The Moral Logic of Self-Defense and Identifying Rights of Urgent Moral Concern
I am grateful to have the opportunity to respond to David Little’s important essay, The Right of Self-Defense and the Organic Unity of Human Rights. David’s contribution to the theoretical foundations of human rights has been of immense value. One familiar with his work knows that he has insisted for years that the drafters of the international human rights documents were making an argument about the nature of human rights: certain rights inhere in the condition of personhood and their existence is knowable to and authorized by “the conscience of mankind,” as the Preamble to the Universal Declaration of Human Rights (UDHR) states. While the drafters may not have been in agreement regarding the metaphysics that grounds such rights, this does not mean, according to Little, that such rights were treated by them as nothing more than an overlapping consensus of values without an underlying relationship to some basic and universal moral knowledge.
In this essay, Little extends his contributions to this important line of argumentation. Once again, he focuses on the language of the Preamble to the UDHR to make his argument: the drafters claim that the rights enumerated in the UDHR and thus protected by the rule of law are “essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.” Little suggests that such language hints strongly at an individual and collective right to self-defense, that is, protection against the illegitimate use of force. Of course, tyrants excel in employing the illegitimate use of force to realize their goals. Tyrants also excel at what he calls cruel and arbitrary behavior for unfounded reasons. A claim of self-defense can be asserted against such behavior, and Little argues that such a claim undergirds the logic of the human rights documents. Rights established by the rule of law restrain cruel and arbitrary behavior. These rights are, of course, legally codified in the two covenants that were entered into force in 1976: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Many have argued that the two Covenants do not fit together, or that they need not fit together. This argument finds support among those states who favor one of the Covenants over the other, often on account of domestic political reasons. Yet, there is potentially much to be gained by discovering a unitary moral logic undergirding both sets of rights. Such a logic could help to clarify the relative moral urgency of rights claims; I think most would agree that not all rights enumerated in the documents are of the same moral force. But some rights — found within both Covenants — are of the utmost moral urgency.
Little notes that certain rights have been considered nonderogable rights — that is, the state is not permitted to abridge such rights in emergency situations, simply because no compelling reason can ever be offered to do so. He states that the “central feature of nonderogable rights is the protection they provide from the severest violations of arbitrary force.” These rights have been more clearly enumerated as rights found in the ICCPR than in the ICESCR. They include articles such as Article 6, which states that “every human being has an inherent right to life. That right must be protected by law. No one shall be arbitrarily deprived of life.” Other nonderogable rights include the right not to be subjected to torture (Article 7), the right not to be held in slavery (Article 8), and the right to freedom of thought, conscience, religion, or belief, subject to limitations of public health and safety, as well as the rights of others (Article 18). The list of nonderogable rights is clearly enumerated in Article 4 of the ICCPR.
Some have argued that, among all rights, the rights of the most urgent moral concern are many of these nonderogable rights located in the ICCPR. As Little’s essay acknowledges, the rights found in the ICESCR have been subject to more qualifications, giving governments greater latitude in their responsibility to implement economic, social, and cultural rights enumerated in the Covenant. There is the lack of a parallel to Article 4 of the ICCPR; no rights are claimed to be nonderogable in the Covenant, although, as Little notes, subsequent work by the Committee on Economic, Social, and Cultural Rights (CESCR) has introduced the language of “nonderogable obligations” as applying to certain key articles that will be discussed soon. Despite this attempt to make more stringent the enforcement of certain rights located in the ICESCR, the overall case for the urgency of right claims in the ICESCR stands diminished, particularly when compared to the relatively strong emphasis on nonderogable rights claims located in the ICCPR.
However, when one views this matter through the lens of Little’s unitary moral logic of self-defense, one sees just how regrettable it is that certain rights in the ICESCR often do not appear to stand equal with other rights in the ICCPR in regard to their moral urgency. Indeed, Little’s logic suggests that any rights that qualify as basic survival rights should be understood to have the same degree of moral urgency, regardless of which covenant they may happen to be located. Taking a cue from General Comment No. 3 by the CESCR, basic survival rights entail protections against the deprivation of food, basic shelter, and primary health care — rights enumerated in Articles 11 and 12. A state that is unwilling to meet these “core obligations” for all its citizens would be subjecting them to arbitrary deprivation, by definition. There can simply be no good reason for being unwilling to do so, which suggests that the state is actively becoming a hindrance in the process of providing such basic rights to all of its citizens. The targeted exclusion of these rights from a subset of citizens is precisely the type of behavior that would qualify as arbitrary deprivation. A state that is unable to secure such basic rights for its citizens would need to demonstrate genuine inability to do so, and, in this case, the state would be expected to allow outside actors, like the UN or non-governmental organizations, access to their citizens whose survival is at stake.
