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Human Rights & Politics.
This website hosts various editorials & other writings by Dr. Curtis Doebbler.All the writings on these pages are copyrighted and may not be reproduced without the express written consent of Dr. Curtis Doebbler, with the exception that reproducton or use of them for educational purposes may be made by individuals who have provided written notice of such use to Dr, Doebbler and received confirmation of approval in reply from Dr. Doebbler.
Although the term human rights is one of the most used terms in the rhetoric of American politicans, these same politicians rank among the most ignorant in the world about what human rights are and what international human rights law means.
For example, none of the leading presidential candidates, including Gore and Bush junior, even replied to a e-mailed and faxed question inquiring about their views on human rights. Apparently they had none, or more likely did not understand term well enough to be able to ennunciate them.
America is clearly the superpower of the world today, but does it act like it? Is it a benevolent superpower or merely a virtual superpower that is more façade than substance?
There are too many Americans-many of them in Congress-who think that America has some predestined right to be the world's only remaining superpower. They seem to have forgotten that America was founded on a fair work ethic: that one works for his position in society. Has this ethic been replaced by one that sounds like this: If you look like a winner your are, even if you act like a loser.
In international affairs the United States is acting like a loser. For example, it fails to exert even the most meagre pressure on the government of Sudan to end the world's longest running and most deadly ongoing civil war. Or to stop the insidious practice of slavery. Both problems are crystal clear to the American administration-or so they claim. There is merely not sufficient will to act, the administration laments.
On the other side of the world, the United States is supporting-or at least not opposing-the re-election of one of the America's most deadly dictators in the person of Peruvian President Alberto Fuijmori. Certainly the United States realises that Fuijmori has tortured thousands of people in his attempts to fight crime in the country or that he summarily and unconstitutionally dismissed the entire Parliament and then the Supreme Court Justices who opposed his unconstitutional bid to change the law to add another term for himself as President. It is just not opportune to act right now.
The list could go on. Certainly, there are also are some strong points in our foreign policy. Perhaps our interest in Former Yugoslavia, one might think, but just last week former prosecutor Gabriel McDonald, an American, chastised the Americans, among others, for too many words and too few deeds.
Maybe it is safer to stop observing the facts and just assume that American foreign policy is that worthy of a world superpower. After all isn't that what we have been doing along.
At a recent Harvard University celebration of the 15th Anniversary of their human rights programme, it was frustrating to see so many graduates so ignorant about international law.
For example, several Harvard graduates, indicated that they were making the first arguments before the United States courts--in their areas of law--using human rights law. In each case, there was a long history of arguments using international law, although--as they did not point out--usually with very marginal success. It would have been much more apporpriate for these lawyers to try to understand why the US courts, all the way up to the US Supreme Court, have such a flawed understanding--when indeed they have any understanding at all--of international law.
It was also surprising to see how little interaction there appeared to be between international lawyers and national lawyers. Most national lawyers present pleaded proudly guilty to failing to contact international lawyers to make arguments based on international law. Some even bragged about how they had winged it--on caess involving clients' lives. In most of the cases, international lawyers would have helped for free--I certainly would have--but they were never really brought into the picture, according to the Harvard Law School graduates themselves.
My aim is not to deride Harvard Law School. It is a good institution, better than most, but if it is failing to prepare its lawyers adequately in international law, it is failing its students and their utlimate clients. More importantly this indicates a much bigger problem in American law schools and the legal profession as a whole from the least experienced lawyers to the highest judges.
It is problem that has driven many of the best international lawyers out of the United States. In the 1980's, I was one international lawyer who fled the United States to the Netherlands. One reason I have never regretted this move was that international law is part of Dutch law. The Dutch Constitution requires its courts to apply international treaties above even the Constitution itself. This means that international human rights law applies in the Netherlands. This means that any individual in the Netherlands has a much higher expectation in believing that the Dutch government will respect the human rights it has said it will respect then is the caesin the United States.
In the United States, most foreigners--among those foreigners who know any US law--know more about what the United States has professed to be law by sigining international treaties then they do domestic US law. Thus they form expectations about how they will be treated--in so far as these expectations emanate from law--based on the treaties the US signs. In most cases they find that they are being lied to. The United States ratified some human rights treaties, but does not apply them unless Congress has passed a law concerning each specific provisions. Thus even if their is a very clear treaty provision protecting the individual, it is more than likely that a US court will not apply it. Needless to say, this often clearly violates international law and allows other states to take sanctions against the United States, but who is going to sanction the world's most power economic and military power?
