Challenge
There exists a potent two-pronged attack on human rights, one political and the other academic. Authoritarian governments, such as those of Russia, China, Iran, Venezuela, and Saudi Arabia, are making a concerted effort to undermine the credibility and effectiveness of human rights.Footnote 1 At the same time, prominent scholars in the United States, the United Kingdom, and elsewhere pose harsh challenges to the grounding, coherence, and durability of human rights.Footnote 2
For those appalled by authoritarian assaults and unconvinced by scholarly skepticism, there is an urgent need to reexamine and reaffirm the nature and purpose of human rights. To be sure, Western academic critics do not intend to support the authoritarian campaign. But if it turns out that an essential objective of human rights is to withstand authoritarianism and offer a better way toward human flourishing, it may be worthwhile to mount a fresh defense of that objective and the grounds it stands on, lest scholarly attacks, left uncontested, give inadvertent aid and comfort to the authoritarian cause.
Since the 1940s, when the first of the human-rights instruments—the Universal Declaration of Human Rights, or UDHRFootnote 3—was drafted and unanimously accepted by the United Nations General Assembly,Footnote 4 critics have argued that common agreement on a list of rights was possible, but no acceptable cross-cultural justification of the list could be found. As early as 1949, Jacques Maritain, a member of a group of experts working on human rights under UNESCO's auspices, summarized widespread doubts over finding a common justification: “We agree about the rights but on the condition that no one asks us why.”Footnote 5
Certain human-rights scholars, among them Michael Ignatieff, have argued that no unifying theory is needed or possible, since human rights are not intended to serve as “an ultimate trump card in moral argument” or “for the proclamation and enactment of eternal verities”; rather, they are designed “for the adjudication of conflict” and therefore constitute a quite prosaic, down-to-earth language of political “trade-offs and compromises.”Footnote 6 Others, like Samuel Moyn in The Last Utopia: Human Rights in History, take a more radical view. Moyn claims that human-rights language as formulated in the late 1940s was intrinsically incoherent and impractical. It consisted of words that were “victims of their own vagueness,” “empty vessel[s] that could be filled by a wide variety of different conceptions.” Contrary to conventional wisdom, says Moyn, the language was not composed in reference to Nazi atrocities in the Holocaust and elsewhere. It took on that connotation only years later and was thus thoroughly “utopian” in its origins for being unrelated to real-world problems.Footnote 7
Although Charles Beitz, in his acclaimed volume The Idea of Human Rights, does not forswear the possibility of a normative theory of human rights, he rejects all unitary proposals, according to which the authority of human rights is based on “a single, more basic value or interest.” He writes: “[T]here is no clear reason to hold that human rights should be explicable in terms of a single master value. Perhaps the pressure to regard them in this way derives from a desire to see them all as standards of the same generic kind. But . . . an account of their normativity need not be embarrassed to appeal to a variety of distinct justifying considerations.”Footnote 8
While it is no doubt possible to connect the various human-rights provisions enumerated in, say, the UDHR without referring to a “single master value,” it does seem reasonable to infer, as Beitz does, that affirming such a value would lead to conceiving of the provisions as being of “the same generic kind.” Conversely, positing, with Beitz, “distinct justifying considerations” or, with Ignatieff and Moyn, no common justifying considerations at all, would appear to foster intense skepticism as to whether human rights enjoy any deeply shared, let alone universal, characteristics or grounding.
It is worth recalling that debates about the coherence of the various human-rights standards laid out in the UDHR go back to the drafting period of the late 1940s. Johannes Morsink, in his definitive account of the legislative history of the UDHR, discusses at length disagreements over the “organic unity of the document,” particularly in regard to the relationship between the so-called old and new human rights, namely, civil and political rights (the old) and economic, social, and cultural rights (the new), both of which are included in the final version of the UDHR.Footnote 9 It must be added, of course, that the two sets of rights were later separated into two different legally binding international human-rights treaties that 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). The separation made it possible for countries like China and the United States to ratify one treaty and not the other, thereby posing again the question of the coherence of the two sets of rights.Footnote 10
Response
These criticisms are mainly mistaken. Hiding in plain sight in the preamble to the UDHR are two passages that suggest a rationale capable of providing a compelling moral (and legal) justification and a convincing basis for the organic unity of the rights in the UDHR, and, by extension, in the ICCPR and ICESCR:
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of [humankind],[Footnote 11] and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, . . .
Whereas 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 rights should be protected by the rule of law.Footnote 12
These passages leave no doubt that the defense of human rights, which are summarized as freedom of speech and belief and freedom from fear and want, is understood as a justified response to “tyranny and oppression” expressed in the multitude of “barbarous acts” perpetrated by German and other fascists before and during World War II.Footnote 13
At bottom, these passages are about the legitimate and illegitimate use of force. Under tyranny and oppression, human beings have the right to exercise a legitimate use of force—“as a last resort”—in response to an illegitimate use of force—one that is cruel and arbitrary, the kind tyrants and oppressors depend on. Human beings thus have the fundamental right—called, the “greatest of rights” in the Western traditionFootnote 14—to defend themselves against “tyranny and oppression.” The passages further assert that the worthy objective of force is establishment of “the rule of law”—that is, a legal and political order where cruel and arbitrary behavior is reduced by regulating force according to well-defined and established laws, impartially administered and enforced, that include, indispensably, the protection of human rights. Thus, all rights protected by the rule of law are ultimately justified by the right of self-defense against tyranny and oppression.
The Right of Self-Defense as Morally Foundational
These passages from the preamble of the UDHR assume the idea of universal subjective rights that grant all individuals, simply as human beings, entitlement to claim (or to have claimed for them) a certain performance or forbearance under threat of sanction for noncompliance. The passages also assume corresponding duties to respect rights. In the second passage, the key reference is to the right of self-defense, defined as the equal right of everyone to resort to reasonable or defensive force to protect oneself or others against arbitrary force, where arbitrary force means (at a minimum) intentional infliction of death, impairment, serious injury, severe pain or suffering, or involuntary confinement primarily for self-serving or unfounded reasons.
The relevant sanction available to an individual or group exercising the right of self-defense against such a threat is the use of force under certain strict conditions—necessity, imminence, proportionality, and right intention—conditions that spell out the meaning of “reasonable or defensive force” and serve to distinguish defensive from arbitrary force. The conditions work to assure that “recourse . . . to rebellion against tyranny and oppression” is undertaken only “as a last resort,” in the words of the second passage quoted from the preamble. As George P. Fletcher has noted, if an individual is faced with a mortal threat, “necessity speaks to the question whether some less costly means of defense, such as merely showing a gun or firing into the air, might be sufficient to ward off the attack.” “Imminence means that the time for defense is now! The defender [simply] cannot wait any longer.” “Proportionality [prescribes that the] harm done in disabling the aggressor must not be excessive or disproportionate relative to the harm threatened and likely to result from the attack.” Right intention means that “the defender must know about the attack and act with the intention [only] of repelling it [rather than of doing gratuitous harm to the attacker].”Footnote 15 The conditions apply similarly to collectivities confronted with the “barbarous acts” of tyrants and oppressors. Arbitrary force is the opposite of defensive force and is thus unconstrained by any of the four conditions.
The term arbitrary force needs to be broadened to include features also typically exhibited by tyrants and oppressors, and of special pertinence to the World War II setting against which human-rights language was composed and adopted. The broader version may be called arbitrary deprivation/neglect, meaning enforcement of laws and policies aimed intentionally at withholding or negligently disregarding—primarily for self-serving or unfounded reasons—the means necessary for basic human survival. The means in question would include the opportunity to make a living and to have adequate sustenance, housing, clothing, health care, education, and assistance “in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond [one's] control.”Footnote 16 If means like these are available and are willfully and forcibly withheld or disregarded primarily for self-serving or unfounded reasons, such actions are the proper target of opposition and resistance, including the use of defensive force.
