Self-Defense and Human Rights:
David Little Responds
As we continue the important conversation begun in early June with the publication of David Little’s The Right of Self-Defense and the Organic Unity of Human Rights, Dr. Little here responds to comments and reflections on his theory previously offered by Christian Rice and David Yoon-Jung Kim.
Responding to Christian Rice’s The Moral Logic of Self-Defense and Identifying Rights of Urgent Moral Concern
The comments in Christian Rice’s perceptive response about the “relative moral urgency of rights claims” highlights a very important point central to the current discussion of human rights. The recent Report of the Commission on Unalienable Rights, called for by Secretary of State Pompeo, reflects a glaring lack of familiarity with the provisions in the formative documents, and the jurisprudence surrounding them, especially the ICCPR and the ICESCR, regarding a “hierarchy of human rights.”
The report correctly states that the UDHR provides no guidance as to “whether some [rights] should be accorded a higher priority,” and while it cites certain practices, like genocide and torture, as prohibited internationally, it effectively leaves it up to each government to set priorities depending on its own “particular history and commitments.” In the U.S. case, that legitimates giving special priority to religious freedom and the rights of private property, both of which are dealt with at length in the report.
The problem is, the report completely ignores Article 4 of the ICCPR, to which the U.S. is a party, an article that categorically prohibits discrimination based “solely on race, color, sex, language, religion or social origin,” along with practices such as the arbitrary taking of life, torture or “cruel, inhuman or degrading treatment or punishment,” slavery or servitude, denial of certain forms of due process and of “freedom of thought, conscience, religion [or belief].” The rights shielding against such practices are “nonderogable” (not subject to abridgment under any circumstances), mandating that all member states give the highest priority to them, and implying that they be understood in an international context, and not simply in relation to each country’s parochial history and commitments. The international context is important, since although freedom of religion or belief is considered nonderogable, the jurisprudence surrounding it includes indigenous, non-Christian, and nontheistic interpretations, outlooks that have not always found ready acceptance within America’s “particular history and commitments.” What is more, the rights of private property are not on the list of nonderogables; in fact, though the “right to own property” is mentioned in the UDHR, it does not appear in the ICCPR. To admit this is not to dismiss the right—it enjoys, to be sure, a high degree of prominence in the natural rights tradition as a critical bulwark against arbitrary government. But it is to question the preeminence given to it by the report, and thereby to cast doubt on the report’s worrying tendency to allow for too much national discretion in applying human rights.
A similar point may be made in regard to Rice’s incisive comments about the developing jurisprudence around economic, social, and cultural rights in the ICESCR, despite some encouraging initial comments in the report on the place of these rights in U.S. thought and practice. Even though the U.S. has not ratified the treaty, the report is to be given credit for embracing the fact that economic, social, and cultural rights, together with civil and political rights, form “an integral part of the Universal Declaration’s fabric,” and that the U.S. government has gone “to great lengths to realize those economic and social goals” in welfare legislation, especially during and after the New Deal, and in key foreign policy initiatives, such as the Marshall Plan in the late 1940s and the President’s Emergency Plan for AIDS Relief (PEPFAR) in the early 2000s.
However, the report then proceeds to rehearse certain outdated descriptions of the differences between civil and political rights and economic, social and cultural rights, two of which lapses we shall mention. According to the report, “the differing linguistic construction of UDHR articles suggests that some civil and political rights are not subject to limitation, [while] none of the economic and social rights…employ this formulation.” Second, the latter rights “can be fully realized only in polities with adequate fiscal and material resources.”
As I pointed out in my essay, the differences described in the first and second statements are even more explicit in the wording of the ICCPR and the ICESCR than in the UDHR. Nevertheless, I emphasize, at the same time, the subsequent modifications of those differences introduced by the Committee on Economic, Social, and Cultural Rights (CESCR), beginning in the late 1980s. Regrettably, the authors of the report seem unaware of evolving jurisprudence on these matters.
CESCR became conscious of the looming shortcomings that result from extending unlimited discretion to states in administering economic, social, and cultural rights. Appeals to “resource constraints” readily became excuses for irresponsibility. In reaction, CESCR specified certain “essential minimum levels” of an “adequate standard of living,” involving nutrition, shelter, clothing, health care, and education, that impose “nonderogable obligations” on states, precisely comparable to the nonderogable obligations stipulated in Article 4 of the ICCPR. States would accordingly be required, as Rice suggests, to meet their minimum obligations even under conditions of emergency, or be responsible for facilitating assistance from international aid agencies. Member states are now accountable under new, more stringent international standards in managing their “resource constraints,” and in demonstrating in detail the degree to which they are, or are not, meeting their “nonderogable obligations” to refrain from acts of arbitrary deprivation/neglect.