In several--not one but more than five--the United States actually admitted violating international law by not informing prisoners that they have a right to see their diplomatic representative and/or by not informing the government of prisoners that have been charged or convicted. As a result, prisoners have even been executed with little or no chance to benefit from rights that the United States has guaranteed to them by treaties on diplomatic and consular relations. At the smae time, only one state--Germany has had the courgae to even partialy stand-up to the United States. Other states like Canada and Paraquay have been too timid.
The United States is also known more for the treaties it does not sign that those that it has. For example, together with only Somalia, the United States remains a holdout from the Convention on the Rights of the Child. In addition, while Sudan has ratified the International Convenant of Economic, Social and Cultural Rights, the United States has not.
The moral of this short complaint is two-fold. United States lawyers do not know their international law well enough and unless law school start to remedy this the next generation will continue to be as ignorant as the last.
Humanitarian interventions are usually defended as military interventions in the face of humanitarian disasters. Gross violations of human rights are often-but not a necessary-a part of such interventions. The innovation of these interventions is that they do not require the consent of the state in which the international community, or one or more of its members, are intervening. They are, thus, an intervention in the name of a good that is higher than state sovereignty. They are interventions that should rest on a strong moral foundation of justice. This is how we usually think about humanitarian interventions.
Unfortunately, the reality of how governments think about humanitarian intervention is much different. Almost any use of force by any government is predicated upon political considerations. This is especially true about the United States government's decisions to use force. An American diplomat recently laughed when I even suggested that the United States should establish criteria for its humanitarian interventions that are objective and based on goals that were beyond short-term policy objectives.
Most governments that believe in humanitarian interventions-even those less militarily powerful then the United States-as an afterthought. It is a justification for action taken for other motives, which has already been justified on other grounds. Some years ago, at a lecture in London, Professor Richard Lillich-one of the staunchest and most competent champions of humanitarian assistance to even have lived-was asked if a state had ever employed justification as the primary defence for its use of force or intervention in another country. His answer was a confident 'no'. No state had ever claimed that humanitarian intervention was their primary justification for their use of force.
Today, this answer would still be true. For example, despite the fact that many world leaders stated that their country's participation in the intervention in Kosovo was based on humanitarian grounds, the reason given by states in official forums was always first and foremost that of a feared threat to international peace and security. In other words, despite the failure to get United Nations approval for the intervention states still believed that a justification that looked like it was based on Chapter VII of the Charter of the United Nations was more appropriate than a justification based on humanitarian intervention.
The consequences of these apparent contradictions is that no coherent concept of humanitarian intervention has developed under international law. Instead countries continue to use it to insulate themselves from existing provisions of international law that limit the use of force. They do so because under the new world order scheme created by the Charter of the United Nations, the use of force in international affairs is prima facie illegal. To overcome this obstacle of legality, states have tried to invent a new category of legal justifications. But they have stopped short of creating these categories as part of international law apparently for fear that they may one day be used against them.
Under current international law there are essentially two general categories of justifications for the use of force. One is self-defence. For this justification to be effective there must be an armed attack against the sovereign state claiming to act in self defence. Some writers extend this to instances where an armed attack is eminent, but no further.
The other category of justifications are those approved by the United Nations. The best known are those under Chapter VII which allow the United Nations to authorise the use of force to maintain or restore international peace and security. Invocation of Chapter VII requires that states follow stringent procedural guidelines that were intended to prevent the United Nations from acting too quickly and perhaps erroneously. These guidelines include a Security Council finding that there is a threat to international peace and security, the invocation of sanctions, and a determination that sanctions have failed to achieve the desired result of maintaining or restoring international peace and security.
Of the above two categories of justifications, self-defence is most usually relied upon even in the most fantastic of situations. The United States for example claimed that it was acting in self-defence when it invaded Grenada, Panama, Haiti and recently when it bombed a pharmaceutical factory in Sudan. The preference for this justification probably arises from the fact that it involves a self-judgement. The country intervening can claim that it is acting in self-defence and unless the United Nations says otherwise-a say in which the five permanent members of the Security Council may use their veto-the state's claim stands.
Humanitarian intervention is often combined with self-defence. Self-defence is usually the formal justification and humanitarian intervention is the appended supplementary moral justification, often phrased in such terms that moralists will confuse it for a legal justification. When so used, the justification of humanitarian intervention is not used as law. It is, in fact, use to obscure the rule of law that should apply. There is no consensus formed, no state practice reviewed and no commitment to adhere to a rule in the future. There is instead the deterioration of existing law.
This is not to say that humanitarian intervention cannot become part of international law, even if it is not currently so. Certainly international law is an evolving and developing area of human activity and standards. For example, if enough states agree that all states are justified in intervening in the affairs of other states on humanitarian grounds then the principle of humanitarian intervention may evolve into law.