Words used in the passages from the preamble—such as “contempt for,” “barbarous acts,” “outraged the conscience of humankind,” “tyranny,” and “oppression”—are unquestionably moral utterances in the sense that they presuppose fundamental standards by which to condemn what is wrong and bad, and to justify what is right and good as regards protecting and supporting basic human welfare. Accordingly, arbitrary force, expanded to include arbitrary deprivation/neglect, is believed to be morally condemnable, while efforts and means to protect against it—including the use of defensive force—are thought to be morally justifiable.
The important point is that force may be justified only by a certain set of reasons. Given the universally unwanted effects of force—death, impairment, serious injury, severe pain/suffering, or involuntary confinement, whether inflicted directly or as the result of withholding or ignoring the means to avert them—everyone everywhere has the exact same presumed good reason to avoid or resist those effects. Therefore, if force is ever to be used, compelling and overriding reasons must be offered. “Because I (we) want to” or “because it gives me (us) pleasure” or “because it serves my (our) interest” are no reasons at all. Footnote 17 Neither, obviously, are unfounded reasons, and prevaricating or offering mistaken claims about the use of force is particularly egregious because so much is at stake.
Giving justifying reasons presupposes a set of shared rational standards sensitive to the common interests of all parties involved and has as its objective bringing about consensual agreement among the parties. To refer primarily to one's own interest, or to tell lies or mislead, in support of using force is blatantly offensive because the references in no way address the severely unwanted effects of force upon the victim; such actions leave the victim's injured or deprived condition altogether out of account, and they rule out any equal opportunity for informed dissent or consent. The principle of equality, in particular, is violated since applying force for self-serving or unfounded purposes either favors one set of interests over others, or obscures the real interests served, without good reason. Accordingly, such a self-interested or misleading statement could not possibly justify a use of force. In that respect, arbitrary force overlaps with the idea of cruelty, which means callous indifference to or pleasure in causing pain and suffering. It need hardly be mentioned that what has just been described accurately reflects Nazi and other fascist practices during the World War II period.Footnote 18
Conversely, the right of self-defense is a moral right, or a right justified by good reasons of a moral kind,Footnote 19 namely, the great value of acting in a measured way to resist and subdue what has been called a summum malum,Footnote 20 to be understood as the exercise of arbitrary force—whether by directly inflicting death, impairment, serious injury, severe pain or suffering, or by involuntary confinement, or by withholding or disregarding provisions necessary for basic human survival.
The second passage quoted from the preamble, however, also implies a profound complication. No matter how morally justified armed rebellion might be in self-defense against tyranny and oppression, it is something to be avoided, if possible. That is because of the precariousness of the practice. On one hand, self-defense against arbitrary force, undertaken under strict limits, is morally justified. On the other hand, if practiced widely and regularly, its exercise, ironically, would likely increase the incidence of arbitrary force, since defenders take the law into their own hands. They become their own judges, juries, and enforcement officers in a “state of nature,” typically subject to passion and fear and therefore to conditions that are altogether unfavorable to judicious and measured (nonarbitrary) action.Footnote 21
According to the second passage, the complication is resolved by subjecting the right of self-defense to the control of a well-ordered government, namely, one based on the rule of law and the protection of human rights. Consequently, what is a moral right is deemed to be a legal right Footnote 22 as well. Monopolizing force in accord with established laws, fairly administered by impartial legislative, judicial, and enforcement officials, and aimed at protecting individual citizens against acts of arbitrary force constitutes an enormous public good. It represents a surer guarantee of the personal security and basic welfare of all citizens than allowing individuals to be laws unto themselves, and it can be achieved only by establishing a well-ordered government. The moral basis of the government, it must strongly be emphasized, is the equal right of everyone in common to personal security and basic welfare against the threat of arbitrary force. Self-defense is not egoistically grounded. It is defined as the right to use reasonable or defensive force to protect oneself or others because the exercise of arbitrary force constitutes a universal moral violation. That means, by implication, that everyone everywhere has a duty to refrain from using arbitrary force against anyone anywhere, and, to that end, to join and support a well-ordered government dedicated to equal protection against arbitrary injury and neglect by providing laws that are more settled, more impartially administered, and more reliably enforced than is true in the state of nature.Footnote 23
Acknowledging the moral primacy of the right of self-defense, rule-of-law governments do continue to permit a remarkable, if limited, exception to their authority. Citizens retain the legal right to defend themselves, forcibly if necessary, in face of threats of arbitrary force where the police cannot protect them, although the government still reserves to itself final authority to determine whether such acts are carried out within the proper bounds of defensive force.
The crucial implication of the second passage is that governments must be held accountable according to the standards of the rule of law, insofar as those standards protect human rights, which is to say, defend the basic security and welfare of all citizens against the threat of arbitrary force, broadly understood.
The Widespread Acceptance of the Right of Self-Defense as Morally and Legally Justified
The reference to the right of self-defense in the preamble to the UDHR would appear to assume the universality of the right. Indeed, if the right of self-defense is as universally foundational as claimed, we should expect to discover significant acceptance of it across cultural, philosophical, and religious traditions. Of course, even if we find extensive empirical agreement, we do not thereby prove the validity of our moral claim. The mere holding of a moral belief, by however many people, does not substantiate its worth. Substantiation requires an independent normative argument, which I endeavored to provide in the foregoing section. Still, it would be peculiar indeed if a subject asserted to be of such fundamental human concern did not in fact manifest itself persistently and expansively in a wide variety of cultural, religious, and philosophical traditions. Moreover, probable evidence of widespread acceptance would provide a critical point of contact between the language of human rights and the central convictions of a large number of traditions around the world.
In attempting to determine whether these expectations are true, the following survey draws heavily upon the preliminary investigations of Jan Hessbruegge in his important book Human Rights and Personal Self-Defense in International Law.Footnote 24 The investigations are preliminary, both because they are hardly exhaustive and because they address only civil and political rights, not economic, social, and cultural rights.
