Paul VI’s Populorum Progressio (1967), and John Paul II’s Laborem Exercens (1981), Sollicitudo Rei Socialis (1987), Centesimus Annus (1991), Veritatis Splendor (1993) and Evangelium Vitae (1995). References to international law are also present, i.e. the Charter of the United Nations (1945), the Universal Declaration of Human Rights (1948), and the Convention on the Rights of the Child (1990).

[60] In Economic Ethics, Utz mentions the expression “third way” with respect to OS (7.4.1). Still, on previous occasions, Utz used it to describe his own approach in politics and economics as well as the overall stance of SDC, e.g. the 1978 book cited in the introduction (Zwischen Neoliberalismus und Neomarxismus: die Philosophie des dritten Weges) and his essay “Das Grundanliegen der Pluralismusidee in der freiheitlichen Gesellschaftskonzeption und der Dritte Weg”, included in the collection Neomarxismus und pluralistische Wirtschaftsordnung (Bonn: Scientia Humana Institut, 1979: 77-104), edited by Utz himself. Its distinctiveness from both liberalism and socialism makes several public stances of SDC, especially when stated by Popes in the public arenas, sound right-wing at times (e.g. the sanctity of private property) and left-wing at others (e.g. strict environmental regulation), thus drawing praise as well as attacks from both political camps.

Gregor Thüsing & Gerrit Forst (eds.), Whistleblowing: A comparative study (Dordrecht: Springer, 2016)

29/06/2016Book reviewComparative law, Whistleblowing, freedom, human rightsJacob Dahl Rendtorff

Whistleblowing is a hot topic in contemporary society. We can just mention Wiki-leaks, undertaken by Julien Assange and his team. Or the infamous scandal of Edward Snowden, who made classified information about the US government surveillance of private citizens public and, as a consequence, had to flee his country and go to Russia. Or we can mention Bradley (Now Chelsea) Manning, who also made public classified government information and was put into prison in the US with a severe sentence by the courts. Nevertheless, even before these whistleblowing cases of making public classified information about governments, the topic of whistleblowing created much controversy and fascination. We can mention here the many cases of whistleblowing in relation to business firms and private organizations. Often such cases refer to situations where individuals feel moral responsibility to “blow the whistle” in the public about wrongdoing and fraud in their organizations. Indeed, from this perspective, whistleblowing emerges “as a potential weapon against corruption, mismanagement and general non-compliance with legal obligations by a broader public” (v). In the US, famous cases where whistleblowing was important include the Enron and World Com Scandals, with the ensuing breakdown of Arthur Andersen Accounting firm, which lead to the Sarbanes-Oxley legislation.

Starting from this definition, the book edited by Gregor Thüsing and Gerrit Forst with the title Whistleblowing: A comparative study, offers a compilation of articles about the law, legislation and legal dimensions of whistleblowing in different countries around the world. The book begins by a general presentation of its topic by the editors, who co-authored “Whistle-blowing around the world. A Comparative Analysis of Whistle-blowing in 23 Countries”. In their essay and in the anthology at large, legislations and legal practices of whistleblowing in different countries are compared, and it is shown how whistleblowing is not always seen as something positive and therefore constitutes a problem for the law. In European history, especially in the totalitarian regimes of the 20^th century, whistleblowing was not accepted, but rather considered as problematic for the regimes. As a result, possibly because of inertia or inherent self-interest, there has been often little protection of whistleblowers even in the following European legislations. The book is based upon a symposium held in Vienna by the International Academy of Comparative Law at the XIX International congress of Comparative Law. The aim of the book is to give researchers, judges and legislators an overview of the different approaches to legislation on whistleblowing around the world. The contributions are by leading national experts from the countries that are investigated in the book. Overall, the book shows that there is no common basis for legislation on whistleblowing in the countries that have been investigated. Even though there exist some general laws protecting whistleblowers, the countries investigated have very different approaches to whistleblowing due to historical and cultural reasons. Based on overviews of the differences in the legislations about whistleblowing, the anthology emphasizes some issues, which are important in legislation and legal practice concerning whistleblowing.

Of primary importance is of course the need to define who should be protected by legislation on whistleblowing. Is it only one definite whistleblower or should it also be supporters of whistleblowers who should be protected too? Here, whistleblower legislation needs to define the content and scope of protection of whistleblowers in law and legislation. Again, we see huge differences in legislations about who qualifies as whistleblowers and how they are protected and what kind of rights they have. Indeed, there is a potential conflict between freedom of expression and whistleblowing and many whistleblowers are taking a lot of risks if they decide to reveal classified or secret information from their organizations to the public. In this context, it is also a problem how supporters of whistleblowers and witnesses of whistleblowing should be protected by the law and how the law can ensure just and fair treatment of whistleblowers, supporters and witnesses. Important issues to be addressed in this context are issues relating to internal and external reporting of whistleblowing; what happens if the whistleblower allegations are untrue? Is the motivation of the whistleblower relevant? What if this motivation is based on personal interest? What kind of information may the whistleblower report? Is there an ethical or legal obligation to blow the whistle and inform about injustice, corruption or fraud in the organization? What kind of protection should be offered to the whistleblowers? What kind of reprisal should whistleblowers be protected against? Who has the burden of proof in dismissal cases? What is the function of whistleblowing in society and how could we support whistleblowers in society as a contribution to collective action? In addition, a further issue is whether there should be financial support and incentives for whistleblowers.

Although the comparison of legal practices, laws and legislations relating to all these issues may be difficult, it is the aim of the anthology to identify some general patterns in the different jurisdictions that have been surveyed. The report shows that countries like the UK, Japan and South Korea are leading in advanced legislation in the field. In the US, there has also been legislation actively encouraging whistleblowers since 1863. The anthology shows that there is a growing awareness of the problem of whistleblowing and the need to have whistleblower protection in Europe too, although many countries are not very far yet in establishing general rules and legislations about whistleblowing. Countries like Italy, Malta and Romania are on their way to legislation, but even countries that already have legislation on this matter, like Germany and other EU-member states, could do a lot to improve their legislation. The anthology is based on the view that there is both need and room for improvement of even the most advanced legislations on whistleblowing in the world. We need improvements in the legislations concerning protection of witnesses and supporters of whistleblowers, since this is a topic that has been neglected. A further topic for improvement is the possible support of whistleblowing by giving whistleblowers better financial incentives. This is something where the US, after many business scandals, are a leading country.

The different national reports in the anthology vary according to the cultural particularity of the legislation in each country. In Canada, the legislation on whistleblowing has been based on the “up the ladder” principle, meaning that the whistleblower is supposed to first disclosure information about wrongdoing by internal mechanisms and then later by public disclosure of wrongdoing. The presentation of whistleblower legislation in Croatia focusses on the legal framework and the specific issues concerning whistleblowers in the public sector. Cyprus is characterized by a dichotomy between public- and private-sector whistleblower protection and the legal framework lacks independent whistleblower protection. The Czech republic has no comprehensive special whistleblowing protection legislation, but laws concerning personal data and employee loyalty may apply. In France, whistleblower legislation has been inspired by the American model in Sarbanes-Oxley, which was introduced in 2002. Freedom of expression and good faith are important principles for protecting whistleblowers. There is some mistrust against whistleblowing, but there is also a growing understanding of the need to protect the rights of persons who become whistleblowers. The German regulation of whistleblowing is characterized by a lack of general regulation. Traditionally there was a lack of protection of whistleblowers because the labor courts saw it as a breach of the loyalty of the employees. Nevertheless, by shifting the focus onto human rights, the attitude is now more open. In Ireland there has been established a new legislation that provides comprehensive protection of whistleblowers. In Malta, for many years there has not been any law at all, but some protection has recently emerged. However, whistleblowing remains very risky for the individual in many other countries. In the Netherlands, there is in contrast much civil and cultural focus on whistleblowers and there is indeed support for whistleblowing by the institutionalization of a center for advice on whistleblowing. In Poland, there has been increased focus in case law on better support for whistleblowers, although the general legal framework is not very developed. Also in Portugal there is no specific legislation and there is very little regulation for the protection of whistleblowers. In Romania, we see a first step to whistleblower protection in new labor legislation that tends to regulate the status of whistleblowers. In Slovenia the protection of persons reporting corruption and other whistleblowers is sanctioned by a specific law on integrity and corruption, which includes rules of protection of the person of the whistleblower. The US is probably the country with the most conflicted history of the legislation and legal regulation of whistleblowers. On the one hand, the government needs whistleblowers to detect wrongdoing and fraud. On the other hand, when the government itself is subject to whistleblowing, e.g. famous cases such as Watergate and Snowden, whistleblowers face reprisal from political power, even though there is an increased understanding of the need to motivate whistleblowers at large, for example with financial incentives for truth-telling in fraud cases. In addition to these discussions of different countries, the book also gives a useful synopsis of whistleblowing material from 23 different jurisdictions.

This anthology is indeed a very interesting book about a hot topic today. The book is mostly a presentation of the legal situation in a comparative perspective. More material on the ethics and legal philosophy of whistleblowing could have improved the book. Nevertheless, the book is an important compilation of material about legislations on whistleblowing. After reading the book, the reader gets a good understanding of the complexity and differences of whistleblowing legislations. In fact, the protection of the whistleblower is not very great in many countries. We see how state interests and corporate protection of their internal information often prevail over the protection of the human rights and the freedom of expression of individuals. With such legislations, it can be argued that it is very dangerous to become a whistleblower and that the legal protection of whistleblowers needs to be improved. Without it, state and corporate power over citizens and employees becomes absolute. The book is a very strong contribution to the clarification of the importance of whistleblowing and it can spur more legal debate, better legislation and deeper jurisprudence and scholarship in the field.

Human Rights. The question of origins

23/05/2016Conference proceedings (triple non-blind peer review)Christianity, Samuel Moyn, UNDR, human rights, utopiaMogens Chrom Jacobsen

According to Samuel Moyn, literature on the history of human rights has proliferated in the last three decades; a subject which hitherto had drawn very little attention.[1] My own book, Three Conceptions of Human Rights is one of these histories, which was later supplemented by two articles in the Journal of Constitutionalism and Human Rights.[2] The most recent of these articles is, among other, critical of Moyn’s own attempt of such a history in his book The Last Utopia. This article gives an outline of ‘my’ history of human rights and my critique of Moyn.[3]

Studying the origin of documents such as the French declaration of 1789 and UN declaration of 1948 is no simple matter. The provisions of these documents are elaborated collectively in complex ways and shaped by multiple influences, which can be difficult to disentangle. The provision concerning habeus corpus surely originates in the English Middle Ages and so forth. We have not tried to disentangle all these influences, but instead focused on the conception of rights discernable in these declarations. The conception of rights implicit in these declarations tells us something about the philosophical attitude guiding these texts independently of how they were produced. What we have then endeavoured to do is to trace the origin of these conceptions of rights in order to insert them into their philosophical and societal context.

This analysis allows us to conclude that human rights in the sense used in the 1789 declaration could not originate in the Greek and Roman antiquity. Such a conception of human rights is guided by the desire to give the individual a wider liberty implemented through individual permissions called rights and protected by the duties of others to respect these. Even though concerns for liberty was not absent from ancient Greece, such a concern was not articulated philosophically, and there is no reason to believe it sparked later concerns for liberty. We argue that such a concern was revived and articulated philosophically due to the encounter between Christianity and Greek-Roman philosophy in the first centuries of our era. The fixed rules of the Decalogue served as background obligations for the definition of permissions, which the canon lawyers of the 12^th century renamed as rights. Human rights in the sense of the 1948 declaration would originate in a different tradition. While this tradition relies indirectly on Greek-Roman philosophy and in particular Aristotle, the actual elaboration of such a human rights theory is a recent phenomenon, even though antecedents can be found in Edmund Burke. Here rights are conceived as instruments for the good life and human perfection. In the 1948 declaration this idea is expressed as the development of human personality. We have rights in this sense because otherwise we cannot perfect ourselves, which is our duty. Rights and duties are thus two sides of the same coin. Since rights serve perfection, we call this a perfectionist conception of rights.

The main thrust of the above-mentioned book has in this way traced two traditions of philosophical thought proposing each their understanding of human rights. The significance of these two traditions goes beyond the question of rights and touches on the role of morality in human life. Do humans have limited social obligations towards each other in order to ensure peaceful co-existence, while it is left to their own judgement how they should live their lives, or is moral perfection an essential aim of social life thus enabling man to realize its humanity? In the first case, rights protect the desire of individuals to live their own life, and in the second case, rights protect peoples endeavour to live a moral life. We call this last kind of theories moralizing, while the first ones are permissive. In our book we have recounted how rights came to serve these very different functions, and we will here shortly summarize our findings.

Short Outline

Moral philosophy in Greek and Roman antiquity is with few exceptions perfectionist. Most theories profess a species of eudaimonism. The key question was happiness, but they generally assumed that individual happiness was inextricably related to man’s moral perfection. Being moral and acting morally was also the objective interest of every man.[4] The general assumption was that moral action had to be determined in the particular circumstances, hence the name circumstantialism for these kinds of theories, though it was possible to devise rules of thumb which should be embodied in man as virtues giving him the right disposition towards action. Different from these are theories issuing in universal and inflexible act prescriptions. All ethical theories have some aim or guiding concern, but these aims or concerns can issue in particular prescriptions for acting (act prescriptions) depending on the circumstances as the antique theories generally did or ask people to follow inflexible rules (universal act prescriptions), which was unknown in Greek and Roman moral philosophy.

Plato diverges somewhat from the general scheme common to Antiquity, making reason the key notion. He is still rather sceptical about universal and simple rules.[5] How happiness was related to virtue and reason could then be explained in different ways and from there stems the various philosophical schools which thrived at different times in the Greek and Roman world. The antique world-view assumed that the world was reasonable and intelligible for man. This view was seriously challenged after the emergence of Christianity and this brought about an important rupture which changed the basis for philosophical reflection radically.[6]

The Judeo-Christian God was a commanding god demanding obedience from the believers. The idea that certain universal act-prescriptions had to be followed was foreign to Greek-Roman philosophy, which was thoroughly circumstantialist. Still, Christian apologists had to defend their religion within the terminology of Greek-Roman philosophy. For this purpose Platonism was a particularly convenient intellectual structure. Identifying God with the One allowed Christianity entry into the Greek-Roman culture, but the commands of God could not be ignored. The distinction between law and counsel made it possible to combine both considerations. In this way we got a distinction between two different kinds of obligation. Different authors could emphasize this or that obligation, but any Christian author somehow had to find a place for the law. The authority of Scripture had to be accommodated to Greek-Roman philosophical reasoning, since Scripture itself was presented as supported by reason.

Different solutions could make the synthesis between Greek-Roman philosophy and the Judeo-Christian religion work. For Western Christendom Augustine is the central figure. Inspired by his reading of Paul, Augustine developed a notion of permission, which could highlight the notion of Christian liberty. He wrote against those who make out of anything disadvantageous a sin. We can do many things without sin, which are not necessarily the best thing to do. Here we can glimpse our cluster of concepts: a law forbidding and commanding certain things leaving other things to everyone’s own judgement. These things are permitted even though certain things are necessary to achieve perfection, but everyone is not strictly obliged to seek perfection.[7] When Augustine wrote this during 419–420 the Roman Empire had only recently become officially Christian. Many other communities still co-existed with the Christian communities. The context is, therefore, one of intra-communitarian dispute about doctrine, since Augustine is here responding to a certain Pollentius having trouble with Augustine’s limitation of divorce to the sole case of adultery.

