Plus ça change: Are human rights modern-day colonialism?

Reading through Anghie's (rather brief) exposition on some of the writings of Francisco de Vitoria--widely considered the pioneer of international law--one cannot but be struck by the parallels that can be drawn between his thinking more than five centuries ago and the doctrines informing some of the most recent of global developments.

When the Spanish encountered the "Indians" (Native Americans), they were unsure how to relate to them.  A common error is made in this regard by believing that the former viewed the latter ex ante as less than human.  That was not the case: De Vitoria and his contemporaries considered the natives fully human.  They also acknowledged that they were "civilized," in that they had discernible values, systems of governance and societal order, capacity to interact with others, etc.  The natives were, accordingly, fully human, equal in their humanity to the Spanish.  However, the Spanish recognized that the natives' values system was at prodigious variance with their own, and the question ineluctably arose of how to reconcile them (if possible) or whose system would take precedence (if not).

De Vitoria astutely sidestepped the prevalent dogma at the time that all authority was ultimately traceable to a "god," or, more plausibly, the "god's" earthly representative (the pope).  The reasoning was that the natives had never heard of Christianity and could hence not be held liable under its injunctions.  He thus fell back on the (Aquinian) notion of natural law, i.e. an objective, ubiquitous set of rules and values immanent in all human beings.  De Vitoria termed its contemporary incarnation as ius gentium.  Here was the rub: He posited that, whereas ius gentium was universal, the Spanish had, in a manner of speaking, "perfected" it.  By implication, the natives required assistance to self-realize the truism, benefits, and execution of ius gentium, and it was the Spaniards' duty to proffer that guidance and help.  Crucially, any opposition was deemed unreasonable: If the norms of ius gentium were the perfection of thought and practice for all humankind, then any opposition to it was a fortiori retrograde, reactionary, and progress-retarding, and, accordingly, had to be staunched... - by any means necessary.  On that view, by extirpating dissent to the process of inculcation of ius gentium among the natives, the Spanish were doing them a major favor (even if that "favor" ended up manifesting itself in the form of blatant theft and ruthless genocide).

The analogy with modern times is glaring.  What was ius gentium in the days of de Vitoria is the conceptualization of putatively "universal" human rights (liberal democratic governance, rule of law, separation of powers, equality of the sexes, various freedoms (thought speech, etc.), protection of minorities, and so forth) today.  These values--just as ius gentium of old--are a product of evolution of the Western thought, and have been institutionalized by means of international organizations (e.g. the U.N.), which, themselves, are a product of Western politics.

The U.N. has promulgated such values through the Universal Declaration of Human Rights, the International Covenants, and other instruments.  The Europeans states have embraced even higher normative standards in the form of the E.U.'s Charter of Fundamental Rights and the E.C.H.R.  The O.A.S. has its own charter as does the A.U.  A.S.E.A.N. and the Arab League also compiled declarations, though these have been rebuked for falling short of the "universal" values.

The question is what happens when a subject deviates from these "universal" norms.  That can be due to e.g. its cultural specificities or economic particularities.  The Arab Charter on Human Rights, for instance, fails to guarantee equal treatment of women and discriminates against non-citizens' basic rights.  A.S.E.A.N.'s attempt has met with even more strident criticism for omitting some of the most longstanding, fundamental protections or providing conspicuous and numerous loopholes to evade them.  These, however, are difficult to challenge directly, being that they are endorsed by a multiplicity of quite powerful states.  There is an entire official (government) and semi-official (N.G.O.s) "industry" centered around producing reports and conducting campaigns concerning individual states' adherence to the human right principles.  Which principles?  The "universal" ones, but of course.  And where the presumptive "international society" (read: the Western-led international organizations) can, it does its utmost to introduce as many of these norms as possible to the areas under its control (e.g. Timor-Leste, Kosovo, Iraq, etc.).  Harking back to de Vitoria, opposition to such endeavors is excoriated as backward, unhelpful, and, yes, hostile.  Though such hostility is no longer countered with genocide, its protagonists are excluded from all nation-building processes and, depending on the extent and quality of their opposition, may be subjected to anything from imprisonment to "daisy-cutters."