Starting with the West, the story is one of struggle. “As Europe's societies gradually became more centralized entities and sovereign rulers consolidated their power, forms of violent self-help by private individuals, self-defense, were initially suppressed.”Footnote 25 In fact, France did not legalize the right of self-defense until the French Revolution. Elsewhere, however, state resistance to the concept did not prevail. In reaction to overbearing monarchs, European legal texts, beginning in the thirteenth century, started recognizing “rightful self-defense,” including killing, as morally justified.Footnote 26 By the sixteenth century, figures like the Spanish Jesuit Francisco Suarez extolled the right of self-defense “explicitly and emphatically” as “the greatest of rights,” with significant political consequences. It was, he said, “a natural inalienable right that could be exercised by subjects against tyrannical rulers.”Footnote 27 Establishing the fundamental right to defend oneself and others against arbitrary force, whether practiced by public officials or private parties, “helped to establish the substructure on which later theories of rights would be built.”Footnote 28
Until the sixteenth century, English common law similarly embodied the absolutist tendencies of early modern European governments. It did not recognize self-defense as justification for homicide but characterized it, under the principle of se defendendo as an excusable act needing a royal pardon and requiring the defendant to forfeit all goods to the Crown (not to the family of the deceased!) as recompense.Footnote 29 After a statute was passed in 1532, however, lethal self-defense was on its way to being considered justifiable homicide independent of the interests of the Crown.Footnote 30
It is also true that some arguments in medieval and early modern Europe did cast the right of self-defense in a “selfish” light.Footnote 31 It was understood by some to vindicate an individual's interests over against community interests, and while it could be excused, within limits, it could not be morally justified, precisely because it ignored the well-being of others. Self-defense was linked to the idea of individual self-preservation—more like an unavoidable impulse akin to the conditioned response of an attacked animal than a moral right. This was essentially the argument of Thomas Hobbes in the seventeenth century,Footnote 32 though Thomas Hobbes made the “selfish” impulse to self-preservation into a primary rational principle: all individuals are, in the first instance, “rationally bound” to preserve themselves at all costs and without the slightest respect for the rights of others. For Hobbes, that presumption is, of course, what causes “the war of all against all” and explains the need for a dominating unitary executive authority—the Leviathan—to impose order in the absence of any moral incentive among the parties involved to do so.Footnote 33
In truth, Hobbes indulged in a play on the word right. He took it to imply strict noninterference by others in an individual's uninhibited pursuit of self-preservation, whereas in fact the concept means an entitlement to restrain illicit behavior of others, on pain of sanction (including force, if necessary) for noncompliance, as adherents of normative natural-rights theory came to argue. That is the whole point of prescribing the four conditions of defensive force. From the twelfth century on, normative natural-rights theories warranted the restraint of behavior in accord with common moral standards. They “were not based on an apotheosis of simple greed or self-serving egotism; rather they derived from a view of individual human persons as free, endowed with reason, capable of moral discernment, and from a consideration of the ties of justice and charity that bound individuals to one another.”Footnote 34
Christian attitudes toward the right of self-defense represented another form of resistance. New Testament directives to combat evil not with force but with acts of forgiveness and kindness, leaving vengeance to God, made it difficult to justify taking life in self-defense. The directives followed from Jesus's example of self-sacrificial love as the ultimate answer to the pathology of force, namely, the danger that any exercise of force, even the most measured, can readily spin out of control. Early apologists, such as Augustine, in the fourth century CE, acknowledged the dilemma posed between Christian teaching and the moral appeal of an injunction to stand up to arbitrary force with measured counterforce, if necessary: “But as for those [who kill in self-defense], I do not see how they can be excused, even if the law itself is just. For the law does not force them to kill; it merely leaves that in their power. . . . I don't blame the law that allows such people to be killed; but I can't think of any way to defend those who do the killing.”Footnote 35 This position suggests that while the moral grounds of the right of self-defense are well-founded, Christians nevertheless have a special obligation to “go the second mile” and, out of an abundance of charity, refrain from killing an aggressor to save themselves. Augustine's ambivalence would have an abiding influence on the pacifist wing of the Christian tradition. Some pacifists tried to resolve the dilemma by arguing for a two-story ethic: the state, in the name of justice, has every right to protect the innocent by force if needed, but truly committed individual Christians ought to forgo acting on the right as a way of inhibiting the pathology of force.
On the other hand, that position would leave many in the church dissatisfied. What about innocent victims who, unlike pacifist Christians, had not themselves elected to forgo the right of self-defense? Otherwise defenseless, should they be left to perish at the hands of tyrants and oppressors for ideals they do not share and have not dedicated themselves to observe? Many Christians thought not, and over the centuries devoted considerable attention to that concern and to why it is important. In the sixth and seventh centuries CE, Western Christian leaders began invoking the idea of a natural law “common to all nations,” which “extended to the repulsion of violence by force,” something that “is never considered unjust, but is held to be natural and fair.”Footnote 36 Canon lawyers in the twelfth and thirteenth centuries developed the idea further, holding that self-defense is entirely just, so long as it is exercised according to the four conditions of defensive force.Footnote 37
In the same period, Thomas Aquinas attempted to reduce the discrepancy between Christian teaching and the natural law by arguing for the doctrine of double-effect. Any lethal act of self-defense has two effects—saving a life and killing an aggressor. Intending to save a life (one's own or another's) against an act of arbitrary force is justified, so long as the defender does not set out intending the death of the aggressor but brings it about only as an unavoidable and regrettable side effect of acting to thwart a crime. In taking a life under proper conditions, defenders do not replicate the aggressor's offense, because they do “not exceed the limits of blameless violence,” but use “only necessary violence” to repel unjust force “with moderation.”Footnote 38 The argument accounts for the essential features of the right of self-defense and accentuates the critical moral distinction between exercising arbitrary force and restraining it.
Beginning in the fourteenth century, the classic publicists on international law—Giovanni di Legnano, Francisco de Vitoria, Francisco Suarez, Alberico Gentili, Hugo Grotius, and Emer de Vattel—reflected these developments in Western theology and philosophy.Footnote 39 Drawing on the Christian discussion and Judaic, Greek, and Roman sources, each of which had its own well-developed doctrine of self-defense,Footnote 40 the publicists focused especially on natural-law arguments and generally agreed that both individuals and states possess an inherent right to defend themselves against arbitrary attack.
Grotius was a partial exception. He exhibited a degree of Augustinian ambivalence by suggesting that a claim of self-defense for a lethal act in the private sphere at best excuses the act rather than justifies it,Footnote 41 presumably because taking life under any circumstances threatens to incite the pathology of force. He was also innovative in regard to the idea of collective self-defense. In his view, the just-war tradition, which had informed Western thinking about the legitimate use of force among states since Augustine's time, had prompted the rise of indiscriminate international violence by authorizing sovereigns, with the church's blessing, to administer justice abroad as they saw fit, including punishing neighboring populations and others for heterodox religious beliefs. In reaction, Grotius proposed that the main justification for war was self-defense, giving less emphasis to the other traditional warrants—the recovery of stolen assets and the punishing of wrongdoing (and mistaken belief)—though he did permit, as an extension of the right of self-defense, military intervention in the name of protecting the victims of oppression. Grotius's focus on self-defense would have an important influence on the theory of international law right up to the modern period and the acceptance of the UN Charter.Footnote 42
British advocacy of the right of self-defense in the seventeenth century laid the groundwork for the extensive use American revolutionaries made of the right of rebellion in the eighteenth century. A leftish Puritan group called the Levellers placed particular emphasis on the right in justifying their participation in the English Civil War of the 1640s. One of their leaders, Richard Overton, spoke of “our just and necessary defense . . . by force of arms to repel and beat back the invading, assaulting enemy, whether it be an enemy for the confusion and extirpation of our persons or for the destruction and ruin of our laws, our freedoms and liberties. For bondage and slavery are not inferior to death.” He added: “it is a firm law and radical principle of nature,” undergirding “all natural rights and freedoms,” and “conveyed to all men in general, and to every man in particular,” that “by all rational and just ways and means” all human beings may “save, defend, and deliver [themselves] from all oppression, violence, and cruelty whatsoever.”Footnote 43
Possibly under the influence of the Levellers,Footnote 44 John Locke declared in the Second Treatise of Government that “whosoever uses force without right . . . puts himself into a state of war with those against whom he so uses it; and in that state all former rights are cancelled, all other rights cease, and every one has a right to defend himself and to resist the aggressor,”Footnote 45 hastening elsewhere to reaffirm the qualifying conditions of defensive force. Should it occur in the state of nature that an offender is subdued, Locke adds, the captor has “no absolute or arbitrary power” “to use a criminal, when he has got him in his hands, according to the passionate heats or boundless extravagance of his own will; but only to retribute him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint; for these two are the only reasons why one man may lawfully do harm to another.”Footnote 46
It would be hard to deny that Locke's thinking on revolution against tyranny, as well as on the theory of a well-ordered government, was of the greatest influence on the founders of the American Republic.Footnote 47 Accordingly, the right of self-defense, as formulated by Locke, provided a ready framework within which to develop the central argument of the Declaration of Independence:
Whenever any form of Government becomes destructive of the [proper] ends [of government,] [namely, securing ‘certain unalienable Rights’ that include ‘Life, Liberty, and the pursuit of Happiness’,] it becomes the Right of the People to alter or to abolish it, and to institute new Government, laying its foundations on such Principles, and organizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness . . . Governments long established should not be changed for light and transient causes . . . But, when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future Security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. [There follows a long list of ‘abuses and usurpations’ in support of the foregoing claims.]Footnote 48
Non-Western sources offer firm evidence of a widespread commitment to the right of self-defense, although there are also instances of hesitation and perplexity over the notion similar to what appears in the West. For example, Buddhists characteristically discourage the use of force in any form and, in one famous scriptural reference, praise the action of relatives of the Buddha who voluntarily submit to massacre rather than take up arms to defend themselves.Footnote 49
Nevertheless, Buddhist scriptures regularly permit exceptions to the ideal of nonviolence, including lethal self-defense. The Pattimokka, a work on monastic discipline, warns against monks raising a hand in anger against other monks, although it exempts actions of self-defense so long as they are performed with defensive intent. The Upaya-Kausalya relates the story of an act of “compassionate killing” by a Buddhist sea captain. Faced with a mortal threat against five hundred passengers, and having no other alternative, the captain killed the attacker. According to the account, he was entirely justified because he acted with the intention of saving the attacker from a grave offense (mass murder), and of preventing the passengers from retaliating in fear and anger. Equanimity and benevolence in forcefully impeding an arbitrary attack are the key qualifications of fully justified self-defense—a position strikingly close to Aquinas's doctrine of double-effect. Finally, a Tibetan Buddhist text refers favorably to an act of tyrannicide. A monk, Palgyi Dorie, earns praise for killing a tyrant out of “compassionate motives, to protect the community, and free the consciousness of the evil king.”Footnote 50
Similarly, Hinduism places great merit on avoiding the use of force, including concomitant violent attitudes, although there are exceptions, as in Buddhism. Self-defense is considered righteous and justified in the Books of Manu, which state that someone who, in self-defense or in defense of others, takes the life of an attacker who acts with murderous intent “kills in the cause of right [and] commits no sin,” whether, notably, the attacker is “a teacher, a child, or an aged man, or a Brahmana deeply versed in the Vedas.”Footnote 51 That same sentiment is repeated in the Dharma-Shastra, an ancient record of Hindu jurisprudence, which goes so far as to speak of a duty to defend one's life against imminent and wrongful threats.Footnote 52 The availability of self-defense to everyone on an equal basis is particularly noteworthy in the face of the Hindu commitment to caste hierarchy.
