19 Jul The Philosophical Underpinnings of Human Rights Norms
In response to the book, Does Human Rights Need God, there is an interesting discussion over at Mirror of Justice (see here, here, and here) about the source of international human rights. As excerpted in this post, Robert George argues that
“Most, but not all, natural law theorists are theists. They believe that the moral order, like every other order in human experience, is what it is because God creates and sustains it as such…. The absence of a divine source of the natural law would be a puzzling thing, just as the absence of a divine source of any and every other intelligible order in human experience would be a puzzling thing…. Anybody who acknowledges the human capacities for reason and freedom has good grounds for affirming human dignity and basic human rights. These grounds remain in place whether or not one adverts to the question: “Is there a divine source of the moral order whose tenets we discern in inquiry regarding natural law and natural rights?” I happen to think that the answer to this question is “yes,” and that we should be open to the possibility that God has revealed himself in ways that reinforce and supplement what can be known by unaided reason. But we do not need agreement on the answer, so long as we agree about the truths that give rise to the question, namely, that human beings, possessing the God-like powers of reason and freedom are possessors of a profound dignity that is protected by certain basic rights. So, if there is a set of moral norms, including norms of justice and human rights, that can be known by rational inquiry, understanding, and judgment even apart from any special revelation, then these norms of natural law can provide the basis for an international regime of human rights.”
In a book review of Mark Janis and Carolyn Evans’ splendid book, Religion and International Law, I wrote a few years ago that this debate over the philosophical underpinnings of international norms has raged over the centuries, in a sort of Hegelian dialectic. We started with the original 16th and 17th-century thesis of Grotius that international law is the product of “Christian civilization” and that international law is derived from immutable natural laws of God. We then had a 19th-century antithesis, represented by Oppenheim’s positivist argument that “we know nowadays that a Law of Nature does not exist” and that “only a positive law of nations can be a branch of the science of law.” With the birth of modern human rights, we seem to be at a point of synthesis. Fathered by 20th-century American idealism, we no longer believe that international law is simply a collection of rules about the “is” with no concern for the “ought.” We have discarded theology, but remain smitten by teleology. Such a synthesis embraces the prevailing view that international law is a secular discipline that requires positive evidence for its source material, but also reclaims elements of the Grotian tradition that recognize that in a pluralistic society natural law plays a far more significant and nuanced role in international theory and state practice than is traditionally acknowledged.
But you did not hear many human rights lawyers or scholars openly admitting this synthesis. In particular, to me at least one of the great jurisprudential questions in the modern age of international human rights is how does one argue for jus cogens norms without embracing natural law? Article 53 of the Vienna Convention offers a non-solution, providing that preemptory norms are those norms from which the international community permits no derogation. But this has always struck me as hopelessly question-begging. It represents a type of unrefined natural law positivism that offers no answer to the predicate question of why and how such norms would fall into the preemptory norm category, while others would not.
It seems that today we have a thick layer of positivism that represents the broad corpus of human rights law, and then a thin layer of natural law on top that reflects our highest ideals and norms. But here’s the rub. The current agenda for expanding human rights is to move more and more rights into the jus cogens category. This is done for expedient reasons: to prevent consistent objector dissension. But it is not done with any careful articulation of why this or that international norm deserves to migrate from consensual positivist justification to non-consensual natural law obligation. And if it is non-consensual, then does that not at least somewhat undercut its natural law foundation? If enough states in their collective reason, judgment, and rational choice choose to depart from the norm, then does natural law really require it? Finally, for those who maintain that it’s really all just positivism, does not the existence of some minimum number of consistent objectors suggests that the international community as a whole does not wish to require non-derogation? Unless we are all marching to the beat of the same drummer, it would seem that both positivism and natural law would logically support an argument for a narrow band of jus cogens norms. Where is the philosophical basis for a significant expansion of jus cogens norms?
One cannot discuss the origins or foundations of natural law without beginning with the Stoics.
Although I’m not a legal scholar or practitioner, I wrote an essay (unpublished) some years ago in which I addressed in a very preliminary and crude way some of the issues raised here: important questions that have yet to be addressed in a satisfactory manner.
