The Right of Self-Defense and the Organic Unity of Human Rights
– Part II –
This is the second installment of a four-part essay in which Dr. David Little develops a unified theory of human rights based upon the personal and collective right of self-defense. His central claim is that that key words in the Preamble to the Universal Declaration of Human Rights point to the right of self-defense “against tyranny and oppression” as the moral and legal foundation of human rights, and account for the “organic unity” of the formative instruments: the Universal Declaration and the two Covenants on political, legal and economic, social, and cultural rights.
The Widespread Acceptance of the Right of Self-Defense as Morally and Legally Justified
If the right of self-defense is as universally foundational as claimed, we would expect to discover significant acceptance of the right across cultural, philosophical, and religious traditions. Of course, even if we find extensive empirical agreement, we do not thereby prove the validity of our moral claim. Simply holding a moral belief, by any number of people, does not substantiate the worth of the belief. Rather, to validate our moral claim, an independent normative argument is required, which we endeavored to provide in the foregoing section. Still, it would be peculiar indeed if a subject that is asserted to be of such fundamental human concern did not in fact manifest itself persistently and expansively across a wide variety of cultural, religious, and philosophical beliefs and practices. Moreover, the anticipated evidence of widespread acceptance would provide a critical point of contact, at least, between human rights language and the central convictions of a large number of traditions around the world.
A preliminary survey1 This survey draws heavily on the research of Jan Arno Hessbruegge presented in Human Rights and Personal Self-Defense in International Law. Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law 27–47 (2017). The survey is extensively discussed in a longer version of the subject of this series. of numerous cultural, religious, and philosophical communities, western and nonwestern, demonstrates a recurring and irrepressible cross-cultural commitment to the moral and legal restraint of arbitrary force that is consistent with the discussion so far of the right of self-defense, including the four conditions of defensive force.2 Id. at 30. There is, to be sure, persistent reluctance, particularly in some quarters of Christianity and Buddhism, to endorse even defensive force. However, that stands in keen tension with a competing disposition in other quarters of both traditions to harness force in thwarting arbitrary force. That same disposition in favor of dispelling arbitrary force is confirmed again and again in the other communities surveyed, in regards to both individual and collective self-defense.
It is true not everyone understands self-defense as part of a comprehensive system of rights and obligations, which is considered “a rather modern construct associated with Western thought.”3 Id. Even so, it seems fully appropriate to use rights terminology in characterizing self-defense as such in all the traditions reviewed. Bearing in mind the definition of “right” introduced above — ‘an entitlement to claim (or have claimed for one) a certain performance or forbearance under threat of sanction for noncompliance’ — the language of enforceable entitlement as applied to self-defense appears to be universal. Because the approved sanction in question is the use of force, the connection between morality and law automatically arises, since, among other things, law enforces morality. In the nature of self-defense, what is a moral right becomes, by definition, a legal right, which is a proposition abundantly confirmed in the materials surveyed.
Based on the preliminary evidence, then, the proposal is that at least the rudimentary ingredients of a concept of individual (and collective) right, in both a moral and legal sense, exist extensively across cultures, religions, and philosophies, and thereby constitute a critical point of contact with human rights language.
Is the Right of Self-Defense a Human Right?
None of the major international human rights documents specifically list the right of self-defense as a human right. The debate among the drafters of the UDHR over whether to refer obliquely to the right in the Preamble or list it explicitly among the other rights provides a partial explanation. There was no disagreement over the existence of the moral right of bothindividuals and collectivities to defend against arbitrary force. However, a majority worried that an unqualified endorsement of such a right might encourage rebellion, and thus imperil fragile postwar democracies. Thus, the drafters compromised by vaguely affirming the right of self-defense in the Preamble.4 Johannes Morsink, Universal Declaration of Human Rights: Origins, Drafting, and Intent 307–12 (1999). Representatives to the UDHR drafting committee from the USSR, along with Chile, Brazil, and El Salvador, argued for explicit inclusion of the right of self-defense in the Declaration, but were opposed by the US, UK and, eventually, a majority of the committee, countering that doing so would likely destabilize struggling democracies. One such proposal included in an early draft read as follows: “When a government seriously or systematically tramples the fundamental human rights and freedoms, individuals and peoples have the right to resist oppression and tyranny, without prejudice to their right of appeal to the United Nations.” Universal Declaration of Human Rights: The Travaux Preparatoires 793 (William A. Schabas ed. 2013) (emphasis added).