Despite the fact that Chinese thought frowns upon a resort to force, both private and public, an exception is made for self-defense. The principal text of Taoism, the Tao Te Ching, considers that “arms, however beautiful, are instruments of [an] evil omen [and] . . . they who have the Tâo do not like to employ them.” Force is permissible, however, even for virtuous persons “on the compulsion of necessity” and with “calm repose.” Wen Tzu's Understanding the Mysteries, a Taoist classic, states that military action involving anger, greed, and pride will produce death and defeat, while “to execute the violent so as to rescue the weak is called justice. To mobilize only when it becomes unavoidable because of aggression of enemies is called response. . . . Military action based on justice results in leadership. Military action based on response results in victory.”Footnote 53
Confucianism also generally discourages resorting to force in the conduct of statecraft but makes ample room for the principle of self-defense. Mencius, the famous follower of Confucius, strongly condemned widespread warfare in his time, but he contended that “in some circumstances military force was not only morally permissible but morally and politically obligatory . . . [, advocating] that self-defense against invasion was the responsibility of a head of state.” Following Confucius, he held that a ruler with well-developed moral sensitivity could not bear witnessing arbitrary abuse in neighboring realms and, accordingly, would be justified in slaying a nearby tyrant, thereby delivering the tyrant's subjects from their suffering.Footnote 54
Xunzi, another prominent Confucian, shared similar views, highlighting that defensive force alone is legitimate: “A person of ren (benevolence, humaneness) loves others, and because of this love he or she loathes whoever harms them. A person of yi (righteousness, justice) acts in accord with principle, and because of this accord . . . loathes whoever disrupts it. Military [force] is for banning tyranny and removing harm, not fighting for land.”Footnote 55
There is little evidence of a fully developed principle of self-defense at the interpersonal level in Chinese history, although Chinese thought contains the elements of a doctrine. A seventh century Buddhist interpretation of the I Ching, a very old divination text from before the Zhou dynasty (1046–1256 BCE), states that it is “beneficial to defend against enemies, harmoniously protecting one another,”Footnote 56 and an advisory opinion from the court of Emperor Han Wudi, of the second century BCE, emphasizes that “people must be able to defend themselves against the attacks of criminals in order to justify why there should be no restrictions on the private possession of bows and crossbows.”Footnote 57 What is more, a classic Confucian text from the middle of the same century declares that killing marauders in defense of home or community is not a crime, and the same idea appears much later in the oldest imperial documents to survive intact, the legal code of the Tang Dynasty (seventh to tenth centuries CE). That precept declares that the master of a house who slays a nocturnal intruder will not be punished unless there was reason to think no harm was meant, and so long as the master used no further force once the intruder is subdued.Footnote 58
There are some references to the principle of self-defense in Islamic sacred scriptures. From the Qur'an: “Fight in the way of Allah against those who fight against you, but begin not hostilities. Lo! Allah loveth not aggressors” (Sura 2:190); “And slay not the life which Allah hath forbidden save with right” (Sura 17:33). Also, “that which Allah hath is better and more lasting for those who believe and put their trust in their Lord. . . . And [for] those who, when great wrong is done to them, defend themselves. . . . And whoso defendeth himself after he has suffered wrong—for such, there is no way (of blame) against them. The way (of blame) is only against those who oppress mankind, and wrongfully rebel in the earth. For such there is a painful doom” (Sura 42:36, 39, 41–43). And from the Sunnah: “Whoever fights in defense of his person and is killed, he is a martyr; whoever is killed in defense of his property, is a martyr; whoever fights in defense of his family and is killed, is a martyr.”Footnote 59
Accordingly, nearly all Islamic schools of interpretation regard it as a duty to defend oneself against an arbitrary attack with lethal force, if needed. However, the act must be carried out within the limits of necessity, imminence, proportionality, and right intention. So acting, the defender faces no criminal or financial liability, since the attacker loses legal protection.Footnote 60
Finally, scholars apparently agree that “African customary legal systems generally recognize self-defense and that such recognition predates colonial rule.” Rulings are cited concluding that “killing in self-defense [is] considered a justification, because the perpetrator provoked the confrontation and thus brought his death upon himself,” and “no punishment or compensation attaches to homicide” in such cases. At the same time, some rulings, while condoning self-defense, still require a degree of compensation to the relatives of the deceased attacker, both as a way of underscoring the gravity of taking life, and as a way of precluding a cycle of violence.Footnote 61
This survey uncovers significant uniformities. Hessbruegge's preliminary conclusions appear correct, as far as they go: “Traditions all have in common that they generally consider the person acting in self-defense to be morally right and justified . . . [and] none of these traditions considers the right [of] self-defense to be a boundless license to violence. Instead, concepts such as imminence of attack, necessity, and proportionality of the defense, and [right] intent are invoked across very different traditions to circumscribe the parameters of legitimate defense.”Footnote 62
There are some deviations from these conclusions. The right of self-defense is sometimes suppressed and resisted, as in the opposition of some early modern European rulers to authorizing any use of force but their own. At other times, especially in the Christian and Buddhist cases, but also elsewhere, there is acute sensitivity to the inescapable precariousness of the practice of lethal self-defense—to the profound danger, that is, that even defensive force can easily mutate into its opposite. Similar sensitivity is displayed in the provision made in customary African law for compensation to the relatives of the deceased attacker, lest an act of self-defense become the cause of a cycle of violent retribution.
Nevertheless, what leaps out from the survey is, above all, a recurring and irrepressible commitment to the moral and legal restraint of arbitrary force. That is true in the interpersonal or private sphere, to be sure, as Hessbruegge emphasizes, but also in the public or collective sphere. Again and again, the right of self-defense is used interchangeably between the private and public spheres. In fact, it may be said that the right of self-defense begins to emerge as a compelling paradigm for the general use of force: the only legitimate use, morally and legally, is tout court a defensive one.