The issue at the heart of this discourse is what the A.S.E.A.N. Declaration unabashedly makes reference to: the notion of "cultural relativism."  It is an idea with which even a cursory observer of current affairs is familiar, to wit, that every society has a right (indeed, a human right!) to practice and safeguard the values prevailing in that society, even if these diverge considerably from the alleged "universal" values.  That idea is espoused by such diverse actors as autocratic regimes, leftist academics, Western leaders (still reeling under the burden of colonial baggage), and, indeed, a great many people in the type of societies in the docket, including those (e.g. women) who would benefit from a conferral of the "universal" rights on them.  Who, the trope goes, made those rights "universal" and with what justification?  What should give the (Western or West-tainted) powers the right to, yet again, impose their views on the sovereign peoples of the world?  Did we learn nothing from the brutalities of centuries of colonialist practice?

The opposing view is that of the "soft bigotry" of lowered expectations.  The contention here is that the "universal" values are indeed superior to--termed, for simplicity's sake--regional values, and that attempting to equalize the worthiness and merit of the two bespeaks racism, for it implies that the "regionals" are not deserving of enjoying the same liberties and rights as those fortunate enough to be living in, basically, the Western(-modeled) countries.  Far from striving to eschew the aggregate of the colonialist enterprise, "cultural relativism" does the opposite: It perpetuates the "natives'" inferiority.

The crux of the matter, therefore, is the status of the "universal" set of human rights norms in comparison to the others.  Is it--its misnomer notwithstanding--just one of many acceptable (which itself is a normative term) standards or is it the ideal toward whose truly universal implementation to aim?

Descrying a definitive answer to this is impossible.  The Western body politic is petrified of doing or saying anything remotely reminiscent of colonial practices (further affected by the anomie plaguing its society, in which any kind of judgment is unwelcome).  The assorted Third World tyrants are keen to maintain the status quo, which is greatly strengthened by illiberal practices passed off as "local culture."  Many ordinary people in those societies, too, vehemently oppose change.  (That is by no means unprecedented: Some of the most ornery opponents of the Suffragette movement in the West were precisely women.  For instance, tales abound of female prison wardens being far more brutal toward incarcerated women's rights activists than their male counterparts.  Scores of women, too, made public speeches and engaged in other types of campaign denouncing the Suffragettes.)  Who is entitled to deem one system of values better or worse than others, on what basis, and pursuant to what criteria?

Meanwhile, child marriages are rampant.  So is marital rape.  Cheap child labor supports entire economies.  Homosexuals are hanged, "apostates" beheaded, "adulterers" stoned, juveniles imprisoned with adults, "blasphemers" lynched, girls denied access to basic education.  The Gulf Cooperation Council states openly practice what can only be described as modern-day slavery.  Tens of thousands of people are locked up without any due process, including for political slights and "thoughtcrime."  Tens of millions have no recourse to justice against gross excesses by state power.  Hundreds of millions are unable to have any input on who determines the course of their lives.  Do those individuals not deserve the quality of life that those born in other places in the world are fortunate enough to be able to take for granted?  Should those so blessed not assay to help the them?

If the latter narrative is embraced, there will inevitably arise resistance, including from among the "natives."  How should it be addressed: the way of the Spanish or differently?  Is a universalization of human rights necessarily a zero-sum endeavor, viz, either the current state of affairs is accepted or the errant societies are brought into line, even manu militari if need be?

Might the answer lie in gradual, nuanced--yet insistently, doggedly, confidently, continually driven--change employing methods such as Joseph Nye's "soft power"?  That could take generations, meanwhile condemning billions to continued suffering and inferior life quality.  Conversely, rapid, revolutionary tactics could backfire (q.v. Afghanistan, Iraq, Libya, and other, less pronounced, cases in Africa), occasioning conflict whose immediate ramifications would be far more detrimental than the invidious conditions at present.

