Human Rights and Dynamic Humanism [1 ed.] 9789004315525, 9789004202658

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Human Rights and Dynamic Humanism

Human Rights and Dynamic Humanism Winston P. Nagan John A.C. Cartner Robert J. Munro

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Nagan, Winston P., author. | Cartner, John A. C., author. | Munro, Robert John, author. Title: Human rights and dynamic humanism / Winston P. Nagan, John A.C. Cartner, Robert J. Munro. Description: Leiden ; Boston : Brill, [2017] | Includes index. Identifiers: lccn 2016030565 (print) | lccn 2016031126 (ebook) | isbn 9789004202658 (hardback : alk. paper) | isbn 9789004315525 (E-book) Subjects: lcsh: Human rights. | Human rights--Religious aspects. | Human rights--Social aspects. | Human rights--Economic aspects. | Transitional justice. Classification: lcc k3240 .N33 2017 (print) | lcc K3240 (ebook) | ddc 323--dc23 LC record available at https://lccn.loc.gov/2016030565

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-20265-8 (hardback) isbn 978-90-04-31552-5 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents

Introduction: An Alternative Perspective on Human Rights 1

1

The Perspective of Dynamic Humanism 7

2

Religious Values, Normative Precepts and Human Rights 31

3

Human Rights Trends in the Western History of Ideas 75

4

Ideological Contributions of Celtic Freedom and Individualism to Human Rights 92

5

Dynamic Humanism and the Human Rights Struggle 135

6

Globalization, Dynamic Humanism and Human Rights Activism 171

7

Emotion: Love, Hate, and the Human Rights’ Boundaries of the Law 211

8

Slavery, Tolerated Exploitation and Human Trafficking 278

9

Contextualizing Genocide, Apartheid, Racism, Mass Murder 344

10

Contextualizing Torture 435

11

Toward an Affection Process of Human Rights 564

12

Family, Gender, Sexual Orientation, Human Rights and the Affection Process 654

13

Human Rights and Socio-Economic Justice 711

14

Intellectual Property and Human Rights 773

15

Truth, Reconciliation and the Fragility of Heroic Activism 808

16

Transitional Justice: The Moral Foundations of Trials and Commissions in Social and Political Transformation 839

vi

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17

Peace, Justice and Transition in Colombia 862

18

Human Rights, Eco-Community Survival, Bio-Piracy and Indigenous Peoples 894

19

Human Rights and Nuclear Weapons 933

20 The Development of Human Rights and Private Sector Enforcement: The United States Experience 962

Conclusions: Moving Ahead 1011

Index 1017

Introduction: An Alternative Perspective on Human Rights This book is about human rights. Starting with the core foundations of human rights, there is a complete absence of the central animating force that generates human rights problems and generates solutions to human rights problems. The missing ingredient is human emotion. What drives human rights violations at every level is the emotion of negative sentiment which emerges as hate directed at the non-self “other.” On the other hand, the driving force for a world culture of human rights is the generation of positive sentiment. Positive sentiment emerges in the form of affection, empathy and solidarity. To embrace the universality of human rights, we must have a quantum of affection which is the foundation for universal global empathy and solidarity. The epidemic of human rights violations is essentially driven by processes devoid of affection, empathy or solidarity. We have many states with nuclear arsenals targeted at each other and these arsenals, if unleashed, would destroy all of humanity. Negative sentiment and hate drive the absolute alienation of human beings from each other. Human rights are not the gift of an omnipotent state or an abstract and unidentifiable idea of global community. On the contrary, its meaning and dynamism in social relations is a function of the activity of human beings who act as asserters, and, in certain roles, deciders, of which values count as human rights values. Therefore, the emphasis on activism and advocacy is on the human being as an articulator and defender of human rights values. The book is one that focuses on the humanistic element of the human rights process and the indicators which provide human rights a dynamism which challenges social structures to change from human rights denying to human rights affirming social and political processes. The approach is multidisciplinary, goal-guided, and decision focused. The focus on decision is on advocacy designed to influence decision and the challenges to promotion and defense of human rights values. The emphasis on the role of the individual and the subjectivities of the individual implicate the idea that humanism is a central component of the culture of human rights and the challenge this culture poses for progressive social change. This emphasis insists that the human being is the central object of all global social processes, all global power arrangements, all global constitutive processes and is at the center of the system of global public order. These emphases had been pioneered in the configurative jurisprudence associated with the Yale University New Haven School of International Law and Human Rights. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_002

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Chapter 1 introduces the concept of dynamic humanism. We draw attention to the fact that the individual in social process is a stakeholder and a claimant for human rights values. Further, these values implicate a necessary intelligence predicate, as well as the functions of promotion, prescription, application, and termination by advocates. Chapter 2 surveys the illuminating religious traditions which generate values and normative precepts that underlie the formation of modern human rights. We draw attention to the fact that religious experience, which generates value ideals, has often served as a stimulus for action to realize human rights standards. In this sense, religion is not purely a devotional exercise, but also an exercise of social activism generated by members of the community who seek a closer approximation between social practice and religious ideals. Chapter 3 places human rights in the context of the Western history of ideas. This chapter contains two parts, one general and one specific. The general part examines the development of a higher law in Western tradition. That higher law is influenced by Celtic and Greek philosophy as well as the Roman law affected by Stoic philosophy. The Western tradition, also influenced by Christian scholars such as Thomas Aquinas and John Duns Scotus, provided a deeper frame of reference for the justification of natural law as an expression of human and divine love and reason. The influence of natural law on international law is also considered, since modern human rights is an aspect of international law. This chapter underscores the problems of sovereignty-dominated positivism in the aftermath of the Second World War, and its relevance to the creation of a declaration of human rights. An overview is given of the current natural law tradition and significant proponents and critics of it. Chapter 4 emphasizes the importance of the often overlooked contributions of indigenous European cultures to the development of human rights. Attention is given to the ancient Celtic culture, ideas of Celtic individualism, the distinctive role of John Dunn Scotus, the Scottish Declaration of Independence and Freedom of 1320, i.e. the Arbroath Declaration and the Scottish Enlightenment and their subsequent influence on the late 18th Century revolutions. In these events we see an affirmative declaration of the Rights of Man, which is a precursor to the development of modern human rights. The importance of the Scottish-Celtic contribution to human rights is that it was generated by a struggle that mobilized cultural dynamism. Indigenous Celtic culture staked an early and important claim to the ideal of universal human dignity. This is an important insight because it broadens the ideals that promote human rights, including those ideals of the indigenous cultures of the world, whose voices are often times forgotten. It therefore strengthens the universality of human rights.

introduction

3

Chapter 5 addresses the critical problems underlying the promotion and protection of universal human rights values through international law. This chapter examines the place human rights holds in the contemporary United Nations Charter system. It grapples with the problem of the perceived omnipotence of state sovereignty, and the critical importance of the legal and political standing of the individual. Drawing on the evidence of the changing nature of sovereignty and the individual person’s placement in international law, it looks at the changing dynamics of globalization and the challenges that confront an individual’s human rights. Chapter 6 consists of two parts. Part one articulates the contemporary human rights problem as a challenge to redefining authority in terms of international obligation. Given the state of global change in society, we see greater recognition of individuals and greater flexibility regarding sovereign personality. We explore the classical problem of human rights abuse from the state. The chapter provides an overview of the problems of obligation in terms of global constitutional ideals, and the problems of the unruly domain of effective power within the global system. Mapping the global constitutive process of authority and developing a theory of advocacy within the broad outlines of this process are clarified. Part two explores human rights as a struggle for human dignity in terms of non-conventional post-modern theory. This approach underscores creative orientation to observation and intervention, and focuses on advocacy and decision as emphases for inquiry about values and practices. This part underlines the structure of human rights problems in terms of demands for values central to the human rights struggle. The chapter concludes with the importance of the human dignity construct as a preferred form of normative guidance for activism and intervention concerning human rights. Chapter 7 highlights the importance of sentiment for understanding and addressing human rights norms and human rights violations. Sentiment comes in the form of both negative and positive emotion. Severe human rights problems are frequently driven by a severe addiction to negative sentiment, as reflected in the emotions of hate, racism, or sexism. Conversely, human rights values universally reflect recognition of positive sentiment. Positive sentiment implicates the capacity to identify with all of humanity and with the dignity of the human person. The authors explore the crucial conditions and factors for mobilizing positive sentiment and solidarity to constrain or eliminate the consequences of negative sentiment. These are significantly new features that have been brought to the discourse of human rights. Chapter 8 addresses the topic of human trafficking, a significant problem for human rights deprivations through coerced sexual submission of its victims. The coercion characteristic of human trafficking has many of the qualities

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associated with traditional slavery. Significantly, it involves the complete expropriation of the individual’s freedom of choice, and, like the institution of slavery, leads to the extinction of respect. The chapter explores these themes, especially in regard to the property law basis for legal acceptance of slavery, i.e., the development of the idea of a contractual prisoner, the person as a chattel. Chapter 9 addresses group deprivations relating to the forms of mass conflict based on identification of the “other,” and explores the contexts in which racism, apartheid, mass murder, and genocide occur. Chapter 10 deals with the specific form of deprivation known as torture. This chapter explores the nature and context of torture as well as the description of torture under international and regional legal prohibitions. The chapter relates the process by which one of the authors, formerly the Chair of Amnesty International, usa, advanced the cause of the adoption of the Torture Convention in the United States. Thus, the chapter combines rigorous scholarship with the insights of practical advocacy. It provides a framework to understand the Torture Convention and its efficacy. The chapter further describes the strategies used to secure the ratification of the Torture Convention in the u.s. Senate. It contains information on the position in the United States on the use of torture, by any name, in the aftermath of the events of September 11, 2001. The chapter concludes with a description and appraisal of the proposed Optional Protocol to the Convention. This part is demonstrative of the importance of activism in getting the Optional Protocol adopted. It connects the problems of this Protocol with the problems the Bush and Obama Administrations have had with the treatment of detainees. Chapter 11 explores the socially-directed formation of positive affective relationships and institutions. We stress the importance of the social process specialized to affection and solidarity. This is a process that is critical to social activism for the eradication of severe human rights deprivations and the promotion of human dignity. We use the phase-mapping analysis of the Yale University New Haven School to develop a realistic and detailed description of the social process specialized to affection in society. We present another important element in the culture of human rights, a systematic description of the global social processes specialized to affection and related values. While this description has broader implications beyond the focus on human rights, it is an important contribution to a better understanding of the role positive sentiment has in the development of social processes generally and, more specifically, as an influence on behavior that generates a response to the human rights problem. Chapter 12 focuses on the human rights issues created by the institutions of family, gender, and social orientation. This chapter looks at a number of

introduction

5

issues in the context of small group interactions, where those institutions have critical relevance. This chapter underscores the problems generated by misuses of the social process of affection. Extrapolating some unique problems of the affection process within micro-social units, human rights in regard to both gender identity and gender-change are explored. Chapter 13 describes the goals of socio-economic justice and security and its effect on social stability. The authors explore the importance of social justice in a global context of human rights. Implicit in the human rights context of global economic order is a possible right to full employment. Such a right, if it exists, generates important challenges for economic theory and international human rights law.1 Chapter 14 addresses intellectual property and human rights, specifically regarding the aids crisis. This chapter provides a specific grasp of the issue of social justice and human rights in terms of the right to health care and the implications of such a right for the appropriate construction and interpretation of relevant international patent law principles. Chapter 15 examines human rights as it relates to a society’s justification for revolution. The authors explore the connection between morality, human decision making, and choice in the context of societal change. This chapter focuses on real life experience with the fragility of the heroic revolutionary protagonist. It explores the issue of truth and possible reconciliation in the aftermath of revolutionary betrayal. Chapter 16 explores the theory and morality of the new forms of transitional justice, entailing changes in the manner in which international law and human rights are structured to promote the goals of democratic political transformation. It has a specific focus on the Truth and Reconciliation approach of South Africa and its implications for human rights. Third party influences, which may suggest the exploration of the construction of peace as a human right and a component of democratic transformation, are explored. Chapter 17 provides a case study of Colombia’s experience with transformational justice. The chapter seeks to bridge the gap between theory and practice with revolutionary or transitional justice. This case study indicates that not all forms of transitional justice work in a salutary fashion. Chapter 18 focuses on the importance of the human rights of the indigenous peoples in the Amazon River Basin. Drawing on first hand experiences with an Amazonian indigenous tribe, the authors present the practical problems and theoretical implications for effectively promoting and defending the 1 Winston P. Nagan, Human Rights and Employment, Vol. 1 CADMUS No. 1, 49–52 (October 2010).

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fundamental human rights of indigenous peoples. Samples are given of the novel petitions presented to the Inter-American Commission relating to land and resource rights. A situation where rights described in treaties and other legal agreements are meaningless without effective ways of protecting vulnerable communities is discussed. Chapter 19 describes the human rights violations arising from the testing, use, and threats of nuclear weapons. It describes the complex collaboration that states, groups, and organizations must engage in to restrain or prevent such violations. Chapter 20 addresses the importance of international law to domestic and regional bodies. Specifically, the authors illustrate the role of human rights in civil litigation in the domestic courts of the United States. We provide a relevant summary of u.s. law relating to claims under the Alien Tort Statute and provide an insider’s view into the extensive litigation of In re: Apartheid.2

2 Lungisile Ntsebeza, et al. v. Daimler AG, et al. (In re South African Apartheid Litigation), 02 mdl No. 1499 (sas) (2009).

chapter 1

The Perspective of Dynamic Humanism This chapter introduces the concept of dynamic humanism which focuses on the individual as a stakeholder and a claimant for human rights values. These human rights’ values implicate an intelligence predicate and the functions of promotion, prescription, application, and termination by advocates. The authors of this book are influenced by configurative jurisprudence1 in developing a theory and method of inquiry about law that is rooted in the individual in the global social process. This book integrates the configurative perspective by emphasizing the role of the individual in the processes of authoritative and controlling decision-making. Our emphasis starts with the assumption that individuals enable the legal process itself through their roles and that law responds to individual human claims. The decision-making focus is broadened to include an emphasis on advocacy, a process which influences decision-making relevant to the defense and promotion of human rights. This approach combines scholarship, innovation and creativity stressing the dynamic aspects of human rights. Rather than explaining human rights concepts through decisions in courts, this approach is on human rights as a social goal in the process of legal and political development, a process that is furthered through human rights advocacy. The book presents a non-conventional approach to law by promoting established human rights law while generating a progressive theory of human rights as an agent of change. The book explores the multiple dimensions of human rights theory, while focusing on advocacy and change in the prescription, application, and enforcement of human rights as law. The individual is the center of both the human rights problem and advocacy to promote a solution. The individual comes with emotional drives, which are part of identifying human rights, fueling social action and understanding expectations. Recent scholarship has drawn attention to the importance of emotion in driving the problems of public order.2 In this book, the importance of affect, or positive sentiment, as a central element in identity capable of expanding to include all of humanity is considered. The role of emotion as a generator of the human rights problem is considered. The emotion of hate, or negative sentiment, is explored to understand important human rights 1 Harold D. Lasswell and Myers S. Mcdougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (1992). 2 Dominique Moisi, The Geopolitics of Emotion: How Cultures of Fear, Humiliation, and Hope are Reshaping the World (2009). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_003

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deprivations. This approach is novel because the legalization of the culture of human rights tends to rely on the objectification of human rights. A broader, more realistic view of human rights must deal with subjects that seek human rights solutions, driven by positive sentiment, and subjects that seek human rights deprivations driven by negative sentiment. Human rights are not only documents generating living expectations but require active promotion and advocacy by decision makers in society. It is important to understand human subjectivity in the evolution of conventional legal theory, because conventional legal theory tends to diminish human subjectivity. This issue is introduced by outlining the importance of contending theories about law and jurisprudence. Jurisprudence has generated powerful scholarly discourses with tight boundaries that limit inclusion. A contrarian illustration was the work of Harold Lasswell and Myers McDougal. Despite the importance of this book in expanding responsible legal theory, the work has not generated discourse to refute, accept or promote ongoing discourse about its strengths or shortcomings. It is difficult to speculate on why but one of the possible reasons is because of how it approaches the issue of subjectivity in law and jurisprudence. i

Threshold Legal Theory

Conventional jurisprudence highlights two contending schools, natural law and positivism. Natural law stresses normativity. Positivism supports a scientific perspective. From a natural lawyer’s perspective, the source of law is transempirical and law is not a matter of logical deduction or empirical verification. The approach is not scientific. The implications of knowledge informed by science require rejection of natural law with the assumption that its transempirical foundations mask subjectivity in the prescription, application and enforcement of law. In the late 18th century, Jeremy Bentham described natural law as essentially nonsense on stilts.3 Bentham’s protégé, John Austin, understood the need for a scientific theory of law and such a theory would objectively determine what law is and is not.4 Austin’s theory was a powerful theory and remains the model of the conventional view of law. Austin’s theory provides us with a central ingredient that a scientific approach brings to law.

3 Philip Schofield, Jeremy Bentham’s ‘Nonsense upon Stilts,’ Utilitas, 15, 1–26 (2003). 4 John Austin, The Province of Jurisprudence Determined (1832).

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That ingredient is that we can say what the law actually is. Austin defined law as the command of a sovereign enforced with a sanction and directed at the community which was in the habit of obedience.5 This model was simple. It had the intuitive appeal of common sense and the backing of the scientific thinking of the time. It provided an objective view of what law is and excluded subjectivity from the theory and legal discourse. The Austinian view has traction with the implication that the law is objective and exists as a structure of commands, precepts and practices functioning mechanistically, but objectively in the determination of the rights and duties of the subjects of law. A Legal Theory and the Revolt against Formalism In the late 19th century, there emerged in the United States an important discourse which engaged both theory and practice about the nature of law. One view, promoted at Harvard University by the legal legend Christopher Columbus Langdell, law existed in legal rules and precepts to be discovered by the legal scientist.6 This view was the legal version of formalism. There were critics of this view who led the revolt against formalism. American theorists at this time were influenced by the science of Austin but were skeptical of viewing law as “the formal science of positive law.”7 There was law influenced by logical science and logical empiricism and law influenced by the empiricism of social relations and interaction. Oliver Wendell Holmes insisted that the life of the law had not been logic, it had been experience.8 Holmes indicated skepticism of mechanical jurisprudence by suggesting that as a judge, he could give any conclusion a logical form.9 Holmes’ meditations, sometimes contradictory, had a tremendous influence on the future of legal thinking. Holmes was one of the leaders in the revolt against formalism.10

5 6

7 8 9 10

Donald C. Hubin, Chart of Austin Positivism in Overview of John Austin’ Theory of Law (2004). Kimball, Bruce A., Young Christopher Langdell, 1826–1854: The Formation of an Educational Reformer, J. Legal Educ. 52: 189–237 (March-June 2002); See also Speziale, Marcia, Langdell’s Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, Vermont L. Rev. 5 (1980). John Mason Lightwood, The Nature of Positive Law (1883). Mark P. Painter, Justice Olivr Wendell Holmes, Jr. (1841–1935), From Revolution to Reconstruction (2010). Oliver Wendell Holmes, The Path of the Law, 10 Harvard L. Rev. 457 (1897). Id.

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B From Holmes to Legal Realism Holmes insisted that to understand law we should look at it from the point of view of the “bad man.”11 This viewpoint was a revolutionary idea because Holmes was saying that the most realistic exploration of law and legal theory should be rooted in the individual, i.e., the self-interested claimant.12 This approach radically changed the focus of inquiry in law which had been fixed on what sovereigns and officials do to the consumer of law, the stakeholder. Holmes said that the stakeholder’s view is critical to a responsible professional discourse. The pragmatic implication of this view for legal theory is that law is a response to the problems involving stakeholders that emerged from social life. Holmes’ “bad man” is really the individual citizen consumer of law. For jurisprudence to be realistic and relevant, it must bring a focus on the consumer. Limiting the consumer to the “bad man” is Holmes’ ignorance of developments in the psychological sciences about the inner workings of personality and the subjectivity of the individual. Legal theory, at least in the United States, proceeded with an approach described as American Legal Realism. The focus of realism was on what officials do and what officials do was law. This focus provided insights into conditions that influenced officials in law or influenced decisions. Realism ensured that the study of judicial or administrative behavior used a wider set of indicators than purely legal precepts, rules and precedents. Other indicators included culture, class, crisis and personality factors. These are conditions that may influence how law is made, applied and enforced. C The Revolt against Formalism and the Social Sciences While these developments were unfolding, the revolution in the social sciences was beginning to generate traction. The study of politics and law had focused on institutions. Institutions are nothing apart from the human beings who operate them and whose benefits and deficits impact those on the outside. In the social sciences there was the idea that however the theory and method of the 11 12

Id. Holmes’ “bad man” is an abstraction that he created for the purpose of separating law from morality. Holmes viewed morality as subjective and law as objective. The bad man is one dimensional, whatever morality he has. Amore informed view of human personality is that self-interest is one of the motivational factors for human action. Action is also moved by the salience of identification as well as the importance of the cultural norms of expectation. The personality of modern man is more complex than Holmes’ one dimensional view of the purely self-interested bad man. The bad man did not broaden legal analysis. However, once Holmes opened the door to the individual consumer of law, it was not possible to close it without resistance.

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social sciences was reconstructed, science would require objective verification of data and scientific results. In this environment, Harold Lasswell, a relatively new PhD from the University of Chicago, broke onto the intellectual scene with a book that sought to break barriers from the subjectivities of the individual social participant.13 Even today this book is extraordinary, which may mean that many of the vastly important insights and challenges that Lasswell anticipated in this work are still not adequately understood. This book is a work that was reprinted several times because of its continued vitality. Yet, many of the lessons in the book have been more influential on the fringes of the discourse in politics, sociology or law. The challenges in this work have been summarized by Fred Greenstein in the following quotations from the book: Political science without biography is a form of taxidermy. Political man [displaces] private motives… on to public objects [subjecting the former to] rationalization in terms of public interest. Political movements 13





Harold D. Lasswell, Psychopathology and Politics (1986). Lasswell posed the question of in what sense psychopathology is an application of psychoanalysis to politics. He noted that he was not a professional practitioner of psychoanalysis, but a professional student of political behavior. Lasswell explained this issue as follows: We can say that the book is an “application” in at least these senses. The author was exposed to a training analysis from psychoanalysts (and from physicians or psychologists heavily indebted to Freud); he brought together the case fragments available in the literature and examined the articles and books—few in number- dealing directly with psychoanalysis and politics; he discussed theories of the interrelationship with specialists and read the existing corpus of psychoanalytic literature and the appraisals of psychoanalysis made by former associates of Freud and by exponents of other “schools”—Kraepelinian psychiatrists, Watsonian behaviorists, Pavlovian reflexologists, McDougalian instinctualists, Wertheimerian perceptualists, Sternian personalists, Angellian functionalists [to mention a few]. Lasswell also referred to the importance of developing case material of life history interviews of politically active subjects. These methods also included the technique of wide free association and references to multiple forms of subjective experience. These methods extended to the idea of the “prolonged interview.” It was from this raw subjective data that Lasswell was able to deploy psychoanalytical methods to distill the meaning of symbolic communication from the life of the individual. He was able to make an important breakthrough in distinguishing conventional analysis and categories that emerged from personalities in the pursuit of values. This permitted him to go beyond conventional roles to study the dynamism of the human personality as agitator, administrator or theorist in impacting the distribution of values in the public sphere. These insights permitted Lasswell to become one of the most important contributors to the understanding of power in society.

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derive their vitality from the displacement of private affects upon public objects. Political crises are complicated by the concurrent reactivation of… primitive impulses. Political symbols are particularly adapted to serve as targets for displaced affect because of their ambiguity of reference, in relation to individual experience, and because of their general circulation. The political methods of coercion, exhortation and discussion assume that the role of politics is to solve conflicts when they have happened. The ideal of a politics of prevention is to obviate conflict by the… reduction of the tension level of society by effective methods of which discussion will be but one.14 ii

Human Subjectivity at the Center of Social and Political Sciences

The approach to the political aspect of the social sciences that Lasswell was exploring had been left to the insights of philosophers who provided generalizations about human nature often presented as obvious truisms. Lasswell had studied the main works of Freud as a teenager. He digested a significant amount of Freudian insights into personality dynamics which remained with him for the rest of his life. Lasswell saw a problem in the social sciences that scholars had not generated an understanding of the structures and interdependencies of the human personality. An insight into these structures and functions led him to declare boldly that the traditional focus of the study of politics and law on institutions was like a form of ‘taxidermy.’ The institutions make sense and generate knowledge and insight when we realize that inside the institutions are the human personalities giving dynamism to such knowledge and insight. That dynamism influences the larger socio-cultural environment and the personality types in it. The technical question of a scholar was how to frame a credible focus of inquiry connecting personality to culture and culture to personality. Lasswell saw in Freud’s approach a key to the exploration of personality for the purpose of therapeutic intervention and a deeper appreciation of the importance of personality in the values shared by the larger community. In his work on psychopathology, Lasswell provided an overview of the psychiatric sciences as well as Freud’s place in it. His use of Freudian ideas was not precisely shaped by Freud’s insights. His approach provided categories for inquiry distinctive to his own project. Although his work was 14

Id.

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rooted in the Freudian intellectual tradition, Lasswell used the psychoanalytical starting point to explore the factors that move people to political action and explore the insights that relate to human impulses, emotions and creative thinking. Lasswell’s adaptation of Freud’s insight into personality, for social science purposes, represented a subtle but critical nuance from the basic Freudian model. Freud’s model of personality was reduced to the ‘id,’ the unconscious, the ‘ego,’ the conscious, and the ‘super ego,’ the conscience.15 Lasswell’s adaptation placed personality in terms of the subjectivities of perspective. There are perspectives of identification which are more inclusive than simply the ‘id’ and perspectives of demand for explicitly articulated values which are more inclusive than simply the ‘ego.’ There are perspectives of expectation which combine culture and context. The psychoanalytical perspective touched on a very old question, “know thyself,” but approaching this question recognized that there are more tools for understanding embedded in the human personality. Psychoanalysis could disclose these tools for the enrichment of mankind. Lasswell’s conclusion about the implications of newer techniques of thinking was stated as follows: We have tried to cure the failures of logical training by homeopathic doses of sermonizing, rather than by the discipline of supplementary techniques of using the mind. The mind is a fit instrument of reality testing when both blades are sharpened—those of logic and free-fantasy. Until this fundamental proposition is adequately comprehended, the professional training of judges, administrators, and theorists will continue to furnish discipline in self-deception rather than self-analysis.16 A Human Subjectivity: The Political Man (Homo Politicus) The direction of Lasswell’s inquiry from these insights permitted him to focus on the connection between the political man and its link to personality development. Lasswell emerged with an enormous intellectual breakthrough. The formula for understanding the political man is: p} d} r = P where little ‘p’ stands for private motives; little ‘d’ stands for displacement onto public object; ‘r’ equals rationalization in the public interest; and ‘P’ equals the political man which emerges from the social process. Lasswell’s work on psychopathology covered the classifications of political agitator, political administrator and the intellectual theorist. His analysis designed to clarify the motives of political 15 16

Sigmund Freud, Introductory Lectures on Psychoanalysis (1977). Lasswell and Mcdougal, Jurisprudence for a Free Society, supra note 1, Vol. ii, 37 (1992).

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man reflected his use of Freudian techniques for eliciting motivations of the personality system.17 Lasswell’s central skill was his ability to interpret symbols in terms that explained the nature of the political personality. Lasswell mastered the technique of prolonged interview and how to express its meaning objectively. Lasswell developed a working understanding of the personality system and its complex reactions. The average social scientists would have very little exposure to this kind of technique or indeed its technique of interpreting the signs and symbols that emerged.18 Lasswell’s methods led to insights into the personality dynamics that shaped the person’s exercise of power and raised questions for further inquiry. These questions included locating the power participator’s position in social and power processes19 and led to the development of the technique of contextually mapping the social process and the power process. These maps were crucial for understanding the issue of power in society. A further issue about the interrelatedness of power and personality was the question of how personality exercised power. Lasswell saw this in terms of decision. When the personality exercised power, it utilized the power of decision. This discovery required exploration of the structure and functions decision-making. Lasswell and McDougal summarized the seven decision functions which were outcomes of decision according to power, authority and control; 1.

Intelligence: The gathering, processing, and dissemination of information relevant to decision; 2. Promotion: The active advocacy of policy alternatives; 3. Prescription: The projecting of a community policy which is both authoritative and controlling; 4. Invoking: The provisional characterization of events in terms of a prescription; 5. Application: The relation of community prescriptions to particular events with sanctions;

17 18

19

This insight probably derived from the technique of the prolonged interview and the skill of interpreting signs or symbols disclosed both, consciously and unconsciously. Lasswell and McDougal’s views on the dynamics of personality are summarized in Jurisprudence for a Free Society, Vol. i, 591–630 (1992); their views on the political personality are summarized in pages 631–682; their views on political culture are summarized in pages 683–722. On Contextual Mapping see Lasswell and Mcdougal Jurisprudence for a Free Society, Vol. i, supra note 1 (1992).

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15

Termination: The putting of an end to prescriptions and arrangements made in accordance with prescriptions; Appraisal: The intelligence function focused upon past decision and decision process, including ascription of responsibility.20

7.

Analyzing the components of decision is an important intellectual breakthrough. This analysis means that a decision may be the subject of disciplined inquiry and implicate responsible concern for the values in the operations of decision-making. From this perspective, jurisprudence has a crucial focal point for an inquiring system and the focus would be on decisions that are authoritative and controlling. This insight is remarkable because it generates a focus from the global macro level to the micro level decision-making. The insight explores the subjectivity of the decision-maker in terms of how the functions of decision are understood and expressed on the universe of social participators. These insights into human subjectivity and the exploration of decisionmaking provide challenges as to how decision-making may be constrained or enhanced. These are the challenges represented by the development of jurisprudence as inquiry about law. Lasswell’s insights resulted from his experiences in using psychoanalytical techniques to explore the biographical workings of the subjects that he studied. His work gives insights garnered from this experience with psychological and/or biographical interviews.21 Lasswell thought that the data he collected 20

21



Lasswell and Mcdougal, Jurisprudence for a Free Society, supra note 1, Vol. i, 93 (1992); For a fuller description of decision functions see Vol. ii Part iv, The Structure of Decision in a Free Society 1131–1262 (1992). The psychoanalytical view carried with it techniques that Lasswell developed with regard to the political man. He was able to distinguish the sequence of political action. This sequence includes symbols, signs, movement and materials. It was especially important that the identification, comparison and measurement of signs and symbols relevant to politics be credibly interpreted and explained. Psychoanalysis provided tools to elicit and understand the symbol mechanisms of the individual personality. For example, the idea of projection, introjections and condensation are concepts drawn from the methods of psychoanalysis but and are vital to the interpretation of the symbols generated by the psyche. The sophistication of Lasswell’s adaptation of psychoanalytical methods is evident in the way he reconstructed its concepts and methods to explore the identification and salience of human perspectives, which he cast in terms that could be compared and measured from a social scientific perspective. For example, the symbols that Lasswell generated from his empirical work were symbols of identification, demand and expectation. Lasswell explained the development of these ideas as follows: In describing symbol events, it is useful to draw sub-distinctions among symbols of “identification,” “demand” and “expectation.” The “I,” “me” events are “primary ego”

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was an important source of empirical knowledge about political behavior.22 Indeed, when he left the University of Chicago, he arranged for the transportation of all the data he had collected. Regrettably the transportation had problems and all his documentation was destroyed. The focus of Lasswell’s work was initially unexplored or poorly understood. Both conventional law and the social sciences were disquieted by the idea that the foundations of each approach were rooted in human subjectivity. Both law and social science were influenced by the idea that science and scientific laws were matters of objectivity and verification. Lasswell did not believe that social science or law would be scientific if it could not develop methods of inquiry and analysis to account for human subjectivity. After publication of Psychopathology and Politics, Lasswell continued to expand the insights of personality dynamics into world order and he produced World Politics and Personal Insecurity23 Shortly after World War ii, he produced Power and Personality which was a synthesis of his earlier ideas that policy has to be understood in identifications; and the symbols of other egos may be included with a primary ego to comprise a “self.” Some symbol references are to non-self egos; these are “other selves.”  The demand symbols are “preference s” and “volitions” for outcome events (values). These may be classified according to power, wealth, respect, affection, skill, enlightenment, well-being, rectitude. We find that each value is in some degree demanded by the “self as a whole” and also on behalf of each “sub-self,” such as the family, political party, nation, and so on.  The “expectations” are the matter-of-fact references (excluding the symbols of identification).  We must distinguish events that are “fully conscious at the full focus of waking awareness” from those that are “marginally conscious,” “preconscious,” and “unconscious.” Furthermore, it is essential to take note of the phases through which an “act” may run to completion and the modes of interference or facilitation that occur. Lasswell, Psychopathology and Politics, 282–83 (1986). 22 We should not under-estimate the importance of Lasswell’s mastery and adaptation of the techniques of psychoanalysis and its application to the science of politics. In particular, Lasswell draws attention to the complexity of the role of the interviewer, because the interviewer brings to the interview the interviewers own framework of subjectivity. Moreover, the Freudian approach needed modifications to secure its credible integration into the theory and method of social sciences. It is unlikely that a person untrained in such methods of interviewer/interviewee interaction would be able to mediate the complexity of the inter-stimulation of the subjectivities of both parties. Lasswell provided a list of questions to guide the inquirer and the subject. From a review of his questionsand interpretation of symbol events, Lasswell had trained himself in psychoanalysis in a manner comparable to a formally trained analyst. This is a model that is difficult to emulate on a large scale. Id. at 288–90, 292–93, 329–35. 23 Harold D. Lasswell, World Politics and Personal Insecurity (1965).

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terms of decision-making which is dependent on understanding personality dynamics.24 Lasswell and McDougal: Human Subjectivity at the Heart of Jurisprudence There is evidence in Lasswell’s writings about the importance of his personality and cultural insights into law. He acknowledged that he needed a lawyer collaborator sympathetic to his approach to generate a fruitful collaboration in the development of his ideas. He found that collaborator in Myers Smith McDougal, a Yale Law Professor. McDougal was widely read inside and outside of the law. He had been classically trained in the jurisprudence and legal history of the Oxford School and was well-trained in the conventional approach to law and society. When McDougal came to Yale, Yale had become a leading American law school promoting American legal realism. Legal realism set out to prove that law could be deconstructed so the conventional understanding could be demolished. Although Yale experimented with some interdisciplinary perspectives, this did not amount to the next step for legal theory or education. It was in this context that McDougal was able to bring Lasswell to the Yale law school to teach an experimental course that would seek to fill this gap. It took them almost fifty years to produce their work on jurisprudence and legal theory, Jurisprudence for a Free Society.25 This study approached jurisprudence in a way that was entirely novel. The most controversial part of its novelty was the place of human subjectivity. The idea was to make law and legal theory an important part of a social science. The role of jurisprudence would be that it was a theory for inquiry about law. The position of the inquirer and the participator must be considered. The inquirer will come with the subjectivities of an inquirer and self-examination is important for a standpoint for inquiry. Lasswell and McDougal saw the establishment of a standpoint for inquiry to be rooted in the creative orientation of the inquirer bringing the subjectivity of creative orientation to the focus of the tasks of inquiry. This approach still remains controversial. The critical question in law is to obtain the appropriate focus of the inquirer. Drawing from the insights of pragmatism that law is an authoritative and controlling response to the problems that emerge from society, the critical question for the inquirer is the identification of the problem and the participators who generate it. This approach does not separate the problem from the individual generating the B

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Harold D. Lasswell, Power and Personality (1948). Harold D. Lasswell and Myers S. Mcdougal, Jurisprudence for a Free Society, Vols. i and ii (1992).

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problem or a response to it. This separation requires tools, such as contextual mapping, to specify what the problem is distinct from an assumed construction of the problem apart from the subjectivities of the individual claimants. This approach is a matter of great controversy in conventional legal theory because law is to be seen as a problem of hierarchical order. A problem is only a problem when the sovereign says it is because the legal system is cut-off from the social reality of problems emerging from the stakeholders in the social process. Holmes suggested that if we wanted to realistically understand law we should look at it from the point of view of the “bad man.” The “bad man” is one dimensional; his only concern is an assumed self-interest. Still, when Holmes focused on the “bad man” it is not too much of a jump to suggest that the “bad man” represents the ordinary social participant. When we make this jump, the starting point of legal inquiry is the subjectivity of the individual citizen social participant and when we consider that effective political participation is uneven, even in a democracy, then the idea of law accounts for all the social participants. There are many excluded classes such as gender-deprived, racially-deprived and economically-deprived. Lasswell and McDougal’s view represents the radical idea of legal and social inclusion. This view is resisted in conventional jurisprudence and there is resistance to the jurisprudential implications of the theory and method of jurisprudence from the policy oriented perspective. The idea that law may be aiding and abetting in the area of exclusion has been an important modern political challenge and partial approaches to jurisprudence have attacked the issue of the exclusion of women, gays, African Americans, Hispanic Americans and human rights claimants. Most of these approaches have directly or indirectly been influenced by the work of Lasswell and McDougal. C Human Subjectivity and Justice Another area of subjectivity remains highly controversial in legal theory and represents jurisprudence from the perspective of the policy sciences. One of the important assumptions made in jurisprudence is that inquiry must be subject to normative guidance in terms of value production and distribution. The problem is that an inclusive standard, which serves as a guide to inquiry, cannot be objectively stipulated. In this work, the approach agreed upon was that it would be an innovation to postulate the end normative goal value. Postulation is a standard for which the inquirer assumes personal responsibility. Postulation is an improvement on inquiry that implicitly assumes values but does not make them explicit. This assumption has led to the criticism that if jurisprudence, as a theory for inquiry, is guided by subjectivity it does not meet

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the demand for objectification and suggests that the fundamental value postulate may be arbitrary and not subject to critical appraisal and analysis. The problem is that there has been limited articulation of the theory of justice that is to guide fundamental decisions in the policy process. The discourse in this area has been monopolized by moral philosophers. If one wants to validate a theory of justice or a moral principle, then validation does not follow the normal rules of logic in which there is a formal validating source, such as the sovereign or some assumed criteria of validation. Moral propositions are validated by the coherence of arguments about the justification of a moral precept or the idea of justice. There are three vital studies that address these issues. First, there is the study of John Rawls. He presented a tortuous analysis of the general conception of justice in which he stipulated [A]ll primary goods—liberty and opportunity, income and wealth and the bases of self-respect—are to be distributed equally unless an unequal distribution of any and all of these goods is to the advantage of the least favored.26 Amartya Sen provided a response to Rawls in his book, The Idea of Justice.27 Sen saw Rawls’ book as limited by the artifice of a social contract and the limits of its value globally because he did not adequately grapple with human rights injustices. Sen sought to provide a more contextual approach to the idea of justice with suggested procedures for application. Sen’s approach tracks the conventional wisdom, which demands an objective justification for the idea of justice. Finally, the most recent work of Ronald Dworkin, Justice for Hedgehogs28 represented an effort to objectify a commitment to human dignity. These approaches, although different in theory and method, approach the postulated principle of goal guidance of the jurisprudence of the policy sciences. The principle is that the goal of law and the policy process is to secure the widest processes for the shaping and sharing of universal human dignity. Another study considered the ways in which modern theories of justice are reconcilable with the approach in the policy sciences. The gulf today is very small.29 It is in the area of subjectivity relating to the claims that human 26 27 28 29

John Rawls, A Theory of Justice (1971). Amartya Sen, The Idea of Justice (2009). Ronald Dworkin, Justice for Hedgehogs (2011). Winston P. Nagan, Human Rights, Liberty & Socio-Economic Justice: Economic Theory and the Ascent of Private Property Values, Cadmus, Vol. i, No. 2 (April 2011).

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subjects make for values that the ‘Q Methodology’30 for the measurement of subjectivity provides an objective indication of what people are demanding in responses to their claims for value. The measurement of human subjectivity is an indicator that we can work objectively with attainable measures of human demands. Such an approach should at least in theory weaken the claims from conventional jurisprudence that subjectivity is arbitrary and not amenable to the determinability of measuring techniques. The modern developments in the theory of justice and the appropriately constructed experiment for the measurement of global social justice, as informed by the human dignity postulate, should dispel the criticism that goal values postulated in policy-oriented jurisprudence are arbitrary and subjective. In exploring goal values and human dignity, the importance that the policy sciences bring to value judgment has not been fully explored. This approach is insurance for the analyst that disciplined procedures for clarifying and grounding content assures a measure of analytical acuity and descriptive accuracy for relevant inquiry into law and justice. D Accounting for the Subjectivity of the Inquirer Historically, it has been important to establish the objectivity of the observer from the phenomenon that the inquirer is exploring. Since the approach of Lasswell and McDougal was designed to make jurisprudence an inquiring system, it became important to give attention to the complexity of an observational standpoint of inquiry. In the context of the social sciences, the observer is confronted with ambiguity. The observer is a member and participant in social interaction. The observer must detach himself from the social process that he is studying. At a deeper level, he has complex elements of identification, complex demand perspectives and internalized cultural norms and expectations. The observer comes to observation with a framework of values which may not be clearly understood or even consciously expressed. The observer must confront his own subjectivity and its value implications when discharging his function as observer. The observer’s interest is a matter of deep, possibly unconscious, elements which inform a creative orientation to the focal point of the observer’s interests. The choice of focus is a matter of consciousness of human subjectivity. 30

Job Van Exel and Gjalt De Graaf, Q Methodology: A Sneak Preview (2005) available from www.jobvanexel.nl; see also Steven Brown, A Primer on Q Methodology, @ Operant Subjectivity 16, 91–138 (1993); see also Dan Durning, Natalia Gajdamaschko and Salty Coleman Selden, Q Methodology as an Instrument for Teaching Public Policy Analysis, J. Public Admin. Educ., Vol. 3, No. 2, 243–47 (May, 1997).

