The Right of Self-Defense and the Organic Unity of Human Rights
– Part III –
This is the third 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.
Basic and Supplemental Protection: ICCPR, Continued
Derogable rights provide supplemental protection that makes up an indispensable part of the logic of defensive force. They afford nonviolent opportunities for both reducing violations of nonderogable rights and creating conditions that limit the likelihood of such violations. They thereby diminish the need to resort to force against arbitrary offenders, either individually or collectively. What is more, while derogable rights may be suspended, the suspension must be justified by conditions similar to those that justify the use of self-defense. Under Article 4 of the ICCPR, derogation may only take place in two circumstances: (1) in face of a danger “threaten[ing] the life of the nation” where derogation is “strictly required by the exigencies of the situation,” or (2) in the case vital public goods, like safety, health, order, or the rights of others, are critically imperiled.1 International Covenant on Civil and Political Rights art. 4(1–3), opened for signature Dec. 19, 1966, 999 U.N.T.S. 171. According to a General Comment from the CCPR, “the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers.” Human Rights Comm., General Comment No. 29: Article 4(4). In short, derogation is permissible only as a necessary response to an imminent grave threat, and it must be implemented proportionately and with right intention.
The derogable rights listed in the ICCPR supplement the security and liberty aspects of the protection of persons in different ways. Some derogable rights serve both security and liberty functions, such as, Article 19 — the right to freedom of expression, Article 21 — the right to freedom of assembly, and Article 25 — the right to participate in representative government. These rights have been considered the first rights the Nazis sought to deny because, among other reasons, they encompass the first lines of defense against the violation of the nonderogable rights. They provide a crucial means for holding government enforcement practices accountable by subjecting laws and policies to critical, public analysis and evaluation. At the same time, they serve to liberate individuals to discuss and explore ideas and values of interest in concert with others as well as to participate in influencing laws and policies by means of the representative process. Articles like these are, to be sure, liable to suspension in face of compelling state interests, but governments bear a weighty burden of proof in suspending them simply because the provisions are so important in protecting personal security and liberty.
Article 172 The rights contained in Article 17 of the ICCPR are also present in Article 12 of the UDHR., prohibiting “arbitrary or unlawful interference with . . . privacy, family, home or correspondence, [or] unlawful attacks on . . . honor and reputation,” protects personal security by preserving honor and reputation. Still, the greater emphasis is on the liberty to engage in personal and familial pursuits with impunity, opportunities which were extensively denied by Nazi authorities.
Article 27, which guarantees the right of persons belonging to ethnic, religious, or linguistic minorities “to enjoy their own culture, to profess and practice their own religion, and to use their own language,” and the ability to do so “in community with other members of their group,” is an example of a partially supplementary liberty right. It is a liberty right because the protection it affords enables members to follow their own fundamental convictions unmolested. It is partially supplemental because the fundamental convictions at stake are protected under the terms of Article 18, a basic right. At the same time, other aspects of community life, like speech, association, and movement, are presumably subject to the standard limitations of derogable rights.
Basic and Supplemental Protection: ICESCR
Despite the fact that the “new” economic, social, and cultural rights contained in the UDHR were composed against the background of the Nazi record of arbitrary deprivation/neglect, the ICESCR, designed to implement the “new” rights included in the UDHR, does not contain the same degree of precision and stringency as the ICCPR. There were several problems that were in large part a product of growing tensions in the 1950s and 1960s between the United States and the Soviet Union.
The drafting process exhibited a growing disagreement among the involved governments over the very idea of economic, social, and cultural rights, and strong opinions emerged about unique complications in trying to realize the “new” rights. Compared with the “old” rights, there was, in addition, a serious lack of significant domestic and international legal experience and of academic and non-governmental research in respect to articulating and applying the “new” rights. Also, the monitoring committee established to interpret and implement the ICESCR was, compared to the CCPR, ineffectual. Consequently, the language of the ICESCR, which contains qualifications and vagueness that, in contrast to the ICCPR, runs the risk of diluting the sense of state obligation, went unattended for several years.
Article 2 commits State parties “to take steps, individually and through international assistance and cooperation . . . 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 . . . .” Such a formulation appears to permit a wide range of governmental discretion — or what European human rights jurisprudence calls a “margin of appreciation” — and a substantial opportunity to be excused from responsibility, which is an opportunity that is absent in the ICCPR. The difference, which is based on the familiar claim that civil and political rights are “negative” in that they obligate states to refrain from committing violations, whereas economic, social, and cultural rights are “positive” by requiring states to provide various benefits to citizens, is not as great as is assumed. The implementation of civil and political rights entails support for political, judicial, and law enforcement institutions and officials that is very expensive. Since all rights are in fact costly to enforce, and their “full realization” never completely achieved, it is curious to apply the qualifications in Article 2 to one set of rights and not to the other.
Similarly, Article 4 of the ICESCR reads very differently from its counterpart in the ICCPR. The ICESCR contains no comparable list of nonderogable rights, nor any similar set of strict requirements surrounding the suspension of rights during emergencies or in response to other threats to the survival of the state. Rather, it simply states, “the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” Again, State parties, it appears, are granted wide uninhibited discretion in interpreting and applying the rights contained in the ICESCR.