Hessbruegge is also correct up to a point that “not all [traditions] construe self-defense in the language of rights and obligations, which is a rather modern construct associated with Western thought.”Footnote 63 Even so, Hessbruegge himself continues to use rights language in characterizing self-defense in all of the traditions he discusses, and there may be good reasons for doing so. Given the definition of “right,” introduced above, as “an entitlement to claim (or to have claimed for one) a certain performance or forbearance under threat of sanction for noncompliance,” it is clear that all the traditions considered speak in one way or another the language of enforceable entitlement.
According to the logic of self-defense, individuals may rightly expect that they should not be killed or seriously injured by arbitrary acts, and may rightly claim moral and legal authority to use force to defend themselves in a measured way—in a way, that is, that their response does not itself become an arbitrary act. The fact that the approved sanction is the use of force automatically signals a connection between morality and law, since, among other things, law enforces morality. In the nature of self-defense, what is a moral right becomes, by definition, a legal right, a proposition abundantly confirmed in the material just surveyed. Hence, the propriety of speaking, as Hessbruegge does, of the right of self-defense in both a moral and a legal sense, no matter which tradition is under consideration, and whether or not that tradition has expressed itself comprehensively in “the language of rights and obligations” “associated with Western thought.”
Based on the preliminary evidence, then, I propose that the rudimentary ingredients of a concept of individual (and collective) right of self-defense, in both a moral and a legal sense, exist extensively across cultures, religions, and philosophies, and thereby constitute a critical point of contact with human-rights language. The further question is whether the right of self-defense is more than just a “point of contact,” and can be said to serve as the foundation of other rights necessary for defending human beings against “tyranny and oppression.” The following sections mine international human-rights documents for answers.
Is the Right of Self-Defense a Human Right?
None of the major international human-rights documents specifically lists the right of self-defense as a human right.Footnote 64 The debate among the drafters of the UDHR over whether to refer obliquely to the right in the preamble or to list it explicitly among the other rights provides a partial explanation. There was no disagreement over the existence of the moral right of both individuals and collectivities to defend against tyranny and oppression. A majority of the drafting committee, however, worried that an unqualified endorsement of such a right might encourage rebellion and thus imperil fragile postwar democracies. As a compromise, the preamble asserted the right of self-defense in a slightly disguised way.Footnote 65
Nevertheless, the right is explicitly affirmed by the official body authorized to interpret and administer the ICCPR, the Committee on Civil and Political Rights (CCPR),Footnote 66 and it is recognized in the European Convention of Human Rights (ECHR)Footnote 67 and the Statute of the International Criminal Court.Footnote 68 Similarly, the personal right of self-defense is “recognized in all of the world's major legal systems,” and, accordingly, constitutes a binding general principle of international law derived from domestic law.Footnote 69 Although applications of the principle vary, the same basic conditions defining a legitimate act of self-defense—necessity, imminence, proportionality, and right intention—“are found in virtually every legal system in the world.”Footnote 70 As such, the right is consistently recognized and applied in human-rights jurisprudence affecting private citizens, as well as police and military personnel, around the world.Footnote 71 In addition, Article 51 of the UN Charter recognizes an “inherent” collective right of self-defense, and international humanitarian law makes the conditions of defensive force obligatory.Footnote 72
One reason the international documents (and most domestic constitutions) do not explicitly identify the right of self-defense as a human right is that of the social instability that might result from officially authorizing it. But there is a deeper reason. The right occupies a unique, if precarious, status in providing the moral foundation of the entire human-rights corpus. It is not simply one right among many; it rather pulls together the entire framework of rights by offering the rationale for their defense. The right to life, and, by extension, the right of self-defense, has properly been described as “the fulcrum of rights . . . the fountain through which other rights flow, or even the supreme right.”Footnote 73 Precisely because the right of self-defense is precarious—due to its potential for causing social disorder—it can satisfactorily be secured only by proper governmental regulation, namely, by means of a political-legal system dedicated to “human rights protected by the rule of law.” It yet remains to demonstrate how it is that in its widespread, if not universal, cultural presence and in its affirmation in international human-rights documents, the right of self-defense confirms the organic unity of human rights.
The Right of Self-Defense and the Organic Unity of Human Rights
The words in the first passage quoted from the UDHR—“freedom of speech and belief and freedom from fear and want”—recall the “four freedoms” famously declared by US president Franklin D. Roosevelt on January 6, 1941, and further elaborated in his “second Bill of Rights” proposed three years later. Emphasizing that traditional civil and political rights by themselves “proved inadequate,” he outlined a set of economic and social rights, supplementary to civil and political rights, as the “new basis of security and prosperity” “established for all—regardless of station, race or creed.”Footnote 74
Consequently, President Roosevelt provided the drafters of the human-rights documents with a rhetorical warrant for combining “old” and “new” human rights, and then, several decades later, for elaborating them in legal form in twin international covenants, the ICCPR and the ICESCR.Footnote 75 As he made clear, Roosevelt perceived the grave danger represented by “the new order of tyranny” to the old rights that guaranteed civil and political freedoms. Nobody, he said, “can expect from the dictator's peace . . . freedom of expression, or freedom of religion,” and for that reason it was necessary to commit to “the preservation of civil liberties for all.” At the same time, he called attention to “the economic and social problems which are the root cause of the social revolution” enveloping the world at the time, and concluded that because “people who are hungry and out of a job are the stuff of which dictatorships are made,” the new social and economic rights must also be defended with great urgency.Footnote 76
Morsink's account of the provenance of human-rights language leaves no doubt that the drafters of the UDHR shared Roosevelt's outlook. The selection and articulation of each of the provisions, both civil/political and social/economic/cultural, can be understood only in the light of “the experience of the war.” Morsink discusses other influences, such as the Cold War, the Western tradition of natural rights, and Latin American socialism, but “none of them match the Holocaust in importance.”Footnote 77
The original human-rights corpus, at least the UDHR and the ICCPR, was conceived as an indispensable effort to impose stringent restrictions on governments to prevent the recurrence of the kind of arbitrary injury and arbitrary deprivation/neglect practiced by Hitler and other fascists. The ICESCR was a somewhat different story. While the rights it contained were drawn from the UDHR and thus bore the stamp of the World War II period, the interpretation and implementation of that document, for special reasons, would not achieve a comparable level of stringency and urgency until the late 1980s.
Basic and Supplemental Protection: The ICCPR
The distinction between nonderogable and derogable rights, presented in Article 4 of the ICCPR,Footnote 78 is fundamentally important to understanding the organic unity of human rights. It assumes that some rights are basic (nonderogable) and others supplemental (derogable), which means, among other things, that basic rights may never justifiably be suspended,Footnote 79 while supplemental rights may be when “the life of the nation” is threatened, as Article 4 puts it. Outside of such all-encompassing threats, derogable rights may also be limited in specified ways in the name of protecting fundamental public goods, such as safety, health, order, or the rights of others.Footnote 80
The central feature of nonderogable, or basic, rights is the protection they provide from the severest violations of the prohibition against arbitrary force. Most of the violations consist of willful assaults on the body, undertaken without regard to the conditions of defensive force that deliberately inflict, or threaten to inflict, death, impairment, serious injury, severe pain or suffering, or involuntary confinement primarily for self-serving or unfounded reasons, or offer an unrestrained opportunity to do so. One of them, similarly undertaken, consists of a willful assault on the mind or spirit that deliberately inflicts, or threatens to inflict, death, etc. in order to dictate fundamental convictions. To violate any of these rights is directly to violate the right of self-defense, and as such is malum in se, meaning that none of them may ever justifiably be suspended. To do so would be to condone arbitrary force.