One conclusion does seem inevitable: The "universal" norms of human rights are superior and should be adopted and practiced globally.  How that is actualized is a different matter, but de Vitoria's strategy is not an option.
 
© 2014 Michael L.S.

Condition: Academic detachment from reality. Prescription: a dose of reality

Last month I attended a Ph.D. "master class" in which eight or so doctoral candidates presented their work-in-progress, preliminary findings, context of their research, etc.  One presentation in particular caught my attention.

A young lady is examining compliance with international humanitarian law (the Geneva Conventions et alia).  Her hypothesis is that the laws in question are often(?) not followed on the battlefield because military personnel receive inadequate training in this regard; in particular, the imperative of adherence to these provisions is not impressed upon them with sufficient urgency and sobriety.  If only--she contends--soldiers were instructed more formidably in how critical it is to comply with the norms of international humanitarian law, the likelihood of instances of abuse such as the Abu 3'rayb prisoner mistreatment scandal or the more recent contretemps involving Sgt. Alexander Blackman would have been minimized if not altogether averted.

As I was absorbing her polemic, it struck me again how alarmingly insular and detached from the real world academia is becoming.  College students and academics have been castigated for being "out of touch" on many issues.  An apposite example is the now decades-in-the-making promotion of a happy-go-lucky mode of education for children that accentuates their right to personhood, individuality, having fun, and so forth, which critics claim (now supported by hard research) deprives them of the structure, discipline, knowledge, and skills that they require to grow into both competent workers and functional adults.  Prison reform, human rights, civil liberties, sexual equality, and immigration are some other matters that lend themselves to such criticism, too.

The biggest difficulty with the issue in the docket is that it is being theorized on by someone who has no first- or even second-hand experience of the battlefield.  It is not only unrealistic, but also egregious and insulting, for an adolescent ensconced in an armchair in Manchester to be prescribing to grown men and women situated in the midst of war how they ought to behave.

Imagine, if you will, the reality of the theater of war: Mines and R.P.G.s are exploding left and right, dozens of bullets are making the cracking sound inches away from your ears, you have witnessed people who an hour ago were laughing and planning Christmas with their families blown to smithereens a few feet in front of you, your friends' guts are spilling out of their bodies or their limbs are gone...

There is no Undo button to press anywhere.

There is no Pause button.

There is no Quit button.

Somehow you make it out alive and later on you come across a wounded enemy combatant who mere minutes previously had been launching grenades at you and spraying you with bullets.  Can anyone seriously argue that in such a situation you can be reasonably expected to engage in an objective, dispassionate, detached introspection of the Geneva Conventions!?!  "Ludicrous" does not begin to describe it!

I am not even remotely impugning the importance of both the existence and enforcement of robust international rules governing engagement in armed conflicts.  Wanton destruction, revenge, brutalization of civilians or even coldblooded abuse of enemy combatants are to be unreservedly condemned, outlawed, and censured.  However, there has to be a dose of hard realism present when presuming to prescribe the behavior of individuals placed under unimaginable levels of personal, existential stress.  P.T.S.D. is a recognized condition, which affects the sufferers profoundly; this has to be accounted for in any discourse seeking to regulate the conduct of those likely to be severely afflicted by it.

After all, many of those insisting that soldiers should abide by the international humanitarian law even in the most stressful circumstances are among the first to characterize many types of criminals and societal transgressors as "victims" who should first and foremost be helped address their multifarious problems, and be punished only as an afterthought and certainly with leniency.  Can they not extend the same kind of consideration to those who underwent experiences the "disenfranchised" and "marginalized" rioters of 2011 or violent robbers afflicted by assorted "substance addictions" cannot even fathom?

© 2014 Michael L.S.

John Dugard's Melland Schill Lecture at the Manchester International Law Center (M.I.L.C.)

October 15 John Dugard delivered a lecture at the University of Manchester. It was organized by the University's International Law Center as part of its resuscitated Melland Schill series. The lecture's topic was statehood. In particular, Dugard identified the principal obstacles faced by aspiring states in achieving recognition, furnished the basic history behind some of those obstacles, and proffered a possible solution.  The main themes were the principle of territorial integrity, the prohibition of secession, and uti possidetis.