When the canon lawyers of the 12^th century made Augustine’s permission into an ius the context was, of course, very different. The Christian Church was now an independent government institution with its own laws and courts and judges to maintain it. Ius was a much-used term in Roman law, but rarely used in a subjective sense as belonging to an individual (one example is D. 35.2.1. pr.). Exactly how canon lawyers came to equate ius with permission, we do not know, but this use is well established.[8] That Augustine influenced them is well attested, since many of them refer explicitly to Paul and Augustine.[9] These lawyers equated the moral prescriptions of the Bible with natural law. Natural law was conceived as a collection of more or less general prescriptions. They add the idea of permissive natural law conceived as consisting of everything you can equitably do. There is some discussion about whether this is natural right proper, but the idea of a space of liberty, where the agent is not subjected to compelling prescriptions is well and truly there. Later authors will deduce from this that property and government belong to the permitted area, since the prescriptions of natural law say nothing about them, and the idea that they need the consent of everybody lies at hand. We do not know exactly when this deduction was made for the first time, but it is clearly present in the works of William of Ockham.

In between, however, we have seen a surge in Aristotelian thought on moral philosophy due to new translations. The influence of Aristotle is pervasive, but his ideas on moral and political philosophy is not followed by John Duns Scotus and William of Ockham (among others) opting instead for a position closer to that of Augustine. This is not the case with Thomas Aquinas who becomes the principal champion of Aristotelian moral and political philosophy. The challenge he faces is then to reconcile the general rules of the Decalogue with Aristotelian circumstantialism. Thomas’s solution is quite ingenious, but we argue that in the end he cannot give to the Decalogue its full significance. Thomas maintains certain inflexible act-prescriptions as a limit on the pursuit of the common good. His theory retains, however, the basic tenets of Aristotelian circumstantialism. Since agreement with some inflexible act-prescription is not a sufficient criterion for the goodness of the action, which has to be made for a good purpose as well,[10] the pursuit of the common good will therefore dominate. The distinction between strict and loose duties becomes senseless in Thomas’s theory. When all actions should further the common good, and for this reason there can be no genuine indifferent acts (an act which are neither morally commanded nor forbidden), this again implies that there can be no domain sheltered absolutely from public intervention, and this fits well with a conception of rights, which vary with the interest of the common good.

This Christianized Aristotelianism was to have an immense influence, but other more orthodox Augustinians like Ockham were worried about this influence. They felt that divine omnipotence was imperilled by this Aristotelian influence. If it was not possible to discard Aristotle completely, Ockham, taking the lead from Duns Scotus, gave Aristotelianism a stronger Augustinian imprint by emphasizing the divine will and the contingency of the created world. Although Ockham radicalized Scotus in many respects, he remained, on the whole, within the same overall perspective. Ockham probably developed his ideas on rights, property and government from canon law sources. In short, the distinction between strict and loose duty makes it possible to envisage individual liberty in terms of permissions within a eudaimonistic structure with beatitude as the highest end. Permissions are then conceived as rights within the limits of the act-prescriptions of natural and divine law. Other matters are left to the individuals’ own decisions, which include property and government. However, government when once settled cannot be revoked except in extreme cases.[11] The point of this theory was not to empower individual members of the society politically, but rather to bolster the claims of the temporal power against the papal claims of omnipotence. This theory gave the temporal power an independent source of legitimacy, and this was again part of Ockham’s own quarrel with the pope about evangelical poverty. Ockham’s position and arguments were taken up again by the Conciliarists, but to a different purpose. Their target was not so much the pope as the papacy. They challenged papal primacy within church government and claimed that final decisions belonged to a general council. The focus had changed, but the basic theoretical construct remained the same.

At the Reformation the cluster of concepts, consisting of individual rights as permissions, the supererogatory, property and government based on consensus and the common good as common interest, goes through a major change due to the redefinition of the term ‘sin’.[12] Since the task of government was generally seen as peaceful coexistence and repression of mortal sin, and sin became a much more comprehensive term, the task of government was accordingly greatly enhanced. There was now much larger room for state intervention, and Reformation governments could decide about morality and manners. In this way, what would count as the task of government has also changed. After having initially endorsed this view, John Locke eventually went back on this move making matters outside natural law to no business of government,[13] but now the context had changed, since different (if not all) religious communities were now living together. The duties of religion were now considered a private matter. Morality and manners, which were supervised by the Catholic Church before the Reformation, were now left to religious communities, between which people could choose. The area outside government action thus acquires a different content by this difference of context, since people now have greater liberty to choose their religious affiliation.

We argue that this Lockean view greatly influenced the drafters of the 18^th century declarations of rights. In the American context Locke was important, but it is disputed how important he was. Recent scholarship tends, however, to reinstate the importance of Locke.[14] What makes Locke so important for us is the way he distanced himself from earlier Protestant political philosophy. Outside the concentric rings of natural and divine law, the Protestant prince could legislate according to his best judgement. Locke, on the contrary, limited the role of the prince to particular functions, and thus re-created a space of liberty for the individual. This solution was implemented in the American declarations (Virginia declaration and the Declaration of Independence) with Locke as the most probable inspiration. Even if this thesis is disputable, it is quite clear that these declarations are focused on freedom deploying a permissive conception of rights, and this is the most important point for our thesis. We can draw the same conclusion regarding the French declaration of the rights of man and the citizen, and as such link the 18^th century declaration to the Augustinian-Ockhamistic tradition. However, while the rights language of permission and the consent theory of government formerly served to bolster the secular power against the spiritual power, the same language now serve to bolster the individual against the secular power. While the Americans used it against their colonial master, the French used it against their sovereign master, the King. Again, we have argued that Locke was particularly influential in implementing this solution.

This solution was not met with universal approbation. Both during the drafting process and after the adoption, the French declaration was severely criticized. Most of the critique is derived from a moralizing theory proposing an end, which makes inflexible act-prescriptions impossible or unfeasible. On this kind of theory it is not possible to have a fixed and stable space of liberty. Their critique concerns partly the impossibility of conferring eternal and indefeasible rights on individuals, partly the undesirability of abandoning people to their own egoism. The best-known critics are Edmund Burke,[15] Jeremy Bentham[16] and Karl Marx.[17] The theories of Burke and Marx have been described as perfectionists, since they harbour a positive ideal about human perfection, while this is not true about Bentham’s utilitarianism. Bentham and Marx reject the rights of man altogether, while Burke is not unwilling to use this term, though in a perfectionist sense.

Strong forces were working against human rights as they were understood in the 18^th century. The Catholic Church remains critical, and the Church will eventually adopt their own concept of human rights inspired by Thomism and corresponding to the special sense Burke gave to human rights. Different forms of Marxism and Socialism remained hostile to human rights, considered as a species of bourgeois ideology. Some trends within socialism, for example Jean Jaures in France, adapted the human rights discourse to Socialist goals. However, human rights in the 18^th century sense is still important in non-utilitarian liberal thought. Different forms of utilitarianism or more broadly non-perfectionist circumstantialism reject human rights or give them some subordinated role in their system as rules of thumb or guidelines. More historically minded or social science inspired approaches would also be sceptical about human rights. The ‘rebirth’ of human rights in the 20^th century was not a ‘rebirth’ of human rights in the 18^th century sense, but more like the culmination of the perfectionist version of human rights whether it was of Thomistic or Socialist inspiration. These two versions seemed to converge towards one another, and after the Second World War a short-lived perfectionist consensus produced the Universal Declaration of Human Rights of 1948 (UDHR).

The Universal Declaration of Human Rights outlines the moral foundation for the contemporary international human rights regime. We argue that some of the rights in the UDHR, i.e. the economic, social and cultural (ESC-) rights, make no sense if they are understood as permissive rights, but these rights can very well be understood as perfectionist rights. Since a perfectionist end implies a perfectionist conception of rights and such an end is present in the declaration, we conclude that these rights should be understood as perfectionist rights. Other rights in the UDHR could, however, be understood as permissive rights. Since all the rights in the declaration are not permissive rights, it is difficult to understand the end of the UDHR as the delimitation of a space of liberty, but a perfectionist end would not be incompatible with a mixture of permissive and perfectionist rights, since some kinds of liberty could seem necessary to fulfil the end. In that case the perfectionist end of the UDHR would command all the rights, and the permissive rights should be used responsibly to attain this aim.

The examination of the drafters’ views as expressed in the summery records consolidates this interpretation of the text, even though it has to be explained as an overlapping consensus between two types of perfectionism. Full blown perfectionism would consist in a very dense conception of perfection, that is, a conception which gives very detailed and comprehensive prescriptions about how to live one’s life. This kind of perfectionism would have a strong moral dimension implying that social virtues are an integrated part of perfection. Social liberal perfectionism would focus on real freedom dissatisfied as they are with the formal freedom of the liberalists. Man should be made capable of effective use of his freedom, and this implies that he should possess certain qualities such as education, free time, means, health, etc. This kind of perfectionism would tend to be less dense, and do not suppose any moral dimension. The attachment of the individual to society would be due to some kind of social contract. The first conception was attributable to the Chinese representative, P. C. Chang, and some Latin American representatives, while the other conception was attributable to representatives from North America and Europe. It was, however, not possible to situate all the drafters precisely in relation to these conceptions, but there were good reasons to think that the large majority of representatives were somewhere between the two positions.

The UDHR was soon to be criticized from a liberal point of view. The economic, social and cultural rights had no place in liberal theory. These rights were not considered as real human rights. Only civil and political rights could claim to be real human rights. In order to avoid controversy and rally as large a following around human rights as possible, the human rights militancy of the 70s focused on subjects as torture, forced disappearances, arbitrary arrests on which there was wide agreement.[18] We argue against Samuel Moyn that this movement did not deploy a whole new conception of human rights. The difference between UDHR and the 18^th-century declarations of rights does not lie in the existence of a special tie to the state, as Moyn claims, but in their basic philosophical assumptions.[19] We argue that the UDHR has a much larger potential for internationalization than older declarations focused on freedom. This means that this potential was present in 1948, but it leaves the question open why it did not unfold until the 70s. Our explanation goes in two steps; firstly, as Moyn also notes, the major reason for this delay was the Cold War.[20] Internationalism seemed less realistic faced with a seemingly insurmountable ideological gap. We argue that other philosophical assumptions more akin to those of the 18^th century in the guise of Reinhold Neibuhr and the Realist School in international relations came into the forefront forcing internationalism into the defensive. Institutionalism within international relations theory should be taken as an expression of a new effort to open the way to internationalism on the eve of the Cold War period. Secondly, human rights activism was minimalist and focused on a few fundamental and widely consensual rights, and it did not embrace the full program of the UDHR. Moyn explains this situation and its success by the failure of alternative utopias, and there is much to say for this explanation,[21] but why the human rights ONG’s eventually adopted the whole perfectionist program of the UDHR is not principally due to a pressure for giving answers to all questions necessary for a new ‘utopia’.[22] We suggest that working within the UN framework, intellectual coherence would anyway oblige them to do so.[23]

Our two traditions are thus still at work towards the end of the 20^th century. Niebuhr and the Realists assume a conception of morality very much akin to that behind the 18^th century declarations, even though they have a more ambiguous relation to the declarations themselves. For them, the determination of the actual rights is not so evident, and especially Niebuhr considers this determination as a matter of dispute, where morality and self-interest are difficult to disentangle.[24] The other strand has triumphed through the perfectionism of the UDHR, whether it is of Thomistic, Socialist, Confucian or other inspiration, and the momentum seems presently to be in its favour. The West has traditionally been very much focused on fixed rules when promoting human rights internationally, which seems wholly incongruous with the UDHR, while the so-called Global South has insisted on the indivisibility and interrelation of human rights, assuming that some kind of practical reason has to decide how they support or depend on each other or how supposed conflicts between them should be solved. This was rammed home at the Vienna conference in 1993, and this battle has largely been lost by those in the West who still cherishes the idea of fixed rules. Though fixed rules leave little flexibility for maximization or optimization of an accumulative end, and continuous adaptation to changing circumstances would be more efficient in this case, the social distribution of capabilities can, however, induce some people to adapt more than others, and rigid rules can protect persons by fixing lines of protection that cannot be overruled. This idea has often been criticized as a particular Western idea stemming from an individualist society and sometimes imputed to Christianity. It would seem that this study support this idea.

The Question of Origins

The permissive conception of rights has been traced back to developments in early Christianity. The Decalogue of the Mosaic religion as they were assimilated by Christianity made it possible to establish the conceptual apparatus consisting in interdictions, commands, permissions and counsel. One could then say that Christianity played a crucial role for the development of human rights. But the Qur’an allows of the same kind of interpretation.[25] Just like Augustine speaks about prescription, interdiction, permission and advice, Muslim scholars speak about the obligatory act (wajib, fard), the prohibited act (haram, mahdhur), the permitted act (mubah, halal, ja’iz) and the recommended act (mustahab, mandub, sunnah).[26] Islamic law also embraces the principle of legality, such that actions which are not prohibited are permitted.[27] Other observers even emphasize the existence of a notion of right in early Islamic jurisprudence.[28] So why did human rights not develop in the Muslim world? If human rights are associated, as they are here, with the particular move that bolsters the individual against the state, and not with the move bolstering secular powers against the spiritual power, then we will have to note that these rights did not develop in the Christian world for 1700 years. It is thus not probable that they were indissolubly linked to Christianity, if nobody actually thought about this for 1700 years. What actually made Locke reinvent the space of liberty and Enlightenment thinkers turn this liberty against the reigning power as a special prerogative of the individual, has probably something to do with developments in contemporary society.

Our cluster of concepts is not essentially Christian, but developed in Christianity because of contingent factors such as the combination of Roman law and church government; the dispute between secular and spiritual powers and individualistic conceptions of man. Nor do they seem to be related to any metaphysical or epistemological principle. Ockham subscribed to voluntarism while Locke adhered to intellectualism. They adopted a species of nominalism, but Duns Scotus preferred realism. A Platonic view of epistemology against an Aristotelian conception makes no difference. A teleological or mechanical conception of nature is all the same, when it comes to our cluster of concepts. What then allowed this cluster to persist in spite of changing philosophical inclinations? Important spiritual or material interests must have brought this about. With respect to the Middle Ages we will point to a strong religious interest in maintaining Christian liberty which relieves men from ceremonial prescriptions and leaves them to strive after perfection of their own free will. There was an important material interest in keeping the social order clear from church and religion. These interests in freedom and the independence of secular society were an important background for the development of human rights, but they were essentially related to neither Christian theology nor philosophy. They were related to the existence of fixed rules and the dispute between secular and spiritual power. The first you could find in Islam and other religions, while the second seems more particular to Western Europe.

The Long Perspective

We have travelled a lump of human history stretching from Plato to the aftermath of the Second World War. Our account of this period must inevitably be a very concentrated one. Why work on such a long stretch of time? The concepts and terms we are using to speak about ethical and political questions often have a long history. We do not assume this history to be a smooth and simple one. Terms get new meanings or maybe plural meanings. Concepts are carried by new terms or become part of them, or they enter into new associations with other concepts, which change their significance or functions. We do not assume that terms and concepts have followed each other from the ‘beginning’ to the ‘end’. This is a complicated story, which is wholly contingent and riddled with ruptures and displacements. We do not assume that certain concepts and terms had to appear or develop in a particular way. We only endeavour to map their presence at specific moments. We establish the framework, which will allow us to study the use of terms and concepts more specifically in their concrete environment. We consider it important to have the big picture, for example when we have to compare thinkers from different periods. It is important to know that the term ‘sin’ has changed its meaning with Luther and the consequences this has for the proper functions of the state, when we compare Luther with the Conciliarists. This gives a particular edge to subsequent Protestant political philosophy, which otherwise might have gone unnoticed, since they use the same conceptual apparatus as the Conciliarists. These kinds of ‘movements’ are easier to see in the big picture. The big picture also makes it easier to see whether terms and concepts forged in one period are still pertinent in a later period. We are sometimes so used to a particular conceptual scheme that we are not aware that changes in some other context leave them without a raison d’être. This has to some extent happened with the rule-based moral theory, which persisted without its foundation in divine command, and the raison d’être somehow had to be reinvented. These kinds of disruptions are easier to spot in the big picture.