The 1987 formation of the Committee on Economic, Social, and Cultural Rights, an active and effective expert monitoring authority, allowed these shortcomings to begin to be addressed. The Committee initiated valiant efforts toward reclaiming some of the precision and stringency as to articulating and enforcing basic and supplemental rights so evident in Article 4 of the ICCPR. However, the efforts thus far are not entirely unaffected by the deficiencies of the original text.
The Committee conducted serious, systematic scrutiny of the reports required of State parties regarding their compliance with the standards of the ICESCR. As a result, it saw the need to clarify the normative content of the rights recognized in the ICESCR by issuing General Comments that sharpened the understanding and elaborated the requirements for enforcing those rights. They enunciated some practicable standards taken to be “incumbent upon every State party,” and thereby placed a new, heavier burden of proof on the State parties to demonstrate how their laws and policies meet the minimum standards.
Notably, the Committee explicitly introduced the language of “nonderogable obligations,” “core obligations,” and “obligations of immediate effect” that suggests the idea of basic survival rights, though the language is not completely free of ambiguity. Accordingly, a “minimum core obligation” is necessary for each State party “to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights.” Further, if a State party feels restraints are hindering its capabilities of complying with its ICESCR obligations, “it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, [its general] obligations . . .” However, “a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations . . . which are nonderogable” (italics added). The Committee provided the following 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 [core] obligations under the Covenant.” “Obligations of immediate effect,” which come to the same thing, also include an unconditional duty to apply rights verifiably toward “achieving progressively the full realization” of the rights recognized by the ICESCR.
Three areas of confusion and unclarity still remain. First, holding a government accountable only if “a significant number of individuals” is deprived of minimum essentials does not sound like the language of nonderogable rights. Human rights apply to “everyone.” Second, the use of “prima facie” to describe a nonderogable right or obligation is also confusing, since the term means a right or obligation that, under defined conditions, may justifiably be overridden — exactly what the word, “derogable,” means. The trouble lies in the Committee’s repeated assertion that “resource constraints” may render a state unable to fulfill even its core obligations, thereby suggesting that all rights are, after all, susceptible of being justifiably overridden, as “prima facie” rights are. However, while derogable rights can justifiably be suspended, nonderogable rights (at least in part) never can be. Since ‘ought implies can’, a state’s “resource constraints” might in some cases be so severe as to excuse it from living up to a nonderogable obligation, but that in no way makes the nonderogable obligation any less categorical. There is a key difference between justification and excuse. Third, the language of state obligation, so prominent in the ICESCR, and so much employed by the Committee, tends to obscure the importance of rights language. State obligations exist only because of the primacy of the corresponding rights.
Still, perhaps enough can be inferred from considering the General Comments alongside the ICESCR text to suggest an account reminiscent, at least, of the rights outlined in the discussion of the ICCPR. Defining “minimum essential levels” of the three rights identified above as constituting “nonderogable” State party obligations — entitlements to “essential foodstuffs,” “basic shelter and housing,” and “essential primary health care” — calls to mind certain other rights in the ICESCR. Namely, the entitlements relate to Article 11, affirming in part “the right of everyone” “to adequate food, clothing and housing,” and Article 12, guaranteeing “the creation of conditions which assure to all medical service and medical attention in the event of sickness.” Entitlements to minimum essential standards of food,3 CESCR commentary on Article 11 may be taken to illustrate the manner in which the CESCR interprets the idea of “core,” “nonderogable obligations” as applied to other rights such as those to adequate housing and clothing, which are also included in Article 11: “The Committee considers that the core content of the right to adequate food implies: The availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; The accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights . . . 16. Some measures at these different levels of obligations of States parties are of a more immediate nature, while other measures are more of a long-term character, to achieve progressively the full realization of the right to food. 17. Violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger. In determining which actions or omissions amount to a violation of the right to food, it is important to distinguish the inability from the unwillingness of a State party to comply. Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. This follows from article 2.1 of the Covenant, which obliges a State party to take the necessary steps to the maximum of its available resources, as previously pointed out by the Committee in its general comment No. 3, paragraph 10. A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food. 18. Furthermore, any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.” Comm. on Econ., Soc., & Cultural Rights, General Comment No. 12: Article 11 (The Right to Adequate Food), U.N. Doc. E/C.12/1999/5 (1999). housing, and medical care may be taken as basic rights of survival that are nonderogable and thus basicsecurity rights, analogous to the ones enumerated in the ICCPR.
Adding a reference to “the most basic forms of education” to the list of nonderogables is to introduce a basic liberty right. Article 13 declares that State parties “recognize the right of everyone to education . . . [which] shall be directed to the full development of the human personality . . . and shall enable all persons to participate in a free society, promote understanding, tolerance, and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the UN for the maintenance of peace.” It is important to emphasize, in passing, that the notion of a liberty right in the human rights context is unmistakably tied to the cultivation of attitudes and virtues aimed at reducing the temptation to employ arbitrary force. ♦
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 onReligion 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.