Week 9

The human rights-based conception:

Everyone, regardless of who they are or where they happen to live, is deserving of a minimum standard of treatment -->

Human rights are so basic they should be respected at all times, for every person, no matter what the cost

Violations of human rights are acceptable only if they will provide greater protection of human rights


Three general critiques:

1. The Marxist critique
2. The Feminist critique
3. The East Asian critique
   

The Marxist critique

Human rights are part of the mythology of market society, useful because they create a comforting illusion of freedom and equalityHuman rights are not universal, and serve to entrench and perpetuate market society
Free markets typically benefit a small ruling elite by violently repressing a powerless “working class”They evolved in the context of market society, ..... their purpose has always been to create ideal conditions for the functioning of a free market

The feminist critique

Human rights are rooted in a male ethic that presupposes isolated individuals in a context of natural competition
Human rights are not universal because they disregard a large branch of our moral vocabulary, i.e. concepts of community, care and nurturing
Human rights imply a vision of people as “artificial and assertive, calculating and competitive, disconnected and disadvantageous”, and downplay communal and care ideas

And by entrenching universal human rights, we inadvertently advance facets of human nature that are calculating and competitive
But, women’s liberation and indeed other liberation movements have always appealed to the notion of universal rights

The “East Asian” critique

Central claim: human rights are not universal, but instead are “arrogantly Eurocentric”
Human rights are rooted in Western European ideas about human nature and political community, which not all societies share

Orend’s answers:

The Eurocentrism criticism says human rights are chauvinistic because they originated in Western Europe... “But just because the good idea of human rights can out of Western Europe doesn’t mean other cultures should resist it.”

Alongside processes of globalization, a true cross-cultural consensus is currently evolving

• “It does not seem arrogant to suggest that everyone wants their own vital needs met, and that reasonable people agree that it is only fair that everyone gets that objects of their vital needs”Human rights are rooted in Western European ideas about human nature and political community, which not all societies share
  

Some non-European societies put a high priority on heritage, culture, family loyalty, and values of community

• If enforced worldwide, universal human rights could grind down “collectivistic values” of community, family and culture, potentially undermining whole societies

Orend’s response:

• There is plenty of room for collectivistic values above the minimal threshold

Orend’s interpretation of Just War Theory

• “A coherent set of concepts and values which enables moral judgments in wartime”The history of the just war tradition is the gradual accumulation of these wartime constraints
  
• “The principles of just war theory serve to fulfill the human rights of persons as best they can be fulfilled in times of war”

Central question:

• Where does the just war tradition acquire moral authority?
  Religious tradition?

Weight of deeply-rooted history?
Integrity of a coherent theory?
Universal human rights?
The rights of the sovereign state?
Utilitarianism?

Two current frameworks:

Orend’s human rights-based framework
vs.
Walzer’s statist or noninterventionist framework

The foundation in universal human rights

The early debate:

• Augustine --> Aquinas (AD 300-1300)

Universal moral community

• Vitoria --> Grotius (1500-1600)

Various ‘statist’ alternatives

• Vattel --> Wolff(1650-1750)(“legal positivism”)
• Hobbes --> von Clausewitz (1650-1850)(“international realism”)
• Hedley Bull & the ‘English School’(the ‘morality of states’)

Modern codification:

Hague Conventions (1899, 1907)
U.N. Anti-Genocide Convention (1948)
The U.N. Charter (1945)
Nuremburg Military Tribunal (1946)
Geneva Conventions (1949)

Modern international society:

• Everyone, regardless of who they are or where they live, is entitled to a minimum standard of treatment -->

Preamble to the U.N. Charter (Dec. 1948):

• “The peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”
• “Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms”

• Human rights violations are acceptable only if they are intended to protect other human rights (i.e. for security and stability)
  

The Responsibility to Protect (2001)



The “Post-Walzer” debate

• Walzer’s (1977) book Just and Unjust Wars set out to modernize the just war tradition.

Two propositions:

• Allies in WWII constituted a just war
• The U.S. in Vietnam constituted an unjust war

How does Walzer explain the difference?

• States have basic “sovereignty rights” like individuals have human rights within domestic society (call this “the domestic analogy”)
• We understand the rights of states just as we do individual rights: violence is acceptable only for purposes of self-defence

Walzer’s theory of aggression

1. There exists a society of independent sovereign states
2. This society establishes basic rights of members—above all, rights to territory and sovereignty
3. The threat or use of force against the another sovereign state constitutes aggression, which is a crime
4. The crime of aggression justifies two responses: wars of self-defence, and wars of law enforcement
5. Nothing but aggression justifies war
6. Once the aggressor has been successfully resisted, it can also legitimately be punished

What are the objects of Walzer’s state sovereignty rights?

• Rights of human beings (i.e. individuals)
• Rights of political communities (i.e. groups of individuals)

Which types of entity have rights?

• Primarily sovereign states
• What is the primary moral rule?

What types of argument does Walzer offer?

• The forced to fight argument
  Presumption of armed resistance
  
• The self-determination argument
  Preconditions of human rights
  The value of self-government

Walzer’s critics uniformly condemned the theory:

• Critics such as Richard Wasserstrom, David Luban, Charles Beitz, Gerald Doppelt
• Walzer’s way of anchoring sovereignty rights in the rights of individuals is unclear or inadequate
• Walzer derives sovereignty rights from an anti-human rights frameworkThe post-cold war debate:

Geopolitical context after 1989-91:

• New challenges to state sovereignty
• Economic and social globalization
• Impact of genocidal crimes in Rwanda and Bosnia

The current trend:

• Additional Geneva Protocols (1977-)
• Crimes against humanity...'
• Chemical weapons treaty (95, 02, 04-)
• Land mines treaty (97-)
• U.N. High Commissioner for Human Rights (1993)
• The International Criminal Court (1998)

• The Responsibility to Protect (2001)

The human rights-based conception

• Orend’s six jus ad bellum constraints
• Constraints are a combined package
• A war is justified only if it satisfies the full package
• A war is unjustified if it fails one constraint

Just cause
Right intention
Public declaration by a legitimate authority
Last resortProbability of success
Proportionality

Minimal justice and state rights

• Not all sovereign states have rights to territory and sovereignty
• Societies which fail to express “minimal justice” forfeit their rights against other states
• In other words, it becomes permissible for foreign nations to undertake an ‘invasive military response’

Content of the Minimal Moral Code

• Minimal justice = protection of basic human rights
• Basic human rights = Orend’s “foundational five”:
  Security
  Subsistence
  Liberty
  Equality
  Recognition