What we do is to map their presence in texts. What meets us in the first place is the terms (words and phrases) and we will have to determine their precise meaning in these texts and the concepts they might carry with them. Since we are mainly dealing with abstract and technical terms in mainly scholarly texts, we have to determine their meaning in their theoretical context. The term ‘common good’ would, for example, mean something different in the Augustinian-Ockhamistic tradition than in the Aristotelian-Thomistic tradition. In the first tradition the common good is the haphazard common interest of contingent societies, while the second tradition conceives the common good of a particular society as an integral part of the common good of an objective and universal society. Establishing the big picture will not exempt us from a contextual determination of the meaning of the particular term. However, in order to extract the abstract sense of the terms, we neither have to establish their perlocutionary nor their illocutionary sense, and neither their ideological role nor their social function or justification. Nonetheless, this extraction of meaning from the theoretical context does involve an elaborate reconstruction of the theory in question as far as this is possible.

Conclusion

So far we have only considered two of the three conceptions. The first two conceptions studied are what John Rawls would call comprehensive conceptions.[29] The force of the third conception should then consist in being a non-comprehensive conception: i.e. a minimal standard of decency accepted by different comprehensive conceptions. This conception is defined by the fact that it allows more than one coercive normative order, and for this reason we call this conception pluralist in regard to politics. This means that human rights are not thought to exhaust the possibility for coercive measures in the state. Other normative claims can legitimately be enforced beside those of human rights. This has some implications for how we consider the function of government and consequently for democracy as a form of government. From the point of view of perfectionism it is the object of government to deploy the practical reason which will determine the decisions or enact the rules necessary for making people more perfect. From the point of view of classical liberalism it is the object of government to enact the rules necessary to protect freedom. In both cases positive rights coincide with human rights. In the third conception this is not necessarily the case. Government should, of course, enforce human rights, but these are not exhaustive, so it is somehow left to the government to fill out the rest. In some sense we are back to Protestant political philosophy here, where the prince could fill the space left over by divine and natural law. Apparently, it seems less controversial to revive this theory today, when the prince has been replaced with democracy.

What would then be the function of human rights today according to this theory? The third conception is an umbrella conception, so it can be fleshed out in various ways according to how human rights are justified, which functions are assigned to them and how the individual rights are defined. We would suggest that their function is to establish the conditions for the exercise of autonomy and individual protection against the vagaries of collective decisions. Conceived in this way, human rights allow democratic institutions a vast field within which they act freely. They are not just left with some details to settle concerning the implementation of a political project set out in advance. It is for democracy to make a choice between different political projects, and in this way human rights stand above ordinary political divides. This also means that human rights become an external standard with respect to the constitution and ordinary legislation. Human rights become the standard according to which these should be judged.

If human rights should express an actual universality, we must bring them down to a value that is likely to rally a broad consensus. We proposed autonomy, since it relates to the formation of opinion. It ensures that everyone can make up their own opinion and decide knowingly without pressures or restrictions in terms of information. This value is essentially that of the Enlightenment. This does not mean we did not know before. Socrates is a shining example to the contrary and Dumont believes that he finds it in the ancient Indian religion of the Vedas,[30] however, the philosophers of the Enlightenment strongly advocate this idea from the 17th century onwards.

If this value seems likely to rally around it a broad consensus, it is because it is a prerequisite for any discussion, and discussion is a prerequisite for any thoughtful consensus. So to all those who agree to submit to the vagaries of discussion and participate in the game of persuasion, autonomy should be an acceptable basis. This is fortunately a very large portion of the overall world population, and those are the members of the world public opinion that we must persuade. These people consider themselves as independent and for that reason they gather information and consider the arguments for and against. They constitute the future of human rights. What really matters is that people consider themselves as independent and that they see human rights as their guarantee for being able to continue to be so. The effort to promote human rights must therefore concentrate on public opinion; protect, expand and enlighten it.

Such a conception could serve as a base for the re-interpretation of the existing UN regime. The existing regime suffers from incoherence due to the fact that the covenants were supposed to implement the UDHR, which we have argued is perfectionist, but they are doing this with a traditional legal vocabulary which is dependent on a permissive conception of rights. This has created many troubles with how to cope with ESC-rights within such a conception. These rights simply do not work as permissive rights and they cannot therefore be considered as non-derogable or non-justiciable. In a perfectionist perspective all rights are derogable according to what would fit the common good and all rights are justiciable as long as this would promote the common good. In this perspective there are no fixed rules and every virtue is enforceable if this proves expedient. In order to conserve fixed rules and thus give personal autonomy a convenient protection one should take the existing civil and political rights (ICCPR) and combine them with the core ESC-rights as outlined by the UN,[31] which seems susceptible of immediate enforcement. These rights could be conceived as human rights according to the third conception.

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Notes

[1] Moyn, 2011: 58.

[2] Jacobsen, 2011, 2014, 2016.

[3] Part of the text is taken – but somewhat modified – from a second edition of my book, Three Conceptions of Human Rights, which is in course of publication. For precise and extensive references, please refer to Jacobsen, 2011, 2014, 2016.

[4] Brunschwig, 1996: 1858, 1861.

[5] Plato, 1982: 425 c-e, p. 363.

[6] Dihle, 1982: 1.

[7] Augustine, 1982: PL 40, 459–462, I.14-17.15-19.

[8] Weigand, 1967: passim.

[9] DG II C. XXVIII, c. 8.

[10] Thomas Aquinas, ST. Ia IIae 18 a. 4 co.

[11] William of Ockham, 1992.

[12] Luther, 1889: 580–581.

[13] Locke, 2008.

[14] Huyler, 1995: 1–28; Zuckert, 1994: 18–25, 150–166, 305–319.

[15] Burke, 1968.

[16] Bentham, 2002.

[17] Marx and Engels, 1976.

[18] Moyn, 2010 : 130 ff.

[19] Moyn 2010: 12.

[20] Moyn, 2010: 131.

[21] Moyn, 2010: 8.

[22] Moyn, 2010 : 218 ff.

[23] Cf. http://humanrightshistory.umich.edu/files/2012/08/Petrasek.pdf (consulted 15-04-2015).

[24] Niebuhr, 1948: 264–265.

[25] Munir, 2006: 4.

[26] Aldeeb Abu-Sahlieh, 2006: 249–254.

[27] Baderin, 2003: 14–15.

[28] Moosa, 2004: 5 ff. In fact Moosa argues that the concept of right elaborated in the first period of Islam makes certain inherited notions of ethics incompatible with modern notions of human rights. Those who consider the Islamic understanding of rights compatible with modern notions have difficulties in explaining how they abandon the presumptions of traditional Islamic jurisprudence. He believes there is no way out, so that one has to accept a quantum shift.

[29] Rawls, 1996: 140, 154–155, 175.

[30] Dumont, 1985: 37–38.

[31] Cf. Core Human Rights in the Two Covenants: http://nhri.ohchr.org/EN/IHRS/TreatyBodies/Page%20Documents/Core%20Human%20Rights.pdf

From Piketty’s Capital to Marx’s das Kapital

20/05/2016Conference proceedings (triple non-blind peer review)Democracy, capital, capitalism, commodification, human rights, inequality, liberal economy, neoclassical economy, patrimonial capitalism, political economyØjvind Larsen

Thomas Piketty’s book Capital in the Twenty-First Century has created a very new platform for a discussion of the global economy. There is possibly no other book on economy which has been published in so many languages, printed in so many copies, and has found its way to such a varied global public. Piketty’s Capital has been discussed in many high ranked academic journals, and at the same time, it has come out to a broader audience with advertisements in places like the underground public transportation in metropolises around the world. The title of the book is also very ambitious in so far as the title Capital claims to be a follow up of Karl Marx’s Das Kapital for the twenty-first century. Piketty is similar to Marx in his ambition to give a large historical, or a world historical perspective on the significance of capitalist economy for the development of global society. Given this background it could be interesting to consider the relations between Piketty’s Capital and Marx’s Das Kapital.

Main Thesis

My main thesis is that although Piketty gives a very essential theoretical and historically based prognosis and critique of the development of inequality as he expects it to increase in the twenty-first century. Ultimately, he is not able to provide a conceptual critique of capitalism which can surpass the basic market perspective in Adam Smith’s tradition of classical and neoclassical economy.

On this basis my thesis is that Marx’s conceptual determination of the capital, das Kapital, the capitalist mode of production, and capitalism in general could contribute to sharpen the outcome of Piketty’s enormous empirical and historical research on the development of inequality in capitalist societies beginning from the French Revolution. In addition, Piketty has also presented a calculated prognosis for the exacerbation of inequality in global capitalism during the twenty-first century.

According to Marx, the development of inequality is not accidental but inherent in the principle of capital and the capitalist mode of production. Therefore, Piketty’s empirically documented development of inequality should lead to a fundamental critique of capitalism. However, this is not the case.

On this background, I would like to consider a change of perspective from Adam Smith’s liberal market perspective to Marx’s productive perspective on capitalism. For Marx, capitalism is seen as an autopoietic bureaucratic and productive machinery or social system, which not only determines the production of inequality but also the basis for all social relations on a global scale.

Outline of the paper

In the following paper, I would like to substantiate this thesis with a presentation of Piketty’s theory, method and main results. I would further like to present Marx’s critical concept of the capital and capitalism. Finally, I would like to illustrate some of the consequences of Marx’s critical theory for the understanding of Piketty’s empirical work.

Piketty’s Capital

Piketty’s theory is situated in Adam Smith’s liberal tradition.

Piketty’s work is situated in Adam Smith’s liberal tradition. Adam Smith’s main work Wealth of Nations (1981 I-II) from 1776 is interesting because it represents the foundation of modern economy. Smith’s theory can be read in many ways and it has brought inspiration to many different perspectives on ethics, societal ethics, common moral, political philosophy, political theory, sociology and economy. Normally the economic perspective has been emphasized, but one could say the same regarding the other perspectives.

Wealth of Nations begins with a presentation of the division of labor as the basis for creation of wealth in a nation. Therefore, it should be emphasized that Smith has a general concept of work as the basis for his economic theory. Smith formulated this generalization on the basis of the Physiocrats’ more restricted idea that only agricultural work created value.

The second essential line of thought by Smith is that the products of work should be sold at a price determined in an open market, which on a larger scale implies the world market as its perspective. Therefore, the free market is essential for Smith.

The third line of thought is that the price of the commodity is determined by the work behind the creation of the product. However, Smith is not completely clear on this topic. The other perspective in Wealth of Nations is that the price is determined by the exchange in the market. In other words, Smith’s theory is ambivalent concerning the creation of value.

It is this ambivalence in Smith’s theory, which is in the center of discussion during the next two hundred years among economists, especially in the neoclassical economic tradition.

On the one hand, the work perspective leads to an internal understanding of the fundamental role of work in comprehending societal relations and institutions. This is what leads to the sociological perspective on the relationship between economy and society. Marx’s, Durkheim’s and Weber’s theories should also be mentioned here.

On the other hand, we have the price and market perspectives, which become the dominant perspectives in later economic traditions. It is in these traditions that we find the most economists having an influence on economic practice and on economic education. Thomas Piketty should be placed in these traditions.

Piketty’s research method: economy as part of the social sciences

Piketty is a market economist based in Adam Smith’s liberal tradition and the later neoclassical liberal tradition. However, Piketty has a much broader theoretical and methodical horizon, which should be understood on the background of Piketty’s French formation.

The interesting thing about Piketty’s method is that he wants to integrate economics as a sub discipline of social sciences, alongside history, sociology, anthropology, political science and even literature (Piketty 2014: 573 ff.). Piketty has his specific methodological perspective from the French Annales School and from Francois Furet’s quantitative historical method, which gives him a long and convincing historical perspective (Bouvier & Furet 1965; Piketty 1998; Piketty 2001; Piketty 2004; Piketty 2006). Piketty would not have been able to come to his results, if he had not integrated all these different perspectives.

Following this, Piketty wants to reconstruct the classical political economy as a value based science, which is connected to its political, normative and moral purpose (Piketty 2014: 573 ff.). This is the same ambition found in Adam Smith and further back in classical political philosophy by Aristotle and Thomas Aquinas. The fundamental question according to Piketty is, how public policies and institutions can bring us closer to an ideal society (Piketty 2014: 574). This was also the question raised by Aristotle, Aquinas, Adam Smith, Hegel and Marx. They had very different answers to this question, but they all had in common that the economy should be subordinated to the political, normative and moral value horizon. Economy could not be sustained independent of the moral, social and political interpretation.

According to Piketty, political economy should be a part of public discussion meaning that the shared values should be found in public democratic discussion. According to Piketty, this is not the case in most economic theory and practice in which economic models are used without regard to the political, social, cultural and historical context.

Piketty’s basic thesis: r > g – revenue is bigger than growth in a long historical perspective

Although Piketty has these critical perspectives on economy, he is in many ways still a traditional market economist based in Adam Smith’s liberal tradition and the neoclassical tradition. Piketty’s focus is price, market and equality in the distribution of goods. It is in this background that Piketty is concerned with the liberal discussion of inequality.

Piketty’s basic thesis is that revenue, r, has been bigger than growth, g, during the last two hundred years in Europe and the US, and more generally in all higher developed societies in recent history. Therefore, there has been a tendency towards a strong inequality in the last two hundred years in Europe. In general, this has also been a tendency throughout European history and in all higher developed societies. In that sense, all societies in history have been class based societies, albeit in different forms.

Patrimonial Capitalism

It is Piketty’s expectation that a new form of capitalism has been created, which he calls patrimonial capitalism (Piketty 2014: 173). It could seem to be a new form of capitalism, but in fact, it is a form of capitalism, which was known from the late 1800s until 1914. It is characterized on a huge accumulation of private wealth among a small part of the population, the upper 10%, 1%, 0.1% and 0.01%. At the beginning of the 1970s, the total value of private wealth in the Western societies stood between two to three and a half years of national income. Forty years later, in 2010, private wealth represented between four to seven years of national income in the Western world. The general evolution is clear: This is a strong comeback of private capital in the rich countries since 1970 (Piketty 2014: 173). This concentration of wealth is what Piketty calls ‘patrimonial capitalism’.

Piketty regards the new patrimonial capitalism as a repetition of something, which was formerly known in history from the late 19^th to early 20^th century. It is characterized by a high concentration of wealth in a low-growth environment like the nineteenth century (Piketty 2014: 237). The crisis of 2008 was according to Piketty the first crisis of the globalized patrimonial capitalism of the twenty-first century (Piketty 2014: 473). He expects that it will be followed by other crises. This is the scenario that Piketty expects for the twenty-first century.

Patrimonial capitalism, heirs and entrepreneurs

Consequently, the strong concentration of wealth can give rise to a tendency where the ‘entrepreneur’ transitions to the ‘heir’ as the basic figure of capitalism. According to Piketty, all large fortunes, whether inherited or entrepreneurial in origin, grow at extremely high rates, regardless of whether the owner of the fortune works or not (Piketty 2014: 439ff.).

Piketty gives a very illustrative example comparing Bill Gates, the entrepreneur among all entrepreneurs, and Liliane Bettencourt, the heiress of the cosmetics company L’Oréal. Between 1990 and 2010, Bill Gates’ fortune increased from $4 billion to $50 billion. In the same period, Liliane Bettencourt’s fortune increased from $2 billion to $25 billion. Both fortunes thus grew at an annual rate of more than 13 percent from 1990 to 2010.