Here’s a portion of my essay, for what it’s worth:
…jus cogens rules appear designed to serve as axiomatic-like principles of international law not unlike the role historically played by Natural Law. This conceptual link to Natural Law accounts for the status of jus cogens norms (the redundancy being morally suggestive) as overriding principles in the international legal system (including their indelibility) and the fact that, in Brownlie’s words, “more authority exists for the category of jus cogens than exists for its particular content”(Brownlie 1998, pp. 516-17). Thus jus cogens norms, in keeping with Natural Law assertions from which they are derived, are about how human beings must be treated if we are to assign enduring and universal status to men and women as, minimally, rational and moral agents. And this serves to affirm the ongoing relevance of moral principles and rational assessment to international law. Jus cogens norms are an unabashed and artful attempt to combine the notions of “is,” “ought,” and “can” while asserting the claim that man is, for jurisprudential purposes (and whatever else he may be), both liberty-loving and justice-seeking.
The relatively recent invocation of such norms in international law signals the legal system’s response to the rampant barbarism and evil that tarnished the twentieth century, crimes often committed under the cover of raison d’état. Despite its nonconsensual nature, jus cogens is not, in fact, on the same footing as “general principles of law,” for instance, collateral estoppel, reparation for damage, or equity (here, in its ordinary language or principle of justice sense); for such principles, as found within municipal law (i.e., domestic law), largely serve as “gap fillers” or supplementary rules of international law. Enumerating a hierarchical priority of application with respect to sources is irrelevant to jus cogens norms, or, if one prefers, jus cogens norms are an anomaly or exception to this schema in as much as they can invalidate (trump) other rules, notably, those of either treaty or custom, and therefore transcend any hierarchical positivist schema of international law. At the same time, a jus cogens norm, by definition, implication, and institutionalization, makes explicit reference to those values and moral principles that are infrequently and inchoately expressed and realized in the international legal system itself.
Examples of jus cogens rules are varied (and candidates even more so) and, at times, contested, but commonly cited exemplars (from an ethical perspective, a motley) include the following: the United Nations Charter’s prohibition on the use of force; the laws of genocide; the principle of racial non-discrimination; some human rights (e.g., the right to be free from torture); general rules on (collective) self-determination; and crimes against humanity. The formal function and practical effect of jus cogens is a clear and decisive legal delimitation of State sovereignty in a period marked by the diminution of State power owing to the centripetal and centrifugal forces of globalization. If jus cogens trumps the will or consent of contracting or colluding States, it formally functions on the order of a constitutional constraint, constraining, that is, the possible or actual behavior of States to the degree that such behavior detracts from, erodes, or subverts any of the constituent elements of global public order, transnational civil society, or the common good of the international community. Minimally, its articulation may have a deterrent effect, as states seek to avoid shunning and ostracism in the international community, or informal and formal sanctions from the dominant states.
Depending on one’s vantage point, the vagueness or open-ended texture of jus cogens is either political liability or ethical leverage, possibilities obscured by the “positivization” of jus cogens in the Vienna Convention on the Law of Treaties (1968, 1986), which includes provision for resort to the International Court of Justice (ICJ) in the event of intractable disputes as to the norm’s precise content or specific application. The definition of a peremptory norm provided by the Convention looks forward to its acceptance and recognition by the “international community of States as a whole.” Much rides on the precise interpretation of this clause. Apart from the vague formulation (all States? a majority? and so forth; fewer than half the states in the world have bound themselves to the Vienna Convention), it helps to explain why some insist on seeing jus cogens as an admittedly “higher” exemplification of, if not simply and merely, customary international law. A. Mark Weisburd, for example, goes to the heart of the problem: “a concept that originated in the belief that moral principles imposed legal limits on state authority—in effect, applying a natural law approach—was codified in a form that grounded limitations on states’ freedom solely on the acceptance of those limits by states, that is, in a form shaped to satisfy positivist conceptions of the nature of law” (Weisburd 2002, p. 20).
Yet legal validation through partial codification should not be confused with the use of jus cogens by jurists to yoke the international legal system to fundamental values and ends like the pursuit of justice and the promotion of public good: jus cogens’ conceptually intrinsic moral aspirations are not the same as or reducible to the conditions of its validity; nor will it do to derisively dismiss its increased invocation and application in the world community as merely “rhetorical.” Courts continue to act as if the content of jus cogens is not confined to customary international law. Moreover, as noted by de Aréchaga, the Convention’s definition confuses the legal effects of the rule with its intrinsic nature: “…it is not that certain rules are rules of jus cogens because no derogation from them is permitted; rather, no derogation is allowed because they possess the nature of rules of jus cogens”(in Cassese 2001, p. 140).