Because of space constraints, I have room only to endorse wholeheartedly Rice’s insightful remarks as to the application of the themes of my essay to the burning controversy over the legal restriction of firearms in face of ardent appeals to the “right of self-defense.” What is typically left out of this discussion, as Rice correctly sees, is the relevance of the four conditions of defensive force—necessity, imminence, proportionality, and right intention—to this subject. As I hope my essays shows, there can be no proper appeal to the right of self-defense without simultaneously considering and providing for these four conditions.
Responding to David Kim’s Response to David Little on Self-Defense
David Kim deserves credit for raising two important subjects directly related to the central themes of my essay: The practical relevance of the right of self-defense to the rash of dramatic events occurring domestically and internationally all around us; and the connection of the right of self-defense to the idea of the rule of law.
First, Kim properly calls attention to the widespread indignant protests across the country and throughout the world in response to the police killing of George Floyd in May–a taking of life that was a blatant violation of the logic of self-defense. The logic requires that lethal force be used only where necessary to thwart an imminent mortal threat, and then only proportionately and with right intention. That the victim was African-American only intensified the moral indignation of the protesters, since the act symbolized the systemic use of arbitrary force by law enforcement agents against people of color. Nor does the relevance end there. The largely peaceful protests have been seized upon by the Trump administration as an excuse for what appear to be additional examples of action and threats of future action, undertaken by federal paramilitary units, in defiance of the conditions of defensive force, not to mention the standards of legal authority.
As Kim also rightly points out, the Chinese government’s recent promulgation of a new national security law in Hong Kong is but one more instance of the ominous spread of authoritarianism in China and elsewhere. The vaguely worded law grants virtually unlimited power over the civil and political life of Hong Kong citizens. It threatens to override human rights guarantees assured under the International Covenant of Civil and Political Rights (ICCPR), which is explicitly entrenched in Article 39 of the Basic Law of Hong Kong, and which the Chinese government is pledged to uphold. Although Article 4 of the ICCPR imposes a strict burden of proof on all state appeals to public emergency as a means of preventing such appeals from becoming a pretext for arbitrary abuse, it is highly improbable that the Chinese government will honor such requirements. In short, Kim’s examples abundantly highlight the sinister threats, at home and abroad, to the standards of legitimate force rooted in the moral and legal right of self-defense.
In the second part of his response, Kim suggests I have not made my position on the relation of the right of self-defense to the rule of law entirely clear. He implies that there is an important distinction between personal and collective self-defense. In regard to personal self-defense, action is governed by nothing more than the four conditions—necessity, imminence, proportionality, and right intention. So long as they are observed, individuals are within their rights to respond forcibly to an arbitrary attack, though the state does retain the authority to determine after the fact whether defensive force was used.
In the case of state self-defense, however, things are somewhat different. In addition to complying with the four conditions, other conditions must be met, as mandated by the rule of law. In accord with Article 4(1) and (3) of the ICCPR, a state faced with a public emergency that “threatens the life of the nation,” whether internally or externally caused, must officially publicize the threat, as well as make public the “provisions from which it has derogated” and exactly why such action was “strictly required by the exigencies of the situation.” These additional conditions are, of course, a way of guaranteeing transparency and public accountability, two essential features of the rule of law, that help further guard against the occurrence of arbitrary force.
Kim is right to call attention to the distinction between personal and collective self-defense and to emphasize the special importance of rule of law conditions as regards collective self-defense. Rather than being ”merely auxiliary” to the protection of human rights, I consider the rule of law to be indispensable. I completely agree with the opinion he cites: human rights become “legally enforceable only if there is a proper government structure…to ensure the rule of law.” It is obvious, in fact, that a number of human rights specified in the UDHR themselves call to mind provisions characteristic of the rule of law, e.g., equal protection under the law (Article 7); guarantees against arbitrary arrest, detention, or exile (Article 8); an equal right to a fair and public hearing by an independent and impartial tribunal (Article 10).
Article 51 of the UN Charter clearly reinforces the idea that, under the UN system, states—as collectivities—possess a right of self-defense within a rule of law framework elaborated in the Charter. The wording of the article affirms the “inherent right” of UN member states, individually or in concert with others, to defend themselves against an “armed attack” “until the Security Council has taken measures necessary to maintain international peace and security.”
It must be admitted that other provisions in the Charter raise questions as to whether the right of self-defense enshrined in the Charter is compatible with a human rights understanding, suggesting a conflict in this case between human rights and the rule of law. Article 2(4) appears to preclude absolutely all forms of armed humanitarian intervention, even in defense against egregious human rights violations. The proposed “Responsibility to Protect” doctrine, which authorizes international armed intervention against any state engaged in genocide or crimes against humanity, is an attempt to rectify this problem, but its status remains highly controversial.
While I agree with Kim on the foregoing points, I do not agree that the reference in the Preamble to the UDHR I cite in my essay concerns only collective self-defense, since the legislative history contains strong evidence that the drafters had both personal and collective self-defense in mind. I also think, contrary to Kim, that there was ample support among them for understanding the prospect of rebellion against “tyranny and oppression” not simply as a prediction, but as a moral imperative. ♦
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.