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Since the creative focus implicates values, the observer is tasked with the obligation of rigorous self-scrutiny. This task is the scientific version of the Socratic idea of “know thyself.” Such scrutiny in law, where scholarship may influence policy and policy implicates the allocation of basic values, causes the inquirer to make a choice about the values that are existentially important to him and use those values as a guide to the inquiring system for the discharge of his inquiries. Lasswell and McDougal maintained that the foundational value of the policy process is that it promotes a public order of universal human dignity. The indicators of human dignity maximize the production and the distribution of the basic values that inform the ideals of universal human rights. This preference is one that Lasswell and McDougal felt could not be established as a matter of scientific objectivity. It was an explicit postulate whose main function was to guide an inquiring system. Since this postulate is subjective, it guides jurisprudential inquiry on the foundation of the subjectivity of the inquirer. This approach counters conventional wisdom in the social sciences and is viewed as somewhat heretical in the context of conventional jurisprudence. The task of conventional jurisprudence is to create both a description and a justification of the legal process on the basis that all premises are objectively ascertainable and verifiable. This issue continues to be a matter of serious intellectual contestation. The position of most conventional law insists that law is objective and morality, justice and values are subjective. Positivism still insists on a separation of law from morals and values. This rigid distinction was modified after the World War ii when law was used to enhance an institutional form of indignity and destruction. There was modest retreat in conventional law circles about the exclusion of moral sensibility from the discourse in legal theory. The emergence of value-laden human rights law promoted a more contentious and interesting challenge to both conventional and newer paradigms of legal theory. The issue of specific interest to the policy-oriented jurist is the status of the idea of justice itself. Conventional moral philosophy and jurisprudence require that the concept of justice can only be established by a process of reasons that are coherent and external to the statement-maker. The development of methods for measuring subjectivity regarding a universal embrace of human dignity provides the criterion of objective measurement of shared subjectivities concerning the most fundamental values that human beings cherish. This area is one in which jurisprudence of the policy-orientation could benefit from carefully crafted studies of the ‘Q Methodology’ in terms of shared value perspectives. The inquirer’s influence on the social and legal universe involves the complexity of the observer being a participator. Modern developments in quantum physics have demonstrated that when observers observe the subatomic world,

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the observer is a participator in the physical universe. The evidence that the act of observation may change the behavior of an electron or photon implies that consciousness has an effect on reality. This evidence has led to three important interpretations of observation, consciousness and its influence on reality. The first is the Copenhagen interpretation identified with the physicists, Neils Bohr and Werner Heisenberg. According to this interpretation of quantum reality, the focus of the observer’s consciousness determines which reality possibilities will become the reality for the observer. The second effort to understand the interplay of observation, consciousness and reality is owed to Princeton physicist Hugh Everett iii. His approach is known as the many worlds interpretation of quantum reality. In his view, reality has infinite possibilities which already exist, each in its own universe. The focus of the consciousness of the observer determines which possibility becomes reality. A third influential interpretation is the interpretation of Sir Roger Penrose of Oxford University. According to Penrose, there are many reality possibilities. These possibilities ultimately collapse into a single reality because it requires too much energy to sustain them all indefinitely. While all the possibilities exist at some point, the state that needs the least amount of energy is the most stable and the one that we experience as our reality. All these theories coalesce around the basic idea that the observer observes with human consciousness, and that consciousness represents a deeper understanding of the components of personality. Human consciousness has a complex connectivity with physical processes as we influence reality.31 The problem with the measurement of subjectivity is that the different perspectives may lead to poor clarity in terms of what those perspectives mean. The observer must not only clarify his own position, he must be clear about 31

For a speculative and interesting appreciation of the new physics and human consciousness see Gregg Braden, the Divine Matrix (2007) and Michael Talbot, the Holographic Universer (1991). The issue of a scientific explanation of the idea of human consciousness is still elusive. Professor Barclay Martin has noted that we still don’t know how the brain actually works to create consciousness. He states for example: “Does anyone has the foggiest idea of how a bunch of firing neutrons in any kind of network produce consciousness?” Experts in the field such as John Searle agree that while we can identify consciousness we do not know how it is created. It is still a mystery. He does acknowledge that there have been other spooky mysteries that modern science has been able to unpack. Modern consciousness is one of these mysteries. He also notes that interpretation in quantum mechanics is also a matter of some mystery. However, Searle maintains that the fact that consciousness is still a mystery does not mean that we may never have a means to explain it. Exchange of Letters in The New York Review of Books, Vol. lviii No. 14, 101 (September 29, 2011).

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the implications that they assume. The observer must explore the problems of subjective claimants and make a determination about whether the subject genuinely understands what is being demanded. The observer will have to ensure that he does not collapse his own view into that of the participator or the participator into his own. The observer has a complex task of understanding the participator’s problem from a different vantage point. Distinguishing real problems from problems driven by pathologies or dysfunctions is a critical function of the observer to clarify the nature and scope of problems that require authoritative and controlling interventions in the common interest. The inquirer must develop tools of interaction with the subject in order to distill what the primary subjective expression means in any particular context. Lasswell’s adaptation appears to simplify this for a social science user. It may be that the ‘Q Methodology’ provides more certainty to the measurement of the meaning of perspective. Psychoanalysis appears to have only a marginal placement in legal education and putting the human personality into the center of inquiry, into law and social process, remains an important aspiration for legal theory as well as political social theory. E Human Subjectivity and the Perspectives of Configurative Thinking The insights of Lasswell about the nature of thinking and indicated in Psychology and Politics inspired Lasswell and McDougal to explore new frontiers of the process of thinking itself as a challenge to the new age of science, technology and communication. They saw their jurisprudence book not simply as defining a theory for inquiry, but defining a new and relevant challenge to the very process of critical thinking. The best label to be given to the form of thinking presented and based on the personality foundations of their thought is configurative thinking. Although their book uses the term ‘policy thinking,’ this term is inadequate. Configurative thinking is multi-dimensional thinking which requires the development of contextual maps which permit the inquirer to move from point to point on the map, identify problems in that contextual location and then deploy five distinct but interrelated forms of thinking.32 The first of the five forms of thinking is goal thinking. Goal thinking is distinct from trend thinking, which is thinking along a timeline of historical projection from the past through the present and into the future. Distinct from these forms of thinking is the conventional form of scientific thinking, which is thinking in terms of conditions, causes, and consequences. Projective or futuristic thinking is the fourth form of thinking. Finally, there is creative thinking, which 32

For a full discussion of the five intellectual tasks see Lasswell and Mcdougal, Jurisprudence for a Free Society, Vol. ii, 725–1128 (1992).

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enhances the element of human creativity in the tasks of problem-solving. Configurative thinking confronts conventional jurisprudence rooted in a limited tool kit of intellectual tasks. Challenging the conventional wisdom of legal thinking is as provocative as trying to make the individual count as a unit of the legal universe and be the beneficiary of human dignity implications of the policy approach. iii

How Law Authoritatively Addresses Value Conflicts

Pivotal to understanding the conflicts of our time is the issue of fundamental values. An approach is to view this issue from a problem- oriented approach to human rights. Leading scholars have indicated that the human rights problem is the difference between the values that people want and the deprivations that they experience.33 The tension between the access to basic values and the deprivation of access represents the crux of the human rights problem. The value of this orientation is that it generates a focus that is relevant and realistic to the challenges presented by human rights. Using a problem focus is an important orientation for the scholarly exploration of the challenges generated by the human rights aspirations of the world. The formulation, in terms of aspiration and achievement, is simple and elegant and it implicates an incredible level of complexity for many disciplines. These disciplines include law, social science, and even intellectual tensions between the science and the humanities. The basic question that emerges is that the value discourse requires more specific analysis and clarification. What values are we in fact discussing, inquiring into, claiming, prescribing, applying, evaluating, and creating? Even more skeptically, who dominates the narratives that implicate value preferences? Those actors who assert claims for human rights values have the power to vindicate and appraise the discourse about the claims, prescription, application and creation of values and their distribution. The identification of role players in value discourse and the value-policy process sharpens our concern for how the various players obtain their demands for values and why they value these particular values. An even more pertinent concern is the extent to which such values impact the form and substance of moral order, ideological systems, legal regulation, political culture and culture in general. Consequently, there will be a quest for determining why values are legitimate, valid, authentic or authoritative for the community as a whole. 33

Myers Mcdougal, Harold Lasswell, and Lung-Chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980).

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The presence of values significantly complicates scientific inquiry into social process. Social scientists are concerned about measuring values. The question is whether social scientists seek to measure values for enlightenment, curiosity or for public order purposes. The process may involve other values. For example, one may wish to measure values to determine whether a community believes it is free, just, or tolerant. Such an inquiry could advance an understanding of community expectations about values. One may seek to measure values because this measurement might indicate the weight to be given to such values in policy processes. The interest in the measurement of values may be a matter of intellectual curiosity, i.e., knowledge for the sake of knowledge. A Values The problem of values, value preferences, and the standpoint required to explore these issues must be further clarified. In configurative jurisprudence, values are defined as human preferences, things people want. Values are not preferences from the point of view of an observer, but only from the point of view of those who are observed. There is real complexity between observation and participation. Observers observe other value- conditioned behaviors. These behaviors are complex, since they emanate from human beings whose behaviors reflect their own individual subjectivities. These subjectivities reflect self-awareness and identity, expression of human wants and gratifications and human socialization in culture and society. The literature in law and human rights lacks an adequate conception of the self and personhood in terms of human subjectivity. The interdisciplinary tools used to identify the components of human subjectivity, including the perspectives of identity, perspectives of demanding or claiming and perspectives of expectation, enrich our inquiry. From the standpoint of empirical inquiry, very distinctive value formulations are implicated in the concerns for who one is, what one wants and what subjective expectations one holds for cultural socialization. The anatomy of subjectivity as used in configurative legal theory is very complex and necessary. Configurative legal theory is a theory for inquiry in the problems generated by human beings which implicate human rights decision processes. Although law, with its concern for objectivity, addresses problems and the standards by which these problems should be resolved, it lacks the realistic predicate that is the subjectivities of the stakeholders that generate the problems in the first place. Subjectivities weave into and out of the functional value categories used for the description of any articulate social process. Thus, we are not concerned with the legitimacy or the validation of values. The measurement of values both as a matter of curiosity and understand­ ing  intervention may be a matter of concern. What would be left out of the

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analysis would be exactly those values that are in fact being measuring. This analysis would generate the idea that what is measured may well be broader than mere curiosity. From a human rights point of view, measuring those aspects of value aspiration or deprivation that generate social conflicts are a matter of interest. The purpose for understanding contextuality and measuring it is to obtain an accurate prediction of the future social problems that impact public order. The real concern, from a policy point of view, is to acquire sensitivities for human problems, the magnitude of these problems and the impact of such problems on public order. An important function of configurative thinking is to address the manners in which such thinking can be marshaled to systematically delineate the social process context and the problems in value conflicts that emerge from that context. The thinking about values is not purely descriptive in this process. It is empirical in the scientific sense. Doubtless, there may be multiple methods that may be employed to express the problems generated by the difference between value aspiration and value deprivation. Nevertheless, the configurative perspective makes this focus an explicit orientation of the inquirer. B Value Discourse In Interdisciplinary Perspective The status held by moral and value discourse received a severe setback as philosophers sought to provide a more scientific predicate for basic philosophic scientific discourse. The trend of values discourse in social sciences and law had to confront a major epistemological problem which stated simply is, how do we scientifically know that a value is a value? According to the Scottish philosopher David Hume, a statement relating to the ‘is’ cannot be derived from a statement delineating the ‘ought.’34 Whatever an ‘ought’ statement might mean, it cannot hold a genuine scientific meaning. If a statement is to be given meaning, then that meaning must be derived from a source other than the structure of scientific discourse. To determine the truth or falsity of a proposition involving values, there must be some other than scientific criteria that can confer upon the value proposition the designation truth. Finding a non-scientific truth is an extraordinarily difficult exercise and it is perhaps for this reason that the American philosopher, John Dewey suggested that value discourses are “as unstable as the forms of the clouds.”35 34 35

David Hume and Tom L. Beauchamp, An Enquiry Concerning the Principles of Morals: A Critical Edition (2006). John M. Heffron, Defining Values, in Values in Education: Social Capital Formation in Asia and the Pacific, John D. Montgomery ed. (1997).

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The scientific approach to value identification and description must reflect that values refer to culturally-sanctioned human preferences. To the extent that values as human preferences are identifiable and reflect shared subjectivity, the particular form of human preference in a human inquiry is not so isolated or individuated that it reflects idiosyncratic preferences. Individuals may hold multiple preferences, but those preferences reflect shared cultural subjectivities and are ones that could qualify as value preferences. When the analysis of value preferences is observed on a cross-cultural basis, the level of selectivity might be sharpened further, since the search will be for functional equivalents that are roughly comparable between different cultures. When the cross-cultural dimension is conceptualized in terms of a global community, a still more sharpened and selective focus will have to be drawn with regard to those value preferences whose ubiquity and frequency are matters of global community demand. It is for this reason that the ascription and appraisal of value-type qualities have tended in general to be formulated in relatively abstract terms. The institutional expression best suited to the vindication of value preferences differs remarkably from one culture to another. The search for a common language about comparable values, regardless of the diversity of cultural mechanisms, is a matter of considerable controversy. For example, in an important study of the Commission on Global Governance, an independent group of world leaders looked at the overriding goal of the international system as one reflecting an international “Good Neighbor” policy.36 To achieve such a Good Neighbor policy, they envisioned a new global community that must include in its inscription the terms ‘universal’ and ‘moral.’ Universal and moral designate the values of life, liberty, justice, equality, reciprocal respect, caring and integrity.37 Other theorists have focused less on the subjective nature of value preferences and derived values from the institutions specialized to the vindication of institutional values. It is the institutions, these theorists argue, which serve as an expression of social power that generalizes and defends value schemes. Shalom Schwartz and Maria Ros noted values such as conservatism, intellectual autonomy, affective autonomy, hierarchy, egalitarianism, harmony, and mastery, or ‘contrasting dichotomies’ in

36 37

The Commission on Global Governance, our Global Neighborhood: The Report of the Commission on Global Governance (1995). Id. at 41.

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Ferdinand Tonnie’s trenchant phrase, by which complex societies order the value priorities.38 When one views these values with a critical perspective, one sees that they are descriptions of human preferences and their operational impact on social process does not seem geared to understanding them as problems in which a community response might be elicited. For example, using the Commission on Global Governance’s categories, the ambiguity is whether the Commission is describing a universal moral community or expressing a preference for such a community. Similarly, the respect for life, liberty and justice reflects the ambiguity of both a claim and a description. The categories themselves overlap with each other. Justice includes liberty and equality, respect includes liberty, justice, and equality, and caring and integrity reflect the values of respect for life and justice. When we view the values identified in Schwartz and Ros’ work, similar ambiguity arises. Conservatism as a value, for example, may be contrasted with radicalism as a value. The concept of intellectual autonomy is difficult because there is hardly a thought that does not find its inspiration from the historical and social construction of knowledge. The concept of affective autonomy would seem to confuse the idea that affect as a positive sentiment is in fact subversive of autonomy, whereas friendship circles that are cordiality-dependent, demand the autonomy of the ego. Constructions such as hierarchy and egalitarianism indeed sharpen value problems but they are simply reflections of the deeper problem of power and how it is to be produced and distributed. These efforts represent a search in practical terms for those preferences that are shared among vast aggregates of human beings living in different and diverse cultural paradigms. The effort attempts to understand human problems as outcomes of society and, secondly, as global problems that are outcomes of the global community or society. Human problems are problems about values, but practitioners have difficulty articulating an appropriate scheme that describes the problem of value conflicts. This difficulty in articulation is because they need a set of categories that relates to or describes the ubiquitous values that people want. The type

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Shalom H. Schwartz and Maria Ros, Values in the West: A Theoretical and Empirical Challenge to the Individualism-Collectivism Cultural Dimension, World Psychology 1, No. 2 (1995). Schwartz’s work is also discussed in Geert H. Hofstede, Culture’s Consequences: Comparing Values, Behaviors, Institutions, and Organizations Across Nations 220–21 (2003).

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of theory they require must then sustain, empirically, that these ubiquitous values operate across cultural and national political lines. From the perspective of configurative thinking, human rights inquirers are engaged in a very special form of empirically-grounded value discourse. The discourse is one that derives its meaning from those who are, as disengaged observers, sharpening a focal lens that enlarges the scope of the human problem as it relates to basic values. The observer is simply observing the conflicts about human preferences and formulating those preferences in terms of claims for value. This discourse is empirical in the sense that it must rely on a set of empirical assumptions about the nature of human social organization. Those assumptions are that human beings are not placid, inert, material objects of physics or chemistry, but are agents with the capacity to assert or demand the things they value. Without the individual human stakeholder demanding or claiming human rights, there would be very little in the way of human rights culture. Social organization is characterized by components of action and struggle. The action component refers to those demands rooted in the belief that human institutions can engineer improved social performance. Stakeholder claims or demands can be rooted in the struggle for access to values and minimum human rights, as seen in the effort to provide respect for the dignity of ordinary human beings. Struggle and action are dynamic components of any organization. Social context suggests that human beings frequently establish institutions through which the struggle for values and the possible vindication of values occurs. The struggle for values and the vindication of values cannot occur without the power to facilitate or limit the struggle for the values themselves. The position of the human being in any group generates relationships, interactions and behaviors that are infected with preferences, which can be described as values. The discourse about values is empirical because it partakes in the struggle for the production and distribution of values. In configurative theory, the place of values in social process is related to demands for solutions to value conflicts. The contribution of this approach has been the formulation of a theory of social process itself. This social process theory states that human beings pursue values through institutions based on resources. The theory underscores the importance of the human being as the critical unit of description and analysis. The individual is pursuer of values and may stake claims to values challenged by other value asserters, and a conflict in social process is born. The asserter of value claims seeks to mobilize available resources as bases of power to strengthen the relevance of advocacy. This process requires an identification of institutions specialized to the social processes appropriate to the value itself. If one is staking a claim to power,

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one would look at institutions specialized to power. If one is staking a claim to wealth, the dominant institutions of wealth are generally the forms sanctioned for the purpose of doing business. There is the identification of value categories which may be found cross-culturally and globally. The social process model identified multiple value categories for institutional processes specialized to those values. The markers used to provide a map of social process context for analysis of value conflicts include participants, perspectives, bases of power, arenas, strategies, outcomes and effects. This description of social process, along with guiding analytical markers, underscores the importance of the individual human being as a claimant and therefore an advocate for basic values that implicate human rights. The theory of social process supports the theme of this book with its focus on human rights and dynamic humanism.

chapter 2

Religious Values, Normative Precepts and Human Rights Let noble thoughts come to us from every side!1 In this chapter, we provide an overview of religious traditions which have influenced the struggle for human rights. Religious experience generates value ideals. These ideals often serve as a stimulus for action to realize moral and ethical understandings in human relations. These values operate within political society, in which there is invariably a struggle for power. Some dimensions of this struggle will seek to secure and advance human value ideals, while others may see these ideals as a threat to their power aspirations. In this sense, religion may represent the human being as one influenced by positive sentiment in the promotion and universalization of these ideals. Thus, religion may be more than a purely devotional exercise, and becomes an exercise in social and political activism generated by members of the community who seek a closer approximation between social practice and religious ideals. Therefore, our focus here on positive sentiment is only an aspect of the influence of religion on social process. Religious activists of the 20th century, such as Mahatma Gandhi and Martin Luther King, straddled a complex line of identity between the inspiration of religious values and the humanistic impulse to morally justify secular activism. The contemporary bridge between secular humanism and human rights is well-illustrated in the book by Judge C.G. Weeramantry, The Lord’s Prayer: Bridge to a Better World.2 Weeramantry was a Vice-President of the International Court of Justice, as well as a distinguished academic and human rights scholar. His book discussed the Lord’s Prayer to demonstrate that it contained all the values that we identify with contemporary human rights as expressed in the Universal Declaration of Human Rights. The Appendix of Judge Weeramantry’s book contained a summary of what he called “the Prayer’s Treasury of Human Rights.”3 The Treasury summarized the concepts relating to basic human rights, the concepts relating to the judicial process, the concepts relating to the social rights and responsibilities, the concepts relating to individual 1 Rigveda, 1-89- i. C. Rajagopalachari. Mahabharata (1980). 2 C.G. Weeramantry, The Lord’s Prayer: Bridge to a Better World (1998). 3 Id. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_004

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conduct, and the concepts relating to international law. This chapter was inspired by Judge Weeramantry’s exploration of the various dimensions of human rights of the Lord’s Prayer; and it explores other predominant religious traditions in order to analyze their fundamental values and ideals. Those are the values and ideals that have inspired humanistic activism for human dignity. i

Religious Myth, Values and Ideals

One of the important insights of modern configurative jurisprudence is that human beings are stirred to action by ideas. Since human action has a relationship with decision making, it represents a crucial link between ideas and choices. We provide a closer description and appraisal of these religious myths, values and ideals. We must consider carefully the influence of myth systems and folklore (miranda) on the clarification of values which inform our ideas. From these ideas, we reify the values in terms of decisions. The link between values, ideas, and practice is the process of operationalizing values. The critical empirical question then is to understand the different forms through which myth is interpreted, understood, and expressed. Thus, in addition to myth in the generic sense (as a category), myths may be defined by their subcategories, which include doctrine, formula, and miranda (lore).4 According to Lasswell and McDougal, a general characteristic of myth is that it includes “stable patterns of personal as well as group perspectives.”5 Myth implicates the system of identification, the animus of value demands, and the expectation of how such demands are to be managed.6 Perspectives are a central component of any description of social process. It is this perspective that drives, shapes, and determines the human rights outcomes of social process. Perspectives are the subjectivities of the individual human 4 Harold D. Lasswell and Myers S. Mcdougal, Jurisprudence for a Free Society 335, 353 (1992). Moreover, specific elements may be classified into sub-systems that relate to the total problem-solving situation in which persons or groups find themselves. Specific elements comprising a myth include: doctrine, formula, and miranda (or lore). Lasswell and McDougal adapted the term formula from Gaetano Mosca, et al., The Ruling Class (Elementi Di Scienza Politica), 1st ed. (1939); they adapted the term miranda from Charles Merriam, Political Power: Its Composition and Incidence (1934). 5 Id. 6 Id.

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participants in social process. Perspectives include claiming (or demanding) values, and the identification (or identities) for whom participants stake claims for value. The subjectivity of expectations encompasses expectations about the conditions that affect the success or failure of demands for values. Human subjectivity is the complex driver of human rights activism in social process.7 The subcategory of doctrine and its connection to myth is that it reflects abstract articulations, which affirm the perspectives of the group. According to Lasswell and McDougal, “such propositions make use of basic symbols of identification, together with the formulation of fundamental goal values and expectations concerning the past, the present, and the future.”8 The idea implicated in the subcategory of formula suggests that formula includes communications that the community will seek to enforce. In this sense, formula resembles such communications categories as rules, principles, and standards.9 Additionally, myth embraces miranda (lore),10 which are “the popular legends, anecdotes, poems, and other folk elements embellishing the basic themes of the myth.”11 Myths coexist with a counter-myth. The upper class may hold to one myth while the lower class may hold to a counter-myth. At this level, myth contains ideological systems and their counter-systems. A counter-myth is a rejection of the established myth or ideology. In the social process of perspectives influencing value and value-specialized institutions, political myth may be a meaningful part of the social process of the group as expressed in its political and legal thought. Lasswell and McDougal explained: The myth of every political group is a means of stabilizing the behavior of the members by regularizing the inner lives of all concerned. For persons of a philosophical bent the doctrinal system provides an articulate guide to policy decision. The formula clarifies a structure of duties and 7 8 9

10 11

Lasswell and Mcdougal, Jurisprudence for a Free Society, Vol. i, 144 (1992). Id. “The ‘formula’ of the myth includes the prescriptions which are generally regarded as enforceable.” Id. at 354. Note that the “formula includes the ‘shalt’ and ‘shalt not’ components of the self-system.” Id. at 355. A leading authority on the meaning of symbol, myth, formula and miranda is Joseph Campbell, see for example The Masks of God: Creative Mythology (1991), The Hero with a Thousand Faces (1990) and The Power of Myth (1988). Id. at 354–55. For a collection of short academic works on miranda, see Mythologies, Yves Bonnefoy ed., (1991).

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obligations, and a support set of sanctions. For young people, and for adults with little gift of abstraction, the miranda supply maxims, admonitions, warnings, heroes and villains. Considered in its entirety the myth of a group is a map that may be voluntarily followed by each individual, and that also outlines the measures to be taken in concert when voluntary compliance does not suffice.12 The ideological importance of the dominant myths of our time has been usually understood in terms of the generation and the distribution of valuefounded indulgences centered on wealth and its acquisition. For example, the two dominant myths dealing with the ontology and teleology of wealth (and systematic economic ostentation) have been capitalism and socialism. Adam Smith, who was essentially a moral philosopher, had the great insight that economic activity could be improved to enhance the common good by allocating the competence to supply, goods and to demand goods to the buyers and the sellers.13 This was a revolutionary idea and a significant myth was created which validated the allocation of economic competences to the major participators in the process.14 This insight had a dramatic effect on development in Western civilization.15 Its influence on non-Western cultures has been a delayed article of international development. According to the dominant myth of capitalism, economic progress— understood as capital accumulation—is fostered by allowing for private ownership and management of production. [According to doctrine,] [s]ince the enterpriser [sic] takes the risk of failing to supply the market with a product that is actually purchased, he is believed to be justified in retaining the surplus between what he is in fact able to obtain from purchasers and the amount that he pays to those who furnish the

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Lasswell and Mcdougal, Jurisprudence for a Free Society at 375, 424 For elaboration, see Robert Lane, Political Ideology: Why the American Common Man Believes What He Does (1962); Richard L. Merritt, Symbols of American Community: 1735–1775 (1966); Harold Lasswell, et al., The Comparative Study of Symbols (1952); Gabriel A. Almond and Sidney Verba,, The Civic Culture: Political Attitudes and Democracy in Five Nations (1963); Anthony Downs, An Economic Theory of Democracy (1957) (exploring ideology and uncertainty); and Raymond A. Bauer, American Business and Public Policy; The Politics of Foreign Trade (1963). Adam Smith, The Wealth of Nations (1776). Id. Id.

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productive factors … The formula of capitalism includes prescriptions that are viewed as necessary to the practical operation of the doctrine. It is evident, for example, that the profit seeking ventures of the enterpriser [sic] must not be excessively interfered with by legal or other arrangements that limit his freedom to “buy cheap and sell dear” … The popular image of capitalism (the miranda) emphasizes the unexcelled productivity of the system, and seeks to dismiss apparent failures as deviations from the pure doctrine.16 This quotation makes an important link between the ideology of capitalism and its myth system and subcategories, including the values that it seeks to secure. We can also compare it to the socialist myth system: The socialist myth has taken its modern form as a protest against the operation of what are conventionally called capitalist systems. The fundamental socialist doctrine is ‘production for use, not profit.’ Hence the management of the several factors of production is taken out of the hands of private owners and made a responsibility of the body politic as a whole. Instead of the ‘irrationality’ of a market that is supplied by competitors who try to guess what purchasers will buy, a socialist economy is said to plan in advance for production by entrusting public officials with authority to decide what is to be produced during a given period, and who is to be allocated what facilities to meet the scheduled quotas. Incomes are supposed to be distributed according to need, not according to bargaining position in a free market…. According to Marx, the socialist myth focuses on the following: “from each according, to his abilities, to each according to his needs.”17 As Lasswell and McDougal explained, The formula put forward by the socialist myth makes explicit the prescriptions that are believed essential to effective production for use. The individual is advised to merge his conception of personal interest with concern for the success of the total system…. The miranda of contemporary socialism presents the socialist economy as liberating the

16 17

Lasswell and Mcdougal, Jurisprudence for a Free Society at 375, 478 (1992) (emphasis added). Karl Marx, Critique of the Gotha Program (1875).

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worker from the nightmare of the unemployment which is alleged to be built into the capitalist system of unequal income and “non-rational” production.18 In an age in which values and scientific analyses are clarified in scientific discourse and in language and analysis,19 more disciplined methods for the clarification of values have gained ascendance.20 There has been an emergence of the idea of grounding the important political and legal myths in the idea of the fundamental laws that constitute a society. This is the constitutive process. The constitutive process in terms of a myth system of necessity contains the subcategories of myth formula, doctrine, and lore. Thus, [t]he political formula interacts directly with the other component of political myth (doctrine and miranda). The positive task of statesmen in a free society is to protect the political formula as an aid to sustaining doctrinal assent and popular understanding; and also as a means of invigorating both miranda and doctrine in order to obtain compliance with [values included in] the formula.21 When we focus on the role and responsibilities of statesmen, these roles and responsibilities repose in securing and defending the political formula to secure fundamental values in social organization. A central insight into the value of myth in social process is that myth is often the frame of reference of social participants.22 Myth facilitates an 18

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Lasswell and Mcdougal, Jurisprudence for a Free Society, at 478–79 (emphasis added). Lasswell and McDougal also addressed the myth structure of a less popular economic system,that of cooperative economy. Gordon Hunnings, The World and Language in Wittgenstein’s Philosophy (1988). Ludwig Wittgenstein, Philosophische Untersuchungen (1953) (Philosophical Investigations), G.E.M. Anscombe trans., (1953); J.L. Austin, Sense and Sensibilia, ed. G.J. Warnock, (1964); ed. J.O. Urmson and G.J. Warnock, Philosophical Papers, (1961–1979). Lasswell and Mcdougal, Jurisprudence for a Free Society at 1131, 1138 (1992). For an exploration of this insight see Luc Brisson, How Philosophers Saved Myth: Allegorical Interpretation and Classical Mythology (2004). For reconnection of contemporary culture to its classical Western traditions in ancient Greek identity, see Francois Hartog, Memories of Odysseus: Frontier Tales From Ancient Greece (2001). For a mythological exploration of ancient (and still contemporary) social taboos from a modern perspective, see the plays of Euripides, which stand out for their depiction of impressive female characters, intelligent slaves, and counter-myth satirization of mythic heroes. See Gilbert Murray, Euripides: The Trojan Women and Other Plays (2006).

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understanding of social goals, encourages an appreciation of the historical panorama implicated in the evolution of the myth, formulates assumptions about scientific factors that shape the contours of the myth, influences futuristic thinking, and stimulates the invention and evaluation of alternative behaviors.23 It is useful to understand the intensity with which myths are embraced in the social universe. If myth systems are analyzed in terms of value institutional practices, a multitude of myths could be isolated that constitute the myth system of the body politic. If we have an adequate map of social process, we could locate the operational myth within that map that is relevant to inquiry. Thus, an explanation that other ways of either applying the categories we are using or finding other myths that require either frame shifts on the old subcategories above or are fundamental conceptual shifts which cannot be translated into the myth frame without loss. Simply put: one must conserve the information developed in the old system (myth) and use power as another systemic exemplar under politics or the same one which may be transformed. If it is transformable the transformation resulting words must be relatable to the generating words isomorphically. Define the term. Call it a category. List the subcategories uniformly and call them that. There may be supercategories so they should be called that and handled in the same way. Then argue relationship, causality or whatever you need afterwards. The concepts are excellent. The application needs more nearly clear exposition.24 Lasswell and McDougal noted that some myths of power are understood and used as super-categories: Among the current myths of power are liberal democracy, totalitarianism, racism. The principal enlightenment myth presents a scientific view of man and nature, and a demand for freedom of information. Among the ideologies of wealth are private capitalism, socialism, and consumers’ cooperation. Well-being myths differ in their degree of reliance on empirical methods of observation and the scientific method of objective inquiry and on the inclusion or exclusion of subjective events as significant factors in disease. Skill myths glorify various forms of excellence as 23 24

Lasswell and Mcdougal, Jurisprudence for a Free Society at 375, 424 (1992). Id.

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ends in themselves (‘art for art’s sake’), or as indispensable contributors to other social outcomes. Affection myths magnify the importance of love and loyalty in individual and group relations, often seeking to direct love along the conventional channels provided by the established patterns of sex and family relations. Respect myths characteristically glorify individual human beings and meritorious achievement or claim recognized for racial or other castes. Rectitude myths include the many religious and ethical systems of the globe.25 The last of these value categories is the category dealing with rectitude. The rectitude myth has been deeply rooted in the religious traditions of humanity; and, in terms of the historic panorama, the religious myths retain enduring powers of influence over human choice and decision. Although we live in a culture in which scientific myth looms large, we revisit conflicts whose bases reflect the influence of religious myths and counter-myths. On one hand, embedded in these myths are shared ideals of human morality and ethics. On the other hand, the religious elite stresses the uniqueness of each religious myth, emphasizing how much it differs from all the alternative religious myths. A Truth and Identity Functions of Religious Myths Our approach to human rights is founded on the idea of dynamic humanism, including its relevance in religious myth systems. Participants in every social process act in the frame of reference of a myth.26 The dynamic aspect of human myth includes the goals and ideals and myth of religious experience. This emphasizes the struggle to experience and affirm fundamental moral commitments that are included in the goals and ideals of the religious myth. The religious myth (however skeptical humanity may be today’s age of science) conti­ nues to have durability as a part of human development and understanding.27 25 26

27



Id. at 1379, 1402–03 (1992). As Lasswell and McDougal explain, “The subjective events of individuals (perspectives) can be classified according to the symbols of identity (I, we, you, they), of demand (value preference or volition), and of expectation (matter-of-fact reference to past, present, and future events). The myth is the pattern of stable perspectives among the members of a collectivity. The myth clarifies goal, provides a historical panorama of trend, formulates assumptions about conditioning factors, projects the future course of events, and foster the invention and evaluation of policy.” Lasswell and Mcdougal, Jurisprudence for a Free Society at 1379, 1402 (1992). For a useful overview of the interplay of religion, philosophy, and politics, see Harold Lasswell and Harlan Cleveland, The Ethic of Power: The Interplay of Religion, Philosopohy and Politics (1962).

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Human beings find meaning and understanding in relation to others through the guidance of religious myth. We equate the value of freedom of conscience as having an important connectivity with the right of confessional freedom. It is often the case that confessional freedom is an essential component of consciousness and responsibility which are the distinguishing characteristics of being human. It is important to recognize that consciousness and responsibility are intricately related to the form and function of the religious myth. The religious tradition, along with its claim to clarification and development of universal human values, has had to confront the existence of a multitude of competitive religious traditions which in their practices and developments have furthered parochialized religious identity. This confrontation has led to the claim of its practitioners that a particular religious outlook was exclusive of all others, furthering the negation of comparable moral experiences in other traditions. In the Western tradition, the religious wars in Europe were replaced by self-conscious efforts to provide political organization to reduce religious enmity and conflict.28 However, the secularization of political authority without the restraining force of ethics and morals inspired by religion led to the emergence of state and sovereign absolutism.29 After World War ii, a consensus emerged that fundamental values and moral standards were crucial to a world order based on peace, security, and essential dignity. The Holocaust may be seen as the summatory endgame of the shift from the old post-Munster order to the new order of untrammeled yet highly interactive sovereignty. Thus, Munster restrained the silliness of fratricide by establishing states contained within sovereigns. The Holocaust and the revelations about the scale of governmental murder and atrocity appear to be the marker between the shift from one order to a new, still developing order.30 Although the modern human rights movement is driven by secular social and political interests, those interests draw inspiration from the perspective that there are higher standards of morality and ethical experience. These ideas come from the tradition of global religious experience.31 The importance of the idea of higher moral and ethical standards lies in the fact that the standards stand as important components of human aspiration. They inspire a continued quest for the improvement of the human prospect. 28 29 30 31

Peace of Westphalia; A series of treaties signed between May and October of 1648 in Osnabrück and Münster; see Peace of Westphalia, Encyclopædia Britannica Online (2011). A.D. Morton, The Age of Absolutism: Capitalism, The Modern States-System and International Relations, Review of International Studies (2005). R.J. Rummel, Death by Governmnet (1994). Hans Joas and Klaus Wiegandt, Secularization and the World Religions (2010).

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The American Revolution was partly fueled by the rationalism of the Enlightenment, Celtic-Irish-Scottish philosophy and religious values that were consistent with value tenets of the Enlightenment. The American Revolution gave birth to the u.s. Constitution. The founders of the u.s. Constitution sought to protect the integrity of religion and human consciousness from the state and sought to protect the state from religious abuse for political ends. Thus, the u.s. Constitution prescribed freedom of religion and the prohibition of an established religion, not an absolute separation of church and state, and sought to protect the integrity of the religious outlook by protecting religious myths from the state’s secular myth structure. The practice of constitutional interpretation has been justified on the basis that indicators guiding choice should be consistent with the principle of the supremacy of law. The belief in the supremacy of law has been grounded in the idea that there is a discoverable relationship to higher law and that higher law is discoverable by the gift of human reason. Shortly after the u.s. Constitution was adopted, the Bill of Rights was adopted. It was so important to the states that the Constitution could not be adopted without promises of the Bill of Rights prior to the Constitution’s promulgation. The Bill of Rights represented rights that vested in individuals and associations of individuals and set limits on the power of government to compromise or abridge those rights. The position of higher law at the time may have been controverted. These higher law rights could be seen as the expression of natural law. They could also be seen as rights reflecting the influence of human natural rights and ­associated with the natural rights of man. In this view, natural human rights have a more secular aspect of myth. The validity of natural rights could also be rooted in the basic authority in “the people themselves.” Regardless of how we justify the codification of rights beyond the power of political authority, it is difficult to deny that religious idealism, and the values inspired by religion, had important influences in the crystallization of dynamic human demands for justice and dignity. The partial realization of those demanded values lies in the codification of the Bill of Rights. The transmittal of religious ideals that include demands for justice, liberty, and fairness, was part of the drive for the American Revolution. As it were, despite the codification of the Bill of Rights, it was deemed prudent to include a catchall for other rights that had not been explicitly written into the Bill of Rights.32 32

Benjamin Franklin stated that the American people now had a democratic state with a codified democratic-republican constitution, the currency of which depended on whether the new state could keep and sustain it. One of the challenges confronting the new state was that the Constitution could either be a declaration in which its value would be

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The expression of fundamental human rights in an objective document given a powerful juridical imprimatur has not been lost on subsequent generations. It created a myth on its own. Constitutional language is influenced by profound myths as well as doctrines and formulas. The expression of such ideals generated a higher level of expectation about the fundamental rights of man within the United States and in the world community. Today, the global constitution, the u.n. Charter, and the International Bill of Rights, are replete with the promise of human rights and dignity for all. Thus emerged the idea that the Constitution carries a promise of goals and ideals to which there is a commitment and obligation to struggle and realize. Modern constitutions influenced by the ideals in the International Bill of Rights find their legitimacy in the expression of ideals and goals that coincide with what we understand to be human rights and dignity.33 It is a mistake to regard the values, ideals, and inspirations in modern human rights as separate from the historic experience of man with religion and religious myth. The intensity with which groups have been committed to a particular religious outlook has often meant that religious ideals served as a justification for the use of any unlimited and unrestrained means to secure them. Religion can never be completely divorced from political perspectives, and neither can political perspectives be divorced from the idealization of myth concerning the values to improve the human prospect.34

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limited to symbolic importance or the Constitution could be a living framework of the expectations of dynamic governance. A great deal of credit for this development is owed to the Supreme Court of the United States. As Justice John Marshall once stated when confronting a question concerning either a mundane interpretation and/or the recognition of the consequential importance of interpreting the Constitution’s clauses and phrases, he reminded the litigants and the public that he was expounding a constitution. Constitution of the Republic of South Africa, No. 108 of 1996. Considerable work has been done to provide a better explanation of the idea of myth, human consciousness, and the construction of reality. The classic study is Michael Talbot, The Holographic Universe (1992). The study explores the idea of an implicate order, which replicates reality in holographic form and suggests that the replication of holograms is also a matter tied to the Jungian concept of a collective unconscious. Key chapters in the book include Chapters 3–6, pages 59–162. Consider the following statement from Talbot: If there is no division between the mental and physical worlds, these same qualities are also true of objective reality. … [T]his does not mean the material universe is an illusion, because both implicate order and the explicate order play a role in creating reality. Nor does it mean that individuality is lost, any more than the image of a rose is lost once it is recorded in a piece of holographic film. It simply means that we are again like vortices in a river, unique but inseparable from the flow of nature. Id. at 81.

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This insight provides a powerful caution concerning both the intrinsic value and universality of goals and ideals. It also reminds us that beautiful and eminently valued goals and ideals may be misused because of the imperfections of the human condition and the dysfunctions and limitations of human personality.35 Although myths facilitate stability in perspective, counter-myths consolidate an alternative to such expectations of stability. This latter quest might preempt the symbols of idealism and rectitude in the cause of the claim to power and dominance and idealism and specific ideals, although critical inspirations for human struggle and change, might be subverted. Powerful historical figures driven by the need to control and dominate or the existential fact of pathological predispositions might use religious myth to justify heinous atrocities, as in what is today called ethnic conflict.36 The abuse of religion to depreciate ethical and moral virtue should not be seen to condemn religion. Nor should it be seen to minimize the genuine value of spiritual inspiration, revelations, and its cultural contributions to moral virtues and human experiences. A preferred religious myth may see man as developing in all spheres that may be reconciled and justified with moral experience, the common good, and the deepest spiritual yearnings of all of humankind. Thus, at the level of myth systems, there remains a contentious possibility of challenging counter-myths, which may be good or bad for the prospect of human rights.

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Talbot quoted Peat: [T]he self lives on but as one aspect of the more subtle movement that involves the order of the whole consciousness.” Id. Talbot explains that we have come full circle, from the discovery that consciousness contains the whole of o­ bjective reality—the entire history of biological life on the planet, the world’s religions and mythologies, and the dynamics of both blood cells and stars—to the discovery that the material universe can also contain within its warp and weft the innermost processes of consciousness. Such is the nature of the deep connectivity that exists between all things in a holographic universe. Id. Harold Lasswell, Psychopathology and Politics (1930); Power and Personality (1948); Harold Lasswell and Abraham Kaplan, Power and Society: A Framework for Political Inquiry (1952). As Lasswell and McDougal explain, “The myth and technique of all cultures provide doctrines, formulas and miranda that standardize the categories of persons who are eligible targets of positive and negative affection, and the range of interactions that may be permissibly engaged in. These relations are spelled out according to gender, age, and other variable to which significance is assigned in the context.” Lasswell and Mcdougal, Jurisprudence for a Free Society at 375, 541(1992). The McDougal-Lasswell approach, although predating the insights of Talbot’s holographic universe, is reconcilable with its key tenets.

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B Universal Values Arising from Religious Myths The focus and orientation on spiritual experience has undoubtedly had an influence on what man is and what man might become. The ideals of spiritual experience fuel the human perspective of identity. This orientation sustains the impulse to human activism by its stress on the foundations of basic human needs, values, and demands. It secures a sense of identity that transcends self. The force of religious idealism broadens the I to include a wider vision of human aspiration and sacrifice.37 As we describe and briefly explore some of the broader ideals and values that have inspired religious insight comparatively and cross-culturally, this exercise reflects more on knowledge integration than scholastic emphasis and demonstrates how one aspect of religious experience differs from another. The experience of major world religions from the perspective of the ideas of what is good, moral, aspirational, and important to human consciousness is driven by goals, ideals, and purposes. It is through such perspectives that human beings generate the desire to act in the common interest and common good. This does not mean that human beings are all moved by the best ideals and goals of spiritual culture. Cultural and religious traditions provide a measure to experiences that we must avoid in the future and to experiences that we must struggle to affirm. We must also be able to distinguish between the two. The expression of ideals including religious and moral ideals is not an inert, abstract matter that simply captures the human imagination and the dynamics of human behavior. On the contrary, there is always contestation for the ideals or the negative ideals. This is part of the struggle of humanistic dynamism. The modern development of human rights that emphasizes the crystallization of values thought to be secular, in fact, owes a great debt to many spiritual traditions, including the Christian natural law tradition. The specific contribution of the natural law tradition is more explicitly developed in a later chapter that is complemented by the philosophy of individualism and the historic experience of the Celtic-Irish-Scottish struggle for dignity and freedom, a matter that has been neglected in the literature of human rights. However, the significant value of the Western natural law tradition for universal human dignity may imply that modern human rights are an exclusively a Western invention and are alien to other cultures. This effectively undermines the inclusive, global importance of human dignity seen as a form of dynamic 37

By ‘I,’ we mean the personality involved in making judgments. See Lasswell and Mcdougal, Jurisprudence for a Free Society (1992). See also Harold Lasswell, Political Sociology, Dwaine Marvick, ed., (1997). For further reading on Lasswell’s techniques, see Derek Mcdougal, Harold Lasswell, The Study of International Relations, 279–83 (1984).