Piketty also mentions Steve Jobs, who is regarded as a more creative entrepreneur than Bill Gates. But at the top of his career, his fortune was only $8 billion in 2011.

Piketty’s conclusion is that inheritance becomes the main access to the creation or growth of fortunes, and not the entrepreneurial spirit. Therefore, wealth is not just a matter of merit, and capital grows according to its own dynamic, when it has passed a certain size. The reason for this is the simple fact that the return on inherited fortunes is often very high solely because of their initial size.

Inequality – The economic system is the problem

It is a common discussion in liberal political theory that inequalities are acceptable if they serve the common good. This is also what has been stated in §1 of the Declaration 1789: “Men are born and remain free and equal in rights. Social distinctions may be found only upon the common utility”. It is on this basis that entrepreneurs becoming extremely rich while compared to other people becomes acceptable.

However, Piketty claims that the entrepreneurial argument cannot justify all the inequalities of wealth, no matter how extreme (Piketty 2014: 443). This is a claim that we find in Rawls’ liberal theory as well (Rawls 1971). As we have seen, the general class based inequality r > g combined with better returns on capital as a function of initial wealth makes it possible that fortunes can grow and perpetuate themselves beyond all rational limits and beyond any possible rational justification in terms of common utility.

In this way, it does even not take one generation to move from an entrepreneur to a rentier. Entrepreneurs can be transformed into rentiers in their own lifetime, and their wealth can be multiplied more than tenfold in twenty years as in the case of Bill Gates and Liliane Bettencourt (Piketty 2014: 443ff.).

The consequence is that even the merit criteria in §1 of Declaration that social distinctions are acceptable if they serve the common utility or the common good is very difficult not to say impossible to concretize. It is very difficult in praxis to sustain the distinction between the entrepreneur and the rentier when the first can be transformed into the second in a very short time as has been exemplified with the case of Bill Gates.

As I understand Piketty, he draws the conclusion that the most important problem is not to clarify whether inequality serves the common utility or not? The most important problem is that the accumulation of wealth among the 1%, the 0.1% and not at least the 0.01% tends to represent 70%-90% of all the countable wealth in global societies. It is this enormous concentration of wealth that justifies Piketty’s use of the concept of patrimonial capitalism.

Patrimonial Capitalism

The concept of ‘patrimonialism’ is situated in Max Weber’s classification as a traditional form of governance (Weber 1980: 682 ff). It has its origins in the specific patriarchal form of authority in the family. Following up, it can be broadened out to concern patrimonial forms of government in which political and or economic power can be concentrated. In this form of government, authority and power form a political unity. It is this traditional unity which transgresses into the power and authority of economic wealth in the patrimonial form of capitalism, as has been described above.

Problems with Patrimonial Capitalism

Per my observations, Piketty draws the following conclusions concerning the patrimonial form of capitalism.

Society will fall behind the French Revolution

Piketty’s perspective is overall that patrimonial capitalism will bring society back to before the French Revolution. Some of the modern institutions may formally be maintained but the reality may be different.

Suspension of basic principles of Human Rights

The second point is that the basic values of modern society are suspended as they are formulated § 1 of the Declaration: “Men are born and remain free and equal in rights. Social distinctions may be found only upon the common utility”. In patrimonial capitalism, there are basic distinctions which are bound to inheritance and which therefore are transferred from generation to generation. This is exactly what characterizes a traditional pre-modern society. In such a society, men are not equal in rights, because wealth is the basic structuring parameter for the life chances of people in all matters concerning wealth, education, health, work, and political, social and other positions in society. In short, human rights are suspended in such a society.

Suspension of democracy

The third point is that democracy will be strongly weakened or even suspended in such a society, and there can be no possibilities to develop democracy in such a society.

Stagnation of society

The fourth point is that patrimonial capitalism will not be able to develop a society because the entrepreneur and innovator will lose their possibilities compared to the primacy of secure reproduction and accumulation of the inheritance.

Violence and corruption will dominate society

The fifth point is that such a society will be built on violence and corruption instead of legal and deliberative political institutions.

The rule of war between states

The rule of war between states will be dominant because interstate conflicts cannot be solved through diplomacy and international law.

Patrimonial capitalism does already exist in many societies in the world

The description of patrimonial capitalism may seem like a doomsday prophecy, a description of the last days. But in fact, the reality is that this form of capitalism does already exist in different forms in many societies in the world and maybe even the most societies with a developed economy combined with a strong authoritarian and corrupt regime. Even in the US we find signs of patrimonial capitalism, when wealthy people have enormous possibilities to influence elections, political life, allocation of resources and social decisions.

Piketty’s Capital: A platform for a critique of capitalism and its perspectives

In the end, the interesting thing about Piketty’s analysis is in the end that it is an economic analysis on the basis of the fundamental principles of the French Revolution. Piketty’s own conclusion is that the French Revolution failed and is an illusion.

With this background, one could have expected that Piketty had been critical toward capitalism as an economic system. But this is not the case. Piketty is worried about the historical consequences of capitalism, but he does not criticize capitalism in itself as an economic and social system. However, this seems to be a relevant topic as he has at least created a new platform for a discussion of capitalism, because he has uncovered some of the historical destructive perspectives in capitalism.

Marx’s Das Kapital

Introduction to Marx

It is in this background that I would like to discuss Marx’s concept of capital, das Kapital, and some of his perspectives on capitalism. Marx is such an interesting thinker in this context because no one has delivered such a strong critique of capitalism and political economy as him.

If we want to understand Marx’s critique of capitalism, we have to look shortly at his intellectual background and development. Marx (1818-1883) is a German intellectual strongly influenced primarily by Hegel’s political philosophy. Marx is a Hegelian who criticizes Hegel’s perspective on state, civil society, politics, and economy in Kritik der Hegelschen Staatsphilosophie 1844 (Marx 1841/42: 20-149). His basic critique of Hegel’s Philosophy of Law (Hegel 1955; 1991) is that Hegel ‘aufhebt’, lifts up or sublates the basic contradictions in civil society into a reconciliation, ‘eine Versöhnung’, in the State as an all-encompassing unity of the contradictions in civil society. According to Hegel, the contradictions in civil society were first of all constituted through the struggle between economic agents, who were only concerned with their own business. This is an insight Hegel had acquired through Adam Smith’ Wealth of Nations (Smith I-II 1981) and David Ricardo’s Principles of Political Economy and Taxation from 1817 (Ricardo 1996).

In his Kritik der Hegelschen Staatsphilosophie 1844, Marx mostly critizised Hegel’s Aufhebung and Versöhnung. Later on, his project became to reconstruct this political and political-philosophical critique of Hegel as a critique of political economy. Therefore, it would be right also to consider Marx as a Hegelian in this later period of his life after 1849, when he arrived as a political refugee to London. This is also what Marx remarks in his postscript to the second edition of Das Kapital (Marx 1970: 27f.). Marx comments on his method and claims that there must be made a distinction between the research (die Forschungsweise), in which the subject is taken in consideration, and the presentation (die Darstellungsweise), in which the topic is reconstructed as it has taken place. Die Darstellung, the presentation, means for Marx the same as how the subject can be developed in an idealized way which gives the impression that it could be a pure construction. One could say that it could give the impression of being a pure construction without relation to the reality in so far as it should present the essential (das Wesen) of the topic. In that sense, ‘die Darstellung’ could also be considered as a form of presentation and interpretation at the same time. Although Marx claims to be a materialist, he has such a style of presentation that it does remind us of a constructed model in the idealistic tradition of Plato and Hegel.

Marx’s Hegelian method

It is very essential to understand Marx’s Hegelian method, because it indicates that for Marx and for Hegel there are always two levels in the understanding of social phenomena. On the one hand, we have the surface, ‘die Erscheinung’; this is the empirical level, where the events happen. On the other hand, we have the understanding of the phenomena; this is the level where the essence, ‘das Wesen’, is expressed. As the third step, Hegel and Marx claim that it is only from the perspective of the essence, ‘das Wesen’, that we can understand the empirical level, where the events take place. According to Marx and Hegel, this was the meaning of dialectics.

It is exactly this phenomenological double perspective with the movement from Erscheinung to Wesen and from Wesen to Erscheinung, which is so strange for the American and English way of thinking, and is also the dominant perspective in modern liberal economy. However, it is this double perspective, which gives Marx the possibility to make a critical reconstruction of the political economy and present a new perspective on the relation between economy and society.

Marx’s project is to reconstruct the classical political economy

With this background we can discuss what Marx is concerned with in Das Kapital. Here we should remark on the subtitle of Das Kapital, which is Kritik der politichen Ökonomie – Marx wanted to criticize and reconstruct the political economy because it did not present what should be its essence, das Wesen. One could say that Marx wanted to write a new edition of Smith’s Wealth of Nations. According to Marx, political economy had moved away from a scientific project to a political project that was only concerned with price and market, the surface, ‘die Erscheinung’, because it served to hide that the dominant economy’s ‘Wesen’, the workproces, was based on exploitation of the workforce, who produced value and surplus-value.

Marx did not finish his project; he did not finish the presentation of the total reproduction of the economic system. In that sense, we cannot say that Marx has presented a model for the total reproduction of the economic system. Marx edited only the first volume of Das Kapital in 1867. Friedrich Engels edited the next two volumes with support from Marx’s remaining manuscripts. Therefore, the question is what status can Marx’s theory have, when it is not finished in the same sense as Adam Smith’s Wealth of Nations is a finished work?

The three edited volumes of Das Kapital, the collection of Marx’s preparatory work papers collected in Grundrisse der Kritik der Politischen Ökonomie (Marx 196-?), combined with the rest of Marx’s work give a sufficient basis to understand Marx’s new theoretical contribution to the political economy. Marx presented the basic principles in a critical theory with a new perspective on political economy understood as the reproduction of what he called the capitalistic mode of production or the capitalistic economic system. Broadly speaking, it gives a new understanding of the basic principles in a capitalistic society. In that sense, Marx’s theory provides the basis for a sociological understanding of the relation between economy and society, and in a wider perspective for the interpretation of history.

The glorious and tragic days of Marxism have ended. Therefore, today Marx’s theory should be seen in line with other economic and sociological theories, and it should be seen as part of a hermeneutical work, which in the end determines the integration of the different possible scientific perspectives.

With this background, I would like to present some of the essential topics in Marx’s theory in Das Kapital and Grundrisse, which will be relevant for a discussion of Piketty’s Capital. I will concentrate on the first chapters of Das Kapital as it is here that we find the basis for all of Marx’s theoretical construction.

The concept of Capital – The constitution of das Kapital

It already becomes clear from the title page itself that Marx’s Das Kapital is a very special treatise. On the one hand, it is in fact very similar to Hegel’s Philosophy of Right (Hegel 1955), and on the other hand, it is very different compared to Adam Smith’s Wealth of Nations and Piketty’s Capital. Therefore, it can be enlightening to compare it with these treatises.

Smith’s theme is the nature and causes of the wealth of nations, and chapter 1 begins immediately with a presentation of the division of labor as what has mostly improved the production of wealth (Smith 1981, I: 13 ff.). All the categories here and in the rest of the treatise refer to empirical matters. All of Smith’s categories have an empirical reference.

The same could be said about Piketty’s subject, which is equality and inequality with reference to the distribution of wealth.

Marx’s Introduction does not have this character. The title of the book, Das Kapital, is an abstraction and does not have an immediate empirical reference. The subtitle is Critique of the Political Economy. This means that the treatise is concerned with a critique and reconstruction of political economy as we know it from Smith and Ricardo. The subtitle of the first volume of Das Kapital is the Capital’s Production Process. The subject in Das Kapital is the capital. This is very strange in itself. How should capital be understood in a determined form? Normally we understand capital in quantitative terms, however, in Marx’s determination of das Kapital (Marx 1970: 12) we have to do with a concept. Capital is a conceptual abstraction, and it is the production and reproduction process of this subject, which is the topic of Das Kapital. This is also, what Marx emphasizes in the introduction to the first edition of Das Kapital in 1867 (Marx 1970: 11-17). In the postscript to the second edition from 1875, Marx comes back to the same theme concerning his method, which he designates as being the same as Hegel’s method, although turned around, because Marx claims that Hegel is an idealist, and Marx claims to be a materialist (Marx 1970: 27). I think that the two methods are very closely connected, and I find it difficult from a methodological perspective to see the difference between the beginnings of Hegel’s Philosophy of Right and Marx’s Das Kapital.

Marx’s development of the concept of capital

The first chapter of Das Kapital begins in the same abstract style with an analysis of the wealth in a society dominated by the capitalist mode of production, which presents itself as an amazing collection of commodities. The skeleton, ‘die Elementarform’, the basic element of such a society is the commodity. This is the reason why Marx begins his analysis with an analysis of the commodity.

In chapters 1-3, Marx develops all the basic concepts of work such as the production of the commodity, the use and exchange value of the commodity, the equal exchange of commodities, and the invention of money as the means of exchange of equal values.

I would especially like to emphasize chapter 1, section 4, where Marx introduces the fetish character of the commodity and it’s secret. In a commodity producing society, all social relations become hidden in the commodities, which are all a product of the work process. It is the commodities that seem to be the real actors in society (Marx 1970: 86). This is the beginning of the creation of the alienation in a society dominated by the capitalist mode of production.

In the third chapter, Marx describes how money becomes the general presentation of the circulation of commodities. There is a change from the form ‘commodity – money – commodity’ to the form ‘money – commodity – money’. In this way, money comes into the center of society and becomes an aim in itself.

In the fourth chapter, The Transformation of Money into Capital, Marx questions the addition of value when only equivalents are being exchanged all the time. Marx’s simple answer is that the workforce, ‘die Arbeitskraft’, is a commodity, which has the ability to produce more value, a surplus value or ‘Mehrwert’, than it costs to reproduce it.

Marx speaks about the transformation of money into capital, when the production takes the character of a production of surplus value, ‘Mehrwert’, and in that sense a production of Capital (Marx 1970: 180 ff.). Marx speaks about society as a capitalist society when the production of capital dominates society.

The term ‘capitalism’ is a technical term, a concept for a specific form for economy and society. The concept capitalism has its origin in the Late Latin word capitale derived from caput, meaning ‘head’, which is also the origin for chattel and cattle in the sense of moveable property. Capitale emerged in the 12^th to 13^th centuries in the sense of referring to funds, stock of merchandise, sum of money, or money carrying interest. In English language, the word capitalism is used since the 1850s as the determination of a specific form of society, in which capital and capitalist modes of production have a determined significance.

On the basis of the concept of capital, Marx’s project is to develop an all-encompassing description of the reproduction of a society dominated by the capitalistic mode of production. As mentioned, Marx did not finish this project. In this sense we could say that Marx did not succeed. However, this would not be a correct judgement, because Marx developed the base for a new understanding of economic significance in a modern society.

I will not go in detail with a further presentation of Das Kapital, but would only like present some of the consequences of Marx’s perspective. I speak here about the abstract theory in itself and not about the specific historical forms, which are determined by many other historical and social factors. In that sense, the abstract principle of capital does only indicate the determinate productive principle in a specific historical form of society.

Marx gives a totally new perspective on liberal economy

The essence is that Marx determines a new perspective on economy and society. Das Kapital, the capital, is a driving machine or subject, which aims to produce capital in an escalating intensity and quantum. This is also determined as accumulation of capital.

Das Kapital is a critique of the liberal market economy

Marx theory is a critique of political economy. The word ‘critique’ could be mystifying. Therefore, let me first express what I think critique means in this context. It primarily means to show what is inconsistent, hidden or suppressed in the understanding of a liberal market economy, and secondarily to present a reconstruction of a basis for another understanding of economy. In the liberal economic perspective, the economy does only mediate social relations; it does not produce social relations. The basic categories are therefore price, market and commodity. In this perspective, the economy is in itself a neutral mediator. In Marx’s perspective, it is different.

