Response to David Little on Self-Defense
David Yoon-Jung Kim
It is difficult to deliberate on human rights and the right of self-defense, the rule of law as a safeguard against tyranny and anarchy, and the legal doctrines of necessity and emergency without reflecting on the headlines dominating the news.
Domestically, more than 140 cities have erupted in protests in the days following the police killing of a black man, George Floyd, in Minneapolis. Protests have been marked by violence and looting, triggering police use of force and reinforcement of the National Guard in some states. Narrowly characterizing the protests and rioting as incited and coordinated by extremists groups on the extreme right and left, some pundits and officials have called for the immediate suppression of “widespread seditious violence” by U.S. armed forces, appealing to Article IV of the Constitution and the Insurrection Act of 1807, which empowers the president “to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.”
Internationally, authoritarian regimes, most notably in China, seem to be “seizing gleefully” on the protests and rioting in American cities as they repel international criticisms of their own human rights violations. Beijing recently announced new national security legislation for Hong Kong, delivering a devastating blow to its pro-democracy movement and making inevitable the assimilation of its system of rule of law into China’s authoritarian regime. As Bret Stephens notes, “Beijing almost certainly chose this moment to strike,” recognizing “that the world straining under the weight of the pandemic and a depression lacked the will and attention to react.” The Chinese foreign minister, Wang Yi, characterized U.S. criticisms as a symptom of an unfortunate “political virus . . . spreading in the U.S.” The Chinese government, he said, “holds primary and ultimate responsibility for national security in all subnational administrative regions . . . This is the basic theory and practice underpinning national sovereignty and common practice in countries around the globe.” State media added a more scathing layer of dismissals of U.S. criticism of China’s human rights violations by inviting “Hong Kong’s rioters and police” to “carefully watch how the ‘democratic U.S.’ deals with the chaos” in its cities, and questioned whether the police in America were “peacekeepers or mass murderers?”1 See also Global Times (@globaltimesnews), Twitter (May 30, 2020, 11:16 P.M.), https://twitter.com/globaltimesnews/status/1266931564631318528.
Unfortunately, there is no better time to reexamine the credibility and effectiveness of human rights. David Little’s excellent essay is theoretical — it defends the unitary cohesion of human rights — but the practical implications are deep and wide-ranging, at home and abroad.
Rule of Law, Human Rights, and Authoritarianism
The essay’s opening premise, that “an essential objective of human rights is to withstand authoritarianism,” helps us to grasp the urgency of Little’s defense of human rights. It also helps us to bridge the theory to the practical issues at stake.
If the essential objective of human rights is to withstand authoritarianism, how does the right of self-defense inform and shape human rights laws governing state appeals to necessity and emergency, especially in the mechanism of derogation which allows temporary suspension of certain political and civil rights in times of national emergency? Are the four criteria for distinguishing legitimate self-defense from arbitrary force — necessity, imminence, proportionality, and right intentions — sufficient when the right of self-defense is transposed onto the political sphere? How does human rights law, either explicitly as a matter of statute or implicitly as a matter of principle, justify (or at least excuse) the collective exercise of the right of self-defense against “tyranny and oppression”?
Incidentally, when Beijing appeals to the “basic theory and practice underpinning national sovereignty” to justify its suppression of human rights in Hong Kong in the name of fighting sedition, it is essentially pleading state self-defense. But there is a subtle conflation in the logic. The basic theory and practice underpinning national sovereignty and human rights distinguish violations of sovereignty by external forces and threats to national security from within.
The conflation is problematic because the right of self-defense operates differently in the different spheres, interstate and intrastate. Intrastate state self-defense is subject to “a carefully calibrated system of limitations, safeguards, notifications, and review procedures,”2 Emilie M. Hafner-Burton et al., Emergency and Escape: Explaining the Derogations from Human Rights Treatises, 65 Int’l Org. 673, 674 (2011). intended to protect human rights. Further, human rights remain rights “primarily directed at the state,”3 Jan Arno Hessbruegge, Human Right and Personal Self-Defense in International Law 87 (2017). with the right of self-defense functioning as the last line of defense against the state’s use of tyrannical and oppressive power. In short, the right of self-defense functions in a unique way in human rights. As a last line of defense, it “withstands” illegitimate use of state power when the rule of law is so compromised that no viable legal remedy exists for the protection of basic human rights.
I take for granted that the personal right of self-defense is a commonly accepted principle in domestic legal systems, although a more comprehensive cross-cultural and historical study of the right of self-defense would probably strengthen Little’s claim of universality. I also take for granted that interstate self-defense derives its justification by analogy from personal self-defense. Article 51 of the U.N. Charter explicitly refers to the “inherent right of self-defense” and sanctions state use of defensive force against attack by another state. The more interesting part of Little’s essay is his analysis of intrastate expressions of self-defense, particularly in cases of state derogation and collective resistance against arbitrary and illegitimate uses of state power.
Derogation and the Right of Self-Defense
Several human rights treaties sanction state derogation in times of crisis, justified on the ground of state self-defense (i.e., when the “life of the nation” is threatened). The distinction between nonderogable (basic) human rights and derogable (supplemental) rights and the mechanism of derogation — presented in Article 4 of the ICCPR and Article 5 of the Fourth Geneva Convention, for example — allow for states to temporarily suspend and restrict certain supplemental rights, such as the freedom of expression, though not basic rights, like the inherent right to life and freedom from torture.