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humanism. Comparable religious experiences may be examined from the perspective of the goals and ideals that in one form or another are expressed in these faiths. Comparative religious myths generate an obvious similarity about the goals and ideals of what constitutes ‘the good’ and the essence of moral experience. Second, in most of these comparative myth systems, religion provides a perspective of the aims and objectives of the human struggle subjectively and individually, as well in community in terms of duty and obligation.38 Jaclav Havel, the political activist, human rights eminence, and former Czech President, has explicitly tied the issue of the survival of humanity to human rights and the experience of affirmative religious ideals and values. Consider the following:

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A survey of contemporary, global human rights endeavors reveals the centrality of religion. Martin E. Marty, Religious Dimensions of Human Rights, in Religious Human Rights in Global Perspective, 1 (1996). Indeed, “many non-Western traditions, particularly those of Islam, Hindu, Buddhist, Taoist, and indigenous stock, cannot conceive of, nor accept, a system of right that excludes religion. Religion is for these traditions inextricably integrated into every facet of life.… No system of rights that ignores or deprecates this cardinal place of religion can be respected or adopted.” John Witte, Jr., Introduction, Religious Human Rights in Global Perspective xxxiii–xxxiv, (1996) Scholars in the Western world have noted that the historical relationship between human rights and the world’s major religions has been substantial, complex and fascinating. J. Paul Martin, The Three Monotheistic World Religions and International Human Rights, 61 J. of Soc. Issues 828 (2005). “Judaism, Christianity and Islam and the human rights movement lay claim to much of the same moral territory, notably concepts of human dignity, equality, and social justice.” Id. at 827. “Each of these religious traditions is … founded on the eternal command to love one God, oneself, and all neighbors. Each tradition recognizes a canonical text as its highest authority—the Bible, the Torah, and the Qur’an.… Each tradition has a refined legal structure—the canon law, Halakha and Shari’a—that has translated the enduring principles of faith into evolving precepts of works.” See Witte, supra, at xx. Each tradition, Judaism, Christianity, Islam, has produced a number of the basic building blocks of a comprehensive theory and law of human rights—both religious and non-religious—conscience, dignity, reason, liberty, equality, tolerance, love, openness, responsibility, justice, mercy, righteousness, accountability, covenant, community, among other cardinal concepts. Each tradition has developed its own internal system of legal procedures and structures for the protection of rights, which historically have and still can serve as both prototypes and complements to secular legal systems. Each tradition has, for centuries, defined and adjudicated the rights of women, children, minorities, and dissidents in a manner deserving of consideration—if not always emulation. Each tradition has its own advocates and prophets, ancient and modern, who have worked to achieve a closer approximation of religious rights ideals for themselves and others. See Witte, supra, at xxi–xxii.

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The only real hope of people today is probably a renewal of our certainty that we are rooted in the Earth and, at the same time, the cosmos. This awareness endows us with the capacity for self-transcendence. Politicians at international forums may reiterate a thousand times that the basis of the new world order must be universal respect for human rights, but it will mean nothing as long as this imperative does not derive from the respect of the miracle of being, the miracle of the universe, the miracle of nature, the miracle of our own existence. Only someone who submits in the authority of the universal order and of creation, who values the right to be part of it, and a participant in it, can genuinely value himself and his neighbors, and thus honor their rights as well.39 ii

Dominant World Religions and Values Supporting Human Dignity

The durability of religious values and ideals as a component of human aspiration and struggle is astonishing. For example, Hinduism, the oldest recorded religion in the world, continues to inspire humanity with its wisdom and the concrete expression of its ideals. For Hinduism, life is a struggle on many levels, and yoga (or the multitude of yogas) seeks to provide a path suited to every individual’s prospective realization. We continue to recognize in Hinduism a five millennia tradition. Judaism has a continuity of three millennia. Christianity has a continuity of two millennia Islam has a continuity of approximately one and a half millennia. The tradition of Buddhism, Confucianism, and the various forms of shamanism are able to record a powerful heritage of spiritual inspiration. In the sections that follow, we explore the central moral themes of five dominant religions and three spiritual philosophies in order to emphasize the universality of core values within diverse religious and spiritual backgrounds. As these religious and spiritual backgrounds deeply influence modern cultures, the prevalence of core values underlying them will reveal their contribution to contemporary human rights premises and goals. We address the religious and spiritual myths in order of their commonly accepted foundation dates, starting with the oldest and ending with the youngest.

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President Jaclav Havel (Czechoslovakia 1989–92, Czech Republic 1993–2003), The Need for Transcendence in a Postmodern World, Speech at Independence Hall, Philadelphia (July 4, 1994).

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A Hinduism Oliver Wendell Holmes once said that the life of the law has not been based on logic but on experience. Law and experience often reflect the creation of rules of conduct, duty, obedience, and obligation. In an historic and cross-cultural perspective, rules of right conduct and its corollary, the abstention from wrong conduct, are often reflected in the religious experience of human communities. What constitutes right and wrong is a matter of moral experience. Moral experience itself is ubiquitously rooted in religious or transcendental experience. Thus, the rules of religion were also the rules that human communities enforced through the agency of the religious elite and their control, direction, or influence over the secular elite. A powerful expression of the interplay between received religious rules and the application of religious rules in day to day human interaction is to be found in Hinduism, one of the oldest religions in the world. Hinduism functions as a religion that tailors itself to each individual’s own consciousness and possibilities. This expresses itself in the Bhagavad Gita in which Lord Krishna outlines the paths to self-realization and God-consciousness. These paths are described as various yogas. Krishna points out that some paths are incredibly difficult and not recommended for all. Regardless, every person can aspire to transcendence and the grace of God using a yoga that is appropriate to the life position and temperament of the believer. What is critical to the Hindu tradition in the phenomenal world is dharma. Rooted in dharma is the idea of love to be embraced as a practical living ideal. It is said that dharma is pure obligation and no rights. In fact, the idea of obligation or duty as a community ideal always comes with its correlative of the concept of the right. Thus, dharma is as individual as it is social. There are five basic obligations of dharma. The first obligation is the feeling and communication of love and compassion for those who are most close to the person, namely the family. The second aspect of dharma is the capacity to extend this love to the extended family, relatives, friends, and neighbors. This is the greater challenge and is very difficult to meet if the individual has been deprived of compassion and love in the micro-social unit. The third aspect of dharma is the expansion of love to the larger community and persons in the external world of profession, skill, business, labor relations, and the public at large. Thus, love would infuse the dealings one has as one charts the life path hopefully to prosperity and compassion for all sentient beings.40 The fourth 40

In Port Elizabeth, South Africa, there is a non-Hindu tribute to this principle. It is of a soldier kneeling with a bucket of water that is being given to his horse. This is known as the horse memorial. It is a memorial to the sacrifices that horses made for their riders

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aspect of dharma is meant to be evolutionary, in the sense that it builds on the dharma of the evolution of love. Here, love involves the love of culture, art, intellectual and scientific achievement, music, drama dance, and a deeper understanding of the fullness and joy of spiritual inspiration that moves the human to create. The fifth aspect of dharma is the expression of love as compassion in the sense of kindness, generosity, charity, and sacrifice to the human condition and religious traditions that sustain the love ideal in the dharma of the person. The idea of dharma distills the framework of human dignity in terms of multiple trajectories of reciprocity suggesting that the successful working out of dharma is not purely ego-defined but is designed to transcend the me and the I to essentially get beyond the self and include the other in the ultimate divine conception of self-realization.41 Hinduism holds that the Bhagavad Gita is the revelation of God (the ultimate Self) to a warrior on the eve of a great conflict. The revelation emphasizes the religious obligation of duty and of dharma, the rule that mandates the performance of duty. It is the religious outlook that defines human capacity and defines the law that must be followed to express successfully human capacity in both a spiritual and a socio-political sense. Rooted in the Gita is the fundamental question of values and their application as an aspect of the broadest conception of the law developed in the concept of individuated and collective dharma (“law”). The guidance and challenges provided in the Bhagavad Gita are many. Certain values and ideals as challenges are concretely expressed by Krishna. Krishna lists certain qualities as God-given ideals for man’s guidance, noninjury, equanimity, contentment, austerity, charity, and emotional tranquility regarding the vicissitudes of life. For the critical development of personhood and transcendence, Krishna prescribes the importance of understanding the following: intellect, wisdom, non-delusion, patience, truth, self-restraint, calmness, pleasure, pain, birth, death, fear, and fearlessness.42

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during the Anglo-Boer War. The caption below the statue reads: “The greatness of a nation consists not so much in the extent of its territory or the number of its people but in its commitment to justice and compassion.” Hindu cosmology certainly talks of planes of existence after death. In short, life is a learning experience and does not stop at death but continues into still other planes of selfless love and compassion. See generally Deepak Chopra, The Path to Love (1997); Satguru Sivaya Subramuniyaswami, Loving Ganesa 29–35, (2000); Swami Ashokananda, The Soul’s Journey to its Destiny (1993). See Swami Nirmalanandagiri, Bhagavad Gita Commentary Commentary-Sixty Four. We summarize some of the major themes of the Bhagavad Gita normative guidance in the

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It may be seen from these precepts that they are both guides to principles of morality (purity of heart, almsgiving, non-injury, truth, and compassion) as well and principles of action. The Bhagavad Gita sees not simply the understanding of moral insight as an end in itself but it prescribes action and struggle as a component of the complete identification with the moral order of God. In short, the yoga, the path, and the method of the path are themselves instruments of unfolding knowledge, spiritual understanding, and growth. Mahatma Gandhi and Martin Luther King Jr. rediscovered the concept of struggle and the integrity of struggle as vested with profound moral implications. To resist tyranny or confront oppression by active non-violent methods, they believed, was an approach that transforms the victim and the victimizer. In many ways, the model of Gandhi and King remains one of the most significant strategies for promoting and defending human dignity on a universal basis. In the Bhagavad Gita, a specialist in action (including war) has a spiritual and legal obligation to act to prevent injustice and to use force as a last resort. The values of religious myth are meant to provide prescriptive guides and duties for the problems of organized social life and governance as well as ­provide a stepping-stone for individual spiritual development. Recognizing human complexity, the Hindu tradition recognizes multiple yogas providing for right conduct, spiritual purification and the capacity to both sacrifice and to act without the expectation of reward. It may be that the cosmological aspect of Hinduism is so complex and philosophical that, its practice, ritual and fragmented deities provide a more amenable framework of morality and religious values. What is often overlooked in this tradition is the fact that its morality is, in effect, often situational, processional, and indicative of a continual working through and working out of a shifting framework of man’s existential and spiritual development. This is clearly expressed in the great Hindu epic poem called the Mahabharata.43 The Bhagavad Gita is merely a fragment of this epic work. Central to the Mahabharata is the purpose of search for the realization of human dignity. A commentator on this epic poem summarizes this as

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words of Lord Krishna himself: Chapter xvi, The Yoga of Division Between the Devine and Demonical “Fearlessness, purity of heart, steadfastness in knowledge and yoga, almsgiving, control of the senses, Yajna, study of the scriptures, austerity and straightforwardness.” [779]. “Non-injury, truth, absence of anger, renunciation, serenity, absence of calumny, compassion to beings, uncovetousness, gentleness, modesty, absence of fickleness.” [782]. “Vigour, forgiveness, fortitude, purity, absence of hatred, absence of pride, these belong to one born for a divine state, O Bharata.” The Bhagavad Gita, Commentary by Swami Chidbhavananda. (2000). See The Mahabharata, Volumes 1–7, James L. Fitzgerald ed., translator, (2004).

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follows: “We seek the dignity of man, which necessarily implies the creation of social conditions which would allow him freedom to evolve along the lines of his own temperament and capacities; we seek the harmony of individual efforts and social relations, not in any makeshift way, but within the frame-work of the Moral Order; we seek the creative art of life, by the alchemy of which human limitations are progressively transmuted, so that man may become the instrument of God, and is able to see Him in all and all in Him.”44 The text is an unfolding of story after story, with each story a working through of a specific moral dilemma. Each story is both a narrative as well as an unfolding of a technique for the analysis of moral and spiritual consciousness. Moral answers in situational context are not simple. Understanding moral experience requires the use of the faculty that has been given man by providence or his Creator to work through, to work out, and to understand that experience as a component of man’s unfolding moral awareness. An illustration of this is the situation in which Mahatma Gandhi found himself as a citizen and colonized beneficiary of the British Empire. Gandhi was confronted with the question of whether he should support the Empire at the outbreak of World War i. Gandhi determined that, although he was an anti-colonial, it was inappropriate to attack one’s political adversary in time of a war-exacerbated crisis. Gandhi therefore supported the war effort, but in a morally interesting way. By this time, Gandhi had developed the principles of non-violent resistance as a form of political action. How then could a modern apostle of non-violence support his adversary in his adversary’s war? Gandhi worked on the creation of an ambulance and medical corps for service under British rule. Thus, his contribution to the war effort was a contribution that sought to provide healing to the troops in battle, rather than contributing to the promotion of violence itself. Stretcher-bearers and persons who actually retrieve wounded combatants under fire often confront the most dangerous and lethal aspects of combat. This fundamental idea is clearly in the narrative of the Bhagavad Gita. Arjuna, the great warrior, is reluctant to fight a just war although he is a warrior and therefore carries a social obligation to defend the community against unjust aggression. Krishna, the incarnation of the Lord, seems to enhance respect for religious obligation. He therefore advises Arjuna to fight as a religious obligation. However, he is not directly involved in the fighting. He has had a leading role in attempting to prevent the war, and he has done everything possible to that end. Now on the field of battle, he still has not taken sides directly. Rather, he serves as a humble charioteer. He carries no weapons; he simply drives the 44

C. Rajagopalachari, Mahabharata 1 (1963).

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chariot for the warrior. Both situations represent complex moral subtlety and clearly indicate just how complex the specific application of moral judgment may be in actual and concrete situations. Two specific illustrations from the Mahabharata resonate with contemporary human dignity salience and compassion. The first narrative is that of the fate of queen, Draupadi, the wife of King Yudhishthira. This epic poem begins with King Yudhishthira in the position of a guest of a rival king and relative. As a guest, he must meet the requirements of etiquette defined by the host. The host wants him to gamble, but gambling is a sin. On the other hand, the guest must be gracious in the home of the host. King Yudhishthira resolves this, not by rejecting the offer and then leaving the host. On the contrary, he continues to accept hospitality and gambles. The dice are loaded. He continues to lose; and eventually he loses his kingdom. The host King insists that he continues to gamble since he still has a wife. The King ‘loses’ his wife at the betting table. Despite this ‘loss,’ however, the Queen Draupadi protests that she is a woman and a wife—and not property that could be disposed of by gambling. Draupadi has personhood and dignity. She claims it; and God protects her in her dignity. The law protects her from enslavement by human trafficking (sale of oneself in another’s claim to transfer as a piece of gambling property). Thus, we see a critical human dignity dimension with a gender message. The second story concerns King Yudhishthira in his later years. He has been a pious model ruler and spiritual aspirant. He has suffered but never lost his spiritual and human integrity. He now determines that it is time to remove himself from society, live in a remote place, and prepare for death. In his remoteness, he finds himself accompanied by a stray dog. The dog is profoundly loyal and the King develops a genuine affection and compassion for the dog. The King experiences a vision in which God appears and tells him that he will not die in a temporal setting. He will be simply permitted to ascend to a higher-level plane of existence—a higher loca. As the King prepares to go on this journey of spiritual beneficence, he remembers his faithful companion, the dog. He asks the almighty whether his faithful companion will be permitted to accompany him to this elevated destination. The Lord replies that he is sorry but that loca is not a place for dogs. The dog cannot accompany the King. The King responds that, under these circumstances, he must regrettably decline this privileged offer. He will not abandon his faithful and loving sentient companion. In this moving incident a powerful moral insight is given. The man (the ‘I’) and the dog (the ‘it’) become man (‘I’) and dog (‘Thou’). One cannot find a more moving and telling expression of the morality of environmental values than the understanding of a sentient being in terms of ‘Thou’ rather than ‘it.’ It is a profound, universal lesson of timeless value. Thus, The

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Lord responds by saying that the refusal to permit the dog to accompany the King was the last of his earthly tests. The king had responded correctly. His compassion extended to sentient dog companion. Of course, the dog would accompany the King on his spiritual journey. In fact, the dog was an incarnation of the Lord himself. Human rights are tied to the nature of the struggle for dignity, love, charity, forgiveness and generosity. It is a struggle that is rooted in a growing and changing framework of identity. Compassion extends not only to human beings but also to all creatures inclusively. In fact, the concept of human dignity is given an eco-social dimension. B Buddhism The Buddhist tradition, which has many points of similarity with Hinduism, provides a more accessible framework for moral understanding and religious experience to guide the conduct and influence the development of ordinary people. Buddhism provides specific guidelines for conduct that does not encourage extreme suffering, penances, and extremist deprivations for the purpose of the development of human consciousness and spiritual sensitivity. A central element of Buddhist thought is the recognition of the ubiquity of human suffering.45 In this way, Buddhism provides an insight into the human predicament of human suffering. Human dignity, in its most fundamental expression, is concerned with human suffering, which is the outcome of the human mind expressing itself in ignorance, darkness, and extremism. Buddhism presumes that enlightenment cannot be achieved by the extremes of indulgences in pleasure or exercises of torture of body and mind. Buddhist literature explains this as follows: The Noble Path, that transcends these two extremes and leads to Enlightenment and wisdom and peace of mind, may be called the Middle Way. What is the Middle Way? It consists of the Eightfold Noble Path: right view, right thought, right speech, right behavior, right livelihood, right effort, right mindfulness, and right concentration.46 45

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Another important human rights-related aspect of Buddhism is its unwillingness to embrace the concept of Dharma in terms of specifically assigned caste categories. Although the categories themselves were meant to be categories of respect and guidance, practice tended to result in a social process of invidious discrimination and deprivation. Buddhism has an appeal that was rooted in the foundations of respect. Khandro Rinpoche, This Precious Life: Tibetan Buddhist Teachings on the Path to Enlightenment (2005).

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The specificity of the path in Buddhism, its concern for moderation, the middle way as a more accessible approach to both the alleviation of suffering and the path to enlightenment provide an important secular gloss. That gloss was to derive edicts of right and compassionate conduct as an obligation of the king or the state. It was the great Indian Emperor Aśoka (304 bc-232 bc) who first placed in secular form the Buddhist inspired edicts,47 which are one of the earliest recorded developments of the normative guidance of religious practice into the positive law of an enlightened ruler. What is surprising is how modern, or even postmodern, Aśoka’s edicts seem today. For example, Aśoka has the equivalent of a state ombudsman to ensure that the laws of the state are not violated by state officials, or result in the oppression of the people by the state officials. Aśoka had sensitivity to the health needs of people and rest stops were provided where people could acquire herbs and medicines while they were traveling. Aśoka had a concern for animals and how they were to be treated. He recognized that one could not stop people killing and eating animals, but he set the example in the court that there should be regulations concerning animals that are being killed to make curries and other dishes. If people had to eat meat, they ought to eat it in moderation and not gratuitously inflict suffering on animals as a matter of extreme human indulgence. We reproduce some of the key Aśoka edicts below: It is my desire that there should be uniformity in law and uniformity in sentencing. I even go this far, to grant a three-day stay for those in prison who have been tried and sentenced to death. During this time their relatives can make appeals to have the prisoners’ lives spared. If there is none to appeal on their behalf, the prisoners can give gifts in order to make merit for the next world, or observe fasts.48 Twenty-six years after my coronation various animals were declared to be protected—parrots, mainas, aruna, ruddy geese, wild ducks, nandimukhas, gelatas, bats, queen ants, terrapins, boneless fish, vedareyaka, gangapuputaka, fish, tortoises, porcupines, squirrels, deer, bulls, okapinda, wild asses, wild pigeons, domestic pigeons and all four-footed creatures that are neither useful nor edible. Those nanny goats, ewes and sows which are with young or giving milk to their young are protected,

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For an enjoyable academic translation of the edicts, see Edicts of Aśoka, N.A. Nikam & Richard McKeon eds., (1978). Pilar Edict Nb4 (S. Dhammika). See Edicts of Aśoka 61 N.A. Nikam & Richard McKeon eds., (1978).

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and so are young ones less than six months old. Cocks are not to be caponized, husks hiding living beings are not to be burnt and forests are not to be burnt either without reason or to kill creatures. One animal is not to be fed to another.49 The people of the unconquered territories beyond the borders might think: “What is the king’s intentions toward us?” My only intention is that they live without fear of me, that they may trust me and that I may give them happiness, not sorrow. Furthermore, they should understand that the king will forgive those who can be forgiven, and that he wishes to encourage them to practice Dhamma so that they may attain happiness in this world and the next. I am telling you this so that I may discharge the debts I owe, and that in instructing you, that you may know that my vow and my promise will not be broken. Therefore acting in this way, you should perform your duties and assure them (the people beyond the borders) that: “The king is like a father. He feels towards us as he feels towards himself. We are to him like his own children.”50 King Asoka desires that all religions should reside everywhere, for all of them desire self-control and purity of heart. But people have various desires and various passions, and they may practice all of what they should or only a part of it. But one who received great gifts yet is lacking in self-control, purity of heart, gratitude and firm devotion, such a person is mean.51 In the past kings used to go out on pleasure tours during which there was hunting and other entertainment. But ten years after King Asoka had been coronated, he instituted Dhamma tours. During these tours, the following things took place: visits and gifts to Brahmans and ascetics, visits and gifts of gold the aged, visits to people in the countryside, instructing them in Dhamma, and discussing Dhamma with them as is suitable. It is this that delights King Asoka, and is, as it were, another type of revenue.52 The Edicts of Aśoka are not the product of a deeply religious scholar or a spiritual recluse. The Edicts represent a practical guide to governance that seeks to minimize suffering and maximize the possibility of developing the spiritual side of their nature in terms of the paths and guidelines of the Buddhist tradition. Central to these approaches is the principle that every human

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Pilar Edict Nb5. See Edicts of Aśoka 56 N.A. Nikam & Richard McKeon eds., (1978). Edict 2 of the Kalinga Rock Edicts. Edict 7 of the Fourteen Rock Edicts. Edict 8 of the Fourteen Rock Edicts.

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being has inherent dignity. From a human rights perspective, one does not need to go further in spiritual contemplation to determine deeper spiritual truths of Buddahood. However, it may be of value to express caution about how terms and phrases are used cross-culturally. Buddhism stresses nobility, insight, and truth as functions and goals of human experience. The idea of the truth, nobility of the norm, and the insight required to understand it, provides a cultural background to the idea that human rights have preemptory nobility in terms of human goals and aspirations.53 They represent a certain universal truth about the human prospect and they represent a critical insight into the human situation that has a universal, crosscultural validity. The approach of Buddhism in terms of human understanding and obligation is to recognize the impermanence and fragility of human experience and that from birth to death, there is human suffering and no one is spared from it. Suffering is driven by a desire to control things and relationships in order to possess them indefinitely in the face of the impermanence of experience that is defined in part by time. The modern analogue to this is the drift toward globalization, which is driven by the compulsive attachment to consumerism. The ideal consumer is driven by the need to satisfy a strong impulse towards instant gratification. This applies not only to material goods, but also to human relations, which often become matters of impermanence, suffering, and, like used automobiles, are discarded generating enhanced matters of material and psychological suffering. These ideas are expressed in Buddha’s famous four-fold “Noble Path” that expresses the truth of human suffering.54 Like human rights, if we do not know the problem of suffering, the problem of the depreciation of human rights and dignity at all levels, we cannot provide the spiritual, juridical, or

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The traditional Western view of Buddhism…. Buddhism respects the inherent dignity of the individual but does not feel that a theory of human rights is the best symbol for that value. Leroy S. Rouner, Human Rights and the World’s Religions 2, (1988) The Buddhist scholar Hajime Nakamura spoke for most Asian philosophers when he commented, “We don’t usually speak of rights in our tradition.” Buddhists argue for a “conception of duty, felt with sincerity, as the appropriate way of being in a consensual society.” Id. at 1. Buddhism emphasizes a sense of gratitude, rather than rights, as essential for a truly human life. Of critical importance is the distinction between the classical Buddhist notion of the not-self and the contemporary Western notion of the person. Buddhism teaches the virtue of self-emptying so that the individual person becomes egoless. Id. at 9. The Four Noble Truths are classically taught in the Dharmacakra Pravartana Sūtra, which is traditionally framed as Buddha’s first discourse after he reached enlightenment.

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cultural apparatus to ameliorate suffering and to universalize compassion. The four Noble truths are succinct, and often are taught with explanations: 1.

2.

3. 4.

The Noble Truth of the Nature of Suffering (or Dukkha): “Birth is suffering, aging is suffering, illness is suffering, death is suffering; sorrow, lamentation, pain, grief and despair are suffering; union with what is displeasing is suffering; separation from what is pleasing is suffering; not to get what one wants is suffering.55 The Noble Truth of Suffering’s Origin (Dukkha Samudaya): “It is this craving which leads to renewed existence, accompanied by delight and lust, seeking delight here and there—that is, craving for sensual pleasures, craving for existence, craving for extermination.”56 The Noble Truth of Suffering’s Cessation (Dukkha Nirodha): “It is the remainderless fading away and cessation of that same craving, the giving up and relinquishing of it, freedom from it, nonreliance on it.”57 The Noble Truth of the Path Leading to the Cessation of Suffering (Dukkha Nirodha Gamini Patipada Magga): “It is the Noble Eightfold Path; that is, right view, right intention, right speech, right action, right livelihood, right effort, right mindfulness and right concentration.”58

The Four Noble Truths are complemented by the eight-fold path, which is the pathway to compassion and dignity, both of which are essential for the evolution of the enlightened dimension of man. The Four Noble Truths are the foundation for the eight-fold path to alleviate suffering and to develop compassion and understanding for the improvement of life in both temporal and spiritual terms. The eight-fold path focuses on the paths of right knowledge, of human development and aspiration, of communication and right speech, of right behavior and the ethical norms of respect for life, truth, the goods of others, management of sexual drives and intoxication. The other paths include the right livelihood, the right effort, the right development of the mind and the right understanding and absorption of the lessons of the path. When we take Buddhism’s method of compassion and respect for all forms of life, its antipathy to violence, and its understanding of the human predicament, and its pathway to understanding and development, Buddhism provides a way of

55 56 57 58

Dhammacakkappavattana Sutta (sn 56.11), trans. Bodhi at 1843–47 (2000). Id. Id. Id. at 1844.

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thinking, living, and struggling that may be seen as having a resonance with the cultural background of modern human rights. The most critical connection between the Buddhist tradition and human rights is the concept of inclusive love. When the Buddhist talks about an egoless spiritual existence, what is really meant is that the self dissolves into the transcendence of inclusive love, compassion, and empathy. These ideas carry a defensible moral order of boundary limitations of self-interested egotism. On the more practical level, another critical contribution of this tradition is the confrontation of suffering. Buddhism sees suffering as deprivation and the critical path and struggle for knowledge and understanding is to conquer suffering for all. Concisely, the global human dignity problem is the magnitude of human suffering. The concept of ‘human dignity’ is an incarnation of Buddhist insight into the human prospect, its being, and it’s becoming. C Judaism The horrors of World War ii opened a cultural foundation of human dignity in contemporary human rights. The term ‘genocide’ was a neo-logicism that literally means “species extinction.” It is a factual reference to the Holocaust. The triumph in creating universal human rights law was born in the struggle with a life and human rights-denying ideology, the Nazi Herrenvolkism. The trauma for the Jewish people, a people driven from their homeland by an alien imperialist occupier, i.e., the Roman Empire, who spent some two thousand years living on the margins of other communities, and who struggled to survive and resist discrimination and oppression, confronted the ultimate price of suffering in their adopted countries as parts of the Diaspora. The European Jews, relatively small in number, confronted the might of a modern and powerful enemy with the political will to exterminate every Jewish man, woman, and child. The human rights that we have today are ideas whose current vitality is owed to the price in blood paid by the Jewish people in Europe. Additionally, it is paid by all other Untermenchen (sub-humans) who were victimized by the Nazi extermination machine, as well as by those who fought to protect them against a machine fueled by the principle of racial supremacy as a supreme moral obligation of the atheistic Nazi myth system. To some extent, the Nazis had an insightful understanding of Jewish culture and tradition. Jewish culture extends from the roots of civilization, and follows a path of moral integrity, and essential humanism. These very qualities—qualities born of spiritual and scholastic insight as well as the experience of suffering deprivation—are the core universal values of respect and the sanctity and

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dignity of human life. These very values were precisely what the Nazis rejected and sought to extinguish. Our purposes do not demand that we focus on all of the elements of monotheism and Jewish history. Rather, we will distill the commonly accepted value tenets of the Judaic tradition and their importance to contemporary human rights.59 The Judaic tradition is one of the most historically important global religious myth systems because it directly influenced Greco-Roman views of political values and Christianity itself. Judaism is widely understood to be an integral part of the Western tradition. Moreover, the Judaic tradition has deeply influenced the tradition of Islam, which stretches beyond Western spheres. Indeed, although religious scholars and leaders vested in the discreetness of their particular religious myth systems see differences between the three largest religions, those religions share many points of spiritual understanding and many elements of moral prescription. For example, to the Muslim, Allah is compassionate, merciful and loving. This is a feeling shared by devout Christians. In the Judaic tradition, yhwh is a God of love, and God loves his beloved children. Consider the words of Hoseah: I taught Ephraim to walk, I took them up in my arms … I led them with cords of compassion, with the bands of love … How can I give you up, O Ephraim! How can I hand you over, O Israel! My heart recoils within me; my compassion grows warm and tender.60 The Judaic tradition is one that reflects spiritual insight and direct personal connection with God. For example, God gave Moses the Ten Commandments as a code that made social living and community responsibility possible. In the historic experience of the Jewish people, there are other factors that have tended to strengthen the character of certain values, and those that are thought to be revealed by God. Among these are (1) the sanctity of life itself and its intrinsic value; (2) the critical meaning of justice as an appropriate code in macro- and micro-social contexts; (3) the critical meaning assigned to morality as the core support for justice and the value of life; (4) the contemplation of 59

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Bishop Desmond M. Tutu noted that, “The Bible makes some quite staggering assertions about human beings which came to be the foundations of the culture of basic human rights that have become so commonplace in our day and age. Both creation narrations in Genesis 1–3 assert quite categorically that human beings are the pinnacle, the climax, of the divine creative activity; if not climatic, then central or crucial to the creative activity.” Desmond M. Tutu, Religious Human Rights in Global Perspective (1996). Hosea 11: 3–4, 8, The Jerusalem Bible (1966).

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suffering, the meaning of suffering, and how the idea of suffering itself generates compassion and identification with the suffering of others; and finally, (5) the tradition of scholarship, which notably developed during the Diaspora. This tradition tempers divine revelation with written expression which requires reason and reasoned elaboration in understanding the concepts of love, life, justice, morality, and suffering. The Jewish mystical tradition described as the Kabbalah has many parallels in the mystical traditions of Hindus, Buddhists, Sufis, Sikhs and Christian traditions. In the Jewish tradition, as in those others, life must also be seen as a path to enlightenment (tzaddik). This pathway is partly introspective and is suggestive of different forms of meditation as a means to enhance human consciousness.61 The pathway to enlightenment is the path of scholarship and learning as found in the Talmud and the Torah; the path of respect (zhiruth); the path of generosity (zrizuth); the path of loving kindness (gemulit chesed); the path of moderation (haprishut); the path of purity (Tehora He); the path of joy (kelippot); the path of selflessness (anavah); the path of awe; the path of equanimity (hishtavut); the path of extraordinary mind-states (ruach ha-kodesh); and the path of life eternal.62 The pathway to a transcendent life in Jewish tradition is a personal challenge. It puts the historical suffering of the Jewish people in context, and clarifies the values of life that is meant to be hallowed and more than the sum of its temporal parts. What is clear is that the values in the Judaic myth system represent a standard to which human beings must struggle and to achieve the realization of human rights, dignity, and justice. These values represent a shared subjectivity for all Jewish people who take their faith and values seriously. More than that, these values are also observable in other major religious myth systems. D Confucianism Confucianism is a secular philosophical myth system that is deeply rooted in Chinese history and tradition. Confucius’s (551–479 bc) early life was one of hardship and poverty. He exemplified a person who, through his mind, his ability to learn, and his appreciation for all interesting aspects of life, set himself on a path of understanding that is prescient in its message for modern systems of governance and human rights.

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David A. Cooper, God is a Verb: Kabbalah and the Practice of Mystical Judaism 184–234 (1997); see also Lawrence Kushner, The Way into the Jewish Mystical Tradition (2004). Id.

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A central theme in Confucius’ public life is his concern with good governance. It can be said that this is the reason he held only high office for a short period. Since he represented the joining of common sense, integrity, and rational judgment, he was praised in public and avoided in private by the ruling class of his time. Everyone agreed with the wisdom of his opinions and judgments. Politically and morally suspect rulers feared, however, his ideas of integrity in governance and the management of the state without corruption and exploitation. An anecdote gives an example of his insights into the problem of decent governance. When informed that there was a dramatic growth in a particular Chinese state, he was asked by officials how the government should respond to this demographic fact. His answer was simple: “Enrich them.”63 Thus, to Confucius, the satisfaction of basic material wants in an increasing population was an important step towards social stability. When he was queried as to what was to be done after the enrichment process, he replied famously, “Educate them.”64 A central element of the Confucian myth system is the concern for the wellbeing of ordinary people and the responsibilities of governance to secure that end. This brought into political theory ideas tied to government accountability and democratic entitlement. Further, Confucius’s focus on education is a complement to this idea. Uneducated or ignorant people are the most likely to be exploited, or they become so alienated that they become a danger to public order. Implicit in Confucius’ work is that educated people will be inclined to be more productive in terms of social, political, and economic values. His focus on education has a modern ring to it. Confucius founded his progressive ideas about governance and education in terms of the notion of deliberate tradition. The central ideas are the notion of the jen (love, human-heartedness, and virtue) which is a complex idea touching on the model of the ideal relationship between human beings. This idea has some affinity with the African idea of Ubuntu, which idealizes the notion of human dignity, and states that people respect each other and their dignity in their interrelationships with each other. Confucius’ perspective is that virtues of goodness, benevolence and human-heartedness are central to human integrity and behavior.65 63 Confucius, Analects of Confucius 13:9. 64 Id. 65 There is a discourse that focuses on the Western autonomous self-system and the Oriental non-autonomous self-system. The discourse obscures some of the central and universal ideas that are the foundation of the Confucian perspective. Confucian philosophy is that the Western notion of the autonomous individual is not the most appropriate way

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As a standard of conduct, Confucian principles are compatible with the general framework of human rights. A central element in human rights is expressed in the notion of rational self-interest. If a person does not want to be a victim of torture, it is in that person’s interest to oppose torture, because in doing so, he minimizes the possibility that he will fall victim to torture. Confucius makes this point more positively when he says, “The man who possesses his Jen, wishing to establish himself, seeks also to enlarge others.”66 The second major Confucian idea is that of Chun-tzu. Where Jen relationship is interaction between human beings, Chun-tzu sees the evolving man as a man who embodies the greatness of ideas and whose sense of compassion and charity show in every sphere of life. The idea is that a person moves to a comprehensive idealization of the most important temporal and spiritual values. That idealization represents an expansion of the ego and identity to the

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to characterize human beings and argues instead for “concept clusters” through which cultures learn from and adapt to one another. Confucius argues that there are universal elements in human rights, but that universality is always embodied in a particular cultural context. Human rights are a relatively recent Western tradition which does not mean that Eastern philosophical traditions have nothing to contribute to the discussion. He argues that the Confucian tradition contributes to a better understanding of what it means to have rights and how rights function in a cultural context. The Confucian contribution is centered in its focus on “humaneness” and the reverential attitude that Confucius had toward the meaning of being truly human. He regards Confucianism as a religious humanism and stresses the importance of reverence for life and the sources of life. But the functional notion of rights in Confucian culture is based on equity in social relations, not equality.… Reciprocity and propriety are central conceptions in the Confucian cultural context. Some (Ames) in the Confucian tradition argue that the Western conception of individual human rights is a cultural response to the rupture between the small familial community where custom and tradition guaranteed fundamental dignities and the modern nation state in which mobile and atomized populations claim their humanity from an impersonal government. China has not been under the same compulsion to develop a doctrine of individual rights because of the continuity of familial communities. Ritual practice has been a major instrument enabling continuity. The strength of the Chinese understanding of human dignity is the extent to which ritual practice wove humanistic values into the cultural fabric, maintaining them by social pressure rather than punishment or legal action. Reliance on the application of the law and the interpretation of human rights as a legal doctrine dehumanizes and impoverishes the natural source of that dignity. Those sources are mutual accommodation and a particular responsibility in order to discover conduct appropriate to a particular occasion in a specific context. Id. Houston Smith, The Religions of Man 180 (1965) (citing Confucius, Analects of Confucius, VI-28).

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entire commonwealth of persons. The following are the central ideas behind this principle: If there be righteousness in the heart, there will be beauty in the character. If there be beauty in the character, there will be harmony in the home. If there be harmony in the home, there will be order in the nation. If there be order in the nation, there will be peace in the world.67 The third concept in Confucianism is the concept of Li (“rites” or “norms” of appropriate social behavior). Here, Confucius uses history selectively. The tradition that must be produced is not vulgarity or the lowest levels of behavior of the past, but indeed the aesthetic of culture, the rootedness of stability, the capacity for graceful relationships, and civil communications and ties between all.68 These three ideas of Jen, Chun-tzu, and Li are central foundations for developing a culture in which dignity and respect are given operative effect in human interaction. Additionally, studying all three offers unique perspective in the religious context. What distinguishes the work of Confucius is that he constantly involved himself in the community, and the framework of his expectations corresponds to contemporary standards of responsible governance. Confucius advocated that governors needed to be educated to perform their tasks effectively and that education is a foundation for governance that is responsible, transparent, accountable, and meets standards of reason and rationality. As Confucius set out these ideas and sought to give them practical application, he confronted great challenges of how to articulate the aspirational goals with precision, and how to apply them in the real world in specific instances. As we mentioned, Confucius was persistently kept out of governance because his brilliance, imagination, integrity, and his incorruptibility would have burdened a government relying on corruption. Lack of responsible governance is still one of the great problems of our time, and has led to the most egregious abuses of human rights. The secular philosophical myth system of Confucius provides a critical understanding to the problem of human dignity. Confucianism regularly questions whether the state is an abuser and a major source of human rights deprivations. Moreover, it is the unaccountable state, the corrupt state, the state run

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Confucius, the Great Learning (1893). Houston Smith, The Religions of Man 180 (1965).

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by incompetents, and the state that is run without transparency, responsibility, and accountability that depreciates human rights. Thus, the idea that a state’s power may be constrained by reason and enlightenment is undoubtedly a critical insight into the contemporary problems for human dignity. E Christianity Christianity is a religious myth system with a commanding presence over the entire planet. It covers people from radically different cultures, traditions, and experiences. As a formal religion, Christianity has a long historical tradition of continuity. Its beginnings are profoundly simple and humble. Jesus Christ was born in a manger, the son of a poor Jewish carpenter, but (by faith and tradition) divinely conceived in a humble family. The extraordinary and ordinary are inexplicably combined. There is also a cross-cultural factor because Christ’s birth is predicted by three wise men from the East. Thus, Christ’s birth is affirmed not only from the Messianic tradition of Judaism, but also seemingly of the broader universal mystical tradition of the East. There is the symbol of the star of Bethlehem, a symbol of galactic imagery, guiding strange and alien wise men, from an alien community to a stable in Bethlehem. It is difficult to find in any religious text so disarming, and yet powerful a narrative, which touches on the birth or incarnation of the Christ, a man claiming to be of both man and God.69 The traditional narrative is so compelling that even an aspect of the historical Jesus, such as Jesus’ physical appearance, remains a mystery. The narrative is very powerful because Jesus, who “went around doing good,”70 resonates across the ages as an example of human aspiration. His baptism is an exercise that rivets in the sense that Christ is baptized by an ordinary man, known as John the Baptist. Here one may perceive the most compelling lesson in humility, equality and the impermanence of hierarchy. Then there are the New Testament’s parables with a staying power. The story of the Good Samaritan, of course, is universal. It can be said that there we see the concise meaning of life. In the Good Samaritan, it is the other, the nonself other, who dissolves the bonds of Martin Buber’s I and Thou71 in a telling metaphor, as the bonds of ego are dissolved into the bonds of selfless empathy. The Good Samaritan finds a Jew on a lonely road who has been robbed and beaten up. The Samaritan decides to help the Jew get to safety and

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Id. Id., at 303 (1965). Martin Buber, Ich Und Du (I And Thou) (1923).

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appropriate treatment at his own cost despite the traditional emnity between the two ethnic groups. Another parable gives us a different side of Jesus and of Christianity today. At the Jerusalem temple, Christ surprises us as he expresses all too human anger at the money changers in the house of God. The point of the story should probably not be read as simply the defense of God’s space on earth. Rather, it is also the human response to a God of devotion and the defense His house of devotion from being despoiled by thoughtless, greedy human action. Another story tells us of Christ the intellectual, who is skillful in debate. Every Christian recalls the trap set for him about God’s superiority to Caesar on why taxes should go to Rome. His poignant reply: “Very well, give to Caesar the things that are Caesar’s—and give to God that which is God’s.”72 Finally, and essential to Christianity, there is Christ’s death. Christians understand that Jesus’ life was a sacrifice, and that the purpose of the sacrifice would result in his death. Nothing evokes the notion of empathy, tragedy, and the many dimensions of love and loss, than seeing both God and an innocent man hanging from the cross; God and man, His son, genuinely suffering for the sake of all others. Christ’s life and the history of Christianity have had a powerful and enduring appeal that have touched on the inner well-springs of human feelings, emotions, empathy, suffering, tragedy, resurrection, and hope. As one mourns the death of the Savior, one also experiences the exhilaration of resurrection, hope, and joy. Perhaps for this reason we can confront human rights problems in terms of human emotions, and see through the struggle within our own souls. This allows us to see the social and political environment with an expectation of hope for human improvement supported by the spirit of love, compassion, joy, and hope for the future. As Christ so simply put it, “suffer the little children to come unto me.”73 Yes, it is the children who are the hope and future, and in whom Christ as the Father and as all Christians as Fathers, writ large, nurture the heritage, take responsibility for the present and especially responsible for the generations to come. The human dignity message finds a resonance with Christianity as it does with the other major faiths. Bishop Tutu notes that we should have deep reverence for [the] person; The New Testament claims that the Christian person becomes a sanctuary, a temple of the Holy Spirit, someone who is indwelt by the most holy 72 73

Mark 12:17, The Jerusalem Bible (1966). Luke 18:16, The Jerusalem Bible (1966); See also Matthew 19:14, The Jerusalem Bible (1966).