Das Kapital is the productive and destructive subject of society

In Marx’s perspective, das Kapital not only produces ‘Mehrwert’ and ‘Kapital’, or is not only an economic productive force. Das Kapital forms a society, its institutions and its social relations in a specific adequate way. In this context, the following topics can be emphasized:

Commodification

Das Kapital has a tendency to create a commodification of all social relations and all human life.

Die groβe Profanierung – All pre-given norms are broken down and restructured in accordance with the new historical imperatives

All pre-given norms are broken down, because they are under pressure to be relativized and commoditized. This is ‘die groβe Profanierung’, this is the big profanation of the Holy and of all social norms. In The Communist Manifesto, it is stated in this way: “All that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses his real conditions of life, and his relations with his kind” (Marx 1968b: 529).

Die groβe Verschleierung – the big concealment

The big paradox in capitalism is that its consequences are ‘verschleiert’ or veiled. The astonishing thing is that this veil is constituted through the liberal market economy, in which all distinctions are ‘aufgehoben’, lifted up and abolished in the general equivalent, money, at the market. All social distinctions are relativized and hidden on the market. In the end, there is only the distinction more or less of the general equivalent, money.

The big illusion – the liberal market economy produces the big illusion about society

The liberal market economy creates or produces the big illusion about this same form of society, because the abolishment of all distinctions becomes a hindrance for critique. We are all equalized in the general equivalent, money. Therefore, there is no internal way from the liberal market economy to a critique of the specific formation of the social relations, because these distinctions are not inherent in the economic theory. The liberal market economy is constituted through an abstraction from the possible distinctions.

Summing up – Marx has presented a specific theory which can be applied on empirical work with economy and society

What I have presented are the basic principles in Marx’s critique of the political economy. As mentioned, Marx has developed a much broader and differentiated theory compared to, what has been presented here. However, in the end, what we have from Marx is a theory with a specific perspective on economy and society, making it possible to apply it in specific empirical work.

From Marx to Piketty – From Piketty back to Marx

Marx and Piketty on empirical work – What is the difference?

In this context, it could be interesting to question how empirical research would be different in a Marx perspective compared to a Piketty perspective. Let us imagine that Marx had conducted similar research as Piketty on the development of inequality in France the last 200 years. What would be different? I am not sure that the concrete research method would be different. Piketty has gone down to the sources and tried to give an answer to his question. The difference would lie in how the questions are posed. Piketty poses his questions inside the horizon of the liberal market economic theory and the neoclassical economic theory. He does not pose questions to or discuss this economic perspective. It is as if it were pre-given or impossible to fundamentally question it. Consequently, we do not move outside the framework of this economic perspective.

The practical results of Piketty’s research are not very significant compared to the enormous research he has done.

The taxation card is Piketty’s only solution to the huge problems created by growing inequality. However, Piketty does not really believe that it is possible to establish the necessary taxation system. Therefore, one could say that there is a lack of critical potential in his theory although he delivers amazing empirical material. The practical results of his research are not very impressive compared to the enormous research he undertook.

Marx’s perspective on empirical economic research

On the other hand, Marx has an incomparably stronger critical theory, which can help pose many interesting research questions and could be integrated in an empirical project.

In the end the dividing line between Piketty and Marx is the following. For Piketty, the liberal market economy is regarded in itself as a neutral system. For Marx, the problems of inequality observed by Piketty are an inherent consequence of capitalism. It could simply not be otherwise because a basic principle in capitalism according to Marx is capital accumulation and capital concentration. Piketty remarks that contingent historical events, the first and second world wars combined with a strong left wing policy, created the basis for diminished inequality in the period 1945-1975, and not fundamental changes in the liberal economic system.

In Marx’s perspective, it would also have been a good idea to change inequality through taxation. However, the interesting perspectives are the basic contradictions in the economic system itself, and whether these contradictions can find a practical solution is a political question.

Marx and Piketty – research perspectives and strategies

What to do in a world dominated by the liberal economic perspective?

A basic question would be how one should conduct research in economic oriented topics when most research resources are concentrated around the liberal economic perspective. The strategy could be to integrate research from the liberal economic perspective in a hermeneutical horizon, which is more influenced by critical theory. In this way, it would be possible to use the given empirical resources in another critical hermeneutical perspective in which an inherent critique of capitalism could be formulated.

References

Declaration of Man and the Citizen 1789

Bouvier, Jean; Furet, François; Gillet, Marcel (1965), Le mouvement du profit en France au XIXe siècle, Paris and La Haye, Mouton & Co

Hegel, G. W. F. (1955), Grundlinien der Philosophie des Rechts, Hamburg, Felix Meiner Verlag.

Hegel, G. W. F. (1991), Elements of the Philosophy of Right, Cambridge, Cambridge University Press.

Marx, Karl (1968), Die Frühschriften. Stuttgart, Alfred Kröner Verlag.

Marx, Karl (1968a), Kritik der Hegelschen Staatsphilosophie 1841/42, in. Marx, Karl (1968), Die Frühschriften. Stuttgart, Alfred Kröner Verlag

Marx, Karl (1968b), Manifest der kommunistischen Partei, in: Karl Marx, Die Frühschriften. Stuttgart, Alfred Kröner Verlag.

Marx, Karl (1970), Das Kapital band I, MEW 23, Berlin, Dietz Verlag.

Marx, Karl (196-?), Grundrisse der Kritik der politischen Ökonomie, Frankfurt, Europäische Verlagsanstalt.

Piketty, Thomas (1998), Les hauts revenus face aux modifications des taux marginaux supérieurs de l’impôt sur le revenu en France, 1970-1996, CNRS, URA928, numero 9812. [High-Income Taxpayers’ Reaction to Marginal Income Tax Rates Changes in France, 1970-1996].

Piketty, Thomas (2001), Les hauts revenus en France au 20e siècle: inégalités et redistribution, 1901-1998, Paris, B. Grasset.

Piketty, Thomas (2004), L’impact de la taille des classes et de la ségrégation sociale sur la réussite scolaire dans les écoles françaises: une estimation à partir du panel primaire 1997, EHESS, Paris-Jourdan.

Piketty, Thomas; Valdenaire, M. (2006) L’impact de la taille des classes sur la réussite scolaire dans les écoles, collèges et lycées français – Estimations à partir du panel primaire 1997 et du panel secondaire 1995, Ministère de l’éducation nationale, Paris.

Piketty, Thomas (2014), Capital in Twenty-First Century, Cambridge Massachusetts, The Belknap Press of Harvard University Press.

Rawls, John (1971), A Theory of Justice, The Belknap Press of Harvard University Press, Cambridge, Massachusetts.

Ricardo, David (1996), Principles of Political Economy and Taxation, Amherst, Prometheus Press.

Smith, Adam (1981), An Inquiry into the Nature and Causes of the Wealth of Nations, Volume I-II, First edition 1776, Indianapolis, Liberty Fund.

Weber, Max (1980), Wirtschaft und Gesellschaft: Grundriss der Verstehenden Soziologie, 5. Rev. Aufl. Tübingen, Mohr.

Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015)

23/03/2016Book review (editorial review)Arctic, gas, human rights, indigenous rights, international law, oilBjarni Már Magnússon

The Arctic is estimated to hold the world’s largest remaining untapped gas reserves and some of its largest undeveloped oil reserves. Developing these resources in the harsh Arctic environment will be complex and challenging and can have far-reaching consequences. Consequently, the prevention of offshore marine pollution from oil and gas development activities is amongst the more important issues that need to be discussed in this context.

Continue reading Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015) →

Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective

09/02/2016Conference proceedings (triple non-blind peer review)Constitution, EU, IMF, Ireland, Italy, Latvia, Portugal, Romania, Spain, civil commons, constitutional court, constitutional law, crisis Greece, human rightsGiorgio Baruchello & Ágúst Þór Árnason

In this paper, we aim to survey representative constitutional amendments in the European Union’s (EU) area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies. Then, we proceed to assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7^th volume of the Annuaire international des droits de l’homme (Athens: Sakkoulas, December 2014), edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law. Not only does this volume comprise the work of some of Europe’s noted constitutionalists, it also addresses the constitutional matters central to this paper in light of human rights jurisprudence, which is the area of expertise of one of the paper’s authors, i.e. Ágúst Þór Árnason, and the area that the other author, Giorgio Baruchello, has construed axiologically as a pivotal instantiation of civil commons, i.e. “all social constructs which enable universal access to life goods”. Have European constitutions continued to function qua civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.

Continue reading Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective →

A reply to the reviewer of “Totalitarismo, democrazia, etica pubblica. Scritti di filosofia morale, filosofia politica, etica”

25/12/2012Book review (editorial review)Arendt, Democracy, Jonas, Philosophy, Politics, human rights, totalitarianismFederico Sollazzo

As it is written in the foreword, what the book offers is, immediately, an overview on the current status of the moral and political philosophical debate (each chapter is a sort of piece of this mosaic). But reading deeply the book is possible to find, as is normal, a fil rouge, a background thesis, that runs through all the chapters: an attempt to define in a critical way the moral and political framework of the current society, trying to delineate alternatives in the way in which we intend our aggregative forms – especially starting from the idea and the practice of democracy, nowadays reduced into formal mechanisms –, and possible escape lines.

As for the quoted authors, as ever happens in the essays, I made a selection – it’s strange having to specifying this. And so, I chose the authors that, for me, are fundamentals and those that are secondary, in the economy of my speech, deepening the first – and the same with the arguments, some are main themes same are collateral analyses for me. And so, I criticized the authors with which I disagree, specifying why – without obscure them from the philosophical scene, for their impact on that –, and I used quotations with which agree, specifying the source – for not assign to me those ideas – but declining them in the economy of my personal speech. And about some mentioned contents of my discourse, I would like to clarify in short at least two important issues. First, Arendt and Jonas sit well together for me because in Arendt is possible to find an indirect but very cogent critique to the naive and dangerous stances of Jonas: the sacralization of biological life, the mythologizing and the normative use of the nature, is at the ground of the Nazi ideology, as Arendt shows speaking about the modern triumph of the anthropological figure of the animal laborans, emblematically represented by Eichmann. Second, to affirm that the Declaration of Human Rights of 1948 is universal, modern and Western, is not a disclaimer of its advancements – why should it be so is not clear for me – but is a reasoning on another level than that of the socio-political decisions: that of the conceptual background of our society – that contains also its advancements. This critical view is extremely important because permit us to intend our society – and its advancements – not as the only one possible society – like for example in the Eurocentrism or now, we can say, in the “Westerncentrism” – but as a possible society; avoiding so also the theoretical “Westerncentrism” that is given in the reading of authors that are not modern and/or Western with the eyes of a modern and Western person – e.g. the sui generis Popperian reading of Plato, Hegel and Marx.

For me too the book would have benefitted from an analytical index and a bibliography, it is a pity that the publisher has not made, however, as is written in the premise, the footnotes are enriched with the necessary bibliographic details.

Aðalheiður Ámundadóttir & Rachael Lorna Johnstone, Mannréttindi í þrengingum: Efnahagsleg og félagsleg réttindi í kreppunni (Akureyri-Reykjavík: Háskólinn á Akureyri og Mannréttindaskrifstofa Íslands, 2011)

23/03/2012Book review (editorial review)ICESCR, Iceland, economic crisis, human rightsAndrea Hjálmsdóttir

Three of the biggest Icelandic banks, which had been privatized in the late 1990s and early 2000s, collapsed and were taken into public ownership. An economic collapse was a fact and the former Prime Minister Geir H. Haarde asked God to bless the Icelandic nation at a press conference in October 2008. Certainly, the crisis (kreppa) was not a nightmare we would wake up from, but a reality that had to be dealt with. The next step was when the International Monetary Fund (IMF) was called in to organize a crisis management program. Then the currency collapsed. The unemployment rate has since been on the increase; from 1.5% in September 2008 to 8.7% in May 2009 with others taking wage cuts and/or cuts in working hours.

Although the everyday life of the Icelandic general public was in some way perceivably paralyzed in the fall 2008, people began to revive themselves. It was at this time that “The Kitchenware Revolution? was conceived in Iceland. The general public started a massive protest against the government. Icelanders, who have no great tradition of political resistance, rallied in the streets with their pots and pans. In front of Althingi (the national Parliament) people knocked upon their household utensils. January 2009 witnessed masses of people who gathered everyday, aiming to disturb the operations of the parliament, demanding that the government resign. For the first time since 1949, when Iceland’s entry into NATO was objected to, the police used tear gas to keep protesters back from the Althingi. Icelandic society was experiencing formerly unknown turbulence.

The Kitchenware Revolution won its first victory on the 23rd of January 2009, as the government resigned. New elections were called for and took place on the 25th of April 2009. The new government elected confronted the great task of “saving? Iceland from bankruptcy without jeopardizing its rather strong welfare system. For that to be possible it is obvious that the prosperous population of Iceland has to adjust to a new way of living. During these times of kreppa and turbulence both the national government and the municipalities have been facing huge decline in their annual budgets and the undertaking of cutbacks in services has been the biggest task ever since.

It was, and still is, a huge project to restructure the welfare system during these times of great cuts in national budgets. During such difficult times a book like ‘Human rights in crisis: Economic and social rights during an economic crisis’ is greatly appreciated. Not only is it the first research conducted after the economic collapse focusing on human rights issues; it also provides valuable guidelines for those working in the public sector and raises the issue of the importance of awareness of human rights in it.

By outlining some of the main issues of the International Convenant on Economic, Social and Cultural rights, the authors provide valuable guidelines on how the national and the local governments can avoid infringing the human rights of the citizens when cutting down expenses. As the authors Aðalheiður Ámundadóttir and Dr. Rachael Lorna Johnstone point out, it is more important than ever to appraise human rights during financial decline.

The main aim of the book is twofold; firstly to serve as a guide for Icelandic politicians, officialdom and the general public on economic, social and cultural human rights during times of economic crisis, as it outlines what these rights are and how they can be secured and accomplished through laws and policy making. Secondly, to increase the nation’s general knowledge in the field of economic, social and cultural rights. As the authors of the book recognize clearly, it is during times of kreppa that the task of protecting human rights may very well be more important than ever. A primary reason is that during such difficult times the economic situation tends to overshadow every other aspect of society, and the commonly heard phrase “it is not the right time to focus on this now” tends to distract people from other pressing issues and important accomplishments such as first and foremost protecting the actual human rights of the citizens.

Although Iceland has been a country of prosperity, human rights issues can be argued to have rather been in the shadow of public discourse on citizen’s wellbeing. The focus has been on the ‘welfare’ of the citizens, which of course is deeply related to human rights, but does not coincide with it. Indeed, the book casts light on how one of the main issues of past Icelandic governments has been to protect the general public’s welfare, sometimes in conflict with human rights considerations. The book’s body is built around the International Covenant on Economic, Social and Cultural rights and Ámundadóttir and Johnstone argue convincingly why they choose to build on this specific covenant rather then than theInternational Covenant on Civil and Political rights.

The aim of the book to increase knowledge and educate about the International Covenant on Economic, Social and Cultural rights and human rights issues in general is well conceived. The book starts with very informative chapters on the Covenant; its geneses and its role within the nation states and the work of its UN committee. Iceland’s legal obligations are also extensively discussed, since the covenant has been long ratified. Also, there is a chapter that outlines the essence and intentions of the commitments undertaken by the member states.