Article 4 introduces nonderogable rights by declaring that suspending any of the rights enumerated in the ICCPR “solely on grounds of race, color, sex, language, religion, or social origin” is categorically prohibited. The implication is that such discrimination, whenever and wherever applied, rests on manifestly unfounded reasons, such as the preposterous racial theory officially propounded by the Nazis. The article goes on to identify seven nonderogable rights that may be classified as basic security rights.Footnote 81 That means that they protect against the kind of direct assaults on the vital physical security of persons that were systematically and extensively inflicted by Nazi authorities. They are: Article 6, “every human being has an inherent right to life. This right must be protected by law. No one shall be arbitrarily deprived of life.”Footnote 82 Article 7, “no one shall be subjected to torture[Footnote 83] or to cruel, inhumane or degrading treatment or punishment. In particular, no one shall be subjected without . . . free consent to medical or scientific experimentation.”Footnote 84 Article 8 (1), “no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited,” and (2), “no one shall be held in servitude.”Footnote 85 Article 15, no one may be punished on the basis of retroactive laws.Footnote 86 And Article 16, “everyone shall have the right to recognition everywhere as a person before the law.”Footnote 87 (The background and status of Article 11, prohibiting imprisonment because of an inability to fulfill contractual obligations, is unclear since it has no counterpart in the UDHR.)
Article 18, which guarantees that (1) “everyone shall have the right to freedom of thought,[Footnote 88] conscience[,] . . . religion[,] . . . or belief,” and (2) that “no one shall be subject to coercion which would impair . . . freedom to have or to adopt a religion or belief of [one's] choice,” is different from the other nonderogable rights in two respects. Rather than attending to the vital physical aspects of human existence, Article 18 addresses the vital mental or spiritual concerns—specifically, “fundamental points of view on ultimate matters,” as the drafters of the UDHR referred to them. They had in mind the inviolability of fundamental convictions concerning what is ultimately right and true, and because a threat of coercion is not a justification for believing the rightness or truth of anything, the article assumes that punishing people, or otherwise coercing them, for holding or avowing certain fundamental convictions at odds with an official religion or ideologyFootnote 89 is as egregious an example of arbitrary force as extrajudicial killing, torture, or enslavement. Such action is a classic example of inflicting force without good reason.Footnote 90
To be sure, while holding or avowing fundamental convictions is categorically protected, acting on or “manifesting” those convictions in practice is subject to limitations in the name of public goods, such as health, safety, order, or the rights of others.Footnote 91 At the same time, the limitations are not as broad as they are for derogable rights,Footnote 92 and are also subject to the conditions of defensive force.Footnote 93 What is more, some patterns of behavior, such as conscientious objection to military service, come close to being categorically protected because, interestingly enough, conscience is taken to supersede the state in regard to an individual's “obligation to use lethal force.”Footnote 94
In contrast to the other nonderogables, Article 18 presents an example of what may be called, a basic liberty right. Security rights guard against disabling conditions, while liberty rights establish enabling conditions. They ensure protected opportunities for pursuing “the full development of the human personality,” to borrow language from the UDHR and the ICESCR. The liberty to hold, avow, and, within reasonable limits, act on fundamental convictions with impunity is assumed to be essential to human existence, and to be at the heart of the moral and legal right of self-defense. Some rights combine security and liberty functions more or less equally; others emphasize one function more than others.
Derogable rights provide supplemental protection that is an indispensable part of the logic of defensive force. By guaranteeing things like holding opinions without interference and the freedom to express them, taking part in the conduct of public affairs directly or through freely chosen respresentives, and enjoying equal suffrage, these supplemental rights provide the means of holding public officials to account and thereby reduce the likelihood of the violation of nonderogable rights. They also create conditions for the peaceful resolution of differences over what laws shall be adopted and how they shall be enforced, and thereby diminish the likelihood of a resort to arbitrary force on the part of the state or its citizens.
What is more, while derogable rights may be suspended, the process of suspension is itself subject to the conditions of self-defense. Derogation may take place only in the face of a danger “threaten[ing] the life of the nation,” and thus be “strictly required by the exigencies of the situation,” in the language of Article 4,Footnote 95 or in the event that vital public goods, such as safety, health, order, or the rights of others, are critically imperiled. In short, derogation is allowable only as a necessary response to an imminent grave threat, and it must be implemented proportionately and with right intention, including, of course, compliance with the procedures of the rule of law.Footnote 96
The derogable rights listed in the ICCPR, then, supplement the basic security and liberty rights in various ways. Some of them provide supplemental protection with respect to both security and liberty. The derogable rights to freedom of expression (Article 19), to freedom of assembly (Article 21), and to participation in representative government (Article 25) have been described as the first rights that “dictators will seek to deny and destroy.”Footnote 97 That is because these rights are the first line of defense against the violation of the nonderogable rights, and other forms of the grave misuse of force. These derogable rights are crucial means for holding governments to account by subjecting laws and policies to critical, public analysis and evaluation. At the same time, they serve to liberate individuals to discuss and explore appealing ideas and patterns of behavior, individually and in concert with others, as well as to participate in influencing public laws and policies consistent with their fundamental convictions. Articles like these are, to be sure, liable to suspension in face of compelling state interests, but governments bear a weighty burden of proof in suspending them just because of their enormous importance.
Article 17 (Article 12, UDHR), prohibiting “arbitrary or unlawful interference with . . . privacy, family, home or correspondence, [or] unlawful attacks on . . . honor and reputation,” serves personal security by preserving honor and reputation. Still, the greater emphasis is on the liberty to engage in personal and familial pursuits, such as were extensively denied by Nazi authorities.
Article 27, guaranteeing the right of persons belonging to ethnic, religious, or linguistic minorities “to enjoy their own culture, to profess and practice their own religion, and to use their own language,” and to do it “in community with other members of their group,” exemplifies a partially supplementary liberty right. It is a liberty right because the protection it affords enables members to follow their own fundamental convictions unmolested.Footnote 98 It is partially supplemental because the fundamental convictions at stake are protected under the terms of Article 18, a basic right.Footnote 99 At the same time, other aspects of community life, such as speech, association, and movement, are presumably subject to the standard limitations of derogable rights.
Two additional due-process provisions constitute a second layer of security rights against the abuse of a state's law-enforcement powers, such as were extensively violated by Nazi authorities: Article 9, which prohibits “arbitrary arrest or detention,” “except on such grounds and in accordance with such procedure as are established by law,” and Article 14, which guarantees equal access to a fair and public hearing by a “competent, independent, and impartial tribunal established by law” for anyone facing criminal charges, except that the press and public may be excluded for, among other reasons, the sake of “public order or national security in a democratic society.”
Basic and Supplemental Protection: The ICESCR
Despite the fact that the new economic, social, and cultural rights contained in the UDHR were composed against the background of the Nazi record of arbitrary deprivation/neglect, the ICESCR, designed to implement the new rights included in the UDHR, does not contain the same degree of precision and stringency as the ICCPR. Several problems arose in large part because of growing tensions in the 1950s and 60s between the United States and the Soviet Union.
There was growing disagreement among the governments involved in the drafting process over the very idea of economic, social, and cultural rights, and strong opinions emerged about unique complications in trying to realize the new rights. Compared with the old rights, there was, in addition, a serious lack of significant domestic and international legal experience and of academic and nongovernmental research in respect to articulating and applying the new rights. Moreover, the monitoring committee established to interpret and implement the ICESCR was ineffectual, especially in comparison to the Committee associated with the ICCPR. As a consequence, the language of the ICESCR—which contains qualifications and vagueness that, in contrast to the ICCPR, run the risk of diluting the sense of state obligation—went unattended for several years.Footnote 100
Article 2 commits state parties “to take steps, individually and through international assistance and cooperation . . . to the maximum of [their] available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” Such a formulation appears to permit a wide range of governmental discretion—what European human-rights jurisprudence calls a “margin of appreciation”—and a substantial opportunity not granted by the ICCPR for avoiding responsibility. The difference—based on the familiar claim that civil and political rights are “negative” in obligating states to refrain from committing violations, while economic, social, and cultural rights are “positive” in requiring states to provide various benefits to citizens—is not as great as is assumed. Implementation of civil and political rights entails extremely expensive financial support for political, judicial, and law-enforcement institutions and officials. Since all rights are in fact costly to enforce,Footnote 101 and their “full realization” is never completely achieved, it is curious to apply the qualifications in Article 2 to one set of rights and not to the other.