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and blessed Trinity. We would want to assert this of all human beings. We should not just greet one another. We should strictly genuflect before such an august and precious creature. The Buddhist is correct in bowing profoundly before another human as the God in me acknowledges and greets the God in you. This preciousness, this infinite worth is intrinsic to who we all are and is inalienable as a gift from God to be acknowledged as an inalienable right of all human persons.74 There is much that is distinctive in Christianity and the struggle for human dignity. It is Christ, in his persona and his words, who challenges us. In truth, Christ was a radical and a revolutionary. He may well have been more radical than any of the revolutionaries of our time. In part, Christ’s message was the notion of equality. Essential to this idea was his depreciation and condemnation of sectarianism and social inequality. These ideas were and are radical because Christ pushes the moral boundaries far beyond mere social and political equality. Even today people find it difficult to learn to turn the other cheek, or to do good to those who hate us. Humans today rarely heed to his warning to those who worship at the altar of materialism make greed an end in itself, and that such persons have the possibility of entrance into salvation as likely as a camel has in trying to pass through the eye of a needle. Indeed, at in the Sermon on the Mount, Christ specifically vests the highest moral favor in the wretched of the earth: “Blessed are the poor in spirit…Blessed are the meek… Blessed are those who seek justice…Blessed are they who are persecuted for the sake of righteousness…”75 It is in the Lord’s Prayer, a prayer as beautiful as it is powerful, that many contemporary commentators on human rights see as containing the 74 75

Desmond M. Tutu, Religious Human Rights in Global Perspective x–xi (1996). See Matthew 5:1–12, The Jerusalem Bible (1966). for the full text of the Sermon on the Mount. (“[5:1] Now when he saw the crowds, he went up on a mountainside and sat down. His disciples came to him, [5:2] and he began to teach them, saying: [5:3] Blessed are the poor in spirit, for theirs is the kingdom of heaven. [5:4] Blessed are those who mourn, for they will be comforted. [5:5] Blessed are the meek, for they will inherit the earth. [5:6] Blessed are those who hunger and thirst for righteousness, for they will be filled. [5:7] Blessed are the merciful, for they will be shown mercy. [5:8] Blessed are the peacemakers, for they will be called sons of God. [5:9] Blessed are the peacemakers, for they will be called sons of God. [5:10] Blessed are those who are persecuted because of righteousness, for theirs in the kingdom of heaven. [5:11] Blessed are you when people insult you, persecute you and falsely say all kinds of evil against you because of me, [5:12] Rejoice and be glad, because great is your reward in heaven, for in the same way they persecuted the prophets who were before you.”

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substantive aspects of the Universal Declaration of Human Rights (udhr). The Lord’s Prayer is about justice. This form of justice is obtainable by us and should guide us in our conduct and in our decision-making. In many respects, this prayer brings together the quintessence of the Christian tradition, and captures the fundamental values that can be extracted from other dominant religious traditions. Like the Universal Declaration of Human Rights, it has profound intellectual content. It is a pathway to deeper spiritual contemplation as a compact summation of social conduct. International Court of Justice Judge C.G. Weermantry, in his book, The Lord’s Prayer: A Bridge to a Better World, demonstrates that within the Lord’s Prayer there is the most profound moral exposition of equality and dignity.76 In addition, there is the idea that certain rights may not be vitiated by political authority. There is the clear concept of the universal equality, the idea of a higher law and the concept of social rights and duties. Perhaps for today’s world there is no more profound theme for the survival of humanity than the importance of forgiveness, a belief in God, and the universal necessity of mutual respect and love. We have belatedly discovered that endless conflicts will endlessly endure unless there is a practical application of the concept of forgiveness, a notion reflected in Truth and Reconciliation Commissions. This means that truth and forgiveness are important values for reconciling human beings in the bonds of empathy and solidarity to end conflict and tragedy. Later in this book, we talk about transitional justice in which societies like South Africa, once involved in lethal conflict, are now reconciled through the complex process of forgiveness, acknowledgement and reconciliation for hope in the future. There are societies that have followed this model and can be truly regarded as societies that have been resurrected. From the Christian perspective, the good news is that the future will be based on the foundations in the Lord Prayer’s itself touching upon equality and dignity. It is reflected as well in the udhr’s promise of the future. F Islam Islam is the third most predominant monotheistic religion in the world.77 Islam’s view of God is that Allah (God) is an all-pervading, benevolent and 76 77

C.G. Weermantry, The Lord’s Prayer: A Bridge to a Better World (1998). The Islamic doctrine on the rights of the person is theoretically in tune with the udhr. However, Islamic governments have often ruled with arbitrary power. Martin has noted that, in spite of the fact that many Islamic states (such as Afghanistan, Algeria, Egypt, and Morocco) have ratified major human rights treaties, Islamic religious leaders on the whole have not embraced the international consensus on human

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merciful creator. God is the ultimate idealization of the norms that govern the faithful. God’s expectation of man is that he be virtuous and embody the good life through piety and through submission to the Lord. Scholars hold that Islam is sustained by five symbolic pillars.78 This is generally identified with the Sunni perspective. It is also maintained that Shiites identify eight pillars, although these eight pillars or practices are thought to overlap with the five pillars. The five pillars of Islam focus very much on constant prayer and worship that is community-oriented and designed to reinforce the belief that man exists to serve a beneficent God. Shahadah: The first pillar of Islam is clear and unequivocal: “There is no God but Allah and Mohammed is his prophet.”79 There is an insistence that no Muslim worships the Prophet Mohammed (pbuh) for he was simply God’s messenger. This pillar expresses humility, guided by faith. It is a critical factor in a world of unrestrained egotism, most frequently exhibited by the powerful. Thus, the concept of humility clearly has resonance with the modesty required by the Hindu tradition and the control and submission of the ego to a higher purpose found in both Hinduism and Buddhism. Moreover, it resounds with the humility of Christ’s birth and life, as established in Christianity. We

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rights. Their position is illustrated in the wording of the 1990 Cairo Declaration of Human Rights in Islam drafted by the Organization of the Islamic Conference. The Declaration ends with Article 25, which reads: “The Islamic Shariah is the only source of reference for the explanation of any of the articles in this Declaration.” Moreover, while the wording of the other articles compares favorably with those of the international treaties, their meanings are explicitly subjected to interpretation in the light of Shariah, the body of Muslim beliefs and laws based on the Qur’an and other sources. Islamic legal texts emphasize communitarianism, that is the supremacy of the Ummah or Islamic community, as opposed to what they see as the individualistic nature of Western civil law and humanistic, ethical thinking. The Cairo Declaration claims a universalist role, Reaffirming the civilizing and historic role of the Islamic Ummah which God made the best nation that has given mankind a universal well-balanced community … to guide all humanity which is confused because of competing needs and ideologies and to provide solutions to the chronic problems of this materialistic civilization. The Declaration thus defines Islam not only as the preferred system for the world’s Muslims and for others living in Muslim countries, but also as the universal meaning system and the privileged religion. Shahada, Five Pillars of Islam. Id.

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suggest that the salience of humility is a critical and universal insight that may well be the foundation by which humanity secures the foundations of human rights. Salah: The second pillar of Islam also reinforces the idea of piety and prayer. The Koran instructs the Muslim to “be constant” in prayer.80 The typical prayer emphasizes that God is the helper of the afflicted and the reliever of distress. God consoles the broken hearted and is a constant help to his servants. God is merciful and all loving and is the epitome of forgiveness. Conversely, man is the sinner seeking forgiveness. The normal prayer captures the ideals of commitment to Islam and to the ideals of piety, humility, the problems of distress and suffering, and the importance of love and forgiveness. The daily prayer is in fact a sacrifice and a reminder that we are spiritual beings. God’s compassion and beneficence are given to us through piety and prayer and is an example to be replicated. It represents a tool of personal transformation in the direction of piety and compassion. Zakat: The third pillar of Islam is a reflection of Islam’s concern with kindness and generosity. Kindness can be considered the opposite of repression, and also an antidote to suffering. Thus, the ancient principle of Zakat is a deeply rooted precept of critical value to modern human rights. Today, it touches on the practical issues of governance and social equity. Through kindness and generosity, Zakat recognizes a distinction between haves and have-nots. One of the central pillars of Islam is to promote an idea of proximate social equality. The Prophet Mohammed instituted a welfare state with a graduated tax so that the less fortunate could share in the abundance created by those with wealth. Indeed, Islam provided the initial outlines for a pre-modern welfare state—a state that does not focus simply on civil and political rights, but also social and economic rights. Sawm: The fourth pillar of Islam stipulates a period of fasting during the month of Ramadan. This period is important because it is a reminder of the notion of sacrifice, obligation, and duty. The fast performs the function of purification both physically and psychologically. Fasting is also an act of self-discipline and sacrifice. It is a critical part of the spiritual transformation of the human being. It is a powerful tool of self-reflection about the moral and spiritual foundations of faith and submission to God. The central idea is that the obligation on all Muslims to participate in the fast brings together the faithful into a deeper understanding of the inherent dignity of all. 80

Id.

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Hajj: The fifth pillar of Islam is the Hajj—a pilgrimage to the Muslim holy city of Mecca that occurs during the month of Dhu al-Hijjah. The Hajj is a powerful concrete expectation of action, requiring planning, a time-line, spiritual and psychological preparation and communion with faithful Muslims in the holiest sanctuaries of Islam. It presents a practical form of action to be proximate with God, as well as to self-reflect on past imperfections and the needs of others. The Hajj accounts for much of the internal solidarity and unity within the diverse Muslim world. The Hajj also gives expression to a struggle to overcome one’s own weaknesses and to advance spiritually in terms of submission to God. The Hajj is a practical challenge of individual struggle and commitment to Islamic ideals of mercy, compassion, generosity and integrity. Jihad: Although not formally a pillar, Jihad is an important and relevant concept in Islam. The jihad is meant to be an omnipresent symbol or norm of the challenge that the faith poses for the individual adherent. That challenge requires the person to be aware of the moral responsibility and importance of one’s personal struggle. Jihad involves the struggle against evil, and these temptations may be personal. Thus, the obligation of the Jihad is for the believer to strive and overcome the temptations of the devil and sin, and not to deviate from the path of God. As we have seen in other religious traditions, struggle is critical to the spiritual self, and self is the foundation of personhood under the grace of God. What is distinctive about the Jihad is that it falls within a tradition that insists on ritual and practice providing a concrete expression and form of action as a function of submission to God. The Jihad in the form of struggle may be an intensely personalized one or it may be a struggle in support of the integrity and well-being of other believers. In the Bhagavad Gita, for example, Krishna insists that it is the duty of Arjuna, a warrior, to fight a just war, to fight against evil. Jihad may also have an analogous aspect to broader secular concerns in the sense that the call for a Jihad may be a call for the commitment to a just war or cause in support of the integrity and well-being of the community, such as against unjust oppression or aggression. This inspirational social aspect of religion has a place for activism in human rights. In the Preamble to the udhr, there is a reminder that human rights should be respected so that man does not resort to revolution to secure fundamental rights. We are not making more refined distinctions about the scope of Jihad and the problems of construction and interpretation of its ultimate or essential meaning. It is perhaps sufficient to note that what defines it is the struggle to defend and promote the ideals of the faith and these ideals are shared with

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other confessional traditions and the values behind these ideals inform the scope and content of human rights. iii

Religious Values and Secular Values Compared

This survey of dominant religious myths and their values has sought to stress the congruence of these with dynamic humanism, which is the force behind human rights. When the religions are viewed as a struggle for the ideals and values that are symbolized by transcendent grace, the fundamental value of human dignity and dynamic humanism becomes clearer. The central values coalesce around the principle of mutual, reciprocal respect for all. The values focus on love as an aspect of identity. It is also dynamic and in the context of struggle evolves inclusively. The most important aspect of the inclusivity is that man is indivisible, and that solidarity remains a challenge to the struggles that fragment our capacity to see humanity in all of us. Religious truths stress the importance of struggle and aspiration through multiple paths and techniques. The purpose of these pursuits is to use inclusive love and solidarity as a foundation for a deeper spiritual unfolding of submission to God where all boundaries of “otherness” disappear. Modern human rights appear to bring these fundamental values and ideals together in an irresistible paradigm and challenge, unifying the I, the we, and the other in ideals of integrity and respect. The processes that animate the struggle remind us of other critical values such as empathy, kindness, compassion, generosity, non-violence, truthfulness, piety, and our capacity for humility in the presence of the spirit of humanity. Today, a global discourse continues under the institutional framework of the Parliament of the World’s Religions, which is a forum for the major religions of the world to come together to discuss common issues of spirituality and value. This process of global communication has given birth to a critical inter-confessional dialogue. It is an institutional reminder of the spiritual bonding of all of humanity regardless of the particular faith or sect. A concern regarding the commitment to values of human dignity found in religious experience is that this commitment does not provide answers about strategies to enhance the spiritual and moral aspects of individual and community experience. It is largely in seeking such strategies that contentious debates emerge. It is in the cultural practices that justify diverse value guidance in the context of cross-cultural experience that we confront the problem that human rights have sought to solve, i.e., the universality of moral virtue

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­versus the cultural relativity of moral virtue in a diverse world. Under the influence of rigorous analytical philosophy, modern philosophers tend to be skeptical that universal moral propositions can be justified by objective methods of reasoning, or that they can be self-justifying by close analytical appraisal. Some go so far as to hold that universals such as the universal right to human dignity cannot be meaningfully stated and, the concept of human dignity can only be justified on the basis of subjective non-rational factors associated with confession and belief. If human rights and dignity are simply matters of cultural and moral relativity, any claim to universality in human rights is based on fragile foundations and fails the test of objective justification. The udhr contains the word universal and has obtained the status of customary international law and therefore is meant to articulate obligations that encompass all of humankind. Perhaps there is a pathway that provides understanding of human rights and preserves its global reach, but does not establish justification based on an individual’s intimacy with the Creator. Indeed, such an outlook presents a challenge to both skeptics as well as those who believe God is the justifier of all moral virtue. iv

The Commensurability of Accepted Values

Guidance found in the scholarly discourse of morality, ethics, and value ­analysis might incentivize policy-makers to enhance the prospects of transformation of the global order founded on respect for humanity, as well as the earth-space environment which makes human survival and transformation possible. The prospect of an improved human future is an important expectation of the guidance based on an ethic of universal human dignity. The central problem that modern philosophers and moralists have grappled with is that “human dignity based on universal respect” is a cluster of complex values and value processes. In order to enhance human dignity in policy contexts, the integration of these values is required. At an abstract level, these values may seem to be incommensurable. At an operational level, conflicting values may have to be contextualized and analyzed in light of broader, formulations of value judgment. Thus, values such as power, respect, rectitude, affection, enlightenment, well-being, skill, and wealth must be construed and interpreted in terms of their enhancement of a more abstract human rights postulate. The policy maker seeking enhancement of universal dignity must develop techniques of decision making, including standards of construction and interpretation. For instance, does evaluating the value of liberty induce

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the sacrifice of the value of equality? It is at this operational level that lawyers, social scientists, and policy makers must make critical decisions about how to integrate often ostensibly conflicting values and norms to enhance the universal ethic of human dignity. An example can be found in a South African case. In Azanian Peoples’ Organization v. President of South Africa, the Constitutional Court was confronted with a claim by a political party actively involved in the struggle against apartheid that the “Truth and Reconciliation” statute provided amnesty for those who should otherwise be prosecuted for grave violations of human rights.81 The party claimed the reconciliation statute was both unconstitutional and a violation of international law.82 In effect, the Court was confronted with a truth and reconciliation procedure, which was a critical component of the internal peace process as well as the process whereby the disenfranchised mass of South Africans could gain their political freedom.83 This procedure was, however, in ostensible conflict with universally accepted norms of international law, which do not provide excuses for heinous crimes against humanity.84 In this case, the Court upheld the constitutionality of the statute and integrated the ostensibly conflicting international values by giving rational priority to the critical importance of a peace settlement, which would lead to a rule of law, human right sensitive, democratic dispensation.85 Does the ethic of universal respect and human dignity demand absolute, universal compliance at the expense of other universally accepted values? To ensure that the values of respect, democratic entitlement, and humanitarian law are honored requires fine tuned analysis and subtlety in the structure and process of decisional interventions. Rules of construction and interpretation are worked out which hold, for example, that even if a ius cogens (“peremptory principle”) of law embodies an obligation erga omnes (“universally binding”), it should be evaluated, appraised, and construed to enhance rather than disparage rights which may also have to be accommodated. The currency behind the universal morality of dignity and respect is that it provides 81

82 83 84 85

See Azanian People’s Organization v. President of the Republic of South Africa,1996 (4) sa 672 (cc) (S. Afr.).; see also Winston P. Nagan & Lucie Atkins, Conflict Resolution and Democratic Transformation: Confronting the Shameful Past—Prescribing a Humane Future, 119 South African L. J. (2004). Id. Id. Id. Id.

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practical decision makers with goals, objectives, and working standards permitting the transformation of law and practice into a greater approximation of the u.n. Charter’s built-in goals and standards. This prescribes a public order committed to universal peace and dignity for the people of the entire earth community. Practical decision makers and interpreters will gain guidance about human dignity through the six keynote concepts in the u.n. Charter. These concepts embody the global community’s expectations about constitutive and public order priorities.86 The ideas of justice are especially relevant to international legal order. These concepts are vital if international law is to be guided by explicit standards of understanding built into the morality of respect for human dignity. The construction and interpretation of modern international law, i.e., its specific prescription and application, may be rootless and arbitrary if it is not subject to explicit standards of normative guidance. These are expressed in the concrete terms of the u.n. Charter. An illustration of the successful deployment of intellectual tools for the advancement of human dignity is found in the legality of nuclear weapons case. The dissenting judgment of J. Weeramantry87 found that he could derive principles from rights that could be articulated from the keynote values of the u.n. Charter. Keynote u.n. Charter Precepts and Values The u.n. Charter contains a preamble that is explicit about the principles that are to inform the understanding and interpretation of the Charter. Influenced by the Weeramantry construction given to the values in the u.n. Charter for the purpose of specific prescription and application, those themes are developed in this section. The Charter’s Preamble and its chapter on purposes codify central principles of moral priority for the world community. The opening of the preamble expresses the first precept that the Charter’s authority is rooted in the peoples. This is indicated by the words, “[w]e the peoples of the United Nations.”88 Thus, the authority for the international Rule of Law, and its power to review and supervise important global matters, is an authority not rooted in abstractions like

86 87 88

See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996 at 443 (Weeramantry, J., dissenting). Id. u.n. Charter Preamble.

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‘sovereignty,’ ‘elite,’ or ‘ruling class,’ but in the people of the world community. This means that the peoples’ goals are critical indicators of international authority and the dictates of public conscience. The fact that the authority of the u.n. Charter is rooted in the people sets out to include people who are scholars and jurists, whose work on global justice carry the authority of participation in a ‘we the people’ project. The Charter’s second key precept embraces the purpose of saving succeeding generations from war.89 When this precept is seen in the light of organized crime syndicates’ involvement in the illicit shipment of arms, the possibility that they might have access to nuclear weapons technologies and chemical and biological weapons, the reference to ‘war’ in this precept must be construed to enhance the principle of international security for all in the broadest sense. The suffering generated by war is a virtual institutionalization of the principle of human indignity. The third keynote precept is the reference to the “dignity and worth of the human person.”90 The eradication of millions of human beings with a single nuclear weapon, or policies or practices of ethnic cleansing, genocide, and mass murder hardly values the dignity or worth of the human person. What is of legal, political, and moral import is the idea that international law based on the u.n. Charter be interpreted to enhance the dignity and worth of all peoples and individuals. Justice therefore demands that there be fundamental security for the human person. The fourth keynote precept in the preamble is emphatically anti-imperialist. It holds that the equal rights of all nations must be respected.91 Principles such as non-intervention, respect for sovereignty including political independence, and territorial integrity are issues that remain under constant threat of penetration by organized criminal activity. The fifth keynote precept in the u.n. Charter preamble refers to the obligation to respect international law (this effectually means the Rule of Law) based not only on treaty commitments but also on “other sources of international law.”92 These other sources of law include values that complement efforts to promote expectations of the universal ideals of morality. International law recognizes the contributions of juris consults in the making and application of international law. In this sense, scholars like Dworkin, McDougal, and others

89 90 91 92

Id. Id. Id. Id.

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make their contributions as an appropriate, recognized source of international law, and a source of normative guidance. The sixth keynote precept in the preamble of the u.n. Charter contains a deeply rooted expectation of progress, improved standards of living, and enhanced domains of freedom and equality.

chapter 3

Human Rights Trends in the Western History of Ideas This chapter places human rights in context of the Western history of ideas. The chapter contains two parts, one general and one specific. The general part examines the development of a higher law in the Western tradition influenced by Greek philosophy, Roman law affected by the Stoic philosophy and Christian theologian scholars such as John Duns Scotus and Thomas Aquinus. The Western tradition provides a frame of reference for the justification of natural law as an expression of human reason. The influence of natural law on international law is considered since human rights is an aspect of international law. The problems of sovereignty-dominated positivism in the aftermath of World War ii and its relevance to the creation of a declaration of human rights are underscored. An overview is given of the current natural law tradition and significant defenses and critiques of it. i

The Western History of Ideas

A political or legal idea is not necessarily one that is translated into operational practice. In modern terminology, it is a perspective. It is hard to imagine action, practice or custom without some perspective however conscious or unconscious its actual influence. History is a constant struggle to put man’s ideas or perspectives into practice. The question for the human rights scholar, activist and intervenor is whether the historical record gives a perspective about the value of human beings and establishes notions of fundamental rights and obligations. Human beings will make claims about who they are, i.e., the scope of their actual and preferred identities, e.g., family clan, tribe, nation continent and globe. They will make claims about their material, emotional and spiritual wants. They will make claims to secure who they are and who they want to be. These claims will occur in a community context, e.g., a clan, village or a metropole. From an anthropomorphic perspective, these claims compared to the rights codified in the udhr are identified. These rights include claims and problems about power, wealth, respect, well-being, skill, enlightenment, affection, and rectitude. In order to put ideas or perspectives into a general model of community, these ideas or perspectives in community operations must be grounded. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_005

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An operational model of community is both a matter of anthropomorphic and a fortiori historical salience. The model must be designed to provide a socially constructed context for understanding the evaluation of both human rights ideas and practices. The model developed to provide a community context was provided in the political theory and jurisprudence of Yale University law professors, Harold Lasswell and Myres McDougal. Human beings pursue values through institutions based on resources. Context can in this model be assayed by focusing the observer’s attention on key phases of human interaction in the community,1 e.g., who the participants are, their perspectives, the bases of power they can employ, the arenas within the jurisdiction, the strategies of action they can or might use, the relevant outcomes and effects of interaction. At this point, our interest is in the ideas or the history of human rights ideas in context. ii

The Natural Law Tradition

The Historical Development of the Western Tradition of Human Rights Sir Hersch Lauterpacht provided an outline of the background of human rights ideas in the Western tradition.2 Lauterpacht quoted the fascist apologist, Carl Schmitt,3 to the effect that the antique state knew of no rights of freedom.4 A private sphere with independent rights against the political community seemed to it inconceivable. The idea of individual freedom independent of the political freedom of people and state was regarded as absurd, immoral and unworthy of a free man.5 Conceptions like the ‘state knew,’ a ‘private sphere’ being ‘inconceivable,’ and the normative import of individual freedoms as ‘absurd,’ ‘immoral’ and ‘unworthy’ have a peculiar resonance in the 20th and the 21st centuries because we can see an ‘ambiguity’ being used to justify the total state and the extinction of individual identity as a political and juridical value. Lauterpacht drew attention to the roots of certain ideas in Greek political culture: sonomia (equality before the law), isotimia (equal respect for all), and isogoria (equal freedom of speech). Included in these ideas is the reference to ‘equality of opportunity.’6 Under Greek Stoic philosophy, the idea of

A

1 2 3 4 5 6

Harold Lasswell and Myers McDougal., Jurisprudence for a Free Society, Vol. i and ii (1992). Hersch Lauterpacht, An International Bill of the Rights of Man 17 (1945). Carl Schmitt, Ver Fassungslehre 158, (7th ed. 1989). Hersch Lauterpacht, An International Bill of the Rights of Man 17 (1945). R. Waldo Browne, Man or the State? A Group of Essays by Famous Writers (1919). Hersch Lauterpacht, An International Bill of the Rights of Man 18 (1945).

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personhood extended beyond the political or psychological boundaries of the state. The person was a “principal manifestation of the universal dominion of reason and of law, higher in authority than … the laws of any single state.” The influence of Stoic ideas about the relationship between rulers and those who are ruled and the idea of a higher law were cultural footprints for the development of natural law. The Roman legal culture is recognized for the enduring nature of the rules of Roman civil law. These rules have endured and influenced modern law in civil and common law traditions. Common law lawyers have an affinity for Roman law because of its emphasis on practicality and the concept of the legal actions. Roman consuls were influenced by the Stoic tradition. Professor Tony Honore of Oxford University, in his study of Ulpian, noted that this juris consult, one of the most important authors of the Digest of Justinian, was not only deeply influenced by the Stoic tradition but also Ulpian developed Roman law rules that were the cultural background of human rights.7 The genius of the Roman jurists was their ability to give concrete expression to principles of fairness, equity, reliance and stability in the institutions of the civil law. One cultural background of human rights was found in the reasoning and thinking about the implications of the intervention of law in the conflicts about human values. Reasoning from the Greek philosophical tradition was given the sophisticated sense of organized and structured application in instances of conflict resolution. One of the most important institutions of Roman society was antithetical to the values behind the institution of slavery. The United States Supreme Court in Dred Scott v. Sanford (1857) essentially ruled that Dred Scott as a slave was not a person but an article of property in law, a very profound difference between Roman law and the nineteenth century of American slavery.8 In Roman law, civil law was subject to classifications, including the classifications of persons. Among the classifications is the law of persons, the slave was not classified as property but classified under the law of persons as a person with subordinate status, roughly analogous to the son in the potestas (power) of the pater familias (father) or the head of the household. Color and race were not critical to Roman slavery. In American slavery, black slaves were used exclusively for menial and disagreeable tasks of servitude. In Roman law, the slave was a key figure in commerce. The growth of the contract of mandate, which was the forerunner of the contract of agency, evolved only because of the slave’s commercial role in representing the pater familias in commerce. In Roman culture, slaves were

7 Tony Honore, Ulpian: Pioneer of Human Rights (2d ed. 2002). 8 Dred Scott v. Sanford, 60 u.s. 393 (1857).

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prominent in literature, education and public service, and many were intellectually and culturally superior to the culture in which they found themselves in servitude. This Roman idea of a slave being a person was part of the civil law tradition and influenced the common law of England. Lord Mansfield, a Scottish Law Lord, learned in the civil law, ruled that under the common law when a black slave stepped onto English soil, he became free. Property could not become free but a person could.9 A distinction such as this, if it had been the accepted jurisprudence of the common law in the United States, might have saved the nation from a monumental judicial embarrassment that contributed to the secession of the Southern states and the tragic Civil War. The Institutes of Justinian of 535 a.d. began with the Stoic ideas of Ulpian: “Justice is a set and constant purpose, giving to everyone his due.…”10 Further, “Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.”11 Even though modern law and philosophy see a rigorous distinction between the ‘is’ and the ‘ought,’ the practical Roman lawyers considered that rules of specific prescription and application required giving everyone their due and that the study of law involved an inquiring system using the methods of logic and specific exposition to distinguish objectively between the just and the unjust result.12 B The Law of Nature and Natural Law In the Institutes of Justinian, the law was classified into three categories: jus naturale, jus gentium and jus civile.13 The classification was appropriated from the Institutes of Ulpian [Dig. 1.1.1.2].14 The idea of jus naturale which included nature in the definition of law, seemed to confuse law, in the positivist sense, with the laws of cause and effect in nature. The jus naturale was the complex structure of laws, dangers and possibilities that related to man’s place in the eco-social structure of co-existence. The jus gentium idea was not easy to translate. The term gentium could refer to peoples or nations. What was critical was that there was law outside the 9

W.W. Buckland and Arnold D. McNair, Roman Law and Common Law; A Comparison in Outline 31 (1952); Francis De Zulueta, The Institutes of Gaius, Part ii, Commentary 24 (1953); R.W. Lee, The Elements of Roman Law, with a Translation of the Institutes of Justinian, Book i, 46 (1956). 10 J.B. Moyle, The Institutes of Justinian 3–5, (3d ed., 1996). 11 Id. 12 R.W. Lee, The Elements of Roman Law, with a Translation of the Institutes of Justinian, Book i, 33–34 (1956). 13 TB. Moyle, supra note 10. 14 S.P. Scott, The Civil Law, Dig. 1.1.1.2 (1973).

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boundaries of a state or empire. The term implied the recognition that there were other people and groups within the framework of legal protection and concern. The term, ‘peoples,’ was found in the important instrument, the United Nations Charter.15 The insights of Ulpian informed us that there was a law that had a certain universal though putative applicability that partly reflected a law common to all of mankind. The central truth that emerged from Roman legal culture was that law can be seen as components of identity in the eco-system, in the community of nations and in the law of primary affiliation, citizenship. The importance of the tradition of the Roman juris consults provided law with a distinctive pedigree in that it explored or inquired into knowledge of justice and fairness. This process was one by which knowledge was called a science to express that such inquiry required training and rigorous thinking. Reason must be used in the practical work of human problem-solving and decision making. Natural law ideas posed problems for scientific thinking in terms of the methods by which a statement was validated. Science only wanted to know what truth was and how to prove it. Natural law ideas or universalistic precepts required different validation since they implicated a sense of what ought to be and implicated the distinction the Romans made about the just and the unjust. St. Thomas Aquinas (1224/25–1274) and the Summa Theologiae (1265 or 1266–73) Human thinking had a profound influence on the development of St. Thomas Aquinas’ perspective on the law. Aquinas concluded that it was only through reason that we ultimately directed and informed human action. For the human will to act in the name of law, it must be governed by authority and that authority was only established when it was regulated by reason. Aquinas made central to law the connection between authority and reasoned exposition. Reason must be a normative ideal; and reason, in the form of authority must have an objective justification. According to Aquinas, the object of law was the common good. The common good was the common interest. Modern legal philosophers saw reason, authority and law as a process of authoritative and controlled decision making, the purpose of which was to clarify and implement law consistent with the common interest. According to Aquinas, the precepts of natural law “correspond to the order of our natural inclinations.”16 Among those inclinations was the inclination toward good generally understood to be common to all. These inclinations

C

15 16

Charter of the United Nations and Statute of the International Court of Justice, (1945). Thomas Aquinas, Summa Theologiae, at ii-ii. 26.6 (1976).

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included self-preservation, the care for offspring and the inclination toward the good. In Aquinas’s view, that inclination toward good included a desire to know the truth about God, the nature of God, the relationship of God to man and social co-existence. It was the term, ‘inclinations,’ that has proven to be serviceable to modern versions of natural law. iii

Natural Law and International Law

Natural law’s influence on international law has a long history. The Roman jurists saw the ius naturale as including the law of nations, ius gentium. Since natural law as a law of nature covered the entire cosmos, the law between nations would be part of this version of natural law. A central tenet of natural law was that everything natural was included in it. This meant that nations and individuals were its subjects. Kings, emperors and plebians were its subjects; ordinary people, slaves and barbarians were its legitimate subjects. The development of sovereign nations in Europe in the 17th century did not replace the natural law tradition. However, it did limit it and the limitations of natural law became an inconvenience for sovereign states in an age of imperial conquest. For example, the Indian inhabitants of the new world could be perhaps protected by the moral axioms of natural law, but to recognize them would compromise the self-righteous, moral and humanitarian rhetoric which was being developed to justify the greed that fueled Western imperial conquest. In 1625, Hugo Grotius (1583–1645) argued that nations were bound by natural law which was based on man’s own nature.17 The treatise was a treatment of sovereignty, self-determination and independence, and the role of reason in coordinating the activities of states and interest groups supported by states. The rise of a state centered system of international law based on what a sovereign consented to marginalized the idea of natural law, i.e., that states themselves were subjects of international law and that state sovereignty should be subordinated to the idea of international legal obligation. The evolution of the state-centered version of international law provided a law conditioned by narrower Eurocentric identifications.18 The rest of humankind seemed to be confined to an international legal vacuum. One of the challenges to the hegemony of European imperialism came in the ideological challenge of Wilsonian idealism after World War i. Some colonized peoples were held to exist as a sacred trust of civilization. The treatment of ethnic minorities inside Europe became 17 18

Hugo Grotius, De Jure Belli, Ac Pacis Libri Tres (1925). The Council of Europe and Minority Rights, Human Rights Quarterly, Vol. 18, Number 1, 160–89 (February 1996).

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a matter of international concern. These and other post-World War i events expanded the boundaries of positivist international law to include some minorities and colonized human aggregates. The period after World War i saw the rise of modern, secular totalitarianism. This rise led to World War ii which confronted the idea of limitless sovereignty. The horror of World War ii and the holocaust brought a renewed interest in natural law and the relevance of basic standards and values in the operations of a new international constitutional order. At the center of these concerns were the concerns for basic human rights and the value of human dignity. The ideas of natural law, natural rights and the inalienable rights of man’s ideas, although having lost ground to the emergence of positivism and recently formulated ideas of law, state and sovereignty, remained in the background of lawyer consciousness as to use Holmes’ phrase, a ‘brooding omnipresence.’ The hovering presence of natural law thinking in American legal culture was given expression in the supremacy of the u.s. Constitution and the fundamental law in the Bill of Rights. The principle of the supremacy of law was firmly implanted into American legal and political culture by the leading case on judicial review, Marbury v. Madison (1803).19 To the extent that a contest would pervade the evolution of American law, it would be a contest operating within the conceptual boundaries of the constitution itself. The scope of judicial review required the adoption of certain rules, principles and standards of constitutional interpretation. These rules, principles and standards of interpretation are justified by the acceptance of certain views of law, including natural law, positivism, realism and pragmatism. The central question for human rights law in the 21st century has not been adequately addressed, either in theory or practice. This question of interpretation is how much international and human rights law should be used to construe the text of the u.s. Constitution or the ostensible original intent of the constitution-drafters, when the text, specific history or practice is incomplete or ambiguous or the drafters could not have contemplated advances and their effects on constitutional law? Should the court have the recourse of interpretation of natural law or does positivism require that such interpretation of the Constitution be regarded as beyond the scope of the judicial role or left to the political process within which real sovereignty resides? It is worth noting that the u.s. Supreme Court declined to accept international normative guidance in both areas for procedure and substance. For example, in Beard v. Greene (1998), the International Court of Justice (icj) had requested a stay in the execution of a citizen of Paraguay because of an ostensible violation of 19

Marbury v. Madison, 5 u.s. 137 (1803).

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a us treaty obligation.20 The u.s. Supreme Court declined to honor the icj request. The defendant was executed.21 In another case, the issue of the execution of juveniles came before the us Supreme Court. Once more the Court declined to interpret cruel and unusual as incorporating the accepted international law standard for prohibiting the execution of minors, i.e., those under 18 years of age.22 A The Impact of World War ii on Human Rights After the Japanese attack on Pearl Harbor, the United States went in full measure into a war economy. The mobilization of millions in the war effort required a justification. The Atlantic Charter, created by President Franklin D. Roosevelt and Prime Minister Winston Churchill, provided a basis for the war aims of the Allies. These were reflected in Roosevelt’s “Four Freedoms” speech to the u.s. Congress. The four freedoms included freedom from want, freedom from war, religious freedom and freedom of speech. The Four Freedoms formed the basis of the Genocide Convention in 1945 and the Universal Declaration of Human Rights (udhr) in 1948. Human rights, as law, was implicated and named in the u.n. Charter. However, human rights law was not defined in the u.n. Charter. The udhr was adopted in 1948 as a moral declaration. This declaration immediately raised the issue of whether it had legal effect or was merely moral. To clarify this issue, two further instruments were drafted giving greater specificity to the udhr, the International Covenant on Civil and Political Rights23 and the International Convention on Social, Cultural and Economic Rights.24 It is generally held that these three instruments and the u.n. Charter constitute an International Bill of Rights within an international constitutional system. B High Points in the Development of Human Rights Law The 17th, 18th and 19th centuries represented the emergence of state-centered international law. The state-centered view sanctioned several exceptions to universal jurisdiction. In criminal law, two crimes were acknowledged in the 19th century, piracy and slavery. These crimes were accepted as part of 20 21 22 23 24

Vienna Convention on Consular Relations (Para. V. u.s.), 1998 i.c.j. 248, 258 (Apr. 9). Beard v. Greene, 523 u.s. 371 (1998). Roper v. Simmons, 543 u.s. 551 (2005). u.n. General Assembly, International Covenant on Civil and Political Rights, December 16, 1966, United Nations, Treaty Series, vol. 999, 171. u.n. General Assembly, International Covenant on Economic, Social and Cultural Rights, December 16, 1966, United Nations, Treaty Series, vol. 993, 3.

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customary international law, i.e., they were international law rules prescribed for the international community as a whole. Since there was no enforcement mechanism, it was assumed that any state had the authority to apprehend and punish pirates or slaver traders. Two other institutions developed in the 19th century had human rights implications, humanitarian intervention and the denial of justice. After World War i, the peace process generated institutions for advancing human rights. within the predominant positivist view in two ways. First, the creation of the League of Nations mandated system safeguards which regarded dependent peoples as a sacred trust of civilization and second, a specific treaty regime was created for the protection of minorities.25 The reader may at this point have the uneasy feeling that human rights are a purely Western invention, i.e., an idea of Western civilization writ large. Ideas of human dignity are evident in many non-Western cultures as well, e.g., the struggle for freedom in South Africa. These developments included the African National Congress Petition of Rights, the Freedom Charter and the new South African Constitution. Finally, the South African Constitutional Court itself has held that there is an African concept of human dignity, known as Ubuntu.26 C John Finnis and Natural Law The practical, post-modern, and skeptical view of natural law and human nature reflects basically a political critique. Natural law based its knowledge of right and wrong on non-provable, divine sources or trans-empirical sources. John Finnis of Oxford University rescued natural law from the critique of positivism: natural law cannot be effectively articulated because it cannot separate the law that ‘is’ from the law that ‘ought to be.’ Finnis attempted to reconstruct the natural law tradition in such a way as to avoid this charge. Finnis redefined the notion of rational authority and good by suggesting that real natural law was a “set of principles of practical reasonableness in ordering human life and human community.”27 Finnis followed H.L.A. Hart who conceded a ­minimum set of moral facts concerning the human situation.28 These facts included human vulnerability, approximate equality, limited altruism, limited resources, limited understanding and strength of will.29 This moral set of facts was not a goal to be secured, but rather a scientific statement of existential or 25 26 27 28 29

N. Matz, Civilization and the Mandate System under the League of Nations as Origin of Trusteeship (2005). Hewitt, J., The ‘Ubuntu’ of Globalization, Boston Globe (2004). John Finnis, Natural Law and Natural Rights 280 (1980). H.L.A. Hart, The Concept of Law 189–95 (1961). Id.

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sociological conditions of great ubiquity in the human prospect. Hart’s moral minimum was a description of social conditions that were universally experienced. Finnis proposed that there were certain basic goods, in a non-commodity sense, that were needed by all human beings. Finnis’ list of these goods included life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness and religion.30 These goods had an affinity with Hart’s minimum human needs. However, Finnis looked at these basic goods as vested with a certain natural law quality that was regarded as pre-moral or a priori moral.31 Finnis borrowed from John Rawls (1921–2002) the intuitive insight that these basic goods had value as objects of human endeavor.32 The explanation of why these basic goods were valued or preferred even though they were pre-moral rested on the proposition that they were selfevident. The particular checklist that Finnis chose was not quite as self-evident as he assumed. That these goods were the most economically accurate expression of human pre-goods was not completely self-evident. In the 20th and 21st centuries, the udhr has been conceptualized to implicate at least nine core values: power, wealth, enlightenment, health and well-being, affection, rectitude, skill, respect and aesthetics.33 For purposes 30 Finnis, supra note 27, at 86–90. 31 Id., at 33–34. 32 Id. at 82–83. 33 Lasswell and McDougal, Jurisprudence for a Free Society, Vol. ii, supra note 1, 1536 (1992). The following table, compiled by Lasswell and McDougal, showed the connection between the values that they identified and the textual expression of those values in the International Bill of Rights.     Values protected by different human rights conventions Respect Power

Enlightenment Well-Being Wealth Skill Affection Rectitude All 8 Values

Universal 1, 2, 4, Declaration of 6, 7, 12 Human Rights

7, 8, 9, 19, 22, 26, 27 10, 11, 13, 14, 15, 21

3, 5, 22, 24, 25

4, 17, 22, 27 23, 27(1)

16

18

20, 22, 27, 28

International Covenant on Civil and Political Rights

1(1), (3), 19, 20 2(2), (3), 9, 11, 12, 13, 14, 15, 24(2), (3), 25, 27

6, 7, 10

1(2), 8

23

18

21, 22

2(1), 3, 4(1), 7, 8, 16, 17, 24(1), 25, 26, 27

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of philosophical and rhetorical consistency, these values are not self-evident or the result of a mystical inclination, but instead these values are conceived more sensibly, pragmatically and anthropomorphically as rooted in experience. Human interaction is the giving and receiving and the exchange or expropriation of human values. Human beings exist in environments in which they manage the dimensions of power and human relations. The same applies to all the other values. How these values are actually generated, conceptually and practically, and actually distributed needs to be known. That is the first test of natural law for the modern age and natural law as human rights law. The values are descriptive because human interaction involves cooperation in, and conflict over, all values including the relationships between values themselves. The concept of values, what ought to be, what is desired, can and should be a descriptive exercise of understanding and describing the fundamental good that people seek to produce and distribute. For the purposes of pursuing the recognition of human dignity throughout the world, this need not be a self-evident proposition, nor does it need to be an inclination. It is simply a matter of observing.

Respect Power

International 2(2), Covenant on (3), 3 Economic, Social and Cultural Rights

1(2), (3)

European Convention on Human Rights

3, 4, 8, 14

American Convention on Human Rights

1, 2, 3, 5, 6, 11, 14, 17(2), 18, 19, 24, 27(1), 31

Enlightenment Well-Being Wealth Skill Affection Rectitude All 8 Values 13, 14, 15

7, 10, 11, 12

6, 7, 8, 9, 10

6(2), 10(1) 13(2) (b)

5, 6, 7, 10, 1st prot., 2 13, 16, 1st prot., 3, 4th prot., 1, 4th prot., 2, 3, 4

2, 3, 4

4, 1st prot., 1

12

9

11

3, 7, 8, 13, 14 9, 10, 20, 22, 23, 24, 25

4, 5, 6

6, 10, 21

17

12

15, 16

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An inquiry concerning these values is how they ought to be produced and allocated, i.e., a normative inquiry. As a normative inquiry, a critical question confronts the inquirer, should the inquirer propose that the desired allocation of the benefits of these values be the most minimal or should those benefits be so idealistic that the proposal is not feasible? It was this question that neither Hart nor Finnis considered effectively. Finnis, in particular, depreciated practical reason in the framework of his pre-moral goods that set limits on the intellectual tasks required for a complete exposition. D The Current Natural Law Tradition The fundamental importance of current natural law traditions is: 1. 2. 3. 4.

5.

6.