Since the book is designed for people working in the public sector with very diverse backgrounds and knowledge of the existing laws, these chapters are very enlightening and essential for further understanding the foundations of the covenant and, no less importantly, how it can be applied to policy and planning during times of restructuring and retrenchments in public services. The authors manage to explain the ideology of and the key-concepts pertaining to economic, social and cultural human rights clearly and in a helpful way, also for persons with no legal background. The reader obtains a good overview of the central tenets of the covenant and is likely to be better informed on how retrenchment has to be considered with regard to protecting human rights during economic decline. Good examples of these are the clear explanation of ‘progressive realization of rights’ and ‘progressive-regressive measures’.

Chapters engaging with specific issues of the Covenant in the Icelandic perspective follow these first instructive chapters. Ámundadóttir and Johnstone explain their choice of using the examples of employment rights, social rights and rights to education to outline the implementation of the covenant in Iceland before and after the economic crises. It can be argued that they could have taken different examples from the Covenant, or that it would have been helpful to use more than just three specific fields. However, it can also be argued that the authors manage to give a very concrete representation through their choice of specific fields, especially concerning the aim of the book to serve as a guide for national and local government and officialdom.

As stated above, the unemployment rate in Iceland has risen enormously since the fall of 2008. The chapter on the right to employment gives important insights on how governmental policy and regulations impact human rights and what has to be taken into consideration to keep the commitments under the Covenant on Economic, Social and Cultural rights. The authors give examples about certain things that have worked out well despite decline in budgeting; and they very well advise on what has to be taken into improved consideration in respect of the economic, social and cultural rights. The standpoint of the book is very relevant for the public sector and easy to learn from as it is summarized in a very resoluted manner and without any preciosity.

A good example is when Ámundadóttir and Johnstone point out how changes in regulations concerning the rights of students to unemployment benefits greatly affect their possibilities to make a living during the summer months, since the Icelandic Student Loan Fund only lends funds to students during a nine-month period each year. Therefore these changes in regulation concerning unemployment benefits leave students that do not have a summer job out of their right to enjoy the benefits of the welfare system. This is just one example on how the authors provide constructive illustrations on the subject matters, which gives the reader an idea of what kind of problems they can expect to approach during cutbacks in the public sector and in what ways they might be solved without violating human rights.

The book is in general written in an approachable language suitable for any reader. My conclusion is that Ámundadóttir and Johnstone reach the aims of their book, which is very enlightening and informative and manages to clear the line between ‘welfare’ and ‘human rights’. But as the authors state in the book, the Icelandic focus on ‘welfare’ has somehow shrug off the great importance of respecting human rights. The difference between those two concepts has not been clear enough, neither in political nor in public discourse. The book does deepen the understanding of the importance that the people who participate in the decision-making process with regards to economic, social and cultural rights. As well as it underlines the importance that the citizens themselves be aware of their rights.

This book is also an important contribution to human rights education in Iceland, a field which has been neglected by the educational system. Therefore this book is treasured even more for politicians, public officials and the general public. As Ámundadóttir and Johnstone underline correctly, there is great need to increase human rights awareness in Icelandic society, not least during these times of crisis, in order to enable politicians and public officials to make decisions based on enlightened knowledge of human rights, thus avoiding violations of basic rights of the population. It is also in the interest of the citizens to be more knowledgeable about their human rights, as it helps them to experience themselves as rightful owners rather than receivers of charity and enjoy human rights with dignity.

Today’s demand is resting on open, transparent and trustworthy administration; this book can help to direct us toward that path. It has to be distributed widely among officials and politicians in national as well as municipal governments for the benefit of the wellbeing of all Icelandic citizens and in order to minimize the negative effects of the crisis during times of retrenchment.

Herman Salton, Arctic Host, Icy Visit: China and Falun Gong Face Off in Iceland (Saarbrücken: LAP Lambert Academic Publishing, 2010)

23/03/2012Book review (editorial review)China, Council of Europe, European Convention on Human Rights, European Union, Falun Gong, Iceland, Icelandair, human rightsAníta Einarsdóttir & Tiantian Zhang

Review by Aníta Einarsdóttir

In June 2002 the President of the People’s Republic of China went to Iceland for an official visit. Consequently, some practitioners of Falun Gong, among many others, booked flights to Iceland at the same time, with the airline Icelandair. Somehow, by means still unknown, since Falun Gong keeps no list of its members itself, the Icelandic government had a blacklist of all these actual and presumed Falun Gong members that they believed to be going to Iceland to protest against the Chinese president and the Chinese government’s alleged human rights violations. The people that were on this blacklist were either denied visas, embarkment onto their booked flight, or arrested at the international airport in Iceland and asked all kinds of questions about the purpose of their visit and their personal beliefs. Many of those eventually admitted into Iceland were then arrested and held in a school near the airport, not knowing what was going on and, like everybody else on the blacklist, wondering how their names got on such a list, which no one ever got to look at, except authorities and flight-personnel. The people that were kept in custody at the school were released after being forced to sign an agreement with the authorities about restricted areas and a peaceful stay in the country.

The people of Iceland do not seem to know very much about these events that in so many ways breach the rights of the people travelling, and if there is anything they know it is the little that the newspapers of Iceland, themselves much influenced by the Icelandic authorities at the time, chose to publish. This year, 2012, will be the tenth anniversary of these events in Iceland and it is therefore about time for the Icelandic people to consider and discuss what has been hidden from them and how such a limited access to public information has been inconsistent with the values of 21^st century. The Icelandic government managed so extraordinarily to lower the dignity of Iceland and its international reputation, by bending over for the Chinese government, and the people of the country need to be informed of events of this nature.

The book Arctic Host, Icy Visit is about Falun Gong and various events that happened all over the world after the ban of the movement in China in 1999, but the main idea of the book came from the events in Iceland in June 2002. The book gives precise and detailed information, from the founding of Falun Gong until China’s massive campaigns to try to ban its exercise in the 20^th and 21^st century, both in China and elsewhere.

It took the author, Herman Salton, eight years to write and publish this book, i.e. from 2002, when he began his inquiries after the events in Iceland, until 2010, when the book was released. This has given him a very long time to gather a lot of sources, some of which very good and reliable. He uses old and recent newspaper articles, books written by Falun Gong members and founders, and judgments made by the Icelandic authorities, for instance the Ombudsman. However, despite all the effort put into the bibliography of the book, it is difficult to verify all sources, since Salton refers to a lot of interviews that he personally conducted with Falun Gong members who, for instance, are talking about what they have been through, either with the Chinese government or other governments and authorities. These sources might be valuable, but it can be hard for the reader to evaluate them, since they are made personally by the author. They also take only the side of Falun Gong members, leaving out any other side of the stories, like that of the Chinese and Icelandic authorities.

Given that Salton indicates in the beginning of the book that he writes it for the people of Iceland – “To The People of Iceland Whose Decency and Sense of Democracy Continue to Be a Source of Inspiration” – for them to be able to be informed about events that nobody has talked about or that have been suppressed by the government, it is written in a way that catches the reader’s attention right away from the first page. The author tells the reader a story, not like a novel but like a documentary. He also writes in an English that should be understandable for most people.

Still, even if the book gives good information written in a clear and understandable way, it is not written in a very critical way. The reader of the book should be aware of this and read it with an open mind and exercise caution regarding the author’s interpretation of the events. As mentioned before, he interviews many Falun Gong practitioners and therefore gets their side of all stories, that is, telling all the good things about the practicing of Falun Gong and insisting upon the “innocence” of their activities. He tries, even though he is struggling with it because of his opinion of the matters, to write somewhat from the governments’ side as well, but it is mostly in an ironic way, letting the reader know that despite excuses from the authorities, their actions are wrong. It might be because it is hard to get in touch with governments on these matters, because they know of their wrongs and are therefore not willing to discuss them. There might also be no excuses from the governments’ side and therefore the only information to give is that coming from the Falun Gong practitioners.

There is one chapter of the book that stands out from all the other good chapters, which is the legal chapter. The book might give a good idea of all the things that are wrong in the governments’ behavior, both the Icelandic government as well as any other government that has done similar things. But for a person that knows the law, especially European and International law, it is rather a confusing chapter. The author erroneously conflates European law and the European Convention on Human Rights throughout and the analysis is superficial, when not simply inaccurate.

This book gives good information but there is always, especially because the author almost only takes Falun Gong‘s side in these matters, more than meets the eye. It is obvious though that the Chinese government has an enormous impact on the whole world, and tries to ban Falun Gong everywhere. At the same time, other governments are aware of the influence that the Chinese government has, and may be aware that their own actions are unjustifiable and therefore try to avoid discussions about these matters. They hide the truth and give no comments on their behavior. Salton´s book takes the reader on a journey all around the world, informing them about the things that not many people seem to know of and digs up sources and information that seem to have been somewhat hidden.

Review by Tiantian Zhang

It was after an eight-year-long delay following the controversial event that the book Arctic Host, Icy Visit: China and Falun Gong Face Off in Iceland by Herman Salton was published. Salton was then an officer at the Icelandic Human Rights Center, among other roles. In this book, the author focuses on a 2002 event where a certain group of people, namely Falun Gong practitioners, were ordered by the Chinese government to be banned to enter Iceland before and during the visit of the Chinese President. In-depth research was made and opinions given by the author, along with a detailed review of the event.

The series of events that was thought to tarnish Iceland’s long and well-respected reputation in human rights history is briefly summarized in the foreword and introduction, and then further described in Chapters 3 and 4. It happened in early June 2002, when the President of the People’s Republic of China (PRC), Jiang Zemin, planned to make his visit to Iceland. In the author’s description, what happened before and during the President’s visit was ”unforeseen,”and “bizarre, even burlesque.”. Practitioners of a Chinese “spiritual movement,” namely Falun Gong, were barred from Iceland with various methods. Those methods, including denial or withdrawal of their visas to Iceland, interrogation and refusal of entry at airports before boarding Iceland-bound planes, cancellation of their hotel room reservations and secret monitoring of their activities, are listed and submitted in evidence by the author as major breaches of human rights by the Chinese government and interference with Iceland’s sovereignty. What makes these actions stand out, however, is the fact that they were ordered by the Chinese government, but assisted and partly conducted by Icelandic government.

Being a Chinese citizen who has lived in Iceland for 3 years and majored in law for more than 5 years, I find it quite difficult to offer a conclusive evaluation of the events. In order to be able to give an objective opinion, I realize that a better understanding and in-depth investigation are required before I start judging the events, given my limited knowledge, which is probably colored by my experiences in both countries. After a comprehensive search for information from different media and publications, I would like to say that I have to hold a quite unique view on the Falun Gong movement, the 2002 event and its meaning, and the book as a whole.

By simply looking at the cover and reading the title of the book I sensed immediately a subtle hint of criticism in the main theme. The cover displays a picture of police cars under a gloomy semi-dark sky, giving an impression of heavy and solemn atmosphere along with the title “Arctic Host, Icy Visit.” I indiscreetly came to a conclusion that the book I was going to read could be categorized into a certain stereotype of books and publications, namely those typically critical publications dealing with human rights issues whenever the Chinese government is involved. Mere criticisms of the government’s well-known bad manners ignoring or infringing human rights are not the most outstanding characteristic of such publications. Instead, the criticisms and analysis always lead to the same conclusion, which is a routine of blaming the Chinese government for interference with other states’ sovereignty and abuse of its rising political and economic influence. However, the author manages to give some inspiring information and thoughtful conclusions after a careful examination of the 2002 event.

From what I know about the government by living more than 20 years under its regime, I have not much doubt in the truthfulness about their radical actions in Iceland as told in the book. Nor does it surprise me that the actions and orders were actually operated and carried out by the Icelandic government, whom I suppose to have quite some experience in barring foreigners from the country from my own experience. Information from various sources including newspaper reports, individual interviews of practitioners, witnesses and officials, reports from international human rights organizations, and letters by the Minister of Justice all support the story as reported by Salton. The author provides a considerable amount of information in chapters 3 and 4, covering important particulars and details.

However, one of the major flaws in this book lies in the characterization of Falun Gong. The author has made an attempt to give a concise and in some level accurate portrayal of Falun Gong in Chapter 2, but his view is apparently limited, if not totally biased, by the sources that he could access and lack of direct contact with of the innocently self-profiled organization. Appearing to be a “meditation exercise” in origin, Falun Gong is no longer merely a spiritual or religious group. The author makes a relatively objective introduction but fails in accuracy. It is not to be blamed because Falun Gong’s image is profiled drastically differently in international media compared with the Chinese domestic media as well as with what people have observed, not to mention inconsistency within the Falun Gong group itself.

I agree with the author about the anti-scientific and confrontational character of Falun Gong, which are pointed out in the book, but about their nature and non-violent history I have to hold a different opinion. On 23^rd January 2001, some Falun Gong devotees committed self-immolation at the Tian’an Men Square. A similar incident took place once again in Beijing on 16^th February of the same year. The incidents were reported by Chinese domestic media and were witnessed by Beijing’s citizens. Even though huge controversy emanated from these incidents and Falun Gong claimed that the tragedy was completely planned and manipulated by the Communist Party (CCP), the truth remains undiscovered. These two events came as a huge shock and had a widespread influence at that time, but were not mentioned at all in the book. It is valuable and important information to consider because it was just a year before the event in Iceland. If the incidents as reported in China were true, then the Chinese government’s concerns and bans would be viewed as more reasonable and understandable, even if of questionable legality.

Besides, as the author also noticed, the anti-government character of Falun Gong is obvious to the public. Radical criticisms and literal attacks towards the Chinese government, especially the CCP, are expressed explicitly in their books, official website, newspapers and flyers. As far as I know, almost every Chinese relative and friend of mine has received propaganda from Falun Gong anti-government movements, most commonly emails, mobile phone messages and home phone calls with recorded tape speeches. It is difficult to conclude that this organization is “peaceful in essence.” However, no matter how the nature of Falun Gong is and what the purpose of their movement is, there is inadequate justification for the Chinese government’s actions according to law. Human rights were breached and no excuses or attempts should be made to excuse their unlawfulness. Still, a crucial error is made when the author tries to analyze the legal challenges and legal assessment concerning this event: he refers to the European Convention on Human Rights as European Union law even though the former is under the auspices of the Council of Europe and is quite distinct from the European Union’s institutions. Further, Iceland has long been a party to the former treaty, but is not (yet) a member of the European Union at all.

When reaching its conclusion, the book approaches a routine of emphasizing freedom of association, speech, assembly and expression, and claims that the Chinese government used its political and economic influence to interfere with Iceland’s sovereignty. Meanwhile it also makes an interesting point that Western States are used to look at China’s human rights issues through colonial eyes, with a paternalistic attitude and teacher-pupil template, and try to use human rights as negotiation tools. But what I would like to add is that it is also important to realize that the fear of the West from the supposed threat from a rising power is usually attributable to lack of communication. China’s blockage of media is worsening the case.

With relatively satisfying accuracy and objectivity, this book gives the 2002 event and its background a through introduction and provides a reasonable conclusion. But throughout the whole book, it shows the typical Western superiority complex of a “peaceful, scarcely populated, proudly independent and highly civilized” state (juxtaposed against China) and the pity of its tainted reputation in human rights by the government and its “obedience” to another political power. But I would take a bold guess that the possibility cannot be ruled out that the Icelandic government was aware of the consequences of potential protests, and was not completely unwilling or even forced, as the book has implied, to carry out and assist the actions reported. Welcoming hundreds of radical protestors to its soil to carry out their activities with unforeseen consequences, the Icelandic government, or any other government that cares about its peace and security, was not very likely to favor this idea. But being forced and having to obey another irresistible power to breach human rights unwillingly seems more forgivable. If that was the case, Iceland should really be concerned to protect its sovereignty and remain “one of the most liberal states” and “proudly independent,” but it must stand firmly on its position and take responsibility for its own decisions and actions.