Nevertheless, the Committee on Civil and Political Rights explicitly affirmed the right of self-defense as a legal right in the International Covenant on Civil and Political Rights [ICCPR],5 Human Rights Comm., General Comment No. 36: Article 6 (The Right to Life), ❡ 10, 12, U.N. Doc. CCPR/C/GC/36 (2019) (“[A]rticle 6 (1) implicitly recognizes that some deprivations of life may be non-arbitrary. For example, the use of lethal force in self-defence . . . would not constitute an arbitrary deprivation of life. Even those exceptional measures leading to deprivations of life that are not arbitrary per se must be applied in a manner that is not arbitrary in fact. Such exceptional measures should be established by law and accompanied by effective institutional safeguards designed to prevent arbitrary deprivations of life.”; “The notion of ‘arbitrariness’ . . . must be interpreted more broadly to include elements of . . . reasonableness, necessity, and proportionality.”) (emphasis added). and the right is recognized as such in the European Convention of Human Rights6 European Convention on Human Rights, art. 2, Sept. 3, 1953, 213 U.N.T.S. 222. and the Statute of the International Criminal Court.7 Int’l Criminal Ct, Rome Statute of the International Criminal Court, art. 31 ❡1(c) I.C.C. Doc. A/CONF.183/9 (1993) (“The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.”). More importantly, the personal right of self-defense, including the conditions of defensive force — necessity, imminence, proportionality, and right intention — is recognized in all major legal systems, and, accordingly, constitutes a binding general principle of international law derived from domestic law.8 Hessbruegge, supra note 1, at 58–59. As such, the right is consistently recognized and applied in human rights jurisprudence affecting private citizens, as well as police and military personnel, around the world.9 Id. at 91–233, 235–43. In addition, an “inherent” and “collective” right of state self-defense is recognized in Article 51 of the UN Charter, and belligerent parties are bound by the conditions of defensive force in international humanitarian law.
One reason the right of self-defense is not explicitly identified as a human right in international documents (or in most domestic constitutions) is because of the social instability that might result from officially authorizing it. But, there is also a deeper reason. It occupies a unique, if precarious, status in that it provides the moral foundation of the entire human rights corpus; it is not simply one right among many. Just because of its precariousness — its potential for causing social disorder — it can most satisfactorily be secured by proper governmental regulation, namely, by means of a political-legal system dedicated to “human rights protected by the rule of law.”
The Right of Self-Defense and the Organic Unity of Human Rights
The words in the first passage of the Preamble to the UDHR, “freedom of speech and belief and freedom from fear and want,” recall the “four freedoms” that were famously declared by President Franklin D. Roosevelt on January 6, 1941 and further elaborated on in his “second Bill of Rights” proposed three years later. Emphasizing that traditional civil and political rights by themselves “proved inadequate,” he outlined a set of economic and social rights, supplementing civil and political rights, as the “new basis of security and prosperity” that were “established for all — regardless of station, race or creed.”
Accordingly, President Roosevelt provided a rhetorical warrant for combining “old” and “new” human rights in the UDHR, and then several decades later for elaborating them in legal form in twin international covenants, one on civil and political rights (ICCPR), and the other on economic, social, and cultural rights (International Covenant on Economic, Social, and Cultural Rights [ICESCR]). As he made clear, he perceived the risk of grave danger of “the new order of tyranny” to the “old” rights that guaranteed civil and political freedoms. Nobody, he said, “can expect from the dictator’s peace . . . freedom of expression, or freedom of religion,” and for that reason it was necessary to commit to “the preservation of civil liberties for all.” At the same time, he called attention to “the economic and social problems which are the root cause of the social revolution” enveloping the world at the time, and concluded that because “people who are hungry and out of a job are the stuff of which dictatorships are made,” the “new” social and economic rights must also be defended with great urgency.10 See Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (2004).
The original human rights corpus, at least the UDHR and the ICCPR, was conceived as an urgent effort to impose stringent restrictions on governments that would prevent the recurrence of the kind of arbitrary injury, deprivation, and neglect practiced by Hitler and other fascists. The ICESCR was a somewhat different story. While the rights it contained were drawn from the UDHR and thus bore the stamp of World War II period, the interpretation and implementation of that document, for special reasons, would not achieve a comparable level of stringency and urgency until the late 1980s.