Given a full-bodied historical narrative of its foreign policy, and its recent unabashed and audacious enthusiasm for imperialist-like unilateralism, it comes as no surprise to learn that the U.S. has not become a party to the Vienna Convention owing to its “concerns about the scope of the obligation which would be assumed in respect of jus cogens…’ (Weisburd 2000, p. 23). Not surprising indeed, when one considers the fact that the chief intellectual architect of recent U.S. national security strategy, Philip Bobbitt, “ultimately regards the precepts of international law not as valid norms, binding on great powers, but as a repertoire of elastic formulas, idioms and rationalizations—essentially a loosely scripted, diplomatic language game”(Balakrishnan 2003, p. 15). Jus cogens norms can abide by the empirical possibility that, on occasion, “might makes right” (e.g. humanitarian intervention by powerful states) but their content cannot endorse this proposition—might makes right—as a normative prescription, that is to say, as the suppressed premise of the following remark from Bobbitt: “…the United States is simply not in the same position as other states, at least as long as it continues to assume global security responsibilities, and therefore should not be shamed by charges of hypocrisy when it fails to adopt regimes [e.g. treaties on land mines or biological and chemical weapons, arms-control agreements] that it urges on others”(Bobbitt 2002,
p. 691). For Bobbitt and the Realists before him, the Hobbesian state of nature prevails in international relations: “War is a natural condition of the State, which was organized to be an effective instrument of violence on behalf of society.”(Ibid., p. 819) And this is Bobbitt writing, not the Russian anarchist Mikhail Bakunin. One of the assumptions rejected by Realists (and perchance by Bobbitt as well) but fundamental to jus cogens advocates, is the cogency and desirability of a moral theory of international law. As Buchanan and Golove explain, while Realism begins as “a descriptive-explanatory account of international relations [….], Realists typically draw a meta-ethical implication from their descriptive-explanatory-theory: broadly, that morality is inapplicable to international relation (Buchanan and Golove 2002, p. 873).
Unlike the Realist, and like Natural Law principles in general, jus cogens “places the burden of proof squarely upon those who wish to justify murder or torture, untruth or inequality, rather than upon those who wish to invoke the sacred right to life, liberty, to truth, and to a measure of equal respect”(Iyer 1979, p. 60). The formal natural law properties of a jus cogens norm suggests there is an inescapably logical incompleteness to any specific formulation or codification, no doubt sufficient evidence for those eager to conclude the concept lacks operative force and practical import, and perchance one reason for the conclusion that “the status of jus cogens as an element of international law is quite confused.”(Weisburd 2002, p. 25). This goes some distance in accounting for the fact that “partly because of its perceived potency, a peremptory norm is more difficult to prove than is a usually controversial rule of customary international law”(Janis 1999, p. 64).
We await a more thorough philosophical and moral examination of international law by those legal theorists who, like Buchanan and Golove, see the need for a moral theory of international law, one that might clarify the Natural Law (or Natural Law-like) assertions presupposed or assumed by any given jus cogensrule (Buchanan 2004). A filling out of the Natural Law (or ‘Natural Law-like’) propositions that buttress a proposed jus cogens norm would clarify the intrinsic relation between moral content and legal effect or determination, while prompting the search for a rational and moral consensus of citizens and jurists alike as a prelude to partial and successful postivization. The worthiness of any proposed peremptory norm would thereby make explicit the ratio decidendi if you will, that warrants jus cogens status. And it might further serve to allay current fears about the possible political abuse or misuse of jus cogens.
The assertion and justification of jus cogens is logically and legally prior to the determination of obligatio erga omnes (obligation towards all, either distributively or collectively), that is, obligations that are universal and therefore binding on all States. As a jus cogens norm by definition concerns values and goals fundamental to the entire international community “in view of the importance of the rights involved” (Barcelona Traction case), its legal corollary is an obligation erga omnes. International crimes that rise to the level of jus cogens create obligations erga omnes that are non-derogable, including, but not limited to, the following: a duty to prosecute or extradite, the nonapplicability of statutes of limitations, and universal jurisdiction over perpetrators of such crimes. The Rome Statute of the International Criminal Court, which entered into force on July 1, 2002, aims to safeguard the rights and obligations of jus cogens norms in that domain of international law (at least for parties to the statute). Both jus cogens and obligations erga omnes permit us to appreciate the oft-forgotten truth that “International law is much more than a simple set of rules. It is a culture in the broadest sense in that it constitutes a method of communicating claims, counter-claims, expectations and anticipations as well as provide a framework for assessing and prioritizing such demands” (Shaw 1997, p. 53).