It is interesting to reflect on how such thinking may challenge the scope of the international community’s responsibility to intervene in the affairs of another state. While endorsement of the Responsibility to Protect Doctrine was a watershed moment for the international community, as it endorsed international intervention in states which fail to protect their citizens from genocide, ethnic cleansing, war crimes, and crimes against humanity, one can argue that the Doctrine does not go far enough, if the underlying moral logic of self-defense applies to all basic survival rights. A state that would manifestly fail to provide the most basic survival rights to all of its citizens simply must be willing to accept international assistance. Humanitarian intervention is far from a U.S. foreign policy priority at the moment, and, in recent years, it has become increasingly unpopular politically on both the left and the right. The right is skeptical that such intervention is in our nation’s self-interest, while the left appears to seek a reduction of both the military’s size and ambitions. But the practical challenges such intervention faces are nothing new, and, importantly, they do not discredit the sound moral logic that stands behind such intervention on behalf of these basic survival rights. Of course, this is also not to suggest that humanitarian intervention is not without its risks; there are the abiding concerns that any use of force can end up becoming unmoored from its intended purposes or prove ineffectual, making the situation worse. One could certainly conclude, for example, that while our intervention in Libya succeeded in toppling Gaddafi, it has done more harm than good. The use of force is always a morally precarious exercise, and policy makers should be constantly attentive to ensuring that its use is meeting Little’s “strict conditions” of necessity, imminence, proportionality, and right intention.
Little’s unitary moral logic of self-defense identifies those rights, wherever they may be located, whose defense is truly urgent. It also helps to unclutter rights discourse which often presents competing rights claims to be of equal weight. As we are currently in the middle of a global pandemic, there has been much debate over the extent to which public health protections should be enforced, and this debate is often framed as a conflict of rights — the right to health versus the right to economic opportunity, the right to health versus the right to assembly, etc. Indeed, the argument against shelter-in-place restrictions is often framed as the taking away of liberty and the usurpation by the state of the individual’s inalienable rights. But viewed through Little’s moral logic, basic survival rights, including the right to health, should be understood to be nonderogable and thus given priority over other rights. In fact, if one turns to Article 12 of the ICESCR, “the prevention, treatment, and control of epidemic, endemic, occupational and other diseases” is listed as a step to be taken “by the States Parties to the present Covenant to achieve the full realization” of health. Of course, reasonable people will disagree as to the extent to which shelter-in-place orders should remain in effect, and there is certainly a balancing that must take place between public health and other goods, like economic activity and the right to assembly. Clearly, if one’s economic livelihood is so affected by the pandemic that one’s very survival is threatened, then the state is obligated to provide assistance. It would indeed be a nonderogable obligation for the state to do so, according to language employed by the CESCR. But not all rights claims related to the pandemic are of such moral and legal priority, and Little’s framework helps us to see this more clearly.
Finally, it is hard not to think of the debate surrounding the Second Amendment of the U.S. Constitution when reading a piece that grounds key rights in the moral logic of self-defense. Often the right to bear arms is justified as the right to protect oneself and others from a tyrannical state or its lawless citizens. Of course, the moral logic of self-defense permits the use of defense force against arbitrary force. But, as Little notes, such force must conform to critical standards — standards that present objectively understandable and compelling reasons for the use of such force (indeed, the opposite of arbitrary force). Little argues these “strict conditions” are necessity, imminence, proportionality, and right intention. When thinking about gun laws, it might be helpful to consider this paradigm. While a total ban of guns for private ownership may unreasonably imperil a person’s right to self-defense, it is also the case that the use of force be proportional and conducted with right intent. Common-sense gun control could strike this balance between allowing for private gun ownership but restricting unnecessarily powerful weapons and by mandating mechanisms like waiting periods, so as to help clarify the intent of the prospective buyer. Indeed, at the present moment, it is very likely that the right to self-defense stands in conflict with the right to life (Article 6, ICCPR) and the right to health (Article 12, ICESCR [although the U.S. has not ratified this Covenant]), as gun rights supporters seek the near-complete absence of limitations on privately-owned firearms. ♦
Christian Rice, Th.D., is Assistant Professor of Philosophy and the Humanities and Assistant Dean for Civic Engagement at Ursinus College. His teaching and research interests are located at the intersection of religion, ethics, and human rights.