Natural law’s continuing identification of law and state with ethical and moral constraints of a ‘higher law;’ Natural law postulates a higher law as a criterion for passing judgment on the morality or legitimacy of positive law and provides a component to legal theory and legal culture; Natural law serves as restraining element in the control and regulation of power itself and brings moral limits to the exercise and abuse of power; Natural law subordinates the state to law and is opposed to the idea of the state as an entity answerable only to those who control and manage it. Natural law provides for limiting the exercise of political and other power and for what might be morally done under the authority of law; Natural law provides an added value to international law. Under international law, sovereign states must subordinate and articulate their claims to absolute sovereignty. Natural law constrains the claims of the absolutist state; and A key precept of natural law theory is the individual as an indivisible and indispensable component. In natural law theory at every level, there is a place for the individual as a bearer of rights and duties beyond the power of the state. The individual human being is an absolute, who should be accorded universal equality, respect and dignity.

E Critiques of the Natural Law Tradition The dominant tradition in the history of human rights theory is the Western tradition of human rights based on natural law, Stoic philosophy, the theory of John Locke and Whig political theory that Anglocentric historians have claimed are the basis of the American Revolution, the United States Declaration of Independence (1776) and the United Nations Universal Declaration of Human Rights (1948). The essence of this natural law theory is that human

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beings should act and be judged by the laws of nature. Natural law theory, as seen by historians, echoed through the centuries as the origin of human rights. At the same time, however, historians have never been fully satisfied with this explanation. One critique of human rights theory, law and practice is that it is Eurocentric or a product of Western civilization, thus excluding the values, interests and perspectives of Third World nations and primal societies. More fundamental weaknesses in the theory follow. First, the traditional natural law, Locke and Whig tradition is devoid of substantive content of respect for the dignity of all individuals and consent of the governed. Moreover, the natural law tradition is devoid of the art and science of good governance, wherein the ‘governors’ are inherently controlled by the people. Natural law tradition extended back to the ancient Greeks and Romans, but it was only with the modern human rights movement of the 20th and 21st centuries that natural law tradition was completed with the validation in the perspectives of people themselves rather than in a political or aristocratic elite. A second critique of natural law addresses the question of whose natural law is being promulgated and for whom. Religious intolerance and the abuse of power by those acting in the name of religion have a long and distressing cross-cultural pedigree. Suffice it say that the European Westphalian peace of 1648 was designed to keep religion out of politics because it became a cause and a validation of endless conflict in Europe. The practical problem posed by natural law lies in the danger that the religious elite may, and in fact often does, coincide with the power elite. The problem of abuse of power extends beyond religious and political conflict. How is society to constrain the abuse of power that attends the imprimatur of the infallible, whether that authority represents a religious elite or political or cultural elite? Is natural law a ruse for the private motives of public actors, which are projected on public objects and rationalized in terms of the public interest as immutable principles? A third critique of the natural law tradition and its antecedents as presented by Anglocentric and British historians and philosophers is that it is historically inaccurate.34 Historians struggled to find the origins of freedom, democracy, 34

Anglocentric British and American historians as well traced Lockean thought through English legal history back to the Magna Carta and an “ancient constitution.” AngloAmerican liberty and constitutionalism rested essentially on a continuity with the ­Lancastrian constitution propounded by Sir John Fortescue in the 15th century as it was revived and enlarged upon by the common law lawyers led by Sir Edward Coke (1552–1634) in the 17th century struggle with the early Stuart kings, James i and Charles i. This ancient constitution (also called Gothic and Saxon) of Edward the Confessor, Magna Carta,

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human rights and the “consent of the governed” in the earlier periods, and encountered three conceptual and historical ‘voids:’ an ancient void, a medieval void, and a modern void. The ancient void consists of the ancient Stoic philosophers’ natural law theory, which was ambiguous, weak and lacked substantive content. It was not troubled by the existence of Greek and Roman slavery, which was a total violation of human rights. Historians have always had trouble finding the specific origin for freedom and human rights in classical Greco-Roman philosophy, law or society. The medieval void consists of a break in continuity between the alleged ancient Roman and Greek sources and the modern developments of human rights. This break suggests that a historical explanation of human rights based on natural law is incomplete at best and, therefore historically faulty, or fatally flawed at worst. Natural law historical explanations have never really satisfied Western historians who have struggled with this issue and, in particular, the medieval void. The modern void is based upon the difficulty and failure of Anglocentric historians to make the critical distinction between the revolutionary principles of the Celtic Scots and the Scotch-Irish and the evolutionary principles of the natural law, Magna Carta and Parliamentarism of the English in causing the American Revolution and influencing the ideas of the Declaration of Independence. Professor Gordon Wood noted that some American Revolutionaries declared that they were Whigs rebelling on behalf of the English Constitution: Yet the colonists were mistaken in believing that they were struggling only to return to the essentials of the English constitution. The principles of the constitution that they defended were not those that were held by the English establishment in the mid-eighteenth century. In fact, the Americans’ principles were, as the Tories and royal officials tried to indicate, “revolution principles” outside the mainstream of English thought. Since the colonists seemed to be reading the same literature as other Englishmen, they were hardly aware that they were seeing the English tradition differently. Despite their breadth of reading and references, however, they concentrated on a set of ideas that Petition of Right, and Glorious Revolution, then, was substantially eclipsed and modified in Britain during the course of the eighteenth century only to be powerfully reasserted in America as part of the struggle leading up to independence, the American founding culminating in the Declaration of Independence, the framing of the Constitution, and the ratification of the Bill of Rights. See Ellis Sandoz, Introduction, in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law 2 (1993); and Janelle Greenberg, The Radical Face of the Ancient Constitution (2001).

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ultimately gave them a peculiar conception of English life and an extraordinarily radical perspective on the English constitution they were so fervently defending.35 What was this “set of ideas” and “extraordinarily radical perspective on the English constitution?” Where did it come from? Wood did not inquire further into this problem and his vagueness begs the questions: why were they selective, what were the historical and cultural causes for this selection process, what did they select and what were the true historical origins of the ideas selected? This is the modern void for Anglocentric historians. Anglocentric historians failed to realize that the evolutionary principles and liberty of John Locke and the English Whigs of the 17th century descended from the revolutionary principles of the ancient Celts and John Duns Scotus (c.1266–1308) through the Scots John Mair (1469–1550), George Buchanan (1506–1582), John Knox (c.1514–1572) and Francis Hutcheson (1694–1746) and then spread through the Scottish Enlightenment thinkers to the American constitutional framers. Thus, they were not able to explain the Celtic-Scottish “revolution principles” of the founding fathers by references to the theory of Locke and the Whigs, which was fundamentally a conservative, ‘evolutionary’ philosophy. The theory of Scotus (c.1290s) as expressed in the Scottish Declaration of Independence (1320), was the intellectual foundation of the American Revolution, the Declaration of Independence (1776) and the modern human rights movement.36 A fourth critique of the traditional natural law theory completely ignored a broad range of struggles of human beings for freedom, dignity and respect over the centuries and across cultures. The struggles of William Wallace, William Wilberforce, Mahatama Ghandi, Martin Luther King, Ronald Reagan and Nelson Mandela were epoch struggles of the human mind, heart and soul for freedom and respect. as seen in the following quotations of these courageous freedom fighters: Dumnorix (54 bc): The Romans attempted to take Dumnorix, a Celt, as a hostage, Dumnorix refused and the Romans killed him. As he died, he cried “I am a freeman in a free state.” Vercingetorix (83 bc): Vercingetorix, a Celt, said to Caesar, “I did not undertake the war for private ends, but in the cause of national liberty…”

35 36

Gordon S. Wood, The American Revolution; A History 58–59 (2002). Alexander Leslie Klieforth and Robert John Munro, The Scottish Invention of America, Democracy and Human Rights: The history of Liberty and Freedom from the Ancient Celts to the New Millennium, University Press of America (2004).

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Calgacus (83–84 ad): “Whenever I consider the origin of this war and the necessities of our position, I have a sure confidence that this day, and this union of yours, will be the beginning of freedom to the whole of Britain. To all of us slavery is a thing unknown; there are no lands beyond us, and even the sea is not safe, menaced as we are by a Roman fleet. … To robbery, slaughter, plunder, they [Romans] give the lying name of empire; they make a solitude and call it peace.” [from Tacitus]. Sir William Wallace (c.1300): “Freedom is the best of all things.” Patrick Henry (1775): “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death.” George Washington at Valley Forge: “If all else fails, I will retreat up the valley of Virginia, plant my flag on the Blue Ridge, rally around the ScotchIrish of that region and make my last stand for liberty amongst a people who will never submit to British tyranny whilst there is a man left to draw a trigger.” Theodore Roosevelt: “The backwoodsmen were American by birth and parentage, and of mixed race; but the dominant strain in their blood was that of the…Scotch-Irish… Mingled with the descendants of many other races, they nevertheless formed the kernel of the distinctively and intensely American stock…fitted to be Americans from the very start. … in the Revolutionary War…the fiercest and most ardent Americans of all were the Presbyterian Irish settlers and their descendants… [A] grim, stern people, strong and simple,…the love of freedom rooted in their very hearts’ core.” Woodrow Wilson: “Liberty has never come from the government. Liberty has always come from the subjects of it. The history of liberty is a history of resistance.” Rev. Dr. Martin Luther King Jr.: “Free at last! Free at last! Thank God Almighty we are free at last!” Ghandi: “Real Swaraj ( freedom) will come, not by the acquisition by a few, but by the acquisition of the capacity by all to resist authority when abused.” Nelson Mandela: “For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.” Ronald Wilson Reagan of Scots-Irish descent at the Brandenburg Gate, West Berlin, Germany (June 12, 1987): “Mr. Gorbachev, tear down this wall!”

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Centuries of natural law philosophy coincided in quiet with the existence of slavery, racism, genocide, mass murders and torture. While the natural law tradition focused on the victors of Western society, i.e., the Greeks, Romans, Germans and English, that tradition marginalized and ignored the oppressed, the ancient Celts, Israelites, Jews, Irish, Scots, and blacks. In a sense, the history of the natural law tradition, Magna Carta, Locke’s theory of liberty, and Whig political theory reflected the twisted history of the treatment of the oppressed and defeated. Indeed, marginalization of the defeated and the narrow focus of the Western tradition of natural law theory prevented the Western tradition from perceiving its own history accurately. For example, the critical preWorld War ii role of the African National Congress and the American Jewish Committee in creating and supporting the movement that led to the Universal Declaration of Human Rights was neglected. A fifth critique of the natural law tradition is that this tradition failed to address issues of transitional justice and ongoing governance problems such as how a people controls its own governors so that political and economic power is not abused. In regard to the former, the critical values of forgiveness and reconciliation that Bishop Desmond Tutu of South Africa preached as necessary for the true completion of human struggles are not addressed in this tradition. For the latter issue, Duncan MacNeill37 has noted that George Buchanan, the Scottish political theorist, followed the Celtic tradition of respect for the individual and that “Buchanan’s king, aided by his councillors, wielded the political power in such a way as to allow the people to function as individuals or as groups, taking cognizance mainly of the latter and allowing the judges to attend to individuals, though the latter had ultimate appeal to the king himself.”38 Fundamentally, the Celtic-Scottish genius in the art of democratic government is not addressed in the natural law tradition. The Celtic-Scottish contribution to freedom and human rights sensibility is representative of a still broader human constitutiency: the forgotten contribution of indigenous nations around the world to the imperatives of human rights and human dignity. 37

38

Duncan Harald MacNeill, Commentary to the Art and Science of Government Among the Scots; Being George Buchanan’s “De Jure Regni Apud Scotos” (1964); See also Klieforth and Munro, The Scottish Invention of America (2004). Id., at 105, 128.

chapter 4

Ideological Contributions of Celtic Freedom and Individualism to Human Rights This chapter emphasizes the importance of the often-overlooked contributions of indigenous European cultures to the development of human rights. Attention is given to the ancient Celtic culture, the ideas of Celtic freedom and individualism, the distinctive role of the Scottish theologian, John Dunn Scotus and the Scottish Arbroath Declaration of Freedom (1320).1 It is from the Scottish Enlightenment and its subsequent influence on the late 18th century revolutions that we see an affirmative declaration of the Rights of Man, which is a precursor to the development of modern human rights. The importance of the Celtic-Irish-Scottish contribution to human rights is that it was the foundation for individual liberty and dignity in Western civilization. Indigenous Celtic culture staked an original and critical claim to the ideal of universal human dignity. This is an important insight because it broadens the ideals that promote human rights, including within them those ideals of the indigenous cultures of the world, whose voices are oftentimes forgotten. It strengthens the universality of human rights. i

The Intellectual and Philosophical Origins of International Law and Human Rights

The intellectual and philosophical origins of human rights rhetoric and law, democracy, freedom and ideas supporting “consent of the governed” are intertwined in this composite explanation that attempts to explain all of these themes with the historical themes of Roman natural law, Athenian democracy and later the modern political philosophy of John Locke and his followers. The absence of a medieval connection between the alleged ancient Roman and Greek sources and the modern developments of human rights indicates that this perspective is faulty. This explanation has never really satisfied the Western historians who have struggled with this issue and, in particular, the medieval void, discussed. in the previous chapter. 1 Alexander Leslie Klieforth and Robert John Munro, The Scottish Invention of America, Democracy and Human Rights: The History of Liberty and Freedom from the Ancient Celts to the New Millennium, University Press of America (2004). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_006

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The traditional Lockean analysis is inaccurate as the origins of human rights are located in the ancient Europeans, i.e., the Celts. The democracy attributed to the city-states of ancient Greece did not enfranchise women, slaves or nonGreeks who were considered barbarians and inferior. Slavery and other gross violations of mutual respect between humans permeated ancient societies with one exception, the ancient Celts who did not enslave humans because slavery was a violation of individual freedom and degraded both the master and the slave. Secondly, the philosophers of the 17th and 18th centuries were centuries behind the Irish and Scottish Celts in human rights theory and the medieval Scottish moral philosophers who first articulated the idea of “consent of the governed,” human rights and democracy. A The Ancient Celts and the Ancient “Void” in Human Rights History The sources for this singular phenomenon are found in the histories and culture of the ancient Celtic tribes and later Irish and Scottish clans and, secondly, the Celtic church. Their doctrine represents the culmination of centuries of early Celtic and later Scottish laws and cultural and social orders that displayed an intense regard for democracy and individual rights. The Celts are “important in history by the value of the individual and the development of the personality.”2 According to an ancient Gaelic (Celtic) saying, “Greater than the Chief are the Clansmen.”3 Henri Berr noted that the essence of a Celtic tradition was selfrespect and mutual respect of others, the very basis of human rights: So, with their [Celts] physical mobility and mental elasticity, they acted as middlemen of civilization; they were “torch-bearers” in Europe… With a high, manly ideal of life, they at once despised death and aspired to the immortality of the soul. To worship the gods, to do nothing base, and to practice manhood was a Druidical axiom.4 The Celtic high regard for democracy and human rights permeated every aspect of their culture and society. This high regard is seen first in their social and cultural order. Their political rights were exercised through the small unit, sufficiently small to make the vote of the individual of some importance…. The small

2 Henri Berr, Foreword, to Henri Hubert, The Greatness and Decline of the Celts, xii–xiii (1934). 3 Id. 4 Id.

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units combined to deal with questions too large in scope for the small unit…, yet the individual Celt never lost sight of his right and his power to differ. A community in which a man is permitted to sacrifice himself voluntarily for the welfare of the group is more highly civilized than one in which he is forced to die for his country…. So the Celts voluntarily grouped themselves under a chosen general to defend their country, and the military history of Scotland vindicates them. A strong central government under a warrior king has the great weakness that if and when that king is killed, the conqueror becomes king with or without the consent of the people. The history of England is full of such instances…. As Scotland coalesced into a nation, the citizens never lost their belief in the supreme importance of the individual.5 Peter Ellis noted that in the Celtic system the chieftains were elected: “The form of government described by Strabo as existing among the Celts of Galatia is paralleled by the assembly of Gaul, which met at Lugdunum (Lyons). The Greeks referred to the state as Koinon Galaton, the Commonwealth of the Galatians, and the name of no particular overall leader emerges for a long time. This form of government accords with everything we know of later social and political structures among the Celts, with the electoral system ensuring that no despot could exert supreme sovereignty.”6 Ellis quoted Hubert: What we know of the Galatian state gives us our first example of the organization of a Celtic state. Galatia was governed by an assembly of 300 elected representatives of the clans and sub-clans who met at Drunemeton (‘the sacred oak grove’).7 Firstly, we note that the society worked out its decisions through an electoral system of electing local assemblies, and the nobles were the elected representatives of the people who administered the decisions of the assembly. There was a whole scale of chieftains ranging from the chief of a subtribe to the tribal chieftains, to the provincial ruler and so to the High King. Everyone was elected by the … assemblies to which they were answerable. Celtic chieftains, in strong contrast to Roman leaders and later feudal barons and kings, were not … law-makers but simply officers of the 5 Duncan MacNeill, The Historical Background to De Jure Regni Apud Scotos to the Art and Science of Government among the Scots; being George Buchanan’s “De jure Regni Apud Scotos” 105–06 (1964). 6 Peter Ellis, The Celtic Empire, The First Millennium of Celtic History, C.1000 bc–51 ad, 95 (1990). 7 Id. at 8–9.

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established law. A chieftain was president of the tribal assembly, commander of the forces in war and a judge in the public courts…. As they had to be capable of carrying out the responsibilities involved, they were usually elected from particular families used to the problems a chieftain would encounter but … there was no such concept as primogeniture. It was difficult for a chief to usurp power, for he was limited and hemmed in by the democratic process of his tribal assembly and dependent on his tribe for support so that it was easier for him to promote their welfare and safety and for him to conform to the intention of the law than to become either negligent or despotic in office. When chieftains or kings betrayed their office they were thrown out and a new chieftain or king elected.8 Secondly, this high regard for democracy and human rights is found in the Celtic church wherein there is a great emphasis on individual freedom and Christian individualism. For example, the “Celts…believed that abbots and bishops could not be appointed by either church or secular authority. But in keeping with the Celtic traditions, the people should elect their own religious leaders.”9 Further, In its missionary enterprises, the Celtic Church had approached the common people and had adopted a localized organization corresponding to the political system in force, while the Roman Catholic Church…had in the first place approached the knights and nobles.10 Following the brilliant intellectualism and passionate religion of the Druid priests and followers, the Celtic Christians displayed the same passionate individualism as that of the later wandering Irish and Scottish scholars and saints who transformed Ireland, Scotland, England and the continent and ultimately saved western civilization. Philosophically, the Celtic Church provided a counter to the materialistic consciousness of the rest of Christendom. Hilary, Pelagius, Colmcille, Columbanus, Eriugena, Sedulius Scottus, were representative of a culture which looked on nature and the material world as a spiritual entity; all forms of life were holy; all forms of life were possessed of spirit. 8 9 10

Id. at 20. Matthew J. Cullican & Peter Cherici, The Wandering Irish in Europe 65 (1999). Duncan MacNeill, The Scottish Realm: An Approach to the Political and Constitutional History of Scotland 81–82 (1947).

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Accepting the brevity of life, its conditions, the Celtic philosophers strove not for the mastery of the world, the imposition of will or the concept of imperial continuity; the goal that was sought was an inner illumination, the growth of spiritual awareness within the external world. Through their ancient religion, and then with the new vibrancy of Celto-Christianity, they applauded the battle of the individual against outside domination. The individual struggle was a portion of the battle against the oppression of empires; the state; between light and darkness; good and evil; spirituality and materialism; above all it was a constant exuberant celebration of Free Will.11 The Celtic Irish and Scots were centuries ahead of, and cultures distant, from the English in regard to the rights of mankind. A remarkable event in the history of human rights took place in Birr, now located in County Offaly, in the middle of the island of Ireland in 697 ad. Europe’s first international human rights treaty, Cáin Adomnáin or Law of Adomnán, also known as “The Law of Innocents,” was promulgated in 697 ad, 1,251 years before the United Nations’ Universal Declaration of Human Rights (1948). Cáin Adamnáin was: penned by Adomnán, an abbot of Iona and a nobleman of the Cenel Conaill dynasty. This law, which protected women, children and clergy from the ravages of warfare, was ratified in 697 by the kings of the Picts, of the Dál Riatic Scots, of the Strathclyde Britons, and of many Irish kingdoms, and the law took effect in both Scotland and Ireland. “It is singular testimony to the widespread common Celtic (and now Christianized) culture extending from Ireland across Dalriada and Pictland to Lindisfarne…”12 B By the Skin of Their Teeth: The Survival of the Celtic Individualism The Celts had been reduced to those considered among the least of people by the Romans, hanging on to a few footholds on the rim of Western Europe. Yet, Celtic Scotland successfully resisted the might of the Roman Empire, and nothing that institutionally was part of the Imperium Romanum was taken into the structuring of the Kingdom of Scotland. The Scots became one people through resistance against the outside influences of Imperial Rome, the Saxons, the Vikings, the Normans and England.

11 12

Id. Michael Newton, A Handbook of the Scottish Gaelic World, 46 (2000).

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The success with which Scotland protected herself from conquest had the most profound effect upon the development of her Constitution, for it ensured that whatever outside influences crept within her borders came in the shape of invited—or at least tolerated—guests for the purpose of strengthening existing institutions, not of overthrowing them.13 The people were unified by an ideological concept new to western society, one above racial identity, cultural congruity or geographic harmony—democratic nationalism based on Celtic respect of individuals.14 The Missing Link in the Medieval Void of Human Rights: John Duns Scotus Historians and political philosophers have struggled to find the origins of democracy and freedom in the ancient and medieval periods. Their references to the Old and New Testaments and the Greco-Roman philosophies have never satisfied themselves or other persons. Without a strong foundation in the origins and facing a medieval void, Anglocentric English and American historians have been forced to resort to the English Whig theory of the seventeenth century and, particularly the writings of John Locke, to explain the origin of freedom and human rights. Grant G. Simpson in 1977 argued that a major inspiration for the Scottish Declaration of Arbroath (1320) was John of Salisbury (1115/20–1180) and his work, Policraticus (c.1159), which argued for the right to take action against an unjust or tyrannical monarch.15 In 2003, Edward J. Cowan seconded Simpson’s argument.16 Cowan noted that John of Salisbury praised liberty as part of virtue. Yet, John of Salisbury failed to distinguish between regicide and “consent of the governed.” Cowan reviewed the medieval thinkers in an attempt to explain the rise of freedom in medieval times. These thinkers included among others John of Salisbury, the Roman writer Sallust, Sedulius Scottus, St. Thomas Aquinas, John Quidort, Baldred Bisset, Marsilius of Padua, Manegold of Lautenbach and William of Ockham (1300–1349). John of Salisbury failed to distinguish between regicide and “consent of the governed.” Additionally, Sedulius Scottus praised just rulers with the

C

13 14 15

16

Duncan MacNeill, Commentary, Conclusions, supra note 5, at 320. Id. Grant G. Simpson, The Declaration of Arbroath Revitalized, The Scottish Historical Rev. LVI (April 1977): 30; see also John of Salisbury, The Statesman’s Book of John of Salisbury … Policraticus, John Dickinson, trans., at 335–410 (1927). Edward J. Cowan, ‘For Freedom Alone’: The Declaration of Arbroath, 1320 (2008).

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implication that unjust ones could be removed.17 St. Thomas Aqunas suggested the rightness of regicide in certain cases but stopped short of supporting democracy.18 Manegold of Lautenbach of the 11th century spoke of the need for regicide in select situations. However, the simplistic belief in regicide and the doctrine of “consent of the governed” are significantly different concepts. Secondly, Cowan noted that the Roman writer, Sallust, argued that freedom of the individual and freedom of the nation were mutually dependent19 and that in the “literature of the Ancient World, the Scots, like many others across Europe, were discovering new values for a bewildering new world which, in Scottish terms, had no precedent.”20 Cowan admitted that Sallust did not consider freedom to be the supreme value and mistakenly took the ancient references to freedom out of context. The “democracy” of the city-states of ancient Greece did not include women and slaves and non-Greeks were considered barbarians and inferior. The Roman regime defined freedom more narrowly. The Roman near-genocide of the Celts attested to the real definition of Roman freedom. There is simply no comparison between the Roman conception of freedom and the idea of freedom of the ancient Celts and the doctrine of the “consent of the governed” of John Duns Scotus. Third, Sedulius Scottus, the mid-ninth century Irish poet and philosopher, was offered as an intellectual source for the Declaration. In his De Rectoribus Christianis, on Christian Rulers, Scottus praised just rulers with the implication that unjust ones could be removed.21 However, the simplistic belief in regicide and the doctrine of “consent of the governed” are significantly different concepts. Fourth, St. Thomas Aquinas in his De Regimine Principum, on the Government of Rulers (1266) suggested the rightness of regicide in certain cases but stopped short of supporting democracy.22 Fifth, Cowan incorrectly noted that “all historians of medieval political thought concur that the first thinker to articulate the theory of the legality of deposition was John of Paris, also known as John Quidort (c.1255–1306), author of De Potestate Regia Et Papali, on Royal and Papal Power (1302).23 John, who 17 18 19 20 21 22 23

Id. at 66–67. Id. at 71. Id. at 59. Id. at 60. Id. at 66–67. Id. at 71. Id.

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was one of the greatest teachers in Paris in the 1290s, may have actually taught some of the canon lawyers who…contributed to the Scottish political ideas which were to receive their finest expression in “Arbroath”….24 Those same people, the Scots, seem to be the first to exploit John of Paris’ ideas for their own purposes, thus demonstrating once again that Scotland in the fourteenth century was amongst the most conceptually advanced kingdoms of medieval Europe.”25 Again, Cowan failed to distinguish the theory of regicide from the democratic doctrine of “consent of the governed.” Sixth, Baldred Bisset’s letter to the pope of 1300 did not mention consent of the governed. Seventh, Marsilius of Padua’s Defensor Pacis, Defender of the Peace, (1324) followed in time the work of the Scottish moral philosophers. Eighth, Manegold of Lautenbach of the eleventh century spoke of the need for regicide in select situations. After failing to locate the specific medieval ideological origin and the ancient roots of the Arbroath Declaration, Cowan speculated that Scotland was on the cutting edge of political thinking because of the peculiar hand that history dealt her and because of the remarkable men who appeared on her tiny stage to preserve, in the nick of time, the fragile flame which seemed about to be extinguished…. there can be little doubt that the Scottish obsession with freedom was born in the struggles against [the English King,] Edward I…. Subsequent events had also shown that by the turn of the century the Scots…had a pretty good grasp of the rhetoric of freedom.26 Cowan then suggested that the concepts of freedom and liberty virtually arose without any intellectual or cultural traditions or background, i.e., they were merely instant or ‘presto’ history, merely words of rhetoric manipulated from ancient and medieval sources. This interpretation is inaccurate on several levels, one being that the Arbroath Declaration goes beyond the mere ambiguous reference to freedom basing its goals and values on the doctrine of the “consent of the governed,” a complex and more sophisticated idea than regicide or the abstract and ambiguous word ‘freedom.’ The original, fundamental medieval source of the doctrine of “consent of the governed” based on human rights was John Duns Scotus (c.1266–1308). 24 25 26

Id. Id. at 72. Id. at 11–12, 39, 43.

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Scotus first wrote of the doctrine of the ‘consent of the governed’ in his Ordinatio prepared in the 1290s. Scotus presented a “a very interesting and complete statement of the theory of sovereignty and social contract,…like that enunciated later by Hobbes, Locke, and Rousseau, and presented in such a way as to avoid some of the exaggeration of later writers.… Such is the brief sketch Scotus gives of his political philosophy. He gives us tantalizing glimpses of a new theory of the state which several centuries later was to influence so profoundly the politics of Europe…. He sees the problem, outlines a solution, and passes on, without betraying any deep interest in a world which he had renounced. Yet in a few sentences he has stated very clearly the essential elements of a theory of human society which was to revolutionize not only the thought but the practice of the Western world, and it is to him that we can trace in a very real sense the beginnings of modern political science.”27 Scotus’ analysis is of such great historical and intellectual significance that it is included here. Authority or rulership takes two forms, paternal and political. And political authority is twofold, that vested in one person and that vested in a group. …. Political authority, however, which is exercised over those outside [the family], whether it resides in one person or in a community, can be just by common consent and election on the part of the community.… Thus, if some outsiders banded together to build a city or live in one, seeing that they could not be well governed without some form of authority, they could have amicably agreed to commit their community to one person or to a group, and if to one person, to him alone and to a successor who would be chosen as he was, or to him and his posterity. And both of these forms of political authority are just, because one person can justly

27

Allan B. Wolter, O.F.M., John Duns Scotus’ Political and Economic Philosophy (2001); see James H. Burns, Scholasticism: Survival and Revival in The Cambridge History of Political Thought 1450–1700, ed. James H. Burns, 142 (1991); see also Jean Dunbabin, Government, in The Cambridge History of Medieval Political Thought c.350–1450, ed. James H. Burns, 517 (1988); Jeannine Quillet, Community, Counsel and Representation in The Cambridge History of Medieval Political Thought c.350–1450, ed. James H. Burns (1988), 536–37; Antony Black, Political Thought in Europe, 1250–1450 (1992); M. De Gandillac, Loi naturelle et fondements de l’ordre social selon les principes du Bienheureux Duns Scot, in 2 De Doctrina Iohannis Duns Scoti, Studia Scholastico-Scotica, 683–784 (1968).

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s­ ubmit himself to another or to a community in those things which are not against the law of God and as regards which he can be guided better by the person or persons to whom he has submitted or subjected himself than he could by himself. Hence, we have here all that is required to pass a just law, because it would be promulgated by one who possesses prudence either in himself or in his counselors and enjoys authority in one of the several ways mentioned in this conclusion.28 The kings of the Scots remained in power with the consent of the people. This philosophical doctrine, stated by Scotus, was put beyond a doubt by the words of the Scottish Declaration of Independence contained in the letter dated 6 April, 1320 at Arbroath, and addressed to the Pope: Him [Robert the Bruce], to divine providence, his right of succession according to our laws and customs which we shall maintain to the death, and the due consent and assent of us all have made our Prince and King. To him, as to the man by whom salvation has been wrought unto our people, we are bound both by law and by his merits that our freedom may be still maintained, and by him, come what may, we mean to stand. …Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King. For as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom—for that alone, which no honest man gives up but with life itself.29 The author of the Declaration of Arbroath, the Chancellor of Scotland, Bernard de Linton, was aware of the work of John Duns Scotus. Scotus’ work was famous in the time of Robert the Bruce and had spread to Europe. John Mair

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Ordinatio iv, dist. 15, q. 2; see Allan B. Wolter, O.F.M., Duns Scotus on the Will and Morality (1986), 314–17 (emphasis supplied); Klieforth and Munro, The Scottish Invention of America, supra note 1 (2004). Thomas Cooper (Lord Cooper of Culross), The Declaration of Arbroath Revisited, in Selected Papers, 1922–1954 (1957).

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(Major), the great Scottish logician, was to later teach scholastic logic in Paris and was so taken by Scotus’ thought that he published the lectures of Scotus. Scotus was the first to write of “the consent of the governed” in his Ordinatio (c.1290s) that quickly became known in Scotland, and was the intellectual and spiritual foundation of Wallace’s rebellion (c. 1297–1305) and the Scottish Declaration of Independence (1320). Scotus’ theory of human society, grounded in ancient Celtic traditions, was to revolutionize the thought and practice of the Western world. The democratic revolution that began in Celtic Europe and Scotland was the mightiest revolution in the history of the world.30 The Scottish Declaration of Independence and Freedom: The Arbroath Declaration of 1320 In late spring of 1320, Scottish messengers arrived in Avignon, France to deliver a letter from the leaders of the Scottish nation to Pope John xxii (1249–1334). The letter was sent to the pope asking him to recognize Scotland’s independence. This letter was dated April 6, 1320 and the place of issue was Arbroath in Scotland. This was not the first letter sent to Pope John xxii from a people on the fringe of Europe dealing with a nation’s grievances. In 1317, the Irish princes had sent a letter protesting England’s machinations against Ireland. Called the Remonstrance of the Irish Princes, it may not have reached the pope; in any case, it was ignored. Not so with the Declaration of Arbroath, the purpose of which was to declare Scotland’s independence and concerning matters of the nation of the Scots and its sovereignty. The 16th Abbot of Arbroath, Bernard de Linton, was the author of the Declaration of Arbroath. Bernard de Linton was a scholar who knew not only the classical philosophers, but also the writings of the Scottish moral philosophers of his time, notably John Duns Scotus. The Declaration was written in what has been described as beautiful, compelling Latin.31

D

30 31

See The Scottish Invention of America, supra note 1. “All this, I suggest to you, throws a certain amount of light upon the question of who composed the Declaration. Obviously it could only be a Churchman of wide culture and exceptional skill in the ars dictaminis. If you compare the Declaration as a piece of rhetorical Latin prose with the surviving records of the period in the charters and state papers of Scotland and England, you will find extraordinarily little worthy of comparison with it.... I strongly suspect that Bruce owed everything not attributable to his own martial prowess to the political wisdom and diplomatic skill of the Abbot of Arbroath, and that we have one outstanding specimen of his scholarship and political wisdom in the Declaration of

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The declaration begins with a preamble and a genealogy of the nation in the manner of the Celtic tradition of reciting ancestry on such a solemn occasion as the coronation of a king. It also has the same purpose, to establish provenance, hence identity, and to do so with pride. It relates that the Scottish people originated in “greater Scythia,” then lived for many years among the savage tribes of Spain, came to Scotland and defeated the Picts, subsequently resisting Norsemen, Angles, and Danes. The Scottish people thereafter lived under innumerable kings of their own royal stock, a line unbroken by a single foreigner. The letter asks the pope to urge the King of England to desist from his designs upon their nation, to “leave us Scots in peace, who live in this poor little Scotland…and covet nothing but our own.” It states the national will for independence: “As long as but a hundred of us remain alive never will we under any condition be brought under English rule.” It appeals in language which vaults the centuries to oppressed people anywhere at any time: “It is in truth not for glory, nor riches, nor honor that we are fighting, but for freedom—for that alone which no honest man gives up but with life itself (Non enim propter gloriam, diuicias aut honores pugnamus set propter libertatem solummodo quam Nemo bonus nisi simul cum vita amittit).” It claims the Scots have the right to be ruled by their own king, and the statement is so strong as to warn the very king for whom this claim was made and who had signed the document: “Yet Robert himself, should he turn aside from the task he has begun, and yield Scotland of us to the English king or his people, we shall cast out him as the enemy of us all, as the subverter of our rights and of his own, and we should choose another king to defend our freedom for…. we are minded never a whit to bow beneath the yoke of English domination.” This document is remarkable for several reasons, beginning with the signatories. With their names and seals, they identified themselves with a majority of the founding peoples of Scotland. The majority of the eight earls and fortyfive others were descendants of—to go back to an early medieval charter— “Francis et Anglis et Flamingis,” in other words some of the several races which formed the Scots. These same signers then placed an entirely new concept democratic nationalism, above the modified feudalism which hitherto was characteristic of their society and which, as absolute and complete feudalism, was current in England and Europe. Next, it declared the will of the people of all strata of society for independence. There never had been anything like this Arbroath.” The Rt. Hon. Lord Cooper of Culross, The Declaration of Arbroath Revisited, in Supra Crepidam. Presidential Address Delivered to the Scottish Historical Society, in Selected Papers 1922–1954 328–29 (1957).

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before. It proclaimed a doctrine that the king ruled by consent of the ruled which, for that time and long thereafter, was alike to heresy. The declaration says of Robert Bruce: “By the providence of God, by the right of succession by those laws and customs which we are resolved to defend even with our lives, and by our just consent, he is our king.” But not only that, it goes for the Middle Ages, beyond the unthinkable. If he betrayed them, he the ruler, the king, could be removed and replaced. No other people had dared to say such a thing, and no others were to do so for a long time, and certainly not with the consent of the ruler himself, which was the case with the Scots. It proclaimed a truth that is continually challenged, yet endures: man has the right to freedom and the obligation to defend it, even with his life. It truly represented the will of the people of Scotland, i.e., the community of the realm. This was the declaration of the independence of Scotland, the most eloquent statement for national freedom until the latter part of the eighteenth century, when the American Colonists proclaimed their independence from their sovereign, the King of England. Concepts expressed in the Arbroath document were unique for a long time to come. The Scottish jurist, Lord Cooper of Culross, for eleven years Lord Justice General of Scotland, observed that it deserved to be ranked as one of the masterpieces of political rhetoric of all times.32 Sir Walter Scott (1771–1832) wrote that the Declaration of Arbroath was worthy of being written in letters of gold. “Non enim propter gloriam, diuicias aut honores pugnamus set propter libertatem solummodo quam Nemo bonus nisi simul cum vita amittit.” That is, “It is in truth not for glory, nor riches, nor honor that we are fighting, but for freedom—for that alone which no honest man gives up but with life itself.” “The letter sent from Arbroath to the Pope in 1320…not merely shows the retention of freedom by the people of Scotland, it shows their fundamental political and religious instincts as well as their military achievements. Their king has his duty to perform, a duty which he neglects at his peril; the kingdom is “our” not “his” kingdom; and even the Pope himself is enjoined to remember that he, like every other human being, is answerable for his actions. The spirit which animates it from first to last is a spirit which has none of the arrogance of a feudal superior, none of the servility of a feudal slave; it is the spirit of a nation purified and strengthened by a prolonged struggle against almost overwhelming odds, but which had culminated in victory. It is the spirit of Wallace. It is the spirit of Scotland set free.”33 32 33

Id., at 332. Duncan MacNeill, The Scottish Realm: An Approach to the Political and Constitutional History of Scotland, 94–95 (1947).

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E From the Arbroath Declaration to the Scottish Enlightenment The stellar Scottish intellectuals that followed Scotus expanded the Celtic doctrines of freedom and rights: John Mair, John Knox, George Buchanan and Andrew Melville. John Mair (Major) (1469–1550) was one of Scotland’s greatest logicians and philosophers. [Mair’s] political teachings were no less remarkable for their boldness in that age of feudal authority[:] “the authority of kings and princes was originally derived from the people; that the former were not superior to the latter as a class; that if rulers become tyrannical, or employ their power for the destruction of their subjects, they may lawfully be controlled by them, and may even be deposed by the community as the superior power; and that tyrants may be judicially proceeded against, even to capital punishment.” He continued: “A free people confers power on the first king, whose authority is derived from the whole community.”34 Mair’s contribution to posterity was his belief in the conciliar tradition in politics, which fitted in with longstanding Scottish political theories. He consistently argued against absolutism, whether papal or royal, arguments that he transmitted to his two star pupils, John Knox and George Buchanan, who pushed them further than Mair ever dreamed of doing. In their hands, Mair’s doctrines became a potent political force, whether used to raise a godly commonwealth or a limited monarchy.35 Mair stated … that in Scotland the king “holds his right as king of a free people, nor can he grant the right to anyone against the will of that people.”36 Similarly, we find that John Knox (c.1514–1572) advocated the same principles in his reply to Queen Mary Stuart: “If their princes exceed their bounds, … and do against that wherefore they should be obeyed it is no doubt that they may be resisted, even by power. For no greater honor, or greater obedience is to be given to kings and princes, than God has commanded to be given to a father…. Even so, … is it with princes that 34 35 36

Id. at 171–72; see also Alexander Broadie, The Circle of John Mair; Logic and Logicians in Pre-Reformation Scotland 1 (1985). William Ferguson, The Identity of the Scottish Nation: An Historic Quest 69 (1998). Id., at 74.

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would murder the children of God that are subject to them. Their blind zeal is nothing but a mad frenzy; therefore, to take the sword from them, to bind their hands, and to cast them into prison, till they be brought to a more sober mind, is no disobedience against princes, but just obedience, because it agreeth with the will of God.”37 George Buchanan (1506–1582), a foremost Scottish humanist, was long regarded as one of the glories of Scotland. It has been observed that “Buchanan perceived [Separation of the Powers] long before Montesquieu was born, although it is usual to give credit to Montesquieu. He was also the first to see the difference between legal and political sovereignty, and his theory of the Original Contract as the basis of the rights and duties belonging to king and subjects was later developed by Rousseau; and so on.”38 Buchanan tutored Mary, Queen of Scots, and her son, James vi (James i of England). However, he failed to convince the king of the importance of the limitations on monarchy, the theme of one of his most popular works, De Jure Regni Apud Scotos (The Art and Science of Government among the Scots) (1579), on the constitutional law of the kingdom of the Scots and democratic rights. It has been noted that “Suppressed by James vi in 1584 and … frowned upon by his successors, it became nonetheless a potent weapon in the constitutional struggles of the seventeenth century…. Milton used it to bolster up his arguments, and in Scotland it was a main text of the Covenanters. The De Jure triumphed in the Revolution Settlement of 1689 in Scotland, for, however

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Charles Hanna, The Scotch-Irish, vol.2: 171 (1902); see Arthur Herman, How the Scots Invented the Modern World 15 (2001): “Here was a vision of politics unlike any other at the time. George Buchanan turned it [power vested in the people] into a full-fledged doctrine of popular sovereignty, the first in Europe.” Herman’s error of locating the historical origin of the doctrine in Buchanan was the result of not grounding his research in ancient Celtic and Scottish history and medieval Scottish history. His erroneous comments about the Declaration of Arbroath, the National Covenant, Scottish religion and Celtic culture probably originate as well in focusing on the Scottish Enlightenment as if it appeared “presto.” Jonathan Hearn in Claiming Scotland. National Identity and Liberal Culture. 181–82 (2000) also misinterpreted Buchanan for the same reasons, but in a different way: “In Scotland, George Buchanan (1506–82), contributed to this line of thinking by arguing for the election of monarchs by the nobility, and the legitimacy of regicide in the case of tyrannical kings. None the less, as James vi’s tutor, his ideas operated within the established genre of political advice to princes, as instructions toward good kingship, rather than as a fundamental challenge to the system of feudal monarchy.” MacNeill, The Art and Science of Government among the Scots, supra note 5, at 130.

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strange its doctrines may appear to English eyes, it furnished the clear and unmistakable basis for the Scottish Claim of Right of 1689.”39 Indeed, John Kasson, writing on this tradition in North America, wrote that: It ought to be known more widely … that the … doctrine of our … Declaration of Independence—that kings are responsible not to God alone, but also to their subjects, and may for cause be overthrown by their subjects—came from Scotland and … Buchanan. Published in Edinburgh … his work, … De Jure Regni … declared … the principle of the responsibility of monarchs to their subjects. This he did during the reign of the arbitrary Elizabeth…. Buchanan boldly declared that it was the duty of a king to deal justly with his subjects. If he were guilty of oppression, his rights were forfeited, and his subjects freed from their allegiance. If he were a tyrant, they might even put him to death.40 Buchanan believed that the government must express the will of the people. The “King of Scots is himself a Scot, primus inter pares (first among equals) and so is subject to the law. (By way of contrast, the King of England is legally above the English people and not subject to the law).”41 The King holds office on acceptance of the people. “Where Magna Carta, for example, speaks of liberi, (freemen), Buchanan speaks simply of men, thereby following the practice of the Scots Parliament and of such a document as the Letter of Arbroath.”42 Following the Celtic tradition of respect for and concern with the individual, Buchanan’s

39

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William Ferguson, The Identity of the Scottish Nation. An Historical Quest 83 (1998); see also MacNeill, The Art and Science of Government among the Scots, 125: “It became well known in England and was used to justify the Parliamentarians in the Civil War. John Milton borrowed wholesale from Buchanan in his great propaganda work the “Defence of the English People.” John A. Kasson, Proceedings Scotch-Irish Society of America, in Charles A. Hanna, The Scotch-Irish or The Scot in North Britain, North Ireland, and North America, vol. 2, 169–70 (1902). MacNeill, The Historical Background to De Jure Regni Apud Scotos to The Art and Science of Government among the Scots, Being George Buchanan’s “De Jure Regni Apud Scotos,” 104 (1964). MacNeill, Commentary to the Art and Science of Government among the Scots, Being George Buchanan’s “De Jure Regni Apud Scotos” 126 (1964).