I enjoyed the content a lot.  The brief historical précis concerning the decolonization of Latin America and the emergence of nation states on that continent was particularly intriguing being that it is history very seldom taught or (curiously) of only scant interest to those of us outside the region.  The leitmotif pervading the talk was that political considerations almost invariably seem to subordinate international law--such as there is--in the context of state recognition.  That was certainly a shrewd (and frustrating) observation.

However, I could not help but feel most uneasy about several facets of Dugard's talk.

• Dugard lamented how the Badinter Arbitration Commission--formed in the early 1990s to essentially demarcate the borders of the erstwhile constituent republics of Yugoslavia--decided to ignore the demographics of the region in the course of its proceedings.  In particular, he reproached it for overlooking the existence and relevance of the autonomous regions of Kosovo, Republic of Srpska, and Krajina.
• The above betrays an ignorance (or, at least, ignoring) on Dugard's part of some basic historical facts.
1. The Badinter Committee was in operation between 1991 and 1993.
2. Kosovo is the only one of the three entities that has any historical precedent or merit.  It was a constitutionally-recognized autonomous region within the former Yugoslavia.  The other two never held any such or similar status.
3. Krajina was proclaimed in 1991, around the time the Committee began its work.  Its existence owed to the success of local Serb militias (with semi-official support of the regular Yugoslav military forces) in seizing control of sections of the territory formally part of Croatia qua a federal Yugoslav republic.  No entity such as Krajina--de iure or de facto--had ever existed on the lands claimed by the instant entity.
4. The Republic of Srpska was formally and legally established in 1995 (i.e. well after the Committee had wound down its operations) pursuant to the Dayton Accords, although it had existed in some form and within constantly shifting borders since 1992 on the same foundations as the aforementioned Krajina.
• The question arises: On what basis does Dugard ascribe legal or even political equivalence to Kosovo on the one hand, and Srpska and Krajina on the other?
• Is Dugard seriously arguing that an ability to conquer and continued control of a territory is or ought to be recognizable under international law; yea, that it should be rewarded with arguably the highest conceivable privilege in international law and relations: recognition of statehood?
• Does he seek to roll back one of the preeminent pillars of international law and relations, that took literally centuries to crystallize and solidify: the prohibition on the use of force?  Is he advocating we revert to the brute ius victoriae?
• Lastly, is he not at the very least precipitate in chastising the Badinter Committee for ignoring "facts on the ground" when those facts entailed fluid and ambiguous developments contemporaneous with and even postdating the Committee's work?
• He--reasonably, in my view--denounced the possibility of carving up Africa along tribal lines, because doing so would have entailed the genesis of hundreds, if not thousands, of states.  That would be impractical, unwieldy, and most probably beyond political pale.
• By arguing against using demographics in generating states in Africa, Dugard betrays breathtaking hypocrisy.  Why should the national aspirations of Serbs in Croatia and Bosnia-Herzegovina have been acknowledged and accommodated by the Badinter Committee, but not those of countless African tribes?
• Are Africans' wishes qualitatively inferior to the European Serbs'?  Is Africans' sense of identity, cohesion, and belonging somehow less worthy of recognition than the Serbs'?
• Ultimately, the many African tribes' national desires could have been acceded to far more easily and with better justification (at least historically speaking, and possibly even legally) when setting up brand new states a few decades ago than could maiming Croatia or Bosnia, both of which have a long and august history as states.
• Where is the consistency: Are or are not demographics (which are usually synonymous with ethnicity or nationality) to constitute a major, the main, or even the sole determinant in demarcation of states' borders and/or in state recognition?
• He advanced a solution whereby an international tribunal would be established, which would examine each petition for statehood in its own right, and produce a nonbinding declaration of the merits of each such case, presumably for the consideration of the Security Council and other international actors.
• This notion was verbalized by Dugard literally a half hour after he had narrated the story of Kosovo and the relevant advisory opinion of the International Court of Justice on the matter.  In the event, he pointed out that the I.C.J. had issued an opinion of the case, which it described as sui generis, and which the Security Council promptly decided to ignore.
• The problem here is obvious.  Dugard wants a tribunal; the I.C.J. is a tribunal (indeed, most would consider it the foremost, most authoritative and illustrious tribunal in the world).  Dugard wants it to examine each case of prospective statehood on its own merits; that is precisely what the I.C.J. did with Kosovo.  Dugard wants the new tribunal to issue nonbinding opinions; check: It is what the I.C.J. did in Kosovo, too.
• Apart, therefore, from the fact that we already have a tribunal that does exactly what Dugard proposes, the solution he advances does not address the core challenge: Whether it be the I.C.J. or Dugard's fabled new institution, what is to ensure that the Security Council does not ride a carriage and horses through its opinions just as transpired in the case of Kosovo?
• Furthermore, the antecedent problem aside, does the world seriously need yet another expensive talking shop?  Would Dugard like to justify its establishment to the taxpayers who would foot the bill?
• He made repeated references to Palestinians and "Palestine" as well as the role of the United States in world affairs, which he casts in--to put it mildly--an unflattering light.  Those remarks were in each instance laden with political connotations and messages.
• Dugard's rabid anti-Israeli paroxysms are well documented and need no revisiting*.  Regardless of whether or to what extent he is justified in this regard, it is nothing short of outrageous that while mentioning "Palestine" at least a half dozen times, he did not throw even an innuendo the way of, say, the Taiwanese or the Tibetans.  The Kurds got a single, rather perfunctory, mention.  For someone who likes to fly the banner of equality and justice, Dugard propagates a world wherein some peoples are conspicuously more equal and important than others.
• Leaving aside thus what can only be deemed hypocrisy and favoritism, by making continual loaded political comments, Dugard undermines his own argument.  If the problem of state recognition (the inequity, iniquity, inequality, inconsistency, illegality, etc.) owes to geostrategic and political deliberations of the powers that be, then what is the value of injecting his own political dogma into the argument?  If there is too much politics and not enough law in the field of state recognition as it is, then should Dugard not be aiming to redress the imbalance instead of perpetuating it himself?