P.S. The author of this book has provided a reply to the reviewers in issue 8(1) of Nordicum-Mediterraneum: http://nome.unak.is/nm-marzo-2012/vol-8-n-1-2013/51-book-review/351-review-response

Christian Joerges and Ernst-Ulrich Petersmann (eds.), Constitutionalism: Multilevel Trade Governance and International Economic Law (Hart Publishing: Studies in International Trade Law, 2011)

23/03/2012Book review (editorial review)Democracy, European Union, Law, WTO, constitutionalism, governance, human rights, international economic law, private law, trade lawRachael Lorna Johnstone

The overarching approach, as pioneered by the two editors, Christian Joerges and Ernst-Ulrich Petersmann, is to examine the practices of States and other international actors (principally the WTO) and explores these within the political and legal theory of constitutionalism. Where this work differs from much of the comparable scholarship on international economic law is the central place reserved for the individual as a key player (and beneficiary) of international economic relations. Much scholarship exists on international trade from States’ perspectives; and much has been devoted to exploring the contradictions and tensions between international economic law, individual rights and sustainable development. Recognizing that “human rights law and international trade law evolved as separate legal regimes” (p. 17) Constitutionalism, Multilevel Trade Governance and International Economic Law makes a positive case for interpreting international economic law and international human rights as complimentary systems that ought to be brought closer together; indeed, to form a single, coherent system of law. It is an implicit response to concerns about the fragmentation of international law and reflects the classical principle of interpretation of treaties as codified in the Vienna Convention in the Law of Treaties 1969 that: “There shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties” (article 31(3)(c)). With this in mind, international economic law is viewed as a tool to serve human interests, as opposed to the interests of States and multi-national corporations. Responding to the High Commissioner for Human Rights’ call for a “human-rights approach to trade,” (p. 22) the book provides both an account of the normative basis that would legitimise such an approach by the WTO and makes proposals for how that process might evolve.

The introductory chapter (Petersmann) provides a theoretical framework for what follows, examining different forms of constitutions and constitutional ideas (democratic constitutionalism, rights-based constitutions, national and international constitutionalism, international constitutional democracy and federal and con-federal constitutions) (p7-8). Petersmann also distinguishes process-based constitutional democracies (most common law models) and substantive rights-based constitutional democracies (the continental approach) which provides the setting for much of what follows (pp. 13, 16).

The later edition contains 4 new chapters exploring conflicts-law as constitutional forum and the role that various doctrines in international private law might play in dispute settlement in international economic law (Christian Joerges); the World Trade Organisation and global administrative law (Richard Stewart and Michelle Ratton Sanchez Badin); the interrelationships between different layers of domestic and international governance as a “Five-Storey House” (Thomas Cottier); and a research agenda on the future developments of international economic law (Petersmann).

Petersmann concludes with four propositions based on the contributions as well as his own research. First, the legitimacy of international economic law pivots on its congruence with international human rights standards (p. 539). Second, there is a need for constitutional constraints on international institutions as there is within domestic States based upon “constitutional pluralism,” meaning that there is a range of acceptable constitutional arrangements and no single system that should be required of all players (p. 540). Third, in order to protect global public goods, such as the atmosphere and climate, a “paradigm shift” is required and this involves moving from a system of industry actors to the centralization of human subjects and Petersmann points to the European Union for leadership to this end (pp. 571-2). Fourth, international constitutionalism is necessary to guarantee global public goods in the same way that domestic constitutions have protected supply of public goods on a national scale. The international constitutional system must be rights-based, participatory and democratic (p. 575).

When the first edition of this text was published in 2006, mainstream commentators were not yet ready to question the bases of the international economic order and the priority of trade liberalism. Two years later, the rapid declines of the Nordic and Mediterranean economies of Iceland, Greece, Italy, Portugal and Spain were met with attacks on human rights and human security. Both the original crisis and the responses of international institutions to the same have led to much soul searching about the principles and priorities of international trade and this volume is a welcome contribution to that debate, sometimes controversial and always challenging. On the other hand, recent events within the Eurozone raise some questions regarding to the extent to which the European Union can be considered a model of international, constitutional, democratic, rights-based governance (compare p. 21) especially if one considers the means by which Iceland (outside of the European Union) has crawled back to economic growth while attempting to protect its most vulnerable residents compared with the demands placed on the Eurozone economies. Something more seems to be needed even within an international organization that positions fundamental individual rights at the heart of its formal constitution. Perhaps the answers are to be found in multilevel trade governance; perhaps they await further research, and one can only hope that the scholars involved in this project continue to devote their considerable talents to challenging the paradoxes and contradictions of the current international structures to develop a regime that remembers it is an instrument for human development, instead of viewing human beings as instruments for its own development.

Emergence of a new paradigm: Towards a post-crisis cosmopolitanism

20/03/2011Conference proceedings (quadruple non-blind peer review)Arendt, Benhabib, Lipovetsky, Neo-liberalism, business ethics, capitalism, cosmopolitanism, crisis, economics, finance, human rights, power politicsJacob Dahl Rendtorff

1. Introduction

The current, tense “post-crisis” situation is considered by many intellectuals, politicians and citizens to be a simultaneous aggravation of much older financial, political and environmental crises that have been challenging the international community. At the same time, it has also been described as a perhaps unexpected hope for the emergence of a real cosmopolitanism based on a genuine possibility of emancipation and dialogue about world problems in the international community.

We will begin by discussing briefly the causalities of the recent financial crisis, which can be seen as a crisis of neo-liberal capitalism following the original mortgage crisis in the USA and the following economic depression in many countries. In this context we can also mention political elements of the crisis and further explore its threatening relation to the environment. Finally, the same crisis can be considered as a crisis for cosmopolitanism. Some pundits have interpreted the crisis as a crisis of cosmopolitanism of human rights, where it has not been possible to create a new world order of strong international governance.

On the basis of these causalities the paper will discuss whether we can see a potential “new beginning” or qualitative shift towards a new regime of a social ethics including: (1) the emergence of a community economy, e.g. state intervention and civil society responsibility in connection with corporate citizenship and business ethics; (2) the emergence of a new ethical cosmopolitanism including a paradigm shift towards a renewed conception of justice as concerns the common good in the world community.

2. Crisis causalities

What happened? Why did this world crisis come around and how should we explain the crisis causalities? There have been many arguments or diagnoses trying to explain the worldwide financial crisis. I can mention the following, very different, but mutually dependent explanations:

1. The crisis is due to neo-liberal capitalism.

This explanation focuses on the financial breakdown based on the American mortgage crisis and the following depression in many countries. It was the neo-liberal processes of globalization (e.g. privatizations, liberalizations, financializations) that led to the development of risky financial products and the resulting credit crunch, for they were based upon the dogma of the neo-liberal economic system, whereby the paramount goal is quite simply to increase economic gains in the business at all costs. This model for risky business did not only concern banking and economic investments. The most important factor that played a pivotal part in the economic crisis was the emergence of the use of houses for sales and risky mortgages of houses, so that houses became primary objects of investment. The dominant narrative in this explanation is neo-liberal “greed”, as exemplified by Madoff’s pyramid Ponzi scheme, which resulted in his imprisonment and so well symbolizes the basis for this kind of explanation of the crisis. The narrative of “greed” involves that the crisis is due to a brutish conception of human nature as a kind of profit-maximizing individual, who lives only or mostly according to his or her own narrowest self-interest. This explanation is based upon taking into account the fact that neo-liberalism was the dominant economic ideology after the end of the cold war. With this explanation of the crisis we have an explanation that is conceived exclusively in economic terms, and primarily as a breakdown of the international financial system.

2. The crisis is due to changed relations between major powers in the world.

This explanation focuses on the relation between the US and other countries, notably China. In this context the crisis may be considered as a shift in world powerhouses. We may argue that such a shift is the real reason of the credit crunch and the ensuing economic depression. It can be argued that the Chinese, after the massive economic crises in the east of Asia in the 1990s, realized that they would have to build up a strong financial system. After longer than a decade, the savings of China were so large that the country was able to resist the 2008 financial crisis, which showed instead the real vulnerability of the US and Europe. In addition, the crisis can be explained as a result of the economic problems of the US after the Asian wars in Iraq and Afghanistan since the early 2000s. It can be argued that the result of the wars was the weakening of the US as a superpower and that the credit crunch was just a symptom of this changed situation of the West in relation to the East in economic terms, where China is emerging as the main power in the world. With this explanation of the crisis we move from a purely economic explanation towards an explanation in terms of international politics too.

3. The crisis arises from a clash of civilizations.

Here we can focus on the confrontation between world cultures, in particular the tensions between radical Islam and the West, leading to the wars of Iraq and Afghanistan. How can we interpret the crisis in terms of the “clash of civilizations” described by Samuel Huntington? Since 2001 and 9/11 in particular, the confrontation between civilizations has been very present in international politics. The concept of the clash of civilization was developed as a response to Francis Fukuyama’s idea of the end of history, i.e. the end of the struggle of recognition, when the liberal world order has been victorious. We may say that the clash of civilizations is a response to this situation, where the end of the struggle for recognition is not ending in dialogue, but exactly in a clash between civilizations. In fact we may say that a challenge for a post-crisis situation would be to develop a kind of intercultural philosophy building upon a dialogue between civilizations, as opposed to the clash of civilizations. The clash of civilizations is in particular a challenge to the belief in the universality of the Western values of democracy and human rights. We can argue then that the recent crisis is a crisis of these values, following the events of 9/11 and of the wars in Iraq and Afghanistan.

4. The crisis is a crisis in the policies to respond to an environmental crisis.

We can argue that the recent crisis was a crisis of the realization itself of the climate problem. The question is: have recent agreements led to hope for environmental justice or do we only experience new inequalities between developed and developing countries? In the neo-liberal paradigm before 2008 the climate issue was dealt with as a matter of utility and sustainable use of resources. It can be argued that the recent crisis is a crisis for the utility-based conception of the environment, for it appears that CO2 reduction is more than utility, but something that is fundamental with regard to the possibility of life in the world. We can argue that the crisis is a crisis for a civilization that has no understanding of the climate issue as fundamental for human survival. The Danish environmental sceptic Bjørn Lomborg may be considered as a representative of this view. In fact it can be argued that the opposite view of Al Gore, who stresses that the climate issue is about the continuation of the human species, represents an alternative to the view of Bjørn Lomborg, which emerges out of the crisis of the neo-liberal conception of the environment as utility: rather than admitting defeat in front of overwhelming evidence, blind denial is preferred.

5. The crisis is a crisis for cosmopolitanism.

Some have interpreted the recent crisis as a crisis of cosmopolitanism of human rights, where it has not been possible to create a new world order of strong international governance. In fact, it can be argued that the dream of the neo-liberal position was a world order with universal governance. As described by Michael Walzer, we can say that we need a new world order where we have to find the right balance between world government and total anarchy. It may be argued that the concept of the world order as a universal order with a world government is in crisis with the global crisis. What is needed is a new conception of the global order that is both beyond state sovereignty, but also beyond the idea of a world government. We may argue that we have to look for models of cosmopolitanism that deal with world politics without referring to a concept of a global world government as the basis for international politics.

3. The cultural and social background of the crisis

On the basis of the five causalities described above, the issue may be addressed as follows: how really should we define the recent crisis? What does the crisis imply and what does it relate to?

From a phenomenological point of view, we meet the crisis in our own lives when our family, ourselves or our friends lose their job or have to go from their houses because the mortgage rent is too high. In fact, the pre-crisis atmosphere in the Western world was marked by a strong narrative of greed and of spending, in particular a raise of luxury spending. We can then use the concept of hyper-modernity in experience economy, as proposed by the French sociologist and philosopher Gilles Lipovetsky, to take into account this pre-crisis, but indeed also the crisis atmosphere.

Hyper-modernity or hyper-modern society is conceived as an escalation of modernity, i.e. a kind of creative construction of experience where the creativity of human beings as makers of metaphors and symbols moves in the forefront of capitalist production. We are searching for more than maximization of pleasure preferences in the cultural industry. We want to become new human beings when we eat at restaurants, travel, go to the theatre, read magazines or books, or even when we buy ordinary products in the grocery store or in the supermarket. We want to experience happiness and authenticity in all aspects of our lives as consumers. Consumption shall help us to construct our identities. I shop therefore I am. It is the creativity of the producers and designers of experiences that is needed to fulfil this search for meaning in the experience economy. The conditions of possibility of the experience economy are based on the historic changes of the meaning of creativitiy in human societies. Today, with a hyper-modern society of creativity, creativity means something else than it was the case earlier in history. What is essential is that creativity no longer is based on a higher divine reality, but instead it refers to the entrepreneurial genius of the human creative spirit. With no divine meaning left, it is therefore the job of the creative class to fill the empty space of the loss of meaning in post-modernity or hypermodernity, and because there is no pre-given meaning dependent on a metaphysical reality, also the consumer must be creative and create meaning through experiences. Human beings are now primarily defined as hyper-consumers and their appearance as citizens is derived from this condition of consumption.

Hyper-modernity expresses a metamorphosis of liberal culture. We live in a consumer society that has become global and international. In the hyper-modern society we can talk about a new system of consumption that has become universalized. What characterizes hyper-modern society is the development of a world culture of consumption. We can talk about universalization of the brand market economy: the West, Asia and China, South America and Africa. The global market culture is a culture of global media and of global commercial culture. Hyper-modern society is made possible with the neo-liberal ideology of the free market and private happiness through consumption, and it was accelerated with the global revolution of information technologies.

In his 2006 work on hyper-modernity Le Bonheur paradoxal (Paris: Gallimard), Lipovetsky describes the three phases of the development of hyper-modern consumer society:

1. the period from 1880 to the second world war

2. the period from the 1950s to the 1970s

3. The time starting with the 1970s-80s (where we really see that consumer society fully developed).

We have been facing hyper-modern society since at least the 1980s. This is a society where consumption is democratized and made available to nearly everyone. Whereas the first phase of industrial society is signaled by the the emergence of industrial society for an elite, the second phase is marked by the increased generalization of consumer society as well as by increased individualization of consumption, for example by the generalization of luxury products like perfumes, media appliances, etc. However, it is only with the emergence of hyper-modern society that we really face the individualization of products.

In this individualist society we see how individuals are able to organize their space and time on the basis of their individuality. Accordingly, we can argue that with the individualization of consumption, combined with the focus on individual experience, makes immaterial experience and pleasure the focus of product promotion and product content. This new society of hyper-consumption is marked by a break with the conformities of class society. Although the class differences still exist, there is no specific class culture. In this sense, the consuming individual is utterly liberated from the traditional institutions and from the cultural bonds of society. We can say that the consumer of the experience economy is a “turbo-consumer”, a capitalist consumer who is no longer regulated by strong ethics and who is free to consume as much as he or she wants.

A very good example of this “Turbo-consumer” in hyper-modernity is the consumer of great international brands. The brands are expressing the global logic of hyper-consumption. Through global marketing brands appeal to the dreams of having authentic experiences. Consumers of hyper-society are not particularly loyal to one particular brand, but they are loyal to the promise of happiness in the brand economy that activates their dreams and emotions. The global brand economy expresses the logic of experience as emotional rather than bound to the materiality of the products. Hyper-consumption is a continuing renewal of the sensations. It is travel in experience. The turbo-consumer wants the most intense experience and in order to get this experience the turbo-consumer overcomes traditional limits of time and space that are taken over by the commercial logic. There is a close link between the brand economy and the search for happiness as the ultimate imperative of hyper-consumption society.