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attitude of mind is shown clearly throughout De Jure Regni, where there is little or no respect for authority as such, but much respect for the wielder of authority so long as his actions are justified by his merit…. Buchanan’s king …, aided by his councillors, wielded the political power in such a way as to allow the people to function as individuals or as groups, taking cognizance mainly of the latter and allowing the judges to attend to individuals, though the latter had ultimate appeal to the king himself.43 In contrast to the conquered English people who spent centuries trying to free themselves from the ‘Norman yoke,’ the Scots “had no conquerors to rid [themselves] of, apart from invaders who were repelled by the sword. Scotland’s need was therefore to devise a means of controlling her governors.”44 The method of control adopted was to have several ways of voicing the will of the people—through the king, the Privy Council, the Great Council …, the Church and, in later days, the Justiciary…. All these bodies used the word “Act” (restricted in England to Parliamentary findings). So we have Acts of the Privy Council, Acts of Convention, Acts of Parliament, Acts of Assembly and the judicial Acts … [and while these] various acts pertained to the relevant spheres of activity, they often overlapped. All this would seem to suggest a state of chaos, but the keynote which preserved order was the simple fact that the real power—the power of the sword and of taxation—rested with the people. If there was fighting to be done, the people unsheathed the sword; when money was needed, the people gave voluntarily. King, Council and Parliament all lacked executive officers to enforce their orders; King’s command and Act of Parliament were equally, on occasion, ignored.45 MacNeill continued: The three Estates … were continually active within their respective spheres: the First Estate, composed of the Lords Spiritual, were occupied … with ecclesiastical affairs … [and] education and the intellectual interests of the nation; the Second Estate, composed of the Lords Temporal, including the Commissioners of Shires, were concerned with agriculture, rural life and industry; while the Third Estate, the burgesses, protected and developed urban industry and trade in general…. All three Estates functioned with the minimum of political interference

43 Id., at 105, 128. 44 MacNeill, The Art and Science of Government among the Scots, 107–08. 45 Id., at 108–09.

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other than what they asked for, and the great function of the politician was to keep these three in balance for the overall good of the country.46 In the “history of Scotland, the power of drawing the sword as well as the raising of taxes remained vested in the common people.”47 The people had the “very real power of accepting or rejecting the recommendations of king, parliament, convention or church assembly. Clearly Buchanan’s mind was working along these lines, and it may be that he believed that the common people in most of the European states had neither the tradition nor the education and understanding to put such a system into operation.”48 Andrew Melville (1545–1622), who succeeded Knox, strengthened the Scottish Protestant church and later fought efforts by King James vi (King James i of England) to gain ecclesiastical control. At the coronation of King James vi, Melville had the courage to declare that “Sirrah! Ye are God’s silly vassal; there are two kingdoms in Scotland; there is Christ Jesus the King of the Kirk, whose subject James vi is, and of whose kingdom he is not a king, nor a lord, nor a head, but a member.”49 ii

The Scottish Enlightenment, the Founding of the American Republic and Human Rights’ Collisions

With this rich Celtic intellectual heritage of imagination, inquiry and freedom, the Irish Enlightenment (c.570–1170) and Scottish education and intellectual life, the stage was set for one of the most remarkable intellectual explosions in the history of Western civilization: the Scottish Enlightenment (1730–1790) which in large measure fathered the American Enlightenment (1750–1820) and the creation of the United States of America. For John Duns Scotus, Bernard de Linton, John Major, John Knox, George Buchanan, Andrew Melville and the Scots, their government was an elective monarchy, the choice of “the community of the realm of Scotland.”50 46

47 48 49 50

Id., at 128–29; see also MacNeill, The Scottish Realm, 37: “The Council of Kings indicates also the absence of any idea that the king, or high-king, was the wielder of the delegated powers of the citizens of Scotland, but rather that he was appointed to carry out definite, if complicated, work, namely, to guard the rights and liberties of the people of Scotland.” Id. Id., at 127–28. William Morison, Andrew Melville 79 (1899). Archie Turnbull, Scotland and America, 1730–90, in The Scottish Enlightenment 1730– 1790, A Hotbed of Genius, eds. David Daiches, Peter Jones and Jean Jones, 144 (1986, 1996).

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Buchanan’s belief in the government as the will of the people continued into 18th century Scotland51 and the Scottish Enlightenment, particularly as seen in the writings of Lord Kames and Francis Hutcheson who had tremendous effects on Thomas Jefferson and the other founding fathers of the United States. Through William Small, a native-born Scot, Thomas Jefferson was first exposed to the world order as described by the philosophers of the Scottish Enlightenment. It was Small who introduced Jefferson to the philosophy of the Arbroath Declaration. Small and other Scots who participated in the Scottish Enlightenment knew of the Arbroath Declaration through its publication in a considerable Anglo-Scottish pamphlet war that raged during the years just before the Union of 1707 and other Scottish publications of the Declaration in 1716, 1722, 1739 and 1744. “To all these reprints the first publication of the Scotichronicon in 1759, edited by Walter Goodall in two handsome folio volumes, added a slightly improved text. Thus before the death of George ii the Declaration had been printed, in one form or another, eleven times in Latin and four times in English, and far from being neglected was well-known, mainly perhaps through Anderson’s Diplomata.”52 James Wilson, a founding father and native-born Scot, convinced the u.s. Congress that all power was originally in the People—that all the Powers of Government are derived from them—that all power, which they have not disposed of, still continues [to be] theirs. This was the “Revolution Principle.” As he wrote, “this truth, so simple and natural, and yet so neglected or despised, may be appreciated as the first and fundamental principle of the science of government.” The sovereignty of the people was a principle to which Wilson unwaveringly adhered to throughout his life, and it is, of course, an idea that is implicit in the Declaration of Arbroath…. It is quite likely that from his St. Andrews days he knew the works of George Mackenzie, Gilbert Burnet and James Anderson, all of whom had helped to popularize knowledge of the Arbroath letter … Wilson’s thought irresistibly recalls George Buchanan. Because Buchanan’s ideas in many respects anticipated those of John Locke, they are often attributed to Locke even though he was born fifty years after Buchanan’s death… Witherspoon … drew upon the radical tradition in Scottish political thought, not perhaps explicitly citing to “Arbroath” but drawing upon the bubbling springs of that momentous document which was, at least in Scottish terms, the fountainhead of all that followed.53

51 52 53

Id. Sir James Fergusson, Bart., The Declaration of Arbroath, 243 (1970). Cowan, at 264.

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A A False Paradigm of History Revisited Yet, given this history, why have English and American historians failed to distinguish the Scottish tradition of revolutionary principles from the English evolutionary principles? In the case of English historians, is it simply a matter of the victors writing the history books or is it more complex? More perplexing is why American historians have not made the critical distinction between the Scots and English in causing the American Revolution and influencing the Declaration of Independence? Gordon Wood in his The American Revolution, a History, observed that while some American Revolutionaries declared that they were Whigs rebelling in behalf of the English Constitution, they were mistaken as they were actually supporting ‘revolution principles’ and concentrating on a ‘set of ideas’ that was peculiar and radical.54 Yet what was this “set of ideas” and “extraordinarily radical perspective on the English constitution?” Where did it come from? Unfortunately, Wood did not enquire into this problem in his book. This interpretation, however, merely begs the questions: why were they selective, what were the historical and cultural causes for this selection process, what did they select and what were the true historical origins of the ideas selected? For decades, American historians supported the position that John Locke was the critical factor in the intellectual history preceding the American Revolution and human rights. This Lockean interpretation was enshrined in Carl Becker’s The Declaration of Independence, a Study in the History of Ideas.55 Many historians hold to this tradition even to our day.56 By the late 1960s, new opinions were expressed on the role and importance of Locke’s thought in fomenting the Revolution and influencing the drafting of the Declaration of Independence: Bailyn’s The Ideological Origins of the American Revolution (1967), Wood’s The Creation of the American Repulbic (1969), Dunn’s essay, The Politics of Locke in England and America in the Eighteenth Century and J.G.A. Pocock’s The Machiavellian Moment (1975). The revisionists such as Gordon S, Wood, John Dunn and J.G.A. Pocock had one point in common, the primary influences on the founding fathers of the u.s. came from Locke, other English or continental thinkers but not from Scotland or Ireland.57 Despite a 54 55 56 57

Gordon Wood, The American Revolution. A History (2002). Carl Lotus Becker, The Declaration of Independence, a Study in the History of Political Ideas (1922). See Steven M. Dworetz, The Unvarnished Doctrine: Locke, Liberalism and the American Revolution (1990). See Colin Kidd, British Identities before Nationalism (1999), 250–86 for a summary review of these revisions and the Anglocentric arguments for the English Whig theory

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growing number of articles and books pointing to the Scottish background as a causative factor, historians still resisted to look beyond England for explanations for the American experience. It was not until Garry Wills’ Inventing America in 197858 that many historians looked beyond the traditional theories. Even Wills, who took credit for finding that the Scottish Enlightenment philosophy was more influential on Thomas Jefferson than John Locke, quickly turned away from pre-Enlightenment Scottish history and found the root of modern liberty in the Magna Carta. Wills’s position suggested that the Scottish thinkers of the Enlightenment looked only to the south of the border, i.e., to the Magna Carta of the English, and not to the centuries of Celtic and Scottish struggles for the ideas concerning liberty culminating in the philosophy of John Duns Scotus, the Declaration of Arbroath and the scholarly Scottish thinkers that preceded the Scottish Enlightenment. Wills did not put the revolutionary thrust of the Enlightenment in the larger context of ancient Celtic and medieval Scottish history. Just as the conclusion that Lockean thought was the primary influence on the Declaration of Independence was essentially flawed, so was this larger explanation of Western liberty, based primarily on the Magna Carta and common law, basically at variance with historical reality. We do not deny the role of these factors, but they are eclipsed by ideas and movements originating in the Celtic and Scottish worlds, both north and west of the English borders. The position of writers such as Sandoz, Bailyn, Howard and others that the Magna Carta, common law and English Whig theory provided the foundation of modern liberty and American Revolutionary thought assumed that liberty was largely equivalent with the rule of law, common law and due process of law.59 There is no question that the rule of law is critical to the existence of liberty in a free society, but their definition of liberty and freedom of the time was too legalistic and narrow, and ignored the larger cultural and historical forces. The liberties defined in the Magna Carta and the common law were granted from royal authorities down to the aristocracy and other individuals, not up from the people. There is a radical difference between the philosophy of the Arbroath Declaration and that of the Magna Carta. The Declaration of Arbroath, which represented cultural and philosophical thought of the Scots

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(exclusive of its true Scottish roots in Buchanan, Knox, Mair, John Duns Scotus and the ancient Celts) and ancient Gothic constitution as the exclusive causes of the American Revolution. Garry Wills, Inventing America: Jefferson’s Declaration of Independence (1978). See Anthony Babington, The Rule of Law in Britain from the Roman Occupation to the Present Day (1978).

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for centuries prior to the Declaration, spoke of complete human freedom, not of special legal rights granted by the rulers. This is why the Scottish King was called the King of the Scots and not the King of Scotland, a description lacking in English and British custom.60 This difference also explains Madison’s statement. “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty. This revolution in the practice of the world may…be pronounced the most triumphant epoch of its history and the most consoling presage of its happiness.”61 Charles Hanna, in The Scotch-Irish, found this difference in a comparison of the British and American constitutions: In short, the difference between the British and the American Constitutions is a fundamental one. The former is a concession of privileges to the people by the rulers; the latter, a grant of authority by the people to the rulers.62 No. 84. of the Federalist summarized this difference perfectly: [B]ills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was the Magna Carta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of rights presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament, called the Bill of Rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here…the people surrender nothing; and as they retain everything, they have no need of particular reservations. “We, the People of the United 60

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Macneill, The Art and Science of Government among the Scots, 104: “… the King of Scots is himself a Scot, primus inter pares (first among equals) and so is subject to the law. (By way of contrast, the King of England is legally above the English people and not subject to the law.)”. Bernard Bailyn, The Ideological Origins of the American Revolution 55 (1967). Hanna, The Scotch-Irish, vol. 1, 43.

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States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.” This is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.63 This radical difference also can be seen in the fact that the Declaration of Arbroath presented a definitive and complete defense of human liberty in the Middle Ages whereas the amorphous and unwritten “rights” of the English and British partially evolved over many centuries from the so-called “ancient constitution” to the Magna Carta to common law to Whig theory. “The English people were now a conquered people and the task of the English Constitution was to enable the English to free themselves from the Norman yoke, which they have done with the passing of centuries by the expedient of absorbing them.”64 Indeed, the British evolution was never complete and never matched the depth and extent of the original Celtic and Scottish vision. Thomas Paine, an admirer of the great Scots thinker, Adam Ferguson, voiced doubts in his Common Sense (1776) about the “so much boasted constitution of England.” It was, he said, a noble advance in the “dark and slavish times” when it had its origin, but Paine thought it now to be “imperfect, subject to convulsions, and incapable of producing what it seems to promise.”65 The fact that it was not until the year 2000 that the British received an American-style Bill of Rights through their reluctant passage of the Human Rights Act (1998) indicates that the evolution is still not complete and perhaps never will be. The English conception of rights was bound internally by the English class (or caste) structure in contrast to the Arbroath Declaration’s of “nor distinction of Jew or Greek, Scots or English”66 MacNeill noted in The Scottish Realm: 63 64

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Id. Macneill, The Art and Science of Government among the Scots, 107; see also Macneill, The Scottish Realm, 60: “… that it is probable that students of politics, a century or two hereafter, will regard the growth of Parliament in England as a disguised military operation through which the people of England recovered the political and economic rights which they lost at Hastings in 1066.” Dick Howard, The Road from Runnymeade, the Magna Carta and Constitutionalism in America 186 (1968). Macneill, The Scottish Realm, 68: “Thus, the men of a district were regarded as equal in blood; thus, too, the social divisions of the Scots Nation were vertical as between groups or clans, instead of horizontal, as in England, between castes.... The difference between the Scots and English social structures can be seen if we try to imagine a group of

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Thus, the men of a district were regarded as equal in blood; thus, too, the social divisions of the Scots Nation were vertical as between groups or clans, instead of horizontal, as in England, between castes…. The difference between the Scots and English social structures can be seen if we try to imagine a group of Englishmen, nobles, merchants and tinkers, all bearing the name of de Vere and entitled to sport, of right, the crest of de Vere and externally by the English concern principally for the rights of the English against the world, whether it be the world of the Irish, Scots, Americans or the members of the British Empire.67 The final argument asserting that the force of the Revolution which came from Scotland and not England is not taken from the world of ideas but from the historical record itself. The Scots, and not the English, were a rebellious people: [The Scots] rebelled against their tyrants and oppressors earlier, and more often, and more efficaciously than did the people of any other nation. They anticipated the English by a full century in their revolutions, and their claim for the rights of the individual. They were more than two centuries ahead of the French in fighting…for the principles of the French Revolution. They were farther advanced three centuries ago than the Germans are today in their conceptions…of individual liberty. Buckle well says, in speaking of his own English race, “If we compare our history with that of our northern neighbors, we must pronounce ourselves a meek and submissive people.” There have been more rebellions in Scotland than in any other country, excepting some of the…South American republics. And the rebellions have been very sanguinary, as well as very numerous. The Scotch have made war upon most of their kings, and put to death many. To mention their treatment of a single dynasty, they murdered James i and James iii. They rebelled against James ii and James vii. They laid hold of James v and placed him in confinement. Mary they immured in a castle, and afterwards deposed. Her successor, James vi, they imprisoned; they led him captive about the country, and on one occasion attempted his life. Towards Charles I they showed the greatest animosity, and they were the first to restrain his mad career. Three years before the English ventured to rise against that despotic prince, the Scotch

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Englishmen, nobles, merchants and tinkers, all bearing the name of de Vere and entitled to sport, of right, the crest of de Vere.” Id.

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boldly took up arms and made war on him. The service which they then rendered to the cause of liberty it would be hard to overrate….68 MacNeill, in his book, The Scottish Realm, made the following comparison on the Scottish and English peoples in the context of Edward I’s invasion of Scotland in 1296 and the Scottish Wars of Independence: The nobility was imprisoned; the castles throughout the length … of Scotland were held for the [English] King; … Edward had…justifications for thinking that Scotland, was, once and forever, at his feet. But he made the mistake of assuming that the Scots nation was organized in accordance with feudal principle. Had this assumption been correct, Scotland could never have lifted her head again…. Had the English king and nobility been taken away, had the castles of England been garrisoned by invaders, nothing would have been left but the mass of common people, unarmed and leaderless, with no tradition of liberty in their souls, no urge to resistance in their blood. The lower classes in England—or in any feudal land— would never have dreamed of organizing themselves to overthrow the invaders as did the common people of Scotland. The churchmen of England might have supplied the brains to such a movement, but it is inconceivable, in view of the national history and the national mentality inbred by feudalism, that the capacity to strike (quite apart from the lack of arms) and to strike in many places at once, was inherent in the English yeomanry, peasantry or serfs.69 H. Trevor Colbourn in his The Lamp of Experience (1965) observed the same in referring to Whig theory: Real Whigs in England might sympathize with the colonists, but there were few who looked for American independence…. Whigs questioned the wisdom but rarely doubted the authority of Parliament. They might offer a justification for certain colonial claims to redress of grievances but they preferred not to counsel revolution at home or in America…. Had the Founding Fathers remained totally true to the English Whig historical tradition they would never have produced a revolution—and their counterparts in England did not…. The Revolution came with Americans

68 69

Id., at 150. Id., at 89.

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abandoning the conservative, evolutionary progress normally advocated by their whig friends.70 And, Colbourn quoted Carl Stephenson, “… to accept the nineteenthcentury interpretation of Anglo-Saxon society, a historian had first to read into comparatively late sources a meaning which they never had and then apply that misinterpretation to an imaginary society of a thousand years earlier.’ … Saxon society was certainly not the democratic one envisaged by Jefferson and the whigs.”71 Today the prevailing tendency is to view the post-1066 Anglo-Norman state as unique, the result of many antecedents, Saxon, Flemish, Danish, and Breton. Most of the later features of Whig history have been explored and revealed as false oversimplifications which endured because people wanted to believe. The myth of Magna Carta has been attacked by scholars distressed over extravagant claims made on its behalf. The feudal character of the document is now widely recognized. Its limitations may be disputed, but no longer in the political language of the 1680s. Most scholars see the Charter as a grant of privileges on the part of King John to the freemen of England and agree that it could not apply to the mass of people still thoroughly servile…. the famous Charter which was so important to seventeenth and eighteenth-century lawyers and historians “meant many things to many groups, varying greatly from age to age in actual content [meaning] and realistic value.” … Certainly few whig writers underestimated the Charter’s significance as a support for their claims.72 It was the rebellious Scots and Scotch-Irish, who came to America largely in the period 1707–1776 and were critical to the u.s. Revolution. Many of the American men at the Battles of Lexington and Concord were Scots and ScotchIrish, who stood faithfully by General George Washington at Valley Forge while others deserted.73 70 71 72

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H. Trevor Colbourn, The Lamp of Experience: Intellectual Origins of the American Revolution 188–90 (1965). Id., Appendix i, The Saxon Myth Dies Hard, 196. Id., 197–98; see also Macneill, The Scottish Realm, 59: “The nobles did not approve of this and the outcome of it all was that King John granted Magna Carta, which has been hailed as the Englishman’s Charter of Liberties. Magna Carta, though it limited the power of the king to plunder his nobility, rather increased the power of the nobles to plunder the lesser barons and the common people. In fact, Magna Carta was reactionary but it has been a convenient slogan, and in that sense has been helpful to Englishmen of all classes.” This is not to say that all the Scots supported the Revolution. After the Battle of Culloden, before being transported to the American colonies, some Highlanders were forced to take an oath, binding to male issue, never to raise a hand against the king. Some Highlander

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Hence, they [the Scots and Scotch-Irish] entered the American Revolutionary contest with a deep-seated hatred of England inherited from the past, with a passionate desire for vengeance, and with that never-ceasing persistence which is their chief characteristic as a race; and in tracing their history down to this point it would seem as if we could see the working of some inscrutable principle of Divine compensation; for without the later presence in America of these descendants of the martyred Scottish Covenanters—doubly embittered by the remembrance of the outrageous wrongs done their fathers and the experience of similar wrongs inflicted upon themselves and their families—the Revolution of 1776 would not have been undertaken, and could not have been accomplished.74 Wills correctly noted in Inventing America (1978) that the empire of Great Britain was descending because her philosophy has crossed the … Atlantic.75 Wills, however, failed to note that not only the ideas for the Revolution came largely from the Scottish Enlightenment at this critical time but that the Scots and Scotch/Irish men and women who came to America and fought in the Revolutionary War were the descendants of the Celts and Scots who had successfully fought for their freedom against the Romans, Angles, Saxons, Vikings and then the English through the centuries. They were the ‘descendants’ of Braveheart’s William Wallace. Anglocentric historians have failed to realize that the liberty of John Locke and the English Whigs of the 1660s descended from the ancient Celts and Scotus through Mair, Buchanan, Knox and Hutcheson and then spread through the Scottish Enlightenment thinkers to the American Founding Fathers. Thus, they were not able to explain the Celtic-Scottish “revolution principles” of the Founding Fathers by references to the theory of Locke and the Whigs, which was fundamentally a conservative, evolutionary philosophy. Scotus’ theory as expressed in the Scottish Declaration of Independence of 1320 was the intellectual foundation of the American Revolution and the Declaration of Independence of 1776.

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sons and possible grandsons in the southern colonies remained loyal to the king. Some even joined an English Highland regiment. Incidentally the war during the southern campaign had aspects of a civil war, colonists fighting colonists, loyalists (sometimes with Indians) fighting patriots. Hanna, vol. 1, 150–51. Garry Wills, Inventing America: Jefferson’s Declaration of Independence 176 (1978).

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The Effect of the Declaration of Independence on Scottish and British Political Reform “For Scottish liberals as for liberals everywhere, from the moment of the successful establishment of her independence, America remained an inspiring example of what could be achieved in the names of freedom and democracy.”76 All the movements for modern political reform in Scotland date from the period of the American Revolution.

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The freedoms which the Americans had claimed, and successfully defended their right to, were essentially those which all men of liberal feelings came to demand for the people of Great Britain. In Scotland particularly, such freedoms were notably lacking. Even before the Revolution, the contrast between the political conditions at home and in America had been an important factor in encouraging Scottish emigration…. Scottish liberals greeted the onset of the French Revolution with enthusiasm. Scottish branches of the societies advocating popular reforms were established. The Scottish Association of the Friends of the People first met in Scotland in Edinburgh on July 26, 1792, and similar associations were soon formed in Glasgow, Dundee, Perth, and in every town of any size.77 Intellectuals such as Dugald Stewart and John Miller hailed the beginning of a new age of international peace and progress.78 The Scottish receptivity toward revolutionary ideas can be seen in the reception given to the publication of Thomas Paine’s The Rights of Man (1791– 1792). Paine’s work criticized the corrupt political system and the most sacred assumptions of the British constitution. The work sold over 200,000 copies in Britain by the end of 1793. Sales of the work increased after the British government attempted to ban it in May of 1792.79 However, before the inaugural meeting of the National Convention of the Scottish Friends of the People…took place in December 1792, events in France took a dramatic turn. The bloodbath of the French nobility and clergy in the “September Massacres” attracted widespread coverage in the Scottish press which did not spare its readers any of the gory details of the grislier executions by guillotine. From this point on, the revolution 76 77 78 79

Andrew Hook, Scotland and America: A Study of Cultural Relations; 1750–1835 233 (1975). Id., at 233–35. Thomas M. Devine, The Scottish Nation: A History; 1700–2000 203 (1999). Id., at 204.

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was represented as a grave threat to the entire social order, a political force careering out of control and sliding rapidly into murderous anarchy. From the conservative perspective, worse was to follow when the Duke of Brunswick’s mighty army of coalition of the European powers, assembled to crush the revolution with all speed, was itself roundly defeated by the citizen’s army of France. The revolutionaries then proceeded to terrify the ruling classes all over the continent in their Decree of 19 November 1792 by offering military aid to all other peoples seeking liberty from oppression.80 A founder of the Scottish Association of the Friends of the People, Thomas Muir (1765–1799) was a vigorous supporter of a republican constitution, an independent Parliament, universal male suffrage and a reconsideration of the Union of 1707. He maintained links with the United Irishmen, a group of men in Dublin who supported political reform. The Scottish Association of the Friends of the People first met in Scotland in Edinburgh on July 26, 1792. The first Convention of the Scottish Friends of the People opened in Edinburgh on December 11, 1792. Approximately 150 delegates from over 100 societies from over 30 cities and towns participated. During the Convention, Thomas Muir read aloud a fraternal address from the Society of United Irishmen. The delegates stood, raised their right hands and swore, “Live free or die.” Muir’s address was branded seditious and treasonable and gave the government the opportunity to move against the reformers. Muir was arrested on January 2, 1793 and his trial began on August 30, 1793. During his trial (he was a Glasgow barrister and he defended himself), Muir stated: “I am accused of sedition and yet can prove by thousands of witnesses that I warned the people of that crime, exhorted them to adopt none but measures which were constitutional, and entreated them to connect liberty with knowledge and both with morality.”81 The trial lasted sixteen hours and Muir’s address to the jury lasted three hours. “I have devoted myself to the cause of the people. It is a good cause, it shall ultimately prevail, it shall ultimately triumph.” Muir was found guilty and sentenced to 14years of transportation to Botany Bay, Australia, which was virtually a death sentence.82 The Scottish people were shocked by the sentence. When France declared war against Britain in February 1793, the Scottish supporters of rebellion were branded traitors. The British government became even more tyrannical and despotic, engineering a witch-hunt against 80 81 82

Id., at 205–06. The Scottish Invention of America, at 294. Id., at 207.

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any suspected rebel. Key leaders of the movement were put on trial and found guilty. Scotland became a virtual police state.83 It would take decades of political leadership and zeal for the reforms to be finally implemented. Indeed, it was not until October 2000 that the citizens of the United Kingdom had a written Bill of Rights comparable to the one demanded and enjoyed by citizens of the United States. The Declaration of Independence, the French Revolution and the Declaration of the Rights of Man and of the Citizen In France, the u.s. Declaration of Independence assumed a great role. The French had a particular affection for Thomas Jefferson and the Declaration of Independence.

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Stories about America intoxicated the French. They found in the Revolution in the New World the most compelling intellectual subject of the times…. The American Revolution was not only a la mode in Paris; it had become virtually a new religion. Washington, Franklin, and Jefferson acted as the apostles, and Jefferson’s Declaration of Independence replaced the Bible. The French needed to look no further than this lofty document, the philosopher Condorcet asserted, to find a “sublime exposition of sacred rights that have too long been forgotten.” It towered, people said, as a “beacon” for humanity. Thomas Jefferson, the new American minister in Paris, could write to George Washington without exaggeration that France “has been awakened by our revolution, they feel their strength, they are enlightened.” In May 1789 the Paris newspaper Mercure de France announced that America was the hope and the model of the human race.84 Jefferson collaborated with the Marquis de Lafayette in the first draft of the French Declaration of the Rights of Man and of the Citizen. This Declaration adopted by the French National Assembly on August 26, 1789, was a descendant of the American Declaration of Independence. The French were familiar with the text of the American Declaration as it had been translated into the French language. The marquis de Lafayette, a veteran of the American revolutionary war who became the first person to propose that the National Assembly issue 83 84

Hook, Scotland and America, at 236. Susan Dunn, Sister Revolutions. French Lighting, American Light 9–11 (1999).

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a declaration, had a particular affection for the Declaration of Independence. … In the library of his Paris home he had hung a frame half-filled with a copy of that document. The remaining empty space, he explained to visitors, was reserved for the French Declaration of Rights that would one day be adopted. Lafayette tried his hand at drafting such a declaration in early January 1789, and submitted his manuscript for comment to Jefferson, who was in Paris as the American minister to France. Later, as the Declaration of the Rights of Man evolved, other members of the National Assembly also regularly consulted Jefferson.85 [I]n private Lafayette and Jefferson spent hours together discussing their ideas for a constitution and a Charter of Rights for France. Eager to assist, Jefferson sketched out his recommendations, advising the creation of a representative body that, with the consent of the king, levied taxes and made laws, and an independent judiciary. In lieu of an itemized Bill of Rights, he offered some general principles of freedom and legal process.86 Louis Henkin noted in The Age of Rights (1990) that like the “American Declaration and American constitutions, the French Declaration declares pre-existing, inherent, natural rights. Under that Declaration, too, rights are not a gift from society, but antecede it. Article 1 provides: “Men are born and remain free and equal in rights.”87 Here, too, “the purpose of any political association is the preservation of the natural and imprescriptible rights of man.” “A society in which rights are not secured, and powers are not separated, has no constitution at all.” The rights of man are “liberty, property and resistance to oppression,” a formula different from Jefferson’s triad (‘life, liberty and the pursuit of happiness’).”88 According to Henkin, the proclamation of equality implied the personhood of all individuals.89

85 86 87 88 89

Pauline Maier, American Scripture: Making the Declaration of Independence 167–68 (1997). Dunn, at 13. Louis Henkin, The Age of Rights 161 (1990). Id. Id.

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Abraham Lincoln’s Transformation of the Declaration of Independence from Freedom and Liberty to Equality Pauline Maier in American Scripture: Making the Declaration of Independence (1997) noted that the

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[P]olitics that attended its creation never entirely left its side, such that the Declaration of Independence, which became a powerful statement of national identity, has also been at the center of some of most intense conflicts in American history, including that over slavery which threatened the nation itself. In the course of those controversies, the document assumed a function altogether different from that of 1776: it became not a justification of revolution, but a moral standard by which the day-to-day policies and practices of the nation could be judged.90 The clause, “all men are created equal,” which had originally referred to the right to revolution, now became a broader moral standard. How was this done? Lincoln remade the Declaration of Independence according to Willmoore Kendall, Mel Bradford and Garry Wills. These authors have written on Lincoln and his ‘inventive’ interpretation of the Declaration:91 For them the questions…on how the “remaking” of the Declaration occurred—are easily answered. Lincoln did it. Single-handedly, they claim, he [Lincoln] foisted his personal understanding of the Declaration of Independence on the nation and, as Bradford suggested, through the biblical allusions in his oratory established the quasi-religion of Equality.92 The Declaration’s assertion that “all men are created equal” became the fundamental principle for Abraham Lincoln. Lincoln saw the Declaration of Independence statements on equality and rights as setting a standard for the future. Lincoln derives a new, transcendental, significance from this bloody episode. Both North and South strove to win the battle for interpreting Gettysburg as soon as physical battle had ended. Lincoln is after even larger game—he means to “win” the whole Civil War in ideological terms as well as military ones. 90 91 92

Maier, at 154. Id., at xix. Id.

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And he will succeed: the Civil War is, to most Americans, what Lincoln wanted it to mean. Words had to complete the work of the guns. Lincoln is here not only to sweeten the air of Gettysburg, but to clear the infected atmosphere of American history itself, tainted with official sins and inherited guilt. He would cleanse the Constitution—not, as William Lloyd Garrison had, by burning an instrument that countenanced slavery. He altered the document from within, by appeal from its letter to the spirit, subtly changing the recalcitrant stuff of that legal compromise, bringing it to its own indictment. By implicitly doing this, he performed one of the most daring acts of open-air sleight-of-hand ever witnessed by the unsuspecting. Everyone in that vast throng of thousands was having his or her intellectual pocket picked. The crowd departed with a new thing in its ideological luggage, that new constitution Lincoln had substituted for the one they brought there with them. They walked off, from those curving graves on the hillside, under a changed sky, into a different America. Lincoln had revolutionized the Revolution, giving people a new past to live with that would change their future indefinitely.93 Lincoln’s interpretation of the Declaration of Independence extended literally to all men. It had become a Charter of Freedom.94 The legacy of Jefferson, as passed on by Lincoln, was at the very heart of the American love of freedom. This was the way Lincoln phrased the matter: The principles of Jefferson are the definitions and axioms of free society…. All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that today, and in all coming days, it shall be a rebuke and stumbling-block to the very harbingers of reappearing tyranny and oppression.95 The Declaration of Independence came to assume the role that it has assumed in American society—a statement of values that…expresses not why we separated from Britain, and not what

93 94 95

Garry Wills, Lincoln at Gettysburg: The Words that Remade America 37–38 (1992). Maier, at xiv; see Dunn, Sister Revolutions, at 163. Abraham Lincoln, Letter to Henry L. Pierce and Others; April 6, 1859, in The Collected Works of Abraham Lincoln, Roy P. Basler, ed., vol. 3, 375 (1974).

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we are or have been, but what we ought to be, an inscription of ideals that bind us as a people….96 Gordon S. Wood in The American Revolution, a History (2002) went further, and placed Lincoln’s interpretation in global terms: But Lincoln saw as well that the Revolution had convinced Americans that they were a special people with a special destiny to lead the world toward liberty. The Revolution, in short, gave birth to whatever sense of nationhood and national purpose Americans have had.97 E Human Rights between President Lincoln and World War ii The period from the death of Abraham Lincoln to the beginning of World War ii is often presented by historians of human rights as a period of incremental and modest gains in human rights, particularly in the area of so-called humanitarian law, e.g. the law of hostilities. Very often, these “human rights” issues were not termed “human rights” based on an universal theory of human rights but were presented as single, independent issues of humanitarian concern that were focused upon, and addressed by, religious, cultural, political and economic groups and beliefs. For instance, individual nations, led in part by the International Committee of the Red Cross, created multilateral agreements concerning a humanitarian law of war, also known as international humanitarian law. The St. Petersburg Declaration of 1868 prohibited the use of dumdum bullets in war and in 1898, the Convention on the Laws and Customs of Land War, the First Hague Convention, was created. A second example would be the movement to abolish slavery and the slave trade found success in treaties involving the major nations with the Treaty of Paris of 1814 and the International Slavery Convention of 1926. Russia freed its serfs the year the United States Civil War began. A third illustration would be the work of labor unions, activists and governments in remedying terrible working conditions in factories, low wages and child labor. With two labor conventions created in 1906, and the creation of the International Labor Organization (ilo) in 1919, the world community embarked upon remedial economic measures. The Covenant founding the League of Nations in 1919 required the member states of the League to remedy brutal working conditions, abuses of women

96 97

Maier, at xix. Gordon S. Wood, The American Revolution: A History xxiii (2002).

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and children in factories/labor conditions, and improper treatment of colonial peoples. However, many of these declarations and activities, from the death of Lincoln to the Universal Declaration of Human Rights, were concerned with specific issues within nations and not universal protection of fundamental human dignities on a global scale. What is critical, though, is that in this time period, we find the origins of human rights struggles in numerous nations that were to evolve into the great issues of human rights in the 20th and 21st centuries and create the human rights philosophy, law and enforcement as we know it today: a developed and still growing body of philosophy, law, policy and practice. The South African Collision of the White Colonialists versus the Black Race In 1912, the South African Native National Congress, later renamed the African National Congress (a.n.c.), was founded to secure voting rights for coloreds and black Africans in the Cape Province. Six years later, Nelson Mandela was born. From the 1940s onward, the a.n.c. spearheaded the fight to eliminate apartheid, the official South African policy of racial separation and discrimination. In 1941, the Atlantic Charter, a joint declaration issued by the British Prime Minister Winston Churchill and President Franklin Roosevelt regarding World War ii war goals, was issued. In 1942, Nelson Mandela joined the African National Congress. Surprisingly, World War ii and the Atlantic Charter indelibly influenced black expectations in South Africa as the a.n.c Annual Conference of December 16, 1943 contained a document entitled “African Claims in South Africa, Including ‘The Atlantic Charter from the Standpoint of the Africans Within the Union of South Africa.’” This document was not only a codification of black demands, it is also a document that places those demands within the framework of allied war aims within an international context, making those demands a matter of international concern. The primary document was entitled “The Atlantic Charter and the Africans,” and it constituted the African interpretation of the Atlantic Charter and a bill of rights. The document also influenced the a.n.c’s Freedom Charter of 1955. F

G The Colonial Collisions of Nationalist India and Vietnam In India, Mahatma Gandhi was born in 1869 and entered Indian politics with his doctrine of non-violent protest in 1919. His subsequent Indian nationalist movement against British rule succeeded in yielding an autonomous Indian state in 1947. Despite their differences, Ho Chi Minh in Vietnam followed a similar path. Ho had memorized the opening lines of the Declaration of Independence when he visited the United States as a menial laborer on a tramp

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steamer before World War i.98 Later, in September, 1945, Ho addressed hundreds of thousands of Vietnamese at a rally in Hanoi. A frail-looking wisp of a man advanced to the microphone and said as all of Hanoi listened: “All men are created equal,” he declared, as all of Hanoi listened. “They are endowed by their Creator with certain unalienable Rights; among these are Life, Liberty, and the pursuit of Happiness.” He paused and then elaborated, “This immortal statement,” he explained, “was made in the Declaration of Independence of the United States of America in 1776. In a broader sense, this means all the peoples on earth are equal from birth, all the peoples have a right to live, to be happy and free.”99 Ho, following the order of the sections of the Declaration of Independence, then outlined the grievances of the Vietnamese against France, followed by sections declaring the independence of the Vietnamese and finally a solemn pledge as in the Declaration.100 The Collision of the United States Racial Heritage versus the Civil Rights Movement Movements by oppressed racial and religious minorities succeeded in many parts of the world, among them was the u.s. Civil Rights movement. In 1929, Martin Luther King was born. Influenced by Gandhi and the struggle in South Africa, King’s non-violent protest efforts were successful in ending the legal segregation of African Americans in the United States through the passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Civil Rights Act of 1968.101 H

The European Collision of the Zionist Jews versus the Nazis and the Creation of the Modern Israel/Palestinian Human Rights Nightmare In 1897, Theodor Herzl convened the first Zionist Congress at Basel, Switzerland, which drew up the Basel program of the movement to secure a national Jewish homeland in Palestine. In 1906, the American Jewish Committee was founded and later played a critical role in human rights education, the promotion of the Universal Declaration of Human Rights and the birth of the Israel human rights movement.102 In 1917, the Zionist movement obtained the

I

98 99 100 101

Dunn, at 176. Id., at 175. Id., at 175–76. John David Skrentny, The Effect of the Cold War on African-American Civil Rights: America and the World Audience, 1945–1968, University of Pennsylvania Theory and Society 27: 237–85 (1998). 102 H. Lauterpacht, An International Bill of Rights of Man, vii (1945).

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support of the British government with the Balfour Declaration that endorsed the creation of a Jewish national homeland. Two years later in 1919, Adolf Hitler began his political career as an army political agent in the German Workers’ (later National Socialist, or Nazi) Party and became head of its propaganda arm in 1920. Hitler was soon made president of the party and began his creation of a mass movement and his climb to power. The Holocaust and the defeat of Nazi Germany were critical to the successful creation of the state of Israel, which soon found itself surrounded by enemies. Today, the Israel-Palestinian conflict represents a most intractable and critical human rights issue confronting humanity. iii

The Modern Historical Evolution of Human Rights Law and Policy

Though the ideas of human rights, liberty and freedom featured prominently in the American Declaration of Independence and the French Revolution’s Declaration of the Rights of Man and of the Citizen, the future of such values and concepts was far from assured.103 In France, the idea of human rights died in the Reign of Terror and was not heard of again until the end of World War ii. There was not much said about rights in France between 1793 and 1946— a long time. In the constitutions and draft constitutions of the French Republic in the intervening 150years, one can hardly find anything about rights. The French had a decent society, but they did not talk about rights (in many ways the French moved toward British parliamentarianism and away from individual rights).104 In America, the Declaration of Independence was transformed by Lincoln and then lay dormant for decades. It was not until World War ii and its aftermath that the rights of mankind were again reconsidered and improved. The conception of the United Nations’ Universal Declaration of Human Rights came in a speech on January 6, 1941, by President Franklin Roosevelt in 103 Samuel K. Murumba, Introduction, The Universal Declaration of Human Rights at 50 and the Challenge of Global Markets: Themes and Variations, xxv: 1 Brooklyn Journal of International Law 9 (1999). 104 Louis Henkin, The Universal Declaration at 50 and the Challenge of Global Markets, xxv: 1 Brooklyn Journal of International Law 18 (1999).

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which he declared the four freedoms that were to be the core of a new world order. In effect, he projected the internationalization of human rights: “In the future days which we seek to make secure, we look forward to a world founded upon the four freedoms.”105 The four freedoms were freedom of speech and expression, freedom of worship, freedom from want and freedom from fear. A The Atlantic Charter and the Nuremburg Trials Despite such lofty endeavors, it took the horrors and violations of human rights and liberties in the Second World War to produce the Universal Declaration of Human Rights, the modern human rights movement, and the drive for global political independence. The Atlantic Charter agreement between President Roosevelt and Prime Minister Churchill in August 1941 contained references to international human rights obligations and the allied United Nations Declaration of 1942 broadened these commitments. By 1942, human rights had become an integral component of the military struggle against fascism. What remained was to develop international methods for protecting human rights.106 In 1945, at Nuremburg, the Allies included crimes against humanity among the charges on which Nazi leaders were tried.107 The United Nations Charter declared that promoting respect for human rights was a principal purpose of the United Nations organization. Article 1, paragraph 3 of the preamble of the Charter of the United Nations stated as one of the purposes of the United Nations the achievement of international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.108 B The Universal Declaration of Human Rights Eleanor Roosevelt, the first chair of the United Nations Commission on Human Rights, provided leadership in the adoption of the foundation of 105 Id., at 17. 106 M. Glen Johnson, A Magna Carta for Mankind: Writing the Universal Declaration of Human Rights, in The Universal Declaration of Human Rights, a History of its Creation and Implementation, 1948–1998, eds. M. Glen Johnson and Janusz Symonides, 27 (1998). 107 Henkin, The Age of Rights, at 1. 108 Id.