Similarly, Article 4 of the ICESCR reads very differently from its counterpart in the ICCPR. Article 4 of ICESCR includes no comparable list of nonderogable rights, nor any comparable set of strict requirements surrounding the suspension of rights during emergencies or in response to other threats to the survival of the state. All it says is, “the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” Again, state parties, it appears, have wide uninhibited discretion in interpreting and applying the rights contained in the ICESCR.
This is an especially important deficiency since, as I argued in the previous section, violation of nonderogable rights constitutes a direct violation of the right of self-defense. Whereas the nonderogable rights provided for in the ICCPR protect against willful assaults on the vital functions of the human body and mind, so a comparable list of nonderogable rights protecting against the willful and forcible deprivation and/or neglect of the necessities of human survival should appear in the ICESCR.
These substantial shortcomings began to be addressed with the formation in 1987 of an active and effective expert monitoring authority, the Committee on Economic, Social, and Cultural Rights. The committee initiated valiant efforts toward reclaiming some of the precision and stringency in articulating and enforcing basic and supplemental rights so evident in Article 4 of the ICCPR, although the efforts are thus far not entirely unaffected by the deficiencies of the original text.
The committee conducted serious, systematic scrutiny of the reports required of state parties regarding their compliance with the standards of the ICESCR. As a result, it saw the need to clarify the normative content of the rights recognized in the covenant by issuing numerous general comments that sharpened the understanding and elaborated the requirements for enforcing those rights. These comments enunciated some narrower, practicable standards taken to be “incumbent upon every State party,” and thereby placed a new, heavier burden of proof on the state parties to demonstrate how their laws and policies meet the minimum standards.Footnote 102
Notably, the committee explicitly introduced the language of “nonderogable obligations,” “core obligations,” or “obligations of immediate effect” that suggests the idea of basic survival rights, although the language is not completely free of ambiguity. Accordingly, a “minimum core obligation” means that “to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent on every party.”Footnote 103 “If resource constraints render it impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, [its general] obligations. . . . It should be stressed, however, that a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations . . . which are nonderogable.”Footnote 104
The following example is provided: “A State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is, prima facie, failing to discharge its [core] obligations under the Covenant.”Footnote 105 “Obligations of immediate effect,” which come to the same thing, also include an unconditional duty to apply rights without racial, gender, religious, or other discrimination, and the duty to “take steps” verifiably toward “achieving progressively the full realization” of the rights recognized by the covenant.
Two areas are still without clarity. First, holding a government accountable only if “a significant number of individuals” is deprived of minimum essentials does not sound like the language of nonderogable rights. Human rights apply to everyone. Second, the language of state obligation, so prominent in the ICESCR and so much employed by the CESCR, tends to obscure the importance of rights language. State obligations exist only because of the primacy of the corresponding rights.Footnote 106
Nevertheless, perhaps enough can be inferred from the general comments, considered alongside the text of the ICESCR, to suggest an account reminiscent, at least, of the one outlined in the discussion of the ICCPR. If more narrowly construed, the above reference to “resource constraints” as placing justifiable limits on a state's ability to comply with its obligations under the covenant might be seen to parallel the language of Article 4 of the ICCPR, which permits the derogation of some rights in face of a public emergency. The idea, advocated by the CESCR, that a distinction exists between derogable and nonderogable obligations (based on corresponding rights) still requires spelling out more clearlyFootnote 107 which rights (or which parts of them) are derogable or nonderogable, and specifying in what way and to what degree resource constraints, and perhaps other considerations, permit the suspension or limitation of certain rights. Such elucidation would, of course, imply a heavy burden of proof similar to that imposed by the ICCPR on states seeking to derogate from their obligations.Footnote 108
The best we can do at this point is to suggest that the most instructive way to think about the question of basic and supplemental protection as regards the ICESCR is to consider the example introduced above. Defining “minimum essential levels” of the three rights identified in that example as constituting “nonderogable” state-party obligations—entitlements to “essential foodstuffs,” “basic shelter and housing,” and “essential primary health care”—calls to mind certain rights in the ICESCR. They are “the right of everyone,” affirmed in part in Article 11, “to adequate food, clothing and housing,” and the guarantee in Article 12.2(d) of “the creation of conditions which assure to all medical service and medical attention in the event of sickness.” Entitlements to minimum essential standards of food, housing, and medical care may be taken as basic rights of survival, or nonderogable security rights, analogous to the ones enumerated in the ICCPR, which are also, of course, mandatory for state parties.Footnote 109
Adding to the list of nonderogable rights a reference to “the most basic forms of education” is to introduce a basic liberty right. Article 13 declares that state parties “recognize the right of everyone to education . . . [which] shall be directed to the full development of the human personality . . . and shall enable all persons to participate in a free society, promote understanding, tolerance, and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the UN for the maintenance of peace.” It is important to emphasize, in passing, that the notion of a liberty right in the human-rights context is unmistakably tied to the cultivation of attitudes and virtues aimed at reducing the temptation to employ arbitrary force.
Assuming that minimum standards for satisfying basic rights to food, housing, medical care, and education can be devised, and that some specific rights mentioned in the ICESCR give expression to those basic rights, two things still remain unclear. One is whether only part of Articles 11, 12, and 13—the minimum essential standard of rights to food, housing, medical care, and education—is nonderogable, leaving as derogable the remainder of what those articles require. A second is the degree to which other rights listed in the covenant are to be identified as nonderogable or derogable. All of that needs to be clarified.
Regarding Article 9, for instance—“the right of everyone to social security”—the right to a minimum essential standard of social security might be considered indispensable for human survival and thus be classified as a basic security right. That would mean that anything above the minimum is supplemental, and anything below it is not. On the other hand, the right as a whole might be regarded as supplemental to the basic rights and thus thought of as derogable.
The same is true of Article 6, the right to work. Bearing in mind that the right, as General Comment 18 says, “should not be understood as an absolute and unconditional right to obtain employment,” but rather as freedom from forced labor of the sort practiced by Nazi authorities,Footnote 110 one minimum essential standard of the right is clearly nonderogable, namely, the unconditional right, à la Article 8 of the ICCPR, not to be subjected to slavery or servitude. However, whether anything else is intended by Article 6 to be below or above the standard of basic rights remains an open question.
The same ambiguity attends Article 7, “the right of everyone to the enjoyment of just and favorable conditions of work.” A minimum essential standard might reasonably include the unconditional prohibition against discriminatory treatment in remuneration and promotion (paragraphs [a] and [c]) and require a certain level of “safe and healthy working conditions” (paragraph [b]) and of provisions for “rest, leisure, and reasonable limitations of working hours” (paragraph [d]). Requirements beyond that might be regarded as supplemental, though whether they would be is not clear from the authoritative commentary.
The wording of Article 13, the right to education, suggests a similar distinction. The article states simply that “primary education shall be compulsory and available free to all,” (paragraph 2.[a]), whereas “secondary education and higher education . . . shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education” (paragraphs 2.[b] and [c]). It appears that requirements are less discretionary for implementing primary education than for secondary and higher education, but that inference is, admittedly, somewhat conjectural.
As the general comments on the CESCR make clear, the implication is not that governments must themselves directly supply all the requisite goods and services. Private-sector arrangements are typically indispensable, up to a point, in enabling citizens to provide for themselves. Governments are, however, ultimately responsible for how well nongovernmental arrangements meet the minimum standards, and for making up the difference where those arrangements fall short.