Together with Jean Serroy in La culture-monde. Réponse à une société désorienté (Paris: Gallimard, 2008), Lipovetsky discusses globalization of culture in the perspective of hyper-modernity. We can mention fashion, advertisements, tourism, art, the star-system from Hollywood as aspects of a world culture that has become dominating in hyper-modernity and manifests itself as a cultural hyper-modernity aiming at satisfying the search for satisfaction of experiences by consumers in hyper-modern society. But at the same time this globalization of culture in the framework of an experience economy is marked by the paradoxes of increased complexity and increased collective and individual disorientation.

The capitalist market experience economy is supposed to respond to the dark sides of increased individualization and narcissism. Because of individualist mass society with less common references to give a sense of meaning and community, the world culture of brand consumption is supposed to be the compensatory device that can give individuals meaning and fullness in their individual lives, which are increasingly devoid of meaning. World culture promoted through experience economy is the only tool left to give meaning and sense to individual lives, yet it is far from certain that it is succeeding in its task.

4. Towards a new beginning: Emergence of a new cosmopolitanism

With an economic crisis in the middle of hyper-modern consumer society, we can see how the whole foundation of this society is shaken. Therefore it is also interesting to ask the question about what happens after the crisis. Can we see a “new beginning” or qualitative shift towards a new regime of social ethics of responsibility as a kind of new event emerging out of the crisis, or should we just say that the crisis is nothing more than a confirmation of the logic of hyper-modernity, or alternatively is it possible to argue that the crisis opens for new meanings that help us to move beyond hyper-modern society? What does it mean to speak about paradoxes of a post-crisis situation that challenge the pre-crisis relations? We can observe the following aspects of a post-crisis situation that helps to mark qualitative breaks with the pre-crisis situation.

1. The emergence of a community economy

State intervention and civil society responsibility in connection with corporate citizenship and business ethics signal the emergence of a community economy. We can argue that the business ethics movement based on corporate responsibility and corporate social responsibility replaces within this context the confrontation from the cold war between communism and capitalism. Moreover, the end of neo-liberalism shows that we need a better relation to the economy and a better conception of the content of the economy. Business ethics and corporate social responsibility represent a response to the situation of crisis of business organizations in the sense that it is a new way to deal with the capitalist system.

Business ethics deals not only with ethical responsibilities of corporations but also with a responsible way to deal with economic and legal activities. Therefore we can talk about the economic, legal and ethical responsibilities of a corporation. The different responsibilities must be integrated into the strategy of the corporation, according to the new paradigm of corporate social responsibility and in close coherence with the strategy of the corporation. Business ethics can be considered in close interaction with the idea of hyper-modern society because in hyper-modern society ethics and corporate social responsibility are integrated into the experience economy. This means that ethics is considered as a virtue that is closely related to the self-construction of the individual. Accordingly, the individuals in the business corporation want to have a meaningful work and they want to be accountable and trustworthy as a part of their personal identity. Therefore business ethics is not in contrast to hyper-modernity, but rather a consequence of the culture of this kind of society. So the post-crisis scenario of intensified business ethics and corporate social responsibility is not necessarily in contrast to the culture of globalized hyper-modernity.

In this context we can argue for a movement towards an ethical cosmopolitanism within the field of business, as I have argued in my book Responsibility, Ethics and Legitimacy of Corporations (Copenhagen Business School Press, 2009), which the reader can find reviewed in the present issue of Nordicum-Mediterraneum. An important aspect of this movement is the idea of republican business ethics, defined as involvement of corporations in and for the common good, the res publica, which are expressed in the concept of corporate citizenship with integrity and responsibility. Integrity matters as the self-imposed norms of international corporations can ensure accountability and trust. Integrity is analyzed as a function of the business ethics of corporations, especially in the normative guidelines for international business.

With this cosmopolitan approach I have argued that the corporation can contribute qua world citizen to solve the important problems of hyper-modernity. This can be viewed as the application of the important concepts of the virtues of responsibility and cosmopolitanism. As actors at the global level in a time of interstate interdependence with regard to world ecological, economical and political problems, it is a challenge of the corporation to contribute to building up an international community of virtue and protection of basic rights. We can define this vision of universal corporate citizenship as the World ethos of business ethics. The corporations shall not only protect universal human rights, but they shall also give those rights meaning in relation to the particular cultures in the countries where they operate.

2. Cooperation replaces conflict.

We may ask the question whether the post-crisis scenario is opening for a new era of cooperation that is in contrast with the idea of conflict that was dominating in the cold war times and in the times immediately after the cold war. An argument from globalization is that the financial crisis has been a reminder of how we now really live in “one world” in economic, cultural, social and political terms. In this sense it can be argued that we need scenarios of cooperation with new interactions between major powers in the international community, which is establishing a regime of problem solving rather than confrontation.

With Hannah Arendt, we can argue that we are searching for a political conception of international relations that move beyond the legalistic conception of the international community. Hannah Arendt’s work after the second world war presents a critical discussion of Kantian cosmopolitanism. She offers novel views on human rights and the rights of citizens and she discusses the possibility of an international tribunal to deal with crimes against humanity. Also, her philosophy implies a critical reply to a naive “juridification” of international relations as marked by legal structures alone. Arendt proposes a solution for the reintegration in the political community after the fight with the wrongdoers. The international political community needs a dimension of civil society, as proposed by Arendt, to find a possible mediation of the double edge of cosmopolitanism. We can argue that Hannah Arendt understood the importance of a political foundation of the respect for the naked human being beyond the political relations of the nation state. This is what Arendt argued for when she coined her famous term of the foundation of human rights as the “right to have rights”.

In her 2006 book Another Cosmopolitanism (Oxford: Oxford University Press), Seyla Benhabib seems to propose a new version of Arendt’s older position. According to Benhabib, modern cosmopolitanism is not only about hospitality but also about the political and legal institutions to govern our world in order to deal with circulation of persons, capital, commerce, pollution, information, labor, goods, viruses, etc. Cosmopolitanism is about building political relations at the international level, so that people can enjoy the right to have rights in the international community. In particular, Benhabib defines human rights as universal ethical obligations that go beyond national sovereignty and are formulated within a form of law.

Benhabib argues that the challenge we face today is the construction of a jurisprudential theory that is able to reconcile the universality of human rights with the partiality of positive law. She deals with the problem, as Hannah Arendt also did, by focusing upon the rights of persons who reside within a state but who are excluded from its polity, i.e. legal and illegal aliens. Thus, Benhabib takes up the challenge of the double edge of cosmopolitanism by arguing for the search of a legal foundation of cosmopolitan citizenship beyond positive law alone.

When Benhabib deals with the double edge of cosmopolitanism she answers this question by drawing on Kant’s doctrine of cosmopolitan rights, which she attributes to Kant’s thesis that ”The law of world citizenship shall be limited to conditions of universal hospitality” – hospitality covering the relationship between states and strangers. With Benhabib we can argue that the double edge of cosmopolitanism lies within the confrontation between republican national law and international relations, because the law of hospitality intersects with the positive law of the state. Specifically, Benhabib focuses upon the point of intersection between these two dimensions. On the one hand we have the Republican opening towards the international community in the republican public sphere; on the other hand we have the mediation between the cosmopolitan norms and the republican community.

Benhabib argues that we can propose a solution to the tension of the double edge of cosmopolitanism by means of a cosmopolitan law that emerges from increasingly conscious public debates in democracies, where the norms of cosmopolitanism are accepted as basic human rights into the positive constitutions of republic societies. In this sense universal norms are mediated into the will formation of democratic societies, so that cosmopolitan norms are becoming integrated into the republican framework of democracy.

An illustration of this kind of democratic development of the cosmopolitan norms and of the “democratic iteration” is for example the European Union, where citizenship is expanded in a cosmopolitan direction. However, the contradiction between the universality of ethics and the particularity of law can never fully be overcome and there is always room for national sovereignty where laws are made.

When we talk about a civil justification for the emergence of cosmopolitan norms, we can argue that this justification of cosmopolitan hospitality emerges within the framework of democratic community because people are becoming more and more acquainted with others beyond their national borders and cultures with norms of reciprocity and respect. In this perspective there is a genuine hope that cosmopolitan norms are internalized in local cultures, democracies and populations. However, this is not enough according to legal theorist Seyla Benhabib. Cosmopolitan norms must also be based on a legal framework. In Another Cosmopolitanism, for example, Benhabib discusses the case of European citizenship as a token of the increased movement towards the development of such cosmopolitan norms.

Still, there remains the danger of a cosmopolitan stateless future. Benhabib argues that we should imagine a future where ”civil, social and some political rights” are not related to national belonging. In this context, universal cosmopolitanism is situated between law and ethics, universality and particularism, nation and international community. When we search for a philosophical foundation of these cosmopolitan norms, we can look back at the philosophy of Hannah Arendt who argued, as we have already said, that the most important thing is the right ” to have rights”.

We can say that Hannah Arendt’s book about the Eichmann trial — Eichmann in Jerusalem. Essay on the Banality of Evil (London: Penguin Books 1964/1981) — was fundamentally a book about cosmopolitanism and international law. This is true in particular when Arendt deals with crimes against humanity, where genocide is conceptualized as the crime against humanity, or rather the crime against humanness or the right to be human. The issue of the cosmopolitan double edge, i.e. how to mediate between national legal structures and moral universalism, can be answered by reference to the Eichmann trial. This trial marks the beginning of cosmopolitan norms. It is a trial for crimes against humanity that goes beyond the traditional boundaries of legal positivism.

If we look more closely at Arendt’s book about Eichmann and follow Seyla Benhabib at the same time, we can argue that cosmopolitanism is not only the Kantian horizon that as we may infer from Arendt’s letters to Karl Jaspers — Jaspers being himself a Kantian cosmopolitan — but an ideal of civic republicanism combined with a vision of political self-determination as the foundation of true hospitality in cosmopolitanism. So the emergence of global civil society as the movement from international to cosmopolitan norms of justice can only be accomplished as long as it draws with it principles of civic republicanism.

Concepts such as ”the right to universal hospitality” and ”the right to have rights” are certainly Arendt’s legacy of Kantian cosmopolitanism. Yet she adds a normative force that can emerge only within a republican, democratic framework of legal norms. These concepts, in other words, should have a binding power. The idea is that the ”right to have rights” indicates rights of universal hospitality that triumphs over positive law, but can also be within positive law, because it is founded on republican self-governance and autonomy.

We need more than the formal political construction of the cosmopolitan norms of human rights. The international human rights regime, crimes against humanity, humanitarian interventions and transnational migration norms should all be based on civic republican recognition of the right to have rights. So cosmopolitan justice must be based on a kind of nationally sanctioned international law of peoples, where the tension between sovereignty and hospitality is overcome through the act of self-legislation as an act of self-constitution under a cosmopolitan perspective.

Benhabib says that ”Liberal democracies must learn to negotiate these paradoxes between the spread of cosmopolitan norms and the boundedness of democratic communities”: according to her, the development of cosmopolitan norms is characterized by democratic Iterations between the local, the national and the global.

5. Conclusion

Following Hannah Arendt and Benhabib, we can argue that cosmopolitanism emerges as the power of democratic forces within a global civil society and this helps to a construction of international norms that goes beyond the tension between cosmopolitanism and national sovereignty. What is characteristic of the new cosmopolitanism, at least according to this view, is that citizenship and political membership are no longer based on culture and collective identity. As exemplified by the case of the European Union, the conflict between sovereignty and hospitality is no longer so important. Accordingly, a new discussion of politics implies the search for new forms of political agency in cosmopolitan times, where we recognize what Benhabib calls the “democratic iterations” of the concept of democracy and citizenship. And this recognition will help to develop new foundations of democracy in international politics.

Moreover, by protecting universal rights that are dependent on the charter and declarations of the United Nations, corporations can act for good international relations that go beyond the interests of particular communities of republics and nations. By doing this, corporations, when they really want to appear as good citizens, can help to build a world community that implies the universalization of the procedural virtues of liberal society. Corporations can at the same time be cosmopolitan and situated in particular societies, in the sense that they foster universal principles while making those principles work in concrete practice. In this sense, the post-crisis scenarios can be a development of a new cosmopolitanism in both international politics and in the activities by corporations and other organizations and institutions helping to build up an international civil society.

G. Alfredsson, T. Koivurova (eds. in chief), D. Leary, N. Loukacheva (spec. eds.), The Yearbook of Polar Law (Leiden: Martinus Nijhoff Publishers, 2010)

28/02/2011Book Review (editorial review)Antarctica, Arctic, Law, governance, human rightsRachael Lorna Johnstone

The symposium is now an established annual affair with the first three held in Akureyri and the fourth scheduled in September 2011 in Nuuk, Greenland. Although the symposia continue to provide rich fodder for the yearbook, submissions are encouraged from all scholars in pertinent areas of research. Submissions are subject to double-blind peer review.

The Yearbook has attracted some of the best known experts in their respective areas. A subjective selection of the most noted will always be unfair in such a distinguished field, but scholars of international law will recognise, besides the editors, established experts Malgosia Fitzmaurice, Nigel Bankes and Asbjørn Eide.

The Yearbook of Polar Law responds to the growing strategic and economic importance of the Arctic and Antarctic regions. The Arctic is changing rapidly, not only geophysically in response to climate shifts but also geopolitically as human technology and security issues give it new social meanings. Where the Yearbook departs from other Arctic and Antarctic scholarly publications is that it approaches the challenges of the polar regions principally from a legal standpoint. Nevertheless, studies in these areas require almost invariably an interdisciplinary approach: one cannot assess continental shelf claims under the Law of the Sea Convention without a basic grasp of geography; climate change governance without scientific evidence; nor indigenous peoples’ self-determination claims without anthropological and historical knowledge.

In contrast to the Polar Law Textbook which is intended as an introduction to Polar Law, the Yearbook is aimed at academics and policy makers already established in their respective areas of expertise.

The second volume includes a new “recent developments” section as well as relevant book reviews. What it lacks that was valuable in the first is an overall review of the symposium and the conclusions and recommendations of its participants. That overall review provided an excellent – and gentle – introduction to the sometimes highly technical and specialist papers that follow, in the manner of an introductory chapter in an edited collection of essays. In it, key general issues were identified, including climate change; human rights; new commercial activities at the Poles; shipping challenges; threats to native species; environmental governance; peace, security and dispute settlement. Then specific pressing issues were highlighted: management and protection of at-risk species; a more proactive approach by the International Maritime Organization in identified areas; the need, if any, for new laws, treaties and processes; and living marine resources management. States were advised of areas requiring immediate attention, such as: implementation of existing law; mitigation of, and adaptation to, climate change in cooperation with indigenous peoples of the North. Long-term issues were noted: namely, climate change and environmental governance. Finally recommendations from the symposium’s participants were recorded, aimed towards academics vis á vis needed research and states vis á vis needed action. This summary gives context to the rest of the articles and allows the reader to go on to read any one of the individual contributions with the bigger picture in mind.

While all the articles in the two published volumes could easily have found homes in alternative fora – specialist journals on the law of the sea, environmental law, natural resource law, dispute settlement, human rights, arctic studies as well as general international law and social science volumes – the Yearbook of Polar Law is, as its title indicates, the first journal to draw together all these fields with a specific focus on the Polar Regions. By tying together all these related fields in one publication, it gives scholars, policy makers and stakeholders the opportunity to form a more holistic view of the challenges facing the Polar Regions.

At 156 Euros per volume, the Yearbook is presumably aimed at institutional subscribers: law school libraries, governmental institutions and research facilities; principally those focussed on the Arctic and Antarctic. This is a little unfortunate as these perspectives from the Poles are informative not only to specialist researchers at the World’s ends, but for people all over the World facing challenges such as climate change, resource management, territorial disputes and indigenous claims. One can only hope that, price notwithstanding, the Yearbook’s contents will nevertheless reach the wide audience that they merit.