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international human rights and freedom, the Universal Declaration of Human Rights (1948).109 Eleanor Roosevelt saw the matter [The Universal Declaration] as: Her confidence was due in part to her lively sense of the Declaration of Independence as a bright thread running through American history. That document, too, had proclaimed certain truths as self-evident and declared certain rights to be unalienable. It too was non-binding.110 The Declaration was completed by the United Nations Commission on Human Rights in June 1948 and adopted, after a few changes, by the General Assembly at its Paris session on December 10, 1948 by unanimous vote with six abstentions. The Declaration contained general definitions of not only of those principal civil and political rights recognized in democratic constitutions but also several economic, social, and cultural rights. The civil and political rights included the following: “the right to life, liberty and security of person (Article 3); the prohibition of slavery (Article 4); the prohibition of torture (Article 5); the prohibition of arbitrary arrest, detention or exile (Article 9); the right to a fair trial (Article 10); the right to freedom of movement (Article 13); the right to property (Article 17); the right to freedom of thought, conscience and religion (Article 18); the right to freedom of opinion and expression (Article 19); the right to freedom of assembly and association (Article 20); the right to participate in the government of one’s country (Article 21).”111 Even a casual reader of the Universal Declaration will see that there is a similarity of language between the 1948 United Nations document and the classical declarations of the 18th century. This similarity is especially strong toward the beginning of the document. The first recital of the 1948 Preamble speaks of “inherent dignity” and of “equal and inalienable rights,” both of which phrases recall Enlightenment ways of thinking. The Virginia Declaration of Rights of 1776 stated that “all men are by nature free and independent, and have certain inherent rights,” while the American Declaration of Independence asserted that it is “self-evident that all men are created equal” and “endowed by their creator with certain unalienable rights.” The French Declaration of 1789 used the same language of rights as “natural, imprescriptible and inalienable.” 109 Universal Declaration of Human Rights, g.a. Res. 217A, u.n. gaor, 3d Sess., 67th plen. mtg., u.n. Doc. A/810 (1948). 110 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights 235–36 (2001). 111 Peter R. Baehr, Human Rights. Universality in Practice (1999).

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The first sentence of Article 1 of the Universal Declaration was a virtual rewrite of the first article of this French Declaration. The 1789 French sentence stated that all “men are born, and always continue, free and equal in respect of their rights,” while the 1948 United Nations sentence stated that “all human beings are born free and equal in dignity and rights.” … These opening linguistic similarities create the presumption that the drafters of the Universal Declaration had an Enlightenment view of human or natural rights as located in human beings simply by virtue of their own humanity and for no other extraneous reason, such as social conventions, acts of governments, or decisions of parliaments or courts.112 The Universal Declaration of Human Rights altered the reality of human rights on national and international levels. At the national level, the principles of the Universal Declaration have increasingly acquired legal force, mainly through their incorporation into national legal systems. It would be hard to overestimate the importance of that development. Though the Declaration is rightly hailed for establishing that nations are accountable to others for the way they treat their own people, the fact is that international institutions can never provide first-line protection for victims of rights violations. When protection at the national level is absent or breaks down, there are severe limitations to what international enforcement mechanisms can accomplish. The greatest success story—that of the European human rights system established by the 1950 European Convention on Human Rights—serves only to underline the point. The effectiveness of that system has been due largely to the willingness of the states involved to comply promptly and fully with the judgments of the European Court of Human Rights, adapting their laws to its rulings.113 In the years since its adoption, the Declaration’s aspiration to universality has been reinforced by endorsements from most of the nations that were not present at its creation. Specific references to the Declaration were made in the immediate post-independence constitutions of Algeria, Burundi, Cameroon, Chad, Congo, Dahomey, Equatorial Guinea, Gabon, Guinea, Ivory Coast, Madagascar, Mali, Mauritania, Niger, Rwanda, Senegal, Somalia, Togo, and Upper Volta (now Burkina Faso).114 112 Johannes Morsink, The Universal Declaration of Human Rights 281 (1999). 113 Glendon, at 237. 114 Id., at 228.

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Although the 1948 Universal Declaration of Human Rights was not a treaty, most of its provisions are now considered by legal scholars as constituting customary international law. Most subsequent human rights statements are based on its tenets. The terse catalog of rights adopted by the United Nations General Assembly…spawned a lavish structure of interlocking strands— instruments, procedures, and institutions that together make up the international human rights system—and each strand in that fabric will reward close study and reflection.115 The International Covenant on Civil and Political Rights and Its Optional Protocols and the International Covenant on Economic, Social and Cultural Rights The rights under the Universal Declaration were strengthened in two legally binding international treaties which were adopted by the General Assembly in 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.116 The concern of the United Nations with human rights has expanded dramatically since 1945. Numerous international instruments have been adopted.

C

In 1993, the Second World un Conference on Human Rights, held in Vienna, focused renewed attention on human rights issues; other major international conferences within the past decade have focused attention on the environment (1991, Rio de Janeiro), population and development (1994, Cairo), social development (1995), and women (Beijing, 1995). In 1998, agreement was reached at an international conference in Rome on the creation of an international criminal court.117 Increased un involvement in human rights matters has been mirrored by growing regional adoption of human rights instruments, as illustrated by the entry into force in 1953 and subsequent evolution of the European Convention on Human Rights (which now covers forty countries and 400 million people), the establishment of the Inter-American Commission on Human Rights in 1960, the entry into force of the American Convention

115 Murumba, at 5. 116 Baehr, at 3. 117 Richard Bilder, An Overview of International Human Rights Law, in Guide to International Human Rights Practice, 3rd ed., ed. Hurst Hannum, 5, (1999).

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on Human Rights in 1978, and the entry into force of the African Charter on Human and Peoples’ Rights in 1986.118 The udhr also married the liberal rights of freedom to the benefits of the welfare state. … these eighteenth-century ideas about individual autonomy were eventually combined with nineteenth- and twentieth-century ideas about socialism, the welfare state, decolonization, and the proliferation of modern constitutions and bills of rights.119 Consequently, in our new millennium, we have the “universalization of the original rights, and their acceptance throughout the international community.”120 Henkin summarized it well: “The Universal Declaration was drafted fifty years ago. The people who produced it, people of different cultures, wise people, practical people, men under the leadership of a wise, practical, inspiring woman, Eleanor Roosevelt, created this document, established an ideology of human rights and made it an ideology for the world.”121 Henkin though was not historically accurate. The ideology of the Universal Declaration had a lengthy history. The Universal Declaration rested on the ideology, language and concepts from Europe’s first international human rights treaty, i.e., the Irish and Scots’ Cáin Adomnáin (The Law of Innocents) (697 ad), John Duns Scotus and his “consent of the governed” (1290s), the Scots Declaration of Arbroath (1320), the u.s. Declaration of Independence (1776), and the French Declaration of the Rights of Man and of the Citizen (1789) and transformed them into international norms for the 20th and 21st centuries. Following the ideology of the Declaration of Arbroath, the first three lines of the Preamble to the Universal Declaration of Human Rights stated that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The impact of this United Nations document is such that, without necessarily knowing the text of the Declaration or the exact content of 118 Id. 119 Catherine Powell, Introduction: Locating Culture, Identity, and Human Rights, 30:2 Columbia Human Rights Law Review 204–05 (Spring 1999). 120 Murumba, at 9. 121 Henkin, The Universal Declaration at 50 and the Challenge of Global Markets, at 19.

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its thirty Articles, millions of people around the world lay claim every day to the rights that it enshrines. The aspiration to freedom, justice and peace is universal and is reflected in religious, spiritual and philosophical traditions all over the globe. It is this that makes human rights universal—they belong to no system of thought, no one civilization, nation or organization, but are deeply embedded in the spirit of each member of the human family and find expression in every tongue.122 122 M. Glen Johnson and Janusz Symonides, The Universal Declaration of Human Rights: A History of its Creation and Implementation; 1948–1998, Preface (1998).

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Dynamic Humanism and the Human Rights Struggle This chapter addresses the problems underlying the promotion and protection of universal human rights values through international law and examines the place of human rights in the contemporary u.n. Charter system. It grapples with the problem of the perceived omnipotence of state sovereignty and the importance of the legal and political standing of the individual. Drawing on the evidence of the changing nature of sovereignty and the individual in ­international law, the changing dynamics of globalization and challenges that confront human rights in this process are explored. Human rights represent the most agreed upon and defensible value system of the political and legal culture of the entire world community. Human rights are mentioned in several provisions of the United Nations Charter (1945)1 and received fuller development in the Universal Declaration of Human Rights (udhr) (1948).2 These instruments represent the most carefully crafted framework for establishing, in political and juridical terms, human dignity founded on explicitly articulated human rights. What is crucial is that these instruments emerged and probably could only emerge from conflict and struggle. Human rights as the struggle for dignity did not begin or indeed end with the tragic events of World War ii. The struggle for human rights historically has been about the struggle for essential dignity, decency and justice. This struggle means a willingness to advocate, defend, promote, and, if necessary, die for these values. In his closing statement to the Supreme Court of South Africa in the Rivonia trial (1964), Nelson Mandela explained to the Court and to the world that he had struggled for the values of freedom and dignity and that if necessary, he was willing to die for those values. Mandela symbolized every human rights activist regardless of time, culture, economic, social, n ­ ational, or ethnic background. Cecil Day Lewis, in his famous poem, the Nebara, ­expressed a similar theme poetically. 1 2

1 United Nations Charter. 2 Universal Declaration of Human Rights (udhr).

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Freedom is more than a word, more than the base coinage of statesmen, the tyrants dishonored check or the dreamers mad inflated currency. She is mortal we know, and made in the image of simple men who have no taste for carnage, but sooner kill and be killed than have that image betrayed. Mortal she is, yet she rises always refreshed from her ashes to  home, where man’s seasonal heart is stirred. Freedom is more than a word.3 Without demands for justice, liberty, freedom, self-determination and human dignity, humanity would have few rights, let alone human rights. The emphasis on demand is the identification of the capacity for individuals and groups to engage in the clarification and articulation of their fundamental interests. The clarification, recognition, and expression of demands and claims are crucial to the deployment of human resources to secure access to those demands and claims. Interest articulation is a critical aspect of dynamic humanism and a critical foundation for the development of human rights on a global basis. The discourse of human rights must consider the process of claim assertion and demand advocacy as crucial to the promise of human rights. To suppress the human capacity to identify and assert fundamental interests and undermine institutional expression of advocacy is to suppress the possibility of ­developing human rights and making them real in a manner that promotes peace and defends the foundations of personhood. In the history of human experience, the suppression of thought and communication makes human ­beings servile, unfulfilled and without a capacity to realize the innate human capacity to experience dignity and human creativity. Ultimately, the suppression of the ability to express needs, claims and demands is thoroughly insidious in its depreciation of the human prospect. Such a process erodes the ­capacity for individuals to contribute to the improvement of man and society. If one reads the principles of dignity and human rights into terms such as freedom, equality, justice and self-determination, one captures the sense that these values can never be extinguished so long as man is willing to struggle for them. Whatever the difficulties and sufferings in the struggle for human rights and dignity, there is hope and expectation in the commitment to the struggle. This book focuses on dynamic humanism as an indispensable and 3

3 Cecil Day Lewis, Nebara.

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­complementary component of the human rights process and a society committed to universal respect and dignity. i

The Modern Constitutional Roots of Human Rights and their Central Values

The u.n. Charter and the udhr were the community’s response to the most bitter war in human memory, distinguished as it was by the concept of total conflict. It was a war that targeted civilians as well as members of the armed forces and a war that made the extinction of certain civilian groups a major strategic and tactical objective. The struggle for a global rule of law, which could make peace a major and critical expectation for all peoples of the world, had a founding moment with the adoption of the un Charter and later the udhr. This immediate background to the current structure and process of human rights holds a powerful insight: human rights and peace are goals for which ordinary decent people have had to struggle. Struggle did not begin or end between 1939 and 1945. From time immemorial, human beings have been involved in struggle and conflict which pitted the powerful against the powerless, and the powerful against the powerful with the powerless caught in the middle. Across time and culture, the powerless have never given up on the idea that there is some dignity and worth in their own self-consciousness of being. The poor and the weak, the colonized and the dominated, and the slave and the serf, the Semite in racial terms, and the Harijan in caste terms, all have sought to challenge the powerful to expropriate their humanity and dignity. Today, there is acceptance of human rights as an indispensable part of international law and morality and this principle represents the basis of the organization of the global social and political process. There is no precise agreement about what human rights are and what they mean substantively and procedurally. There are no conclusive answers to many questions about the nature of human rights. Yet, there is a great deal that can be learned from what is already known in terms of standard-setting and the processes of implementation. In a diverse world of interdependent states, groups, associations and persons, there will be conflicting views about the source and methods of justification of core, fundamental human rights. What is constant about the human rights expectation is that every human being is a stakeholder in its promise. If that promise is symbolized by human dignity, then all human beings must be

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stakeholders in demanding, defending and promoting human rights to secure their essential dignity. ii

Functional or Working Values that Guide Humanistic Demands for Human Rights

There is considerable controversy concerning whether universal human rights are at all possible. To the extent that such a controversy still influences important institutions of global power, it is important to recognize that it is critical that we formulate observable claims and expectations which may be functionally and analytically expressed. The practical reason behind this is that ­human beings generate problems in their relationships with other human beings which invariably involve claims and the resistance to claims. The claims are about the values that human beings deem important and are invariably expressed as claims or demands involved in conflicting understandings and assertions of values and their importance. Whether human rights originate from a priori contemplations or experience makes little difference if they secure empirically based expectations that ground the principle of human dignity. Whatever the theoretical basis is for the udhr, the claims implicate the challenges they provoke and the promise the challenges hold for human dignity are quite self-evident. The rights in the udhr can be translated into value categories with the challenges they pose to global society and its constitutional scheme as follows: The value of life is centrally valued. It is referred in the Bill of Rights that a person has right to personhood and autonomy. Should the value of power be narrowly or widely shared? Is the common interest of all honored in a system that seeks to secure the widest possible participation in all key areas of the power process? The status and value of economic and wealth processes. Is the common interest of all better secured by optimizing the status and value of economic and wealth processes to produce and distribute wealth or the opposite? Can the status and value of respect and equalitarian values be meaningful if it is only a formal idea without regard to the legacy of exploitation, repression, and discrimination? Should discrimination be fully prohibited, covering all areas of race, gender, alienage, etc.? Can equality be meaningful if it is only a formal, juridical idea without regard to the legacy of exploitation, repression, and discrimination?

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Should the status and value of educational and enlightened values be widely produced and distributed or narrowly experienced? The centrality of the status and value of skill and labor values to the human condition indicates that these are values implicated in the rights and expectations of those who seek to create and sustain these rights and labor values. Should these rights and expectations be widely shaped or narrowly shared? The status and value of health and well-being values are now regarded as crucial entitlements if the basic standards of decency are valued and considered crucial to a society that cares for its people. Because the status and value of the family and other affective values is the basis of collective existence and central to the human rights of children, the public policies of a society that destroys family and other affective ties pose a problem for the wide generation of affective values. A system that endorses the status and value of moral experience and rectitude in the legal and political culture and seeks to maximize the spiritual freedom of all is another of the central themes of the human rights agenda. How are expectations of care or fundamental moral experience translated into the practical prescription of law and policy? There is great controversy about the status and value of cultural and aesthetic experience. The boundaries of this discourse are controversial. Human rights provide a process by which these boundaries may be protected and expanded according to the normative challenges of human dignity. The current discourse often suggests that universality trumps cultural relativity or vice versa. This is not necessarily helpful unless one sees these ideas as only the starting point for value clarification and application from a human rights’ perspective. One of the central values identified in the Atlantic Charter was the value of security. This concern for freedom has evolved so that there is a critical interdependence between peace as a human right and all the other values in the udhr. Peace and security might well be included under the functional category of power. However, peace is recognized as a complex component of the human rights value system. It is valuable to the ways human rights have an influence on peace and security and peace and security are critical for the effective mobilization of human rights values. A central aspect of the values of peace and security relates to the connection between the mobilizing force of strategy for the realization of human rights’ goals. For example, is it appropriate to deploy violent strategies of action to achieve human rights’ objectives? Is it appropriate to disengage the value discourse involving strategy and struggle

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on the one hand and idealistic value objectives on the other hand? Gandhi, for one, insisted that the morality of struggle was even more important than the morality of distant idealistic objectives. He insisted that a disconnect between struggle, strategy, and goals was morally indefensible. Today, the status and value of the eco-system and a right to a viable ecosystem are recognized. The values embedded in the protection and promotion of a healthy eco-system are issues of complex inter-dependence and inter-­determination. Implicit in the concern for the eco-system is the idea that there are no human rights if there is an environment in which human beings ­cannot survive. This insight suggests a higher level of consciousness that the eco-system is part of a complex cycle in which human beings are custodians and utterly dependent. Humans now see in nature not something irresponsibly exploited and destroyed but central to their identity as a sentient s­ pecies. For all the vaunted technology of human progress and human egotism, no one has seen a dog or cat or rat or indeed the most elemental of recognizable life forms outside of this lonely and unremarkable planet called Earth. Thus, humans now look at life even in its most humble forms as not only indispensable to the interconnected chain of life on this planet but something new and utterly connected to the very consciousness of being human and being alive. Humans know that their dogs identify with them. Humans now know these ordinary pets in terms of how they and all other living forms have shaped our identity both psychologically and physiologically. The values outlined, supra, are abstracted from the udhr and the International Bill of Rights. These clarifications of the nature of the human rights ­values have broad agreement among ‘we the people’ of the global community. The u.n. Charter makes references to human rights as statements of aspiration. Although there are areas of concern about human rights values, there are areas of agreement about the values that should condition the social, political, and legal processes of the international community. These may be summarized as follows: 1. 2. 3.

Broad agreement exists about production and distribution of the core values in the udhr and that these values implicate both individuals and aggregates. The values in the human rights framework cover the negative rights (limiting the abuse of power) and the affirmative rights (the guidelines of responsible social change). The nature of the rights in the udhr has universality.

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The sphere of human rights is the socio-political conditions of interdependence and inter-determination. Human rights give specification to basic, fundamental interests.

The udhr encapsulated three generations of human rights. First generation rights were civil and political. Second generation rights included economic, cultural, and social rights and third generation rights were solidarity rights. First generation rights were represented in Articles 2–21; second generation rights were represented in Articles 22–27; and solidarity rights were represented in Article 28. Second generation rights were most controversial to constitution makers and the solidarity rights with their transnational internationalist implications wereseen as far from constitutional law discourse. The rights expressed in Article 28 that “everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized” has been developed in international law to refer to a more equitable distribution of global resources and the right of all nations to political, economic, social, and cultural self-determination. Additionally, the right to a viable eco-system, the right to peace and the right to humanitarian aid during emergencies were reflected in Article 28’s mandate. This outline of the values attending the concept of human rights obscures a great deal of complexity, understanding, insight in human experience and the impact of science and change upon the human prospect. To explore these themes, an overview of the historic quest for cooperation and conditions of conflict are presented. iii

Justice and Human Rights in Contemporary Theory

One of the intellectual contributions to the discourse concerning justification for human rights commitments was represented in the scholarship of the N ­ obel prize winner economist, Amartya Sen. In Sen’s work, The Idea of ­Justice,4 Sen provided an appreciation and a critique of the contributions from modern philosophers such as John Rawls. Central to Rawls’ concept of justice was the idea that it must meet objective grounds for its justification as a principle of justice. The central thrust of Sen’s criticism was that Rawls’ concept of justice cannot shed from itself the problems of subjectivity. An additional flaw 4

4 Amartya Sen, The Idea of Justice (2009).

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in Rawls’ concept of justice was that it was based on a contractarian model with an inherent narrowness that leads to pervasive parochialism. Such parochialism limited the scope of the discourse and excluded from its perspective the global salience of the concept of justice. Sen’s contribution was to suggest from a global perspective that there will be more contingency in the notions of justice and morality. This contingency required sustained discourse applied with a commitment to impartiality and objectivity in the structure of such discourse. Sen’s approach was influenced by this commitment to social choice. Social choice theory had its roots in the mathematical application and insights to social policy generated in France. Its modern expression is owed to Kenneth J. Arrow’s social choice theory that shared a focus with the approach of configurative jurisprudence in that it identified individual interests and values important to human welfare.5 To the extent that this identification was to influence collective social choice, it set as the task a mathematical method of measuring individual interests and values. Since the focus of social choice theory was on the individual, it was an approach that saw human problems emerging from the bottom up. One of the issues in social choice theory was how to choose between competing values. For a deeper and wider empirical understanding of individual value problems and claims, Sen suggested a method of what he called informational broadening of the focus on contending values.6 This solution appeared to represent a much more explicit and in depth form of contextuality in that Sen’s informational theory required value comparisons to be made with a wider range of real data. Sen sought to look at values in terms of basic needs, basic freedoms and basic capabilities. These factors enabled practitioners to see the actual status of value deprivation and the possibilities of access to value advantages. The capabilities aspect of Sen’s analysis emerged as an approach to welfare economics. Sen attempted to broaden the scope of discourse of welfare economics for the purpose of bringing in a wider range of real values important to opportunity and process freedoms. In collaboration with Martha Nussbaum, Sen identified ten capabilities which they believed should be supported by all democracies. These included capabilities related to life, bodily health, bodily integrity, sense, imagination and thought, emotion, practical reasoning, affiliation, other species, play and control over one’s environment.7 This explicit 5 6 7

5 Kenneth Joseph Arrow, Social Choice and Individual Values (1951). 6 See Amartya Sen, The Idea of Justice (2009). 7 Martha Craven Nussbaum, et al., The Quality of Life (1993).

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e­ ffort to distill capability values may be usefully compared to the identified in the configurative jurisprudential approach. Like Lasswell and McDougal, Sen made important contributions to the conceptual basis and justification of human rights.8 Drawing largely on sources tied to economics, Sen provided important insights into the conceptual basis of human rights, insights that have many similarities to the approach taken by Lasswell and McDougal. Sen’s socio-economic perspective generated support for the configurative approach to jurisprudence as a theory for inquiry, especially regarding the nature of human rights and the form of justice that human rights provide. Sen proposed that “[t]here is something very appealing in the idea that every person anywhere in the world, irrespective of citizenship, residence, race, class, cast or community, has some basic rights which others should respect.”9 This attractiveness suggested that there was some objective basis, not particular to any culture or specific social system, of justice from which can be extracted some construction of human rights. On the other hand, the basic idea of legal rights, “which people are supposed to have simply because they are human, is seen by many critics as entirely without any kind of reasoned foundation. The questions that are recurrently asked are: do these rights exist? where do they come from?”10 Sen addressed the vital question: what are human rights? To the extent that human rights have an affinity with principles expressed in the American Declaration of Independence which stated that people have “certain inalienable rights” or the 1789 French Declaration of the Rights of Man which asserted that “all men are born and remain free and equal in rights,” such evidence of objective human rights foundations became the target of Jeremy Bentham’s assault on “anarchical fallacies.”11 According to Bentham, “Natural rights is simple nonsense: Natural and imprescriptable rights, rhetorical nonsense, n ­ onsense upon stilts.”12 Bentham made the connection between the legal f­allibility of natural inalienable rights (“nonsense upon stilts”) and human rights, and 8 9 10 11 12

8 9 10 11

12

See Myres S. Mcdougal, et al., Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980); see also Sen, at 355–415 (2009). Id. at 355. Id. Jeremy Bentham wrote his Anarchical Falacies during 1791–92 and took aim at the French “rights of man.” See Jeremy Bentham, Anarchical Fallacies; Being an Examination of the Declaration of Rights Issued during the French Revolution (1792), in J. Bowring, ed, The Works of Jeremy Bentham, Vol. ii 1843. Sen, citing The Works of Jeremy Bentham, Vol. ii 501 (1843).

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sentences human rights to the same disparaging assessment. Responding to Bentham’s assessment, Sen conceded that human rights were a conceptual construct and did not exist in physical, tangible form. Sen countered that human rights were not, in their nature, like legislative law in a statute. Human rights emerged as legally relevant affirmations. These affirmations suggested strong responses about what should be done and these suggestions take the form of legal ­covenants. “They demand acknowledgment of imperatives that something needs to be done for the realization of these recognized freedoms that are identified through these rights.”13 A thrust of Bentham’s attack on the idea of natural human rights concerned the use of the term ‘rights.’ Bentham insisted that the term ‘rights’ can only be used in the sense of a right objectively determinable in a positive law framework. Bentham’s view was similar to the view developed by Austin about the way in which the terms ‘rights’ and ‘law’ was used. To explain away the phenomenon of law that existed outside of the state such as international law, Austin talked of this being, instead, a form of positive morality. The term ‘­morality’ is qualified by the term ‘positive.’ Perhaps the term ‘positive’ carried the implication that a rule of international law may be determined and defined by objective factors. Although not strictly law in the sense that Austin used the term, it was nonetheless a prescriptive system of some community salience. Sen suggested that Bentham confounded fundamental moral commitments and the concept of rights. They were, Sen said, two separate issues, which ­concerned the content of the right and its viability. Sen asserted that the nature of an instrument like the udhr was “the ethical assertion…about the criticial importance of certain freedoms…and, correspondingly, about the need to accept some obligations to promote or safeguard these freedoms.”14 Sen distinguished between ‘claims’ and ‘rights.’ This was an important distinction, and his approach was to identify “the kind of claims that the ethic of human rights tries to present.”15 Sen’s approach was quite compatible with configurative jurisprudence. Configurative jurisprudence perceived human rights as a theory for inquiry. A critical leg of inquiry was the identification of problems that emerged from the community, which problems stated claims to human rights values and standards. In configurative jurisprudence a problem was a claim for some dimension of human rights value. Configurative jurisprudence understood human rights problems as the clash between rising common demands and the reality 13 14 15

13 14 15

Sen, at 357. Id. at 358. Id.

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of ­deprivations. Lasswell and McDougal tried to be more specific about the content of the claims that were staked in human rights values. Lasswell and McDougal believed that an instrument like the udhr had both a descriptive and a normative appeal. The descriptive appeal was that the rights expressed in the instrument could be reduced to claims involving eight values. These values were respect, power, enlightenment, well-being, wealth, skill, affection and rectitude. Empirically, one could detect a rising specter of common demands that these values be honored. What heightened the human rights problem was the value deprivations that humanity experienced. It was the clash between expectations in the realization and participation in these values and the practice of deprivation that created the fundamentals of a human rights claim. Sen, Lasswell and McDougal believed that claims could be specified with great particularity and that claims generated a more precise decision making response. They saw that one of the tasks for clarifying human rights claims was to develop a detailed map specifying these claims. However, the question of any outcome must be determined by explicit postulation of the goals of public order committed to human dignity on the widest scale.16 Professor Sen responded to the choice about human rights claims by suggesting application of what he called “open and informed scrutiny”17 and his method of “open impartiality”18 in the appraisal of the currency and h ­ uman rights value of a particular player. His open informed scrutiny relied on an observer’s openness to information drawn from context; this openness was tempered by the critical importance of impartial reasoning. In Sen’s view, the scrutiny implicit in his focus of method and inquiry was one that would yield an outcome that met a test of impartial objectivity. The stress of configurative jurisprudence on contextuality as well as the clarified standpoint of a disengaged observer came close to the approach recommended by Sen. However, McDougal and Lasswell’s theory insisted on an explicit postulation as a scholarly commitment for the purpose of guiding inquiry. The difference between Sen and Lasswell and McDougal was not very great in this regard. Sen suggested an approach to understanding the declarations and instruments relating to human rights. This approach had a similarity to that in the context of configurative jurisprudence. The essence of Sen’s approach was to 16 17 18

16

17 18

For the taxonomy of claims in the human rights context, see Myres S. Mcdougal, et al., ­ uman Rights and World Public Order: The Basic Policies of an International Law of H ­Human Dignity 7–37 (1980). Sen, at 358. Id.

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suggest that declarations or ethical claims had an influence on the process of making law. Sen referred to the European human rights framework established in the Human Rights Act of 1998 legislated into British law for application in the courts.19 Modern forms of constitution making included human rights standards in these instruments as well. Sen accepted Professor Hart’s analysis that moral rights were not really rights in any legal sense until they were incorporated into the law of the state as coercive legal rules. Human rights as moral imperatives become legal imperatives when they are legislated into law. The problem with both Sen and Hart was the difficulty of conceptualizing the idea that there was such a thing as trans-state law. Even if treaty-based international law is analyzed as sovereign-determined, there are many other sources of international law that are only artificially sovereign-determined. The currency of customary international law or the reliance on general principles of law carries only a weak and indirect sovereign imprimatur. In contemporary practice, a great deal of recognition is given to human rights law that has not been subject to sovereign legislated action. The currency of law-making requires a deeper appreciation of the process that leads to the prescription of law. It also requires a sophisticated understanding of law as a process of communication; the tools of communication are critical for an appreciation of what Reisman has called “micro law.”20 The implications of law-making in informal settings influencing the grounding of human rights norms and values would provide important additional insights for Professor Sen to consider.21 Professor Sen did consider human rights issues beyond the legislative route recognizing that legislation was not the exclusive vehicle for making human rights influenced policy outcomes. He insightfully supported “a versatility of ways and means” as critical for human rights practice.22 He argued that this was “one of the reasons why it is important to give the general ethical status of human rights its due, rather than locking up the concept of human rights prematurely within a narrow box of legislation, real or ideal.”23 19 20 21 22 23

19 20 21

22 23

Id., at 363. See generally W. Michael Reisman, Law in Brief Encounters (1999). See Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem 84 (1985); see also Myres S. McDougal & W. Michael Reisman, The Prescribing Function in World Constitutive Process: How International Law Is Made, 6 Yale Studies in World Public Order 249 (1980); W. Michael Reisman, International Lawmaking: A Process of Communication, 75 Am. Soc’y Int’l L. Proc. 101 (1981); see also Winston P. Nagan & Craig Hammer, Communications Theory and World Public Order: The Anthropomorphic, Jurisprudential Foundations of International Human Rights, 47 Va. J. Int’l L. 725 (2007). See Sen, at 366. Id.

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Sen analyzed the complexity of claims with respect to the idea of freedom. He made a distinction between opportunity claims and process claims of freedom. With regard to opportunity claims, Sen stressed capability, the opportunity to achieve value participation. Sen insisted that process freedoms were important to the realization of capability freedoms. As an economist, Sen provided a defense of socio-economic rights. Sen provided a useful critique of the objections to the recognition of socio-economic rights. He stressed that the fundamentals of these critiques were an institutionalization critique and a feasibility critique. At the institutionalization level, the argument was simply that if these rights were real rights they would indicate precisely formulated correlative duties. Sen responded to this by suggesting that the correlative obligation might well be perfect or imperfect. However, it was not unusual in the context of first generation rights to see the existence of imperfect obligations, but it was still an important intellectual task to further public discussion and bring effective pressure in support of these claims to move then from the imperfect to the relatively perfect. With regard to the feasibility critique, the argument was that there were so many poor, needy people that it was simply infeasible to recognize such rights. Therefore these rights should not be recognized. The fact that such socioeconomic rights stated claims for change and political agitation and improved impartial objective discourse suggested that an approach that discarded them from scrutiny and discourse had no value.24 Professor Sen’s capability approach to the study of justice, which included a focus on freedom, was an important contribution to analyzing the modern discourse of the theory of justice itself. What was critical to Sen’s focus of inquiry was that he had identified a critical problem, the solution of which required innovative and perhaps novel thinking methods. His capability approach required one to clarify the specifics or the specific aspects of abstract ideas, like liberty and equality. These terms will perhaps obscure more than they actually reveal about a viable and defensible theory of justice. Sen mirrored a central issue in configurative jurisprudence. In The Public Interest: Proposing Principles of Content and Procedure,25 Lasswell addressed the problem of clarifying the content of value-based 24 25

24 25

See Sen, at 379–85. Lasswell, In the Public Interest, Friedrich, ed., 54 (1962); Laswell, The Interplay of E­ conomic, Political, and Social Criteria in Legal Policy, 14 Vand. L. Rev. 451 (1961); see also ­Jurisprudence for a Free Society, vol. 2, Ch. 1 (dealing with the procedures for the ­clarification and grounding of value judgment). For the specific procedures for the ­clarification of values

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­propositions in terms of specific issues or problems implicated in such propositions. He developed through a recommended series of principles of content, supplemented by principles of procedure, for grounding value-specific judgments in circumstances that required specific application.26 These authors explained the importance of this issue as follows: The principal objective of the present inquiry is explication of a framework within which realistic assessments can be made of the relevance of alternative policies to the public order of the global community and its component communities. The prescriber or applier or other evaluator of policy options has an obligation to make himself as conscious as possible of the full range of communities, from global to local, of which he is a member and upon which his choices will have unavoidable impact. The aspiration of a decision-maker who represents a community whose basic constitutive process projects a comprehensive order of human dignity— as is increasingly sought in the contemporary emerging global “bill of ­human rights”—and who is personally committed to this goal, should be to make his every particular decision contribute to progress toward this outcome. Such a decision-maker will recognize that, in the global interdetermination of all values, there is indeed a human rights dimension to all interaction and decision, and will make every effort to insure that such dimensions are effectively taken into account in decision. This recommendation, it must be clearly understood, is not that a ­decision-maker assumes the license to impose his own unique, idiosyncratic preferences upon the community. It is, rather, a demand that the decision-maker identify with the whole of the communities he ­represents, and that he undertake a systematic, disciplined effort to relate the specific choices he must make to a clarified common interest, specified in terms of overriding community goals, for which he personally can take responsibility.27 The central problem that McDougal and Lasswell addressed was the technique for clarifying the content of moral norms and values and facilitating the

26 27

26

27

in human rights, see generally McDougal et. al, Human Rights and World Public Order: The Basic Policies for an International Law of Human Dignity. A specific advance on Lasswell’s thinking, as applied to human rights values, is found in McDougal, Human Rights and World Public Order: Principles of Content and Procedure for Clarifying General Community Policies, 14 Va. J. Int’l L. 387 (1974) largely reprinted in Chapter 5 of Lasswell et. al, Human Rights and World Public Order (1980). See McDougal, at 372–73.

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e­ xpression of these norms and values. Making these norms operable in the real world of consumers required the development of principles of procedure to guide the specific conception of a value in terms of the concrete problem. Principles of content required better clarification of the ubiquitous processes by which human beings engaged in the prescription of norms relevant to asserted claims to values. To give effect to principles of content, the theorist and applier must consider the context ascertaining expectations with regard to the values being claimed and the processes that implicated them, including the content of the norms, the expectations of authority and the expectations of grounding such norms. In the view of McDougal and Lasswell, these expectations must be appraised against shared expectations as well as scholars’ commitment to the goal of human dignity. Since expectations about the content and reach of values will be incomplete, an important intellectual task for the theorist and applier will be to supplement expectations. Supplementation is made by integrating expectations with claims and compatibility with goal values. Claims give us clues to the dimensions implicated in statements of value and morality. By keeping what is claimed a part of grounding value judgments, grounding value judgments becomes more realistic and relevant to participation and outcomes. Finally, it may be that the ultimate evaluator is an authorized decision-maker. The decision-maker must be aware of the functions of decision and how claim, value clarification, and grounding may be given operative effect as community policy. In order to guide the grounding of value judgment in instances of appraisal and application, McDougal and Lasswell recommended principles of procedure as a complement to the principles of content. The first principle of procedure is the contextual principle, which stressed the importance that all claims for values emerged as problems, which were outcomes of community context. A response to such problems will have effects on the community context and its active participants. The second principle was the principle of economy. Not every claim was of vast consequence and a discriminating eye must be kept on the principle of an economic focus on the importance of claims. The third principle was a principle of manifest or provisional focus. Such a focus would seek to understand what the parties were demanding and an understanding of the facts and legal theories which were part of the conflict. The principle of clarified focus was an inquiry which built upon the clarifications garnered from a provisional focus. This required the inquirer to understand the facts in terms of the larger context independent of the perspectives of the parties and the perspective of an impartial observer. An appraisal of the potential facts and the independent conclusions drawn from them should provide for a much more precise clarification of the range of prescriptions and potential

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choices in outcome. The principle of observation of past trends considered the past trends in decision. This observation required an appraisal of the extent to which past trends approximated the desired goals of a public order committed to human dignity. The next principle, the principle of realistic orientation, required a sense of the factors, like predispositions of the players and environmental factors, which could have influenced the past trends in decision and how these factors might determine future outcomes. The principle of observing constraints on future probabilities regarding the grounding of value ­judgments required the theorist or decision-maker to consider alternative choices and to estimate the advantages and disadvantages in alternatives in decision. This exercise should provide some tangible conception of the probable net advantages and disadvantages of possible option alternatives. Finally, there was the principle of creating, inventing, and evaluating alternatives to grounding of value judgment. Alternatives required a creative orientation of the theorist and decision maker. This creative clarification of alternatives provided for the prospect of improving the delivery of a defensible system of ­human justice in concrete social process context.28 Professor Sen’s capability approach to the grounding of value judgment was an important contribution to the issue of clarifying specific implications and problems of justice implicated in ideas such as liberty and equality. Sen’s clarification of liberty in terms of the idea of freedom, which has an opportunity aspect as well as a process aspect, was integrated into his capability approach. The central value of the capability approach laid in its elucidation, which was dependent upon an informational focus. Capability, when understood in terms of a broader informational focus, provided a framework for the analysis of justice from a global, cross-cultural perspective. Sen showed that this approach was more compatible with a global and non-parochial view of the critical discourse about global justice and human rights. According to Sen,

28

28

Any substantive theory of ethics and political philosophy, particularly any theory of justice, has to choose an informational focus, that is, it has to decide which features of the world we should concentrate on in judging a society and in assessing justice and injustice. It is particularly important, in this context, to have a view as to how an individual’s o­ verall advantage is to be assessed; for example, utilitarianism, pioneered by Jeremy Bentham, concentrates on individual happiness or pleasure (or some other interpretation of individual utility) as the best way of a­ ssessing how See Jurisprudence for a Free Society, Appendix v, The Application of Constitutive Prescriptions: An Addendum to Justice Cardozo, 1489–1524 (1997).

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a­ dvantaged a person is and how that compares with the advantages of others. Another approach, which can be found in many practical exercises in economics, assesses a person’s advantage in terms of his or her income, wealth or resources. These alternatives illustrate the contrast between utility-based and resource-based approaches in contrast with the freedom-based capability approach. In contrast with the utility-based or resource-based lines of thinking, individual advantage is judged in the capability approach by a person’s capability to do things he or she has reason to value. A person’s advantage in terms of opportunities is judged to be lower than that of another if he has less capability or less real opportunity to achieve those things valued. The focus is on the freedom a person has to things that he or she may value doing or being. The idea of freedom also respects our freedom to determine what we want, what we value, and what we choose. Capability is linked with the opportunity aspect of freedom, seen in terms of comprehensive opportunities, and not just focusing on what happens at culmination.29 There was an interesting parallel between Sen’s capability/opportunity aspect of freedom seen in terms of comprehensive opportunities and the approach of McDougal and Lasswell. The concept of respect was central to the concept of human rights in Lasswell and McDougal’s view. Respect was defined by these authors as an interrelation among human being in which they reciprocally ­recognize and honor each other’s freedom of choice about participation in the value processes of the world community.30 A significant part of Human Rights and the World Public Order focused on the multidimensional claims of individuals relating to “fundamental freedom of choice.”31 What was central to their approach was the idea that respect, seen in terms of fundamental freedom of choice, was analogous to the capability/freedom/informational approach of Professor Sen. What was evident in the McDougal-Lasswell approach was the effort to contextualize opportunity freedom in terms of all identifiable values implicated in a normative order committed to human dignity. Sen’s capability freedom was congruent with all the values which implicated and which were found in the Universal Declaration. These included the capability freedoms in terms of the power process and the many discriminating particular claims that emerge from this as well as the claims to all other values implicating freedom 29 30 31

29 30 31

Sen, at 231–32. See Human Rights and World Public Order Ch. 6, at 451 (dealing with respect as a core value of human rights). Id., at 468.

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of choice such as wealth, respect, enlightenment, skill, affection, health and wellbeing, and rectitude. The informational focus served as a complement to the approach of McDougal and Lasswell, which required a deliberate focus on the most comprehensive context from which the problems implicating fundamental values emerged. Senwith an emphasis on the process aspects of freedom, was clearly interested in the discriminating clarification of the content of justice norms, as well as the processes in which these norms can be grounded in terms of real human beings, regardless of nationality, state, or gender.32 ­According to Sen, Both the processes and opportunities can figure in human rights. For the opportunity aspect of freedom, the idea of “capability”—the real opportunity to achieve valuable functionings—would typically be a good way of formalizing freedoms, but issues related to the process aspect of freedom demand that we go beyond seeing freedoms only in terms of capabilities. A denial of due process in being, say, imprisoned without a proper trail can be the subject matter of human rights—no matter whether the outcome of a fair trial could be expected to be any different or not.33 Sen’s approach with its stress on the importance of both principles of content and procedure for human rights discourse and practices was compatible with the approach taken by McDougal and Lasswell for the clarification and grounding of value judgments in instances of particular application. Sen’s work, taken in the light of the complementary approach of McDougal and Lasswell, advanced our understanding of the nature and challenges that human rights posed for the idea of justice and its concrete realization in the global community. Sen’s concept of a focal lens that was global and inclusive, that avoided parochialism, that accepted contingency as a challenge to critical scrutiny and discourse, as well as his insights into capability and process freedom, and the importance of impartial reasonings and partial orderings, complemented the ideas about global justice, the rejection of chauvinism and the embracing of cosmopolitan values for the world community that were characteristic of configurative jurisprudence. The focus on grounding justice concepts in specific applications was an important and formidable challenge to contemporary theory. 32 33

32 33

See especially Sen, Opportunity and Process Aspects of Freedom, 370–71, in The Idea of Justice. Id. at 371.

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Dynamic Humanism And The Human Rights Struggle Table 5.1

Human rights documents and the eight functional values for a public order of h­ uman dignity

Category of treatmenta Value category

1. General protection

Power

Rights granted aprt from tyeh ­Convention (Art. 5)

Respect

Enlightenment

2. National treatment

3. Favorable aliens treatment

Acces to Acces to courts courts (Art. 16[1]) (Art. 16[2]) ­administrative ­assistance (Art. 25) identity papers (Art. 27) travel documents (Art. 28) nonesxpulsion (Art. 31) ­naturalization (Art. 32) Nondiscrimination Right of non-­ (Art. 3) political ­association (Art. 15) Elementary Nonelementary education education (Art. 22[1]) (Art. 22[2])

4. Treatment 5. Alien accorded to treatment nationals of the country of habitual residence

Acces to courts (Art. 16[3])

General provision (Art. 7[1]) freedom of ­movement (Art.26)

34

a

McDougal, Lasswell and Chen, Human Rights and World Public Order, 938–39 (1980).

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Table 5.1

Human rights documents and the eight functional values for a public order of h­ uman dignity (cont.)