The foregoing certainly served to "put a damper" on the entire experience.  One expects an international theorist and practitioner of Dugard's stature to demonstrate a higher degree of professionalism--particularly as far as academic neutrality and probity--than showcased in casu.

Nevertheless, he adverted to a thought-provoking and paradoxical issue, to wit: Being a state is the basic prerequisite for an ability to participate in the formation of international legal instruments and mechanisms.  Yet, becoming a state is not at all determined by that selfsame international law, but by narrow, unpredictable, and often petty politics.

Law concerning state recognition exists, most notably the Montevideo Convention's four unambiguous, fairly easily ascertainable criteria.  Yet, due to politics, entities that satisfy those criteria (including the Palestinians) have not been elevated to the hallowed club of the "international community" nor do they have much prospect of being admitted in the foreseeable future or beyond, whereas some who do not fulfill one or even more of the conditions have.

Should we just reconcile ourselves to the reality of Realpolitik and accept that law will always take a backseat in this regard, or is there a scenario whereby states can be persuaded to follow the objective letter of the law?  That, of course, is not merely the dilemma informing the matter of statehood and recognition, but many other aspects of international law.  Indeed, one could persuasively argue that there is no such thing as international law per se, but merely states' obligations in an international context, which states adhere to or not according to political dynamic.

* To illustrate: A day later, while commenting on a doctoral candidate's presentation on general ius in bello, out of literally thousands of blood-curdling examples of its violations, Dugard invoked the one single modern-day documented case of an Israeli Army's rabbi (and a retired one, at that) who called for an indiscriminate killing of Palestinians.  Whatever his reasons, Dugard clearly has an extremely sharp ax to grind with Israel.

© 2014 Michael L.S.