As Little suggests, “the central feature of nonderogable, or basic, rights is the protection from the severest violations of the prohibition against arbitrary force.” Basic rights can never be justifiably suspended, although in times of extreme emergency limited non-compliance may be excused on the basis of state self-defense. Supplemental rights, however, can be temporarily suspended through the mechanism of derogation. State derogation is recognized as a rational and legitimate response in times of emergency and may as a last resort be necessary for effective protection of its people’s basic right to life and physical security. Because derogation derives its ultimate justification from the criteria underpinning self-defense and intends to minimize the violations of basic human rights as well as those supplemental rights being temporarily derogated, they are subject to “carefully calibrated systems of limitations, safeguards, notifications and review procedures.”
Little’s brilliant insight is that the categorical designation of basic human right as nonderogable, the normal protection of supplemental rights which supports basic human rights, and the mechanism of state derogation which allows temporary suspension of supplement rights in the interest of protecting basic rights all share a common foundation, that is, the principled acceptance of the right of self-defense in human rights law. They represent overlapping lines of defense against infringements on basic human rights.
Rule of Law and the Fifth Requirement of Notification
Little identifies four criteria for distinguishing arbitrary (based on “self-serving and unfounded reasons”) and legitimate (“reasonable”) defensive force, but the four mentioned by Little — necessity, imminence, proportionality, and right intention — prove insufficient in the case of state derogation.
Several prominent human rights treaties (Article 4(3) of the ICCPR, for example) require a fifth condition in determining the legitimacy of state self-defense in derogation, the criterion of public declaration or notification. This oversight invites a deeper investigation into David Little’s understanding of the relationship between the right of self-defense and the rule of law in human rights. I suggest that the right of self-defense alone does not sufficiently explain the unitary cohesion of human rights, especially when we consider derogation as fundamentally grounded on the right of self-defense.
Public notification is not a requirement simply derived from the right of self-defense but constitutes a basic requirement of the rule of law.
Assaults on human rights nearly always accompany assaults on the rule of law. No less than the right of self-defense, “the rule of law stands against arbitrariness and caprice,” and it “regularizes political power” by requiring publicity, generality, regularity, and fair and orderly procedure, as Stephen Macedo suggests. Similarly, the right of self-defense repels arbitrary force against persons and provides a last line of defense of basic human rights when legal remedies are unavailable, whether due to the proximity (or imminence) of attack or institutional weakness or political deprivation. Beyond their commonality, how does the right of self-defense interact with the rule of law? Is the link merely auxiliary or does human rights law imply a stronger connection?
There is an implied hierarchy in human rights law. The last line of defense for basic human rights is the right of self-defense, assuming necessity and imminence of harm, with due proportionality and right intentions. But the presumptive responsibility of (both states and citizens), the first line of defense, is the protection of human rights through the rule of law.
The hierarchy presupposes the presumption of rule of law as the “first line of defense,” not just through the protection of supplement rights. Little’s argument about how supplemental rights protects basic rights and his interpretation of the Preamble, I think, imply a deeper commitment: The rule of law is not auxiliary, it is a necessity. I doubt that he would be satisfied with an interpretation of the words — it is “essential, if [all human beings are] not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human beings should be protected by the rule of law” — which renders the rebellion clause as merely descriptive in nature (i.e., merely warning governments that tyranny and oppression may invite rebellion).
There is ambiguity and inflection here, but is a compelling defense of the unitary coherence of human rights possible without unpacking why and how the rule of law protects human rights? The right of self-defense alone does not get us there. Moreover, human rights enshrined in the Declaration “acquire practical significance and become legally enforceable only if there is a proper government structure…to ensure the rule of law,” as Geret Corsten suggests.4 Geret Corstens, Sim Peter Baehr Lecture 2014, Human Rights and the Rule of Law, 31 Neth. Q. of Hum. Rts. 511, 512 (2013).
Right to Collective Resistance and Rebellion?
The type of self-defense in focus in the Preamble of the Declaration is not personal self-defense, but collective self-defense vis-à-vis tyrannical and oppressive states. In the human rights account of the right of self-defense, the central problem is that the violator is typically the state.
Human rights, at a minimum, presupposes that the authority of the state is not absolute, that it is conditioned by a responsibility to protect the life and physical security of its people. When the state becomes the aggressor, people retain the inherent right to self-defense and resist the government in defense of their human rights. But if the process should be too oppressive, do the people have the collective right to resist, if not violently overthrow, the government?
The drafters of the Declaration recognized how officially designating the right of self-defense as a human right could be destabilizing to the rule of law. From the absence of explicit sanction in human rights treaties, we might even surmise that a collective right to rebellion against “tyranny and oppression” is rejected. Is David Little’s assertion that this may be true as a matter of statute, but not as a matter of principle?
If an essential feature of human rights is to withstand authoritarianism, a theory of human rights, which defends its unitary cohesion by appeal to the right of self-defense, should be more explicit about the collective right of resistance and rebellion against the state. Or maybe there is a deeper reason behind the reluctance to derive an explicit doctrine of collective resistance and rebellion from the right of self-defense.
The rule of law also occupies a foundational, if not presumptive, status in the entire human rights corpus. If the exercise of the right of self-defense is to be exceptional, why not think of the rule of law as the presumptive and aspirational norm of human rights? ♦
David Yoon-Jung Kim is the Arthur J. Gosnell Associate Professor of Social Ethics at Colgate Rochester Crozer Divinity School. He received his doctorate from Harvard Divinity School and teaches and writes on ethics and law and religion.