Just as the right of self-defense explains the nature of the categorical protections against willful assaults on the vital functions of the human body and mind guaranteed in the ICCPR by the nonderogable rights and supplemented by derogable rights, so that same right explains how it is that specific categorical protections against the willful and forcible deprivation and/or neglect of the necessities of human survival, similarly supplemented by derogable rights, were eventually established as central to the authoritative interpretation of the ICESCR.
The Collective Right of Self-Defense as a Human RightFootnote 111
In debating whether to include the right of self-defense among the other human rights or to refer to it obliquely in the preamble of the UDHR, the drafters assumed that both individuals and collectivities possess a moral and legal right to defend themselves as a last resort against arbitrary force, and most of the opinions on the subject gathered from the cross-cultural survey discussed above consistently echoed the same understanding.
Article 51 of the UN Charter clearly reinforces the idea that, under the UN system, states—as collectivities—possess a moral and legal right of self-defense. The wording of Article 51—“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UN, until the Security Council has taken measures necessary to maintain international peace and security”—refers, obviously, to states either individually or in concert. The wording even replicates the implication of the human-rights instruments that resorting to the right of self-defense is ultimately to be regulated by a supervening governmental authority, in this case the Security Council. The use of the words, “inherent right” or, in the French version, “natural right of legitimate defense,” is clearly reminiscent of the moral predilections underlying a human-rights understanding of the right of self-defense discussed so far. Similarly, modern just-war thinking, which informed the UN Charter and particularly Article 51,Footnote 112 had come to elevate the right of self-defense above other justifications in premodern thinking as a just cause for war.Footnote 113
Ironically, however, narrowing to self-defense the legitimate reasons for using force among states, in the way Article 51 does, released the right of self-defense from its human-rights mooring. For one thing, limiting the practice of permissible self-defense to “a Member of the UN” restricted the universal scope of the right as it is understood in the context of human rights. The definition of self-defense as the right to protect oneself or others from unwarranted attack attaches no restriction on the others under consideration, except for their urgent need. For another, the UN Charter redirected the use of force away from protecting human rights by the rule of law, as prescribed in the UDHR. In the categorical language of Article 2(4), “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” a position reinforced by Article 2(7): “Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state.” In effect, as the eminent international legal scholar, Louis Henkin, notes, “peace was the paramount value” of the UN Charter. The Charter was “dedicated to realizing other values as well—self-determination, respect for human rights. . . . But those purposes could not justify the use of force between states to achieve them. . . . Peace was more important than progress and more important than justice.”Footnote 114
The implications were ominous. So long as the way that a state used force did not expand beyond its territorial boundaries, no matter how badly it violated the rights of its citizens, any “threat or use of force” by outside states, or by the UN itself, seeking to intervene and curtail those violations was strictly illegal. Even more surprising, the offending state was understood to possess a “collective right of self-defense” against any such effort, should it be undertaken. The question is obvious: could a right legalizing state-sponsored armed resistance against efforts to protect the victims of arbitrary force possibly be a human right?
By 2005 and the appearance of a new doctrine, summarized in the publication The Responsibility To Protect, drawn up by the Canadian-sponsored International Commission on Intervention and State Sovereignty, the answer for at least some members of the international community was an emphatic “No.”Footnote 115 Far from standing aside in the face of severe and extensive violations of human-rights standards within “the jurisdiction of any state,” member states now had the obligation, according to the new doctrine, to override the sacrosanctity of state sovereignty inscribed in the UN Charter and to use force, if necessary, “to protect people at grave risk.”Footnote 116 This need for new thinking was inferred from the appalling results of a policy of bystander inaction prescribed by Articles 2(4) and 2(7) that occurred in places like Cambodia, Rwanda, the Balkans, and Kosovo during the last quarter of the twentieth century. Faced with the prospect of genocide, crimes against humanity, or other unthinkable human-rights violations of the kind that occurred in those places, states now had three obligations: to endeavor initially to prevent such things; to curtail them should they take place—forcibly, if required; and, afterward, to help rebuild a just and peaceful society.
In curtailing violations, intervening states should employ, where necessary, the standards of defensive force similar to the standards of just warfare enshrined in just-war thinkingFootnote 117: right authority, meaning, in the first instance, approval by the Security Council, although intervening states could claim their own authority under the right of self-defense (as authorized, at least temporarily, in Article 51) should the Security Council “fail to approve military action in a case crying out for it”; seriousness of the threat (just cause), understood as grave and extensive violations, especially of basic security rights, “either actual or imminent”; proper purpose (right intent) “to halt or avert the threat in question”Footnote 118; last resort, or the belief that “other lesser measures than military coercion will not succeed”; proportionality, or accepting that “the scale, duration and intensity of the proposed military action must be the minimum necessary to meet the threat”; and balance of consequences (reasonable probability of success), or well-founded confidence that the mission can be achieved.Footnote 119
These prescriptions begin to restore the connection between the use of force and a human-rights interpretation of the right of self-defense, collectively understood in the context of international relations. On this reading, a state caught seriously violating human rights could no longer claim as a human right the authority to resist forcibly a military operation against it carried out in accordance with the standards of defensive force just outlined. An offending state engaged in severe arbitrary abuse of its citizens is now in the same position as an individual aggressor found attacking a defenseless person: in neither case is the offender morally or legally entitled to resist armed efforts—where required and duly measured—undertaken to restrain the abuse.
Conclusion
The argument developed in this article is, for better or worse, a theoretical one. The limited, if daunting, objective is to offer a theory that calls into question strongly held convictions in political and academic circles around the world that there exists no compelling, unitary, universally resonant moral and legal justification for human rights language or for its “organic unity.” The theory, intimated by two overlooked passages in the preamble to the UDHR, dwells on the right of self-defense against arbitrary force, understood both individually and collectively, and as both a moral and legal concept. It suggests that the salience of the right of self-defense as grounds for a unified understanding of human-rights language makes perfect sense against the background of the atrocious abuses of force perpetrated by the German fascists and their allies before and during World War II, and that, indeed, the language should be understood in that context.
The theory also summons arresting, if still preliminary, evidence in auxiliary support. That there appears to be widespread cross-cultural acceptance of at least the rudiments of a moral and legal right of self-defense, both individual and collective, does not, of course, validate the basic moral argument of the article. Validation depends on a separate normative account supplied in the section on moral foundations. But such cross-cultural consensus does give reason for believing in the worldwide comprehensibility and possible appeal of human-rights language. That point of contact may become, then, a plausible cross-cultural basis for appreciating why the array of rights enumerated in the definitive human rights documents is necessary for protecting persons from arbitrary force.
Important as theorizing is, of course, it is by no means everything. In a thorough discussion, I would take up the question, regularly asserted by the critics, that, on balance, human-rights language does more harm than good.Footnote 120 In addition, we would attend to the character and effectiveness of legal remedies for violations of the ICCPR and the ICESCR, something mandated in the covenants themselves, and a subject of great controversy. We would also examine the fortunes in practice of the doctrine of the “responsibility to protect,” introduced toward the end of the article and also a topic of intense debate. The doctrine is controversial precisely because—however justified, and whether applied individually or collectively—the practice of lethal self-defense is unavoidably precarious, as the article emphasizes throughout.
All that can be pled “in defense” is the importance of taking first things first. If I have succeeded in providing a compelling theory of human rights, that is perhaps a necessary, though hardly sufficient, achievement.
Acknowledgments
Special thanks to Sumner Twiss for encouraging attention to the subject matter discussed in the second section of this article, “Widespread Acceptance of the Right of Self-Defense as Morally and Legally Justified,” to John Witte, Jr. for acute suggestions regarding refinements of the argument and the addition of pertinent material, to David Hollenbach and John Kelsay for the thoughts worked out especially in note 23, and to John Feldmann for helpful suggestions and encouragement. Abundant thanks, too, to the editors of the Journal of Law and Religion for help in further clarifying and sharpening the argument.