To date the best indication of such a development or evolution has been the Kosovo intervention of NATO. The problem is that initially few NATO states claimed that they had a right to intervene on humanitarian grounds. Instead, they relied on their right to maintain international peace and security. It was only when it became apparent that the United Nations would not support this grounds for intervention-due to the Security Council veto of several permanent members-that NATO leaders started to call their action 'an humanitarian action', 'an action based on human rights', and an 'action to protect humanitarian interests.'
The point of this short essay is not to argue against the creation of an international law right of humanitarian intervention. Indeed, such a right would be of great value to the protection of human rights around the world. The point is to argue that this right must be created, not merely left as an appendage to the existing law or an afterthought to the real legal claims of states. What is necessary is to push states to enunciate the right in its most comprehensive form. To define what it is and what it isn't and to make it a rule of law applicable to all states, not just those militarily powerful enough to append it to their formal justifications in cases of their choosing. This requires NGOs and IGOs to put hard and pointed questions to states. This requires the leaders and representatives of states to have the courage to enunciate a rule that they are willing to live with and respect…even when it is applied against them. Only when we recognise how humanitarian intervention is currently being used can we get on with the work of developing an international law of humanitarian intervention.
The new economics of post-cold war globalism is characterised by features that were not considered prominent heretofore. The intangible value that has little to do with the costs of production or the worth of goods has been added. This new intangible value is a function of perception. The perception is created by profit making strategies that range from stock market management to advertising and public relation. These have always been modern constituents of the value of a good, but never to the extent that they are today.
In the modern world the worth or cost of a good to society may be based on an intangible value that is many times greater than any value that could be derived from the costs of production of the value of the good to the quality of life of the average person. This is true because in many cases the cost of a good is determined by a constituency other than those who produce it. This realisation-that access to goods can become detached from the reality of labour-was at the basis of the social problems identified by Marxism. Perhaps, it is also an indication that the instigation to a revolution of the working class towards which Marx and Engels so ardently strove has been a failure. Perhaps, the bourgeoisie has won the war or at least a the last major battle.
This is undoubtedly the case in the United States where the stock prices have pushed the commercial value of profit-making enterprise to levels that have no relation to the cost of production or capital that companies own or can access through their in-house resources. Instead, elites control the worth of a company's stock by exercising the power to buy and sell. The extent of this power has been obscured by the small concessions that have been made to the labourer or others who are mainly consumers. Most of these people in developed countries have been given greater access to purchasing power, but never control. Thus while the purchasing power of the masses has increased, the purchasing power of elites has massively increased. The clearest illustration of this is growing gap between the world's rich and the world's poor.
Neither is this relationship static. It is instead quite complex. This is especially true of who are the elites. In America, the elites are those who have climbed the social latter through a combination of luck, skill, inherited wealth and hereditary corruption. Once they have reached the top they have either acquired so much power that they can shut others out by obstruction or keep raising the threshold of wealth so that others cannot reach it. To be sure, some extremely selfish or merely subservient members of the middle class can break into the elite class, but almost never without have adopted the fundamental policies of the elites-the pledge that they will try to keep others out. Attempts by the likes of Bill & Melinda Gates and other apparently benevolent elites to open the elite class to a broader constituency are like the Nazi's giving scholarships to poor Jews who denounce their heritage to join the Nazi party. There is no transfer of power involved, but merely a consolidation of it by those who hold it.
Who the elites are is relative? In the United States they are the rich and powerful individuals, who, aware of their wealth, will go to extreme means to keep it. This includes the overwhelming majority of the rich and famous in America. In much of the world, however, the middle-class Americans and western Europeans and other scattered consumers who merely marginal purchasing power may be the elites when those with whom they live are relatively unempowered and lack access to control of resources distribution.
What does this apparent ranting and raving about elitism and economic exploitation have to do with the comment on modern globalism with which it began? Undoubtedly, globalism and global economics give the above proposition an air of increasing verity. Thus while there is little doubt that we can retrieve the idealism of communism with any success. There is growing awareness that globalism is elitist and that it does not have to be so.
What happen in Seattle in the last week of November and the first week of December is one expression of this awareness. It is testimony, that if in nothing else, Marx and Engels were correct in predicting that when the world's have-not's are pushed too far they will unite and rise against the powerful bourgeoisie. Perhaps such miniature revolts as occurred in Seattle will be sufficient to effect meaningful change. Or perhaps, the elites will ignore this warning shot and continue to consume to the exclusion of the masses, continue to acquire through exploitation, and continue to ignore the imperative of greater equality of living standards. If so they may ironically lead us to find even more truth in Marx and Engels further assertions.
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Last modified: Sunday, 11-Nov-2001 02:54:50 EST |