Basic and Supplemental Protection: ICCPR
The distinction between “nonderogable” and “derogable rights,” presented in Article 4, is of fundamental importance in understanding the organic unity of human rights. Inherent in these words is the assumption that some rights are basic and others supplemental. The central feature of the nonderogables is the protection they provide from the most severe violations of the prohibition against arbitrary force. The preeminence of that protection in the defense of persons is the reason they may not be suspended under any conditions.
In introducing the seven nonderogable rights, Article 4 declares that suspending any right enumerated in the Covenant “solely on grounds of race, color, sex, language, religion, or social origin” is categorically prohibited. Such discrimination is taken to rest on manifestly unfounded reasons, such as were widely propounded during the Nazi period. The first six nonderogables may be described as security rights, meaning they protect against direct threats to the vital physical security of persons. These rights were systematically and extensively violated by Nazi authorities. These nonderogables include Article 6 (“every human being has an inherent right to life. This right must be protected by law. No one shall be arbitrarily deprived of . . . life”); Article 7 (“no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment. In particular, no one shall be subjected without . . . free consent to medical or scientific experimentation”); Article 8, (“no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited,” and “no one shall be held in servitude”); Article 15 (no one may be punished on the basis of retroactive laws); and Article 16 (“everyone shall have the right to recognition everywhere as a person before the law”). (The background and status of Article 11, prohibiting imprisonment because of an inability to fulfill contractual obligations, is unclear since it is not mentioned in the UDHR).
Article 18, which guarantees (1) that “everyone shall have the right to freedom of thought, conscience[,] . . . religion[,] . . . or belief,” and (2) that “no one shall be subject to coercion which would impair . . . freedom to have or to adopt a religion or belief of [one’s] choice,” is different from the other nonderogables in two respects. Rather than considering the vital physical aspects of human existence, Article 18 addresses the vital mental or spiritual concerns — specifically, “fundamental points of view on ultimate matters,” as the drafters of the UDHR referred to them. The drafters had in mind the inviolability of fundamental convictions concerning what is ultimately right and true, and because a threat of coercion is not a reason for believing the rightness or truth of anything, the Article assumes that punishing people, or otherwise coercing them, for holding and avowing fundamental convictions at odds with some official ideology is as egregious an example of arbitrary force as extrajudicial killing, torture, or enslavement.
To be sure, while holding or avowing fundamental convictions is categorically protected, acting on or “manifesting” those convictions in practice is subject to limitations in the name of public goods like health, safety, order, or the rights of others.11 International Covenant on Civil and Political Rights art. 18(3), opened for signature Dec. 19, 1966, 999 U.N.T.S. 171. At the same time, the limitations are not as broad as they are for derogable rights,12 The right to freedom of conscience, religion, or belief may not be limited in consideration of national security, as may derogable rights. and are also subject to the conditions of defensive force.13 See Human Rights Comm., General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) ❡8, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993) (stressing that any limitations on the manifestation of religion or belief must be “necessary” and “proportionate”). What is more, patterns of behavior, like conscientious objection to military service, come close to being categorically protected because, interestingly enough, conscience is taken to supersede the state in regard to an individual’s “obligation to use lethal force.”14 Id. at ❡11.. The Comment admits that although Article 18 “does not explicitly refer to the right of conscientious objection,” “the Committee believes that such a right can be derived from [it] inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.” Two things leap out, first,the Committee seems to concede that being compelled against conscience to perform an act of such indisputable moral consequence as using force smacks of duress, something to be prohibited categorically, and second, In certain circumstances, parallel to the right of self-defense, the individual is granted an exceptional range of authority in determining whether or not to use force, a range of authority that, in both cases, supersedes state authority—itself premised on possessing a total monopoly of force—to a remarkable extent.
Moreover, in contrast to the other nonderogables, Article 18 is an example of a liberty right. Security rights guard against disabling conditions, while liberty rights establish enabling conditions. They ensure protected opportunities for pursuing “the full development of the human personality,” to borrow language from the UDHR and ICESCR. Some rights combine both functions more or less equally; others emphasize one function more than the other. ♦
David Little is at present a research fellow at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, having served before that as Professor of the Practice in Religion and International Affairs at Harvard Divinity School, and as Senior Fellow in Religion, Ethics, and Human Rights at the United States Institute of Peace. In 2015, Cambridge University Press published Essays on Religion and Human Rights: Ground To Stand On, and a book of responses to his work by colleagues and former students: Religion and Public Policy: Human Rights, Conflict, and Ethics, ed. by Sumner B. Twiss, Marian Gh. Simion, and Rodney L. Petersen.