Category of treatment Value category

1. General protection

Well-Being Wealth

Transfer of assets (Art. 30)

Rectitude

3. Favorable aliens treatment

rationing (Art. 20)

housing (Art. 21)

Artistic rights and industrial property (Art. 14) Public relief (Art. 23) Labor legislation and social security (Art. 24)

Skill Affection

2. National treatment

Personal status (Art. 12)

Religion (Art. 4)

Movable and ­inmovable ­property (Art. 21) Wage-earning employment (Art. 17) Self-employment (Art. 18)

Liberal professions (Art. 19)

4. Treatment 5. Alien accorded to treatment nationals of the country of habitual residence

Artistic rights and industrial property (Art. 14)

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Globalization, Community and Struggle

The nature of human rights values is a process which involves claiming, demanding and interest articulation, processes which requires an insight into struggle, theory, practice and the development of expectations and institutions that encompass the entire earth-space community. The central insight is the recognition that the international system originally developed a doctrine  and  a justifying jurisprudence which gave deference to the sovereign ­nation state. World War ii was partly an outcome of claims to unlimited sovereign power and the cost of such claims was catastrophic. Human rights in the  aftermath  of  ww ii were an effort to make states and state officials responsible to the international community. Human rights are an element of the broader claim of the international community to limit the abuse of sovereignty and provide identity and rights for individuals in the international context. Modern doctrines of international law are influenced by Eurocentric experience of recent history. The organized part of international relations received its institutional coherence from the peace following Westphalia and the Napoleonic wars: the Congress of Vienna and the Concert of the European System. This structure evolved into a club of European states and further evolution brought in the rest of the community of nations. Evolving from an international club or directorate of sovereign states, the international system created other institutional forms of international decision, the League of Nations, the International Labor Organization, the Permanent Court of International Justice and the United Nations and regional alignments, e.g., the European Union, Organization of the African Union, Organization of American States and nato. This international system recognized the individual as a bearer of international human rights and duties. These momentous developments are better understoodand practiced with a appreciation of both the living and the formal law of the world constitutive process. It is one thing to see the international community as simply as an aggregation of sovereign nation-states. Some are big, some are small, some are simply hegemonic or imperial. However, when we take into account the term ‘community’which may include a vast number of institutions which influence world society and the gloss of individual human beings as members of that community, then realism becomes attractive but intellectually challenging. Human rights cannot effectively be developed if the subjects of human rights are not accounted for either juridically or in terms of other forms of political and cultural expression. This then is a technical challenge. If there

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are a ­multitude of persons, natural or associational, how can one account for this social reality in a way that is economic, effective, and permits a level of ­understanding for the identification of the claims and counter-claims inherent in the dynamic of human rights? The technical solution is to recognize that understanding human rights ­requires grounding in practical human claims for and about values. Those claims are in effect the problems about human rights’ value conflicts. The problems are products of human, social relationships at multiple levels. To ­better understand these problems, context is important. The nature of the human  rights problem requires understanding the context out of which it emerged. The technical challenge is to have an elegant and economical model that may be usable for describing any social or community context at any level. McDougal, Lasswell, and Chen developed a model to map the social process.  This map is developed by the systematic use of markers that permit the enquirer to locate problems concerning value conflicts implicating human rights in the appropriate community context at the appropriate level of analysis.34 According to MacDougal, Lasswell and Chen, a usable human rights map may be summarized as follows. Human beings pursue values through institutions based on resources. This is a model that may be simply described and is  inclusive of the values behind the International Bill of Rights. The term ‘­pursue’ in the map is a central animating force including the idea of a struggle of claiming and demanding values. Given the usability of such a map for understanding context, problems and the processes generated by it, the model being usable at all levels of abstraction or particularity. The map needs tools and markers to guide inquiry into problems, claims, choices and outcomes for human rights. Markers represent an application of mapping as developed in the sciences. Markers are part of a process called contextual mapping. Markers ask the ­following questions: who are the players are, what are their perspectives of identity, demand, and expectation, what resources might they mobilize in ­support their claims, what strategies may they use in pursuing those claims, what institutions might they target for those claims, what results might they anticipate and what outcomes might emerge from this process. The broad outlines from a human rights perspective are presented below. 35

34

McDougal, Lasswell & Chen, Human Rights and World Public Order. (1980).

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Table 5.2 Map of the World Community Process

Community & Participation

Identification & Community Claiming & Community Expectations & Community

Participants include states, international organizations, political parties, pressure groups, vested interests, revolutionary movements, commercial interests, ngo’s and the diverse individuals and groups who make up the world community. Participants come with varying identifications, some denying and some affirming human rights. Identities are exclusive and parochial or inclusive and universal. Participants are claimants for human rights values.

Participants hold expectations that their human rights and dignity be honored, even if practice diverges from this expectation. Players in the system have bases of power to secure and Bases of Power, Resources & protect human rights at many levels of operation from Community the local to global and from the formal to the informal. Power may be used as a base to acquire more power and access to other values. Any values may be a base to acquire power or any other value. Power in social interaction is thus highly contextualized. Human rights often symbolize “authority.” Authority is an important base of social power. Arenas of Power & Deployment of power may be formal and informal, Community organized or unorganized. Arenas of interaction include spatial, temporal, institutional and circumstances of crisis; the latter particularly relevant to human rights issues. Strategies of Action The strategies of action to secure human rights may be in Community both persuasive and coercive. They may involve military or economic coercion, diplomatic and negotiating strategies, mobilization of public opinion, and appeals to levels of authority (courts, politicians, regional, international, political and juridical entities and more). The strategies of shame forgiveness, amnesty, truth and reconciliation are options.

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Table 5.2 Map of the World Community Process (cont.)

Outcomes in Community Effects in Community

Outcomes of human rights interaction may mean more human rights or less human rights. Specifically, the power outcomes implicate the community of human rights values. The effects on community as a whole may mean less ­human dignity or more human dignity.

Table 5.3 The World Community Core-Value Processes

The community context generates outcomes because context is characterized by conflict, consolidation and collaboration about values: who gets what, when, how and why. The most important outcome for human rights and law is the struggle for and about power relationships. Power

Wealth Respect

Englightenment Skill

Health & Well-Being

Should the status of power be narrowly or widely shared? Is the common interest of all honored in a ­system that seeks to secure the widest participation in key areas of the power process? Is the common interest of all better secured by ­optimizing economic and wealth processes or the opposite? Should discrimination be prohibited covering all areas of race, gender and alienage? Can equality and respect be meaningful if it is only a formal, juridical idea without regard to the legacy of exploitation, repression and discrimination? Should educational and enlightenment values be widely or narrowly experienced? The centrality of labor and skills values to the human condition implicate central and fundamental values. Have these rights and expectations been widely rather than narrowly shared? The delivery of health and well-being values to all is widely regarded as a crucial entitlement. ­Unemployment aid, social security, Medicare, health care and other services are considered crucial to a society that cares for its people.

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Rectitude

Aesthetics & Culture

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Since family is the basis of collective existence and central to the rights of children, public policies that destroy family and other affective ties pose a problem for affective values. Institutions specialized to rectitude are those that monopolize moral experience, e.g., institutionalized religion, churches, mosques, synagogues, temples, and other religious forums. Modern systems of rectitude are reflected in the works of moral philosophers and ethicists as well as the political domain where human rights issues are the framework of political and legal argument and decision. Values of culture and aesthetics nurture creativity and beauty. Although isolated as a value, aesthetics infuses every value in human rights in practice.

Conflict, Cooperation, and Change: The Quest for Universal Dignity

One of the most important outcomes of globalization is the reproduction of conflict as well as the pressures for peace and collaboration in the common interest. These themes encompass conflicts about human rights values of power and security that express themselves in human experience as the failures of human cooperation and the success of the global war system. The problems of managing power and security in an age of globalization are regarded as a ­challenge to dynamic humanism and the struggle for human dignity. History is a process of conflict and cooperation. Conflict generates victors who often become victimizers and generate the problems of justice. Conflict may be fueled by demand for conquest and demands for justice and equity. Justice focuses on goals that are critical to claims and focuses on methods, techniques, and strategies to achieve goals. Human rights are not static goals or ideals beyond human aspirations and do not constitute the bare minimum of existence or co-existence. Human rights are a dynamic process for human beings to acquire choices and shared competencies over fundamental values. History demonstrates how a class, race or other empowered group will govern in its own self-interest. The dominant group will disparage or expropriate the interests of those with little or no power. The demand for justice is fought with demands for change justified by freedom, equality and dignity for those without power. Global society confronts deprivations for the have nots and the

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abundance of material wealth and choices for the powerful. To the extent that the expropriation of power cannot be justified and results in oppression, there will be a struggle about power. To the extent that the problem of wealth is the problem of poverty, there will be a struggle to overcome poverty. To the extent that there is a problem about enlightenment and the distribution of ignorance, there will be a struggle to avoid ignorance and embrace enlightenment. To the extent that health and well-being are critical values for survival and the enjoyment of essential dignity, the struggle for equity will continue. To the extent that affection and solidarity are replaced by hate and alienation, there will be a struggle for shaping and sharing of affection and solidarity. To the extent that skill is undermined and unprotected, there will be a struggle for access to relevant skills. To the extent that people proclaim the principle that the rectitude of a group comes at the extinction of the rectitude of another group, there will be struggles labeled ethnic and religious conflicts. To the extent that respect, equality and diversity is replaced by prejudice, unfair discrimination and genocide, there will be a struggle for genuine respect. Such are the fundamental problems of human rights through time and across cultures. What strategies, tactics, methods and approaches are to be used in the struggle for dignity are to be determined. What is clear is that that struggle will involve some measure of coercion. How far and to what extent is coercion consistent with the nature of human rights and the outcomes of ­human rights culture? Are the methods of human rights changes and outcomes of human rights perspectives compatible with each other? This line of thinking addresses the problem that Martin Luther King, Jr. and Mohandas Gandhi confronted. The following quotation captures the KingGandhi idea concerning the nature of struggle in terms of the morality of means and ends: They say ‘means are after all [just] means.’ I would say “means are after all everything.” As the means, so the end. Violent means will give violent [results] …. There is no wall of separation between means and ends …. I have been endeavoring to keep the country [India] to means that are purely peaceful and legitimate.35 It was the insights of Martin Luther King, Jr. and Mohandas Gandhi into the relationship between struggle and human rights that led to the theory that the means of struggle could be as important as the outcomes it sought to secure. King and Gandhi were interested in not only change for the victim, but 36

35

M.K. Gandhi, Young India, New Delhi Newspaper, July 17, 1924.

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also change in the victimizer. King and Gandhi were revolutionary vanguards of human rights activism and struggle. This insight is striking and important because, while human rights have served as the justification for struggle, it has had to refine itself in terms of the complexity of human conflict, peace and democratic transformation. King and Gandhi drew upon their spiritual or religious heritages as a means of mobilizing against colonial servitude or racial subjugation. They saw in sources of spiritual insight of the Hindu-Christian tradition that the method of struggle itself was an instrument of transformation for both the victim and the victimizer. vi

Conflict, Humanistic Transformation, Human Rights and Justice

During and after the Cold War, mankind witnessed a sequence of endless conflicts, e.g., the Palestinian issue, the ethnic conflict in southeast Europe and Rwanda and threats posed by terrorism. The endless conflicts such as the ArabIsrael issue, the India-Pakistan issue or the conflicts in Darfur and elsewhere feed the sense that peace is simply not attainable. In other situations, transformation happened, e.g., the integration of Germany, the rise of democracy in Eastern Europe and the transformation of South Africa. Novel forms of transitional justice have emerged to accommodate these demands. However, the inability to change the paradigm of situations of endless conflict continues to confront humanity as a serious global threat. Individual human beings organize themselves in groups that operate at many levels of complex interaction. Group operations intersect with one another and enhance the prospect of collaboration and conflict. Some forms of human conflict are internal to a single group, including the group called the ‘state.’ Other forms of human conflict may cut across group or state lines and involve alliances of multiple groups and states.36 During the 20th century, there were approximately 250 wars.37 The majority were internal, more commonly known as civil wars. Furthermore, an overwhelming number of them occurred in developing or impoverished communities. In such wars, it is often the case that civilians, rather than combatants, were the prime victims of conflict, whatever its cause. According to some statistics, some 84% of casualties in these wars were civilians.38 Often violence targeted the citizens of the state 37 38 39

36 37 38

Walter Isard, Understanding Conflict and Science of Peace (1992). See R.L. Sivard, World Military and Social Expenditures 1996; World Priorities 1996, at 7.1 (1996). See Michael Cranna ed., The True Cost of Conflict, Earthscan, xvii (1994).

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itself, and the total number of civilian deaths directly caused by the governments in the 20th century, excluding war, amounted to many millions, e.g., ussr, Cambodia, Sudan, and Iran. In such conditions of conflict, there are often demands for alternatives to conflict and conflict resolution which permit groups or states to evolve into political orders that are more democratic and organized along constitutional rule-of-law standards. The conflicts in Chile, Argentina, El Salvador, Haiti, Guatemala, Cambodia and South Africa are examples of transitions that have moved countries from conflict to peace and national reconciliation and reconstruction. There are characteristics common to all these transitions. At some point in time, the objectives of conflict may be perceived no longer to be of such critical importance that the conflict must be continued. When that realization occurs, processes emerge emphasizing finding the means to end the conflict. The basic assumption behind such motivation may be the perception that a continuation of the conflict involves losses for all the parties. Frequently, conflict involves extreme acts of violence and brutality. Such acts make negotiating a settlement difficult. The total war concept employed by the Nazis in World War ii led to the declaration by the Allied powers39 that the only settlement negotiations acceptable to them would begin with unconditional surrender. The demand for unconditional surrender was tempered by a post-war focus that targeted the specific perpetrators of gross violations of the laws of war, the principles of humanity and initiatives such as the Marshall Plan for the reconstruction of Germany and Europe.40 The Nuremberg process and German reconstruction involved important elements of dispute resolution incorporating transparency, accountability, personal responsibility, confrontation of a version of the truth and avoidance of collective guilt. The agreement to move forward with the Nuremberg process was an issue which required persistent advocacy and courageous interest articulation. As the case of post-1945 Germany proved, it is of considerable importance to find the right mechanisms that will permit the parties to find peaceful methods of dispute resolution, especially if the parties have been ­engaged in 40 41

39 40

The term “Allied powers” is used to define the victorious nations of World War ii, the United States, Great Britain, France, and the Soviet Union. The Allied powers’ response to the atrocities of World War ii was larger than simply military victory. Allied powers’ policy was to sweep away all remnants of Nazism and remake Germany in the image of democratic political culture. The so-called Potsdam program was established August, 1945. Its basic principles are summarized by the four “d”s of denazification, demilitarization, decentralization, and decartelization. A final “d” characterizes the goal of democratization.

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lethal, brutal patterns of violence. Participants in such conflicts may be wrongdoers and victims of wrongdoing at the same time. The critical question then is how to transform the situation from extreme conflict to containable conflict, to conflict without violence and then to some form of “contained tension.” When that has been achieved, the final step is to find a way to move from this contained tension to the processes of collaboration and reconciliation. History has shown that the concept of amnesty has been important in facilitating this transition. Amnesty has deep roots in antiquity. The Greek word for amnesty was “amnestia,” which meant forgetting all past events or treating them as if they never happened. A fundamental principle that emerges from ancient Greece is that amnesty was supported because preserving the community was considered to be more important than competing interests in the continuation of conflict or the search for vindictive retribution.41 vii

Peace, Human Rights and Transformation: The Accommodations of Imperfect Justice

The contemporary version of the amnesty solution to violent conflict is conditioned by the emergence of strong standards for the protection of international peace and security, human rights and humanitarian standards. These standards have achieved the imprimatur of international law andthe status of jus cogens42 principles of peremptory international law.43 This poses a crucial practical and juridical problem for the international process of c­ onflict 42 43 44

41

See Alfonso J. Damico, Democracy and the Case for Amnesty, Univ. of Fla. Soc. Sci. ­Monograph No. 55, at 25–26 (1975). 42 By ius cogens we mean a peremptory norm of general international law. For the purposes of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. See Black’s Law Dictionary 833 (6th ed. 1990); see also Art. 53 of the Vienna Convention on the Law of Treaties of 1958. 43 See Philip Alston, Peace as a Human Right, 11 Bull. of Peace Proposals J. 319–30 (1980); see also Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The A ­ ccommodation of Conflicting Rights 27–49 (1990); Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity 95–117 (1988). Cf. James Crawford, Democracy in International Law 1–43 (1995).

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­management and the normative standards that guide conflict resolving interventions, e.g., negotiation, mediation, good offices, conciliation and arbitration. The basic problem may be stated as follows. Patterns of human rights violations are often a cause of social conflict, or continuous or enhanced social conflicts. Conflict is often an independent condition of gross human rights violations. Human rights deprivations are a source of conflict and conflict is a source of human rights deprivations. The corollary proposition is that peace is a critical pre-condition to enhance its human rights culture. A good human rights profile correspondingly would minimize the propensity for conflict. The propositions, supra, oversimplify social reality. They are important working propositions, because they undermine the alleged autonomy of human rights and peace, encased in hermetically-sealed disciplines. These propositions stress the need to understand the interdependence of peace and human rights. Such a focus will sharpen our understanding of the role of law in appraising the legitimacy and efficacy of juridical and other forms of intervention, so that interventions enhance peace and human rights. Complex accommodations and important juridical lines must be drawn in cases of application of international law relating to social conflict where peace and human rights issues are interrelated matters.44 The essential interdependence of peace and human rights had already been anticipated in the preamble of the udhr, which stipulated as follows: Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights be protected by the rule of law.45 This approach is capable of influencing the application of the important mechanisms in Chapter vi of the u.n. Charter which stipulated the methods for the peaceful settlement of disputes, including “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement” as well as “resort to regional agencies or arrangements, or other peaceful means of their own choice.” The techniques of conflict resolution to secure the settlement of disputes are not simply wide in terms of methods of “alternative” dispute systems. They are open-ended about what creative, inventive modes of dispute resolution may be effective in terms of the u.n. Charter’s goals and objectives. 45 46

44 45

See, e.g., The Azanian Peoples Organization v. President of the Republic of South Africa, cct 17/96. Universal Declaration of Human Rights, Preamble.

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Chapter vi approved the use of “other peaceful means” of the parties own “choice.” It suggested that amnesty-based mechanisms may be lawful under the u.n. Charter. Are there any limits as to what mechanisms may be employed? Do human rights and humanitarian law rules, which may require international criminal sanctions, place limits on the mechanisms described as “other peaceful means”? The u.n. Security Council, in approving the statutes establishing the tribunals to try and punish war criminals in the former Yugoslavia and Rwanda,46 were predicated upon the legal basis that the u.n. Security Council had jurisdiction to create such entities under its power to police international peace and security matters. The widespread use of truth and reconciliation processes poses a challenge to our understanding of the scope of the u.n. Charter, the scope of the international community’s reach to punish international criminal conduct and the scope of the methods of conflict management inherent in the procedures of Chapter vi of the u.n. Charter. viii

Peace, Human Rights, and the Relevance of the Nuremberg Precedent

The judgment at Nuremberg was a revolutionary event in international relations and international law. From a humanistic perspective, Nuremberg penetrated the veil of abstraction called the ‘state’ and made human decision makers the responsible agents. It removed arid formalism from humanistic responsibility. The other implication of Nuremburg was that the human agents who were responsible and subjects of international criminal law were subjects who were entitled to have their human rights protected in these proceedings. If the human subjects had international obligations, they also had human rights. Nothing could have delivered the foundations of dynamic humanism to global society more effectively and authoritatively than the judgment at Nuremburg. Traditional doctrine posited the principle that international community be defined exclusively in terms of sovereign states. This development had been technically inaugurated by the Treaty of Westphalia of 1648. The Treaty carried the intellectual imprimaturs of the time, which sought to ground authority and control in the idea of sovereignty. The realism of Thomas Hobbs sought 47

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See Resolution 808 (1993) adopted by the u.n. Security Council at its 3175th meeting, on February 22, 1993, and Resolution 827 (1993) adopted by the u.n. Security Council at its 3217th meeting, on May 25, 1993, which established the International Court for Former Yugoslavia (icty); see also Resolution 955 (1994) adopted by the u.n. Security Council at its 3453rd meeting, on November 8, 1994, which established the Rwandan tribunal.

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to collapse the idea that sovereigns were sovereigns because of brute force. The sovereign was sovereign because the sovereign’s clubs could trump other contenders for power. In the 19th century, John Austin developed his imperative theory of law, grounded on the idea that all law came from the sovereign.47 Theory provided a powerful justification for the evolving concentration of power in the secular state as demarcated by the Treaty of Westphalia. Austin’s scheme was extreme in its use of logic. Neither international law nor constitutional law could be called law in the strict sense because there was no international sovereign and there was no sovereign that could be located within the constitution. These fields were positive morality. The state system evolved an absolutism that joined the concentration of industrial, economic, administrative and military competence in ways that could not be compared to the past. The only real restraint on the exercise of state power in the international environment would ultimately be morality or the balance of power. A failure in both of these restraints could be catastrophic and, as modern history has shown, war has been an inevitable and tragic consequence. In 1914, an incident involving the assassination of Arch Duke Ferdinand of Austria triggered a world war of unparalleled destruction. The political, social, and economic forces were being driven to lethal conflict on a global scale ­without a concrete decision making capacity to prevent, restrain, or, ­indeed, end the conflict. In the aftermath of the World War i, renewed efforts were made to create some form of international obligation that could prevent, ­restrain or possibly end wars. The League of Nations was the most important effort at international collaboration for coordinating sovereign power to avoid massive and uncontrollable conflict. Although the League made important advances in  international understanding, it could not overcome the claims of its members to unlimited sovereignty. In 1939, Germany attacked Poland and World War ii began. The scope of the violations of humanitarian law, the principles of just war and the principles of the most elemental human values were of a staggering nature. Using the power of a conquering state for the industrialized extinction of human beings stands out as one of the great horrors in human history. The concept of a total war as a sovereign prerogative challenged the very principle of morality, in and of itself, as an aspect of human identity and capacity. In the  aftermath of World War ii, a human rights instrument was adopted, known as the Convention on the Prevention and Punishment of the Crime of 48

47

John Austin, The Province of Jurisprudence Determined (1954).

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­Genocide (1945).48 Genocide literally means species extinction. It sought to target the arrogance of sovereign power that it could function beyond moral sensibility and conspire and implement policies and practices for the extinction of whole human aggregates. The Genocide Convention was historically significant from a human rights perspective because it applied whether war or peace prevailed. The limits imposed upon humanitarian law, the ius in bello, meant that humanitarian law only applied if and only if war existed. Human rights in the perspective of the Genocide Convention would apply regardless of whether the condition of war or peace existed. The Genocide Convention created an international crime for which an individual could be punished by an appropriate entity or state acting in the name of international community. The Genocide Convention imposed an international obligation on the individual. That obligation was that conspiring or performing acts of genocide entailed personal criminal responsibility in the international system. This was a major and significant achievement. The  Genocide Convention was inspired by the activism of a Polish lawyer: ­Raphael Lemkin. The second critical outcome for human rights and peace was the Judgment at Nuremberg. The Nuremberg Tribunal penetrated the veil of the state and maintained that the state was a legal abstraction and could not insulate decision makers in the state from responsibility for war crimes, crimes against the peace and humanitarian law crimes. The judgment at Nuremberg made the German officials personally liable under international law. If the defendants were ascribed direct obligations under international law, they were entitled to certain rights as well. Those rights included a fair trial before an impartial tribunal and with effective legal representation. They were entitled to be treated with due regard for their personal integrity while in custody of the occupying forces. The defendants were given rights directly under international law. Nuremberg established the principle in practice that the individual was a bearer of both rights and obligations directly under international law. The central point of Nuremberg was that it established juridically that the individual had a form of legal personality and identity directly under international law. The scope of that personality, although not completely defined, iwas deeply implicated and fed by humanitarian as well as human rights perspectives. Although the Nuremberg process was essentially an ad hoc judicial procedure of a criminal justice character, the conceptual basis of the Charter of the 49

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Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 78 u.n.t.s. 277. (hereinafter the Genocide Convention).

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Nuremberg tribunal49 was based on the principle that some form of ­formalized justice for Nazi atrocities, unprecedented though it might have seemed, held far more legitimacy than a policy of wholesale retribution involving the summary execution of vast numbers of ss operatives. The legitimacy was established by several aspects of the process: it permitted the legal documentation of a vast flow of Nazi atrocities,50 and it allowed specific actors to be apprehended, prosecuted, tried, convicted and punished. It is partly due to the Nuremberg process and the documentary records, which were collected and organized for the particular purpose of this process, that historians could define and map Nazism. The broader research and debate on the subject of Nazism could be opened, carried out and produce a realistic understanding of this era of human history. Nevertheless, the legitimacy of Nuremberg was undermined by several aspects of the process. Its structure as a series of trials led the prosecutors to prove the relevant facts with a certainty that would enable them to attach criminal responsibility to specific individuals. This significantly influenced the process itself. It placed an emphasis on those facts that could support findings of criminal behavior described in the prosecution’s charge sheet perhaps at the cost of discovering and publicly disclosing a broader historical reality. For example, importance was assigned to the charge of “plotting a war of aggression against other states.” This was understandable because the Allied powers had waged a war of self-defense against Axis aggression.51 The Allied powers were victors and represented the judging powers in the Nuremberg process.52 The main focus shifted to the acts of aggression and perhaps served to deemphasize the fact that the war was also a racial war targeting so-called “Untermenschen,”peoples whom the Nazis classified as sub-human. The Nuremberg tribunal did not explicitly recognize German imperialism as 50 51 52 53

49 50 51

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Charter of Nuremberg Tribunal. Id. The justification for the novelty of judging crimes against humanity, which represented matters traditionally subject to the exclusive sovereign power of states, was found in linking crimes against humanity to international war, i.e., conduct that had unambiguous international ramifications by asserting that crimes against humanity are a menace to world peace. This theory was reflected in establishing the jurisdiction of the International Military Tribunal over crimes against humanity. According to the Charter of the International Military Tribunal, Art. 6(c), these crimes could be prosecuted only when committed “in execution of or in connection with” crimes against peace or war crimes. Altogether 13 cases against war criminals were tried at Nuremberg. The first was prosecuted before the International Military Tribunal, which consisted of judges and prosecutors who were nationals of the Allied powers countries. The other 12 cases were tried by the u.s. Military Tribunals.

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b­ eing in part driven by anti-Semitism. Rather, racism and anti-Semitism were considered to be a byproduct of German imperialism. Cause and effect were thus ­obscured. Even Justice Robert H. Jackson, the chief United States prosecutor, was constrained to argue that the Jews were merely used as exemplars of Nazi discipline and that their persecution eliminated an obstacle to aggressive war.53 Notwithstanding the reservations, supra, the contribution of the Nuremberg process to the understanding of a conflict was that the Nuremberg tribunal officially lifted the veil from the concepts of sovereignty and state. For the first time in modern history, the Nuremberg process provoked the expectation of transparency and accountability for state conduct.54 In the Nuremberg process, issues of transparency and accountability brought to conflict resolution and settlement the issue of juridical truth. The issue of truth was to be tied to personal responsibility. The Nuremberg process tied in, in spite of its criminal law character, the older yet durable concept of amnesty as a method of dispute resolution, in the insistence on individual responsibility and rejection of collective guilt and sanction. The German people received a form of amnesty while those personally ­responsible were prosecuted. This was important for the post-war reconstruction of Germany as a peace-loving democracy. In their modern incarnations, amnesty, reconciliation and truth telling have found many forms of institutional expression, as peacemakers have sought to find the means of stopping lethal conflicts, setting in motion processes of peace and reconciliation and enforcing the standards for some form of accountability to the victims, the society and the international community. The Nuremberg experience not only clarified the position of the state and the individual regarding the most fundamental ideas of international justice, it was an important part of the struggle to build a new Germany on democratic rule of law foundations. The critical insight was that by focusing on ­issues of personal responsibility, transparency and accountability, collective 54 55

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See Kader Asmal, Louise Asmal, Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance 20–21 (1996). See “Excerpts from Nuremberg: Act of State Defense,” Trial of the Major War Criminals before the International Military Tribunal, at 223–24 (1947); “Criminal Organizations,” Trial of the Major War Criminals before the International Military Tribunal 255–75 (1947); see also “Official Transcript of the American Military Tribunal [Tribunal v] in the matter of the United States of America vs. Wilhelm von Leeb et al., defendants, sitting at Nuremberg, Germany, on 27 Oct. 1948” in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10; vol. xi; (1950).

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­punishment and collective amnesty were depreciated as having any real significance to the peace process. The human rights strategy gave coherence and moral definition to the new Germany based on new human rights sensitive values. This provides us with an important insight into the dynamics of struggle, conflict and the synergistic relationship between peace, humanitarianism, and human rights. This insight indicates that human rights are not some frozen sterile framework of immutable doctrine. It is a living, dynamic part of social activism.

chapter 6

Globalization, Dynamic Humanism and Human Rights Activism This chapter consists of two parts. Part one focuses on the influence of contemporary human rights on redefining the idea of international obligation and the changes which imply a reduced absolutism in the idea of sovereignty. Given the state of global change, we see greater recognition of individuals and important changes in the personality of sovereigns. Human rights impose relatively new obligations on the states, prohibiting them from abusing the human rights of individuals under their dominion and control. The chapter explores these themes in terms of the changing nature of authority and obligation, as a result of the rising expectations of constitutional authority as a global emergent force. However, these issues still confront the unruly domain of real world effective power within the global system. Here, we utilize the mapping technique (earlier specified) to clarify the foundations of the global power and constitutive process of authority. Additionally, we develop a theory of global advocacy that takes into account the structure of decision for advocacy purposes. Part two of this chapter explores the dynamism of human rights as a struggle for human dignity in terms of a nonconventional postmodern theory. This exploration underscores creative orientation to observation and intervention, and a focus on advocacy and decision as emphases for inquiry about values and practices. This part also underlines the structure of human rights problems in terms of demands for values central to the human rights struggle. We conclude the chapter with the importance of the human dignity construct as a preferred form of normative guidance for activism and intervention concerning the culture of human rights.

Lawyer Roles, Globalization, and Human Rights

Today, as never before, the state system of sovereignty is challenged by the ideas and practices of globalization. Many have an intuitive sense of globalization but great difficulty in defining it exactly. The most popular and perhaps most misleading way of defining globalization is in terms of the essential changes in sovereign states who are the structural members of the global community. Thus, globalization is sometimes defined as a process which serves to erode © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_008

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traditional sovereign borders and in turn open up internal economic activity to larger international, economic, and political forces. Since the transformation of Eastern Europe, the popular meaning of globalization has often emphasized economic interests in terms of developing markets previously closed or regulated by centrally planned economies. Globalization is, of course, much more than this. It is a reflection of the way in which the movement of people, goods, services, technologies, families, and all other aspects of human experience is influenced by conditions that radically telescope the restrictions of time and space in the terrestrial community. This vast flow of goods, services, capital, labor and ideas across all kinds of political boundaries poses immense challenges to the legal profession because almost every local problem may have an international aspect. Moreover, most international problems are often localized in their impacts. In myriad ways, lawyers are required to make sense out of these vast changes, and in order to do so, they are required not only to rethink the empirical and normative boundaries of their profession, but also rethink the boundaries of what law is, how it is to be taught, and what standards of professionalism and moral understandings need to be included in the emerging concepts of professionalism. Thus, the problem of the professional responsibility of lawyers in the 21st century is both vast and important. It is vast because, from a global perspective, there is incredible diversity and change taking place within the profession. Change and diversification are influenced by the conditions of globalization and inspire the globalization of professional lawyer roles. The professional responsibility of lawyers is structured around the various codes and focuses upon certain ethical constraints on the practice of law. This is an important question of responsibility, and certainly in a crosscultural world, cultural perspectives about what is and what are not ethical may differ in substantial degree. In some cultures, for instance, bribery is a way of life, and thus lawyer roles must be in some degree influenced by it. In other cultures, however, bribery may be improper and lawyer roles require a rejection of such practices as a part of the lawyer role expectations. In some legal cultures, success or contingency fees are the sine qua non of practice. In other cultures, they may be the grounds for exclusion from the legal profession. Professional responsibility also provokes broader and deeper questions of the modern lawyer’s professional identity, particularly with regard to that individual’s responsibility or obligation to defend or enhance basic or foundational values of culture and civil society, founded on human rights values. In short, the focus is, in effect, the public and civic policy foundations of lawyer roles.

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These institutional foundations, of course, relate to the idea or ideal of the rule of law itself.1 The related conceptions of public and civic policy on one hand, and the rule of law on the other, hold salient challenges for the meaning of professional responsibility. The challenge to professional responsibility is further heightened when we consider that a concern for professional responsibility must include an important educational factor. Education includes the training of law students, the continuing education of those already admitted to practice, and even more important, a deeper and wider understanding and appreciation of the complexity included in the disarming phrase, “lawyer roles.” The idea of lawyer roles does not simply reflect distinctions between practitioners and judges, or different kinds of practitioners such as attorneys, solicitors, barristers, or advocates. The focus is on what lawyers, however labeled, actually do. These roles may include litigation and appeals, but they are broader. They include all decisions made by lawyers in chambers or law offices. Lawyer roles also include drafters, advisors, planners, and even socioeconomic engineers. Additionally, there is a normative component to lawyer roles. This normative aspect reflects the systems of cultural and professional identifications of lawyers. Do they identify themselves as bureaucrats, as champions, as acolytes, or as “friends?”2 Perhaps they are influenced by the basic law models of operational systems, or the prescribed values of the u.n. Charter. The values implicated in the u.n. Charter include concerns for world peace and security, and human rights development. These values in some measure constitute the procedural and substantive foundations of the international rule of law. To appreciate the idea of professional responsibility in the light of rule of law values, the focus must be on what lawyers are actually doing in the 21st century. If these roles can be anticipated adequately, the expectations of professionalism in legal education can be reshaped in ways that provide a more justifiable fit for the reality of the profession in the light of the new challenges and opportunities of globalization. It is perhaps axiomatic that at a theoretical level, lawyer roles are often shaped by the lawyer’s implicit jurisprudence. Thus, natural law lawyers may 1 Human Rights theory is, in some degree, a luxury to the Amnesty activist. Amnesty International does have its share of relatively esoteric concerns, such as the present concern over the so called “essence” of its mandate, even this discussion is viewed with the characteristic impatience of an activist with an important immediate practical concern for human rights violations and abuses in the here and now. 2 See Walter Probert, Law, Language and Communication (1972).

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generate a sense of idealism in the lawyer role. Positivism, in its analytical variety, may generate a sense of stability and focus on the conservation of law through rules and principles. Legal realism, however, may be interpreted as emphasizing the unruly world of behavioral indeterminacy, and thus generates complexities about exactly who lawyers are and what they do. Still other theories influenced by progressive rationalism might see the lawyer role in terms of institutional development and policy-scientific orientations. Jurists associated with critical conceptions of inclusive citizenship may see through law an agency well-suited to the struggle for equality, respect, and justice. However adequate these representations are of the interplay between lawyer roles and legal theory, the one fact that has dominated the post-Cold War world has been the fact of accelerated globalization. From a practical point of view, it suggests the urgency of better understanding of the scope and character of professional responsibility in the 21st century. This better understanding includes issues of globalization, the central human rights problems, and the lawyer role in the identification and uses of the global authority system. i Constituting Global Authority: Sovereignty In this part of the chapter, we explore the inter-relationship between conflict and cooperation in the global social process. Conflict is essentially an outcome of the global power process. Cooperation is an outcome of the power process as well, and it is driven by the desire of power centered participants to reduce conflict and to enhance cooperation. In order to enhance cooperation, the constitution of decision making structure must be authoritively sanctioned for the exercise of decision making competence. The understandings that emerge, from the processes of power and conflict to those of collaboration, represent the basic expectations of constituting decision according to authority. One of the most important outcomes of the power process for constituting authority is the creation of sovereign authority. This part of the chapter seeks to explain and map this process. A Personhood, and Contextual Mapping Because of the complexity of globalization with its many participants, it is useful to explain human rights and sovereignty in a mapping process. The mapping technique is based on the principle that concepts and terms are better understood when the contexts in which they are used are better understood. Contextual mapping shows that, among nation states and within nation states, the concept of sovereignty is used as an instrument by which to establish and maintain authority. It is also crucial to understanding the place of human

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rights within the framework of sovereignty, including other important participants in the international system. Nation states are defined by four essential characteristics. First, traditional international law requires a state to control a territorial base with determinable boundaries.3 Second, a state is required to control a population connected by solidarity, loyalty, and primary notions of group affiliation and identity.4 Third, internal governance requires controlling internal power and competencies.5 The fourth traditional criterion is the requirement of a controlling power to represent the state or territorially organized body politic in the international environment.6 However, the four traditional criteria obscure what is arguably the most vital building block of the state; how authority is constituted. Contextual mapping clarifies that process. For the purpose of contextual mapping, the Yale University New Haven School of International Law identified three fundamental processes, the social process, the power process, and the constitutive process. The social process is simply the activity of human beings seeking through institutions such as the family to promote their values. The power process is a specialized aspect of the social process. It is the activity of human beings pursuing power through institutions. The constitutive process, which is an aspect of the power process, is the process by which institutions are effectively and authoritatively developed for the management of power. More precisely, the constitutive process is the creation of reasonably predictable expectations about the allocation of fundamental decision making authority within the nation state. 3 Phillip Jessup, u.s. Representative to the Security Council, remarked on the definition of a state to the u.n. that [t]he reason for the rule that one of the necessary attributes of a state is that it shall possess territory is that one cannot contemplate a state as a kind of disembodied spirit. Historically, the concept is one of insistence that there must be some position of the earth’s surface which its people inhabit and over which its government exercises authority.  See u.n. scor, 3rd Sess., 383d mtg., Supp. No. 128, at 9–12 (1948); see also Nii Lante Wallace-Bruce, Claims to Statehood in International Law 53 (1994). 4 This emerging human element is the foundation of community norm generation. See generally Georg Simmel, Social Interaction as the Definition of the Group in Time and Space, in Introduction to the Science of Sociology 348 (Robert E. Park & Ernest W. Burgess eds., 1924). 5 A state may be characterized as “an autonomous territorial and political unit having a central government with coercive power over men and wealth.” See Henry T. Wright, Toward an Explanation of the Origin of the State, in Explanation of Prehistoric Change 217 (James N. Hill ed., 1977) (citing Robert L. Carneiro, A Theory of the Origin of the State, 169 Sci. 733 (1970)). 6 A state may be identified by its ability to defend itself against external international pressures or conflicts. See id. at 216–17.

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To illustrate, any community exhibits contestations for power, and this may take the form of violent rebellions or a revolution. One side in the conflict likely wins, and these winners will then seek to constitute or institutionalize their authority. They may have won a battle, but winning the peace and stabilizing their power basis may require more concrete formulations of the authoritative and controlling aspects of power. Even if no clear winner emerges, the contesting parties may see that stabilizing their claims and expectations about power is in their mutual self-interest.7 This is because stabilizing expectations about how the basic institutions of decision making are established and continuously sustained are vital to the constitution of power and its concurrent and subsequent recognition.8 From an empirical rather than a legal point of view, constitutions, written or otherwise, are codified expectations of authority and stability in contradistinction to the prospect of continuous, even violent, conflict over how power and authority are to be constituted and exercised. Realistically, conflict and its polar opposite, collaboration, are present in all forms of social organization. Indeed, they have ever been ubiquitous in states and societies. Even when authority is provided for in a formal constitution, there shall always be conflict regarding the precise allocations of power and competence. This means that even when high intensity violent conflict is contained, the settlement will be fraught with contestations for power. Conflict cannot be banished from human relations, but its form can change. In fact, often times post-conflict settlements might generate situations of constructive conflict. Thus, some forms of conflict may be socially beneficial. For example, economic competition, as any capitalist knows, is a form of conflict9 that is regarded as indispensable to economic development in market systems.10 Similarly, non-violent competition

7

8 9 10

Notwithstanding this process of vying for sovereign power over a community, it has been argued that at least to some extent the beliefs of individual members of that community are reflected in each act of their sovereign ruler. See generally Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 Am. J. Int’l L. 280 (1982). See Hart, supra note 12, at 97, 110–11. John Stuart Mill regarded economic competition as a legal sanction that harms others and causes conflict. See John Stuart Mill, On Liberty 251–54 (Stefan Collini ed., 1989). See Susan Strange, The Retreat of the State—The Diffusion of Power in the World Economy 46 (1996) (arguing that “the world economy … has shifted the balance of power away from states and toward [competitive] world markets”); see also William Greidre, One World, Ready or Not 11–26 (1997) (discussing the emphasis on competitive global capitalism).

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in democratic governance is indispensable, not only to facilitate openness, but also to further progress and change in society. The constitutive process is continuous. It does not render irrelevant the similarly continuing process of conflict in accordance with the constitution. There is an intuitive, on-going relationship between contests for power and the constituting and stabilizing of such contestations. Accordingly, the continuing constitutive process shapes communication regarding conflict management and collaboration to establish and maintain the basic political and juridical institutions of effective and authoritative decision making.11 One of the most important outcomes of the power process is the patterns of communication regarding conflict and possible collaboration. The understandings generated by power brokers in their contestations for power frequently involve communications and understandings about the limits, constitution, and uses of power for collaboration rather than conflict. From an observer’s point of view, a central feature of what is called constitutional law is its way of institutionalizing expectations relating to the management of power in the basic institutions of authoritative and controlling decision making. The understandings that emerge from the power process reflect the development, of cultural forms that seek to constrain excessive, destructive conflicts, and to structure conflicts productively. Practical frameworks of communication and collaboration are generated and basic human expectations that, upon scrutiny, reveal a living constitutional arrangement where cultural expectations of how decision making is 11

From the perspective of the New Haven School, international lawmaking, or prescription, is seen as a process of communication involving a communicator and a target audience. The substance of this communication functions as symbols of policy content, symbols of authority, and symbols of controlling intention. These three symbols are: (1) the “policy content,” which is the prescription, (2) the “authority signal,” which is the legitimate basis from which to prescribe, and (3) the “control intention,” which is the enforcement power. In other words, a core philosophy of the New Haven School is that in order to count as law, international law must have a prescriptive policy content, it must be accompanied by symbols or signs indicative of widespread community acceptance (because the community is the notional basis for authority in international law), and it must be accompanied by a conception that some institutionalized control exists to ensure that the prescribed law is real. See Myres S. McDougal et al., The World Constitutive Process of Authoritative Decision, 19 J. Legal Educ. 253 (1966–67); see also W. Michael Reisman, International Lawmaking: A Process of Communication, 75 Am. Soc. Int’l L. Proc. 101, 108–10 (1981) (discussing three aspects of prescriptive communication that essentially convey legal norms because they designate policy that both emanates from a source of authority and creates an expectation in the target audience that the policy content of the communication is intended to control.)

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fundamentally interwoven with social organization are actually or behaviorally constitutionalized.12 This might happen without a written constitution and still be an effective instrument of constitutive authority. Alternatively, the outcomes of social conflict might lead to the formulation of written expectations about the management of basic decision making competences in the political culture. Conflict sometimes provokes the creation of a written constitution. On the international stage, wars and multi-state conflicts historically have stimulated the development of regional compacts and mutual understandings. Indeed, the clearest example yet of a global compact representing the parties’ common interest is the u.n. Charter.13 The world power process includes claims to become sovereign, remaining sovereign, and changing or realigning sovereign competence. Mapping this process requires the identification of operative participants in the world social and power processes. This identification includes their perspectives, demands, expectations, bases of power, situations in which they operate, general strategies for action, and the basic outcomes and effects of politically-conditioned action. One of the major outcomes of the process of effective power has been 12

13

See Walter O. Weyrauch, The “Basic Law” or “Constitution” of a Small Group, 27 J. Soc. Issues 49, 56–58 (1971) (documenting an experiment in which several Berkeley students were locked in a penthouse for three months. The focus of this experiment was the evolutive character of law). For example, the u.n. Charter identifies authoritative decision makers and procedures by which decisions might be made because it articulates a framework of practices created to facilitate decisions in the interest of “[maintaining] peace and security,” which, as Professor W. Michael Reisman puts it, “[requires] more and more cooperation between large and small states.” See W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 Am. J. Int’l L. 83 (1993). Professor Reisman goes on to assert, “The United Nations Charter is only a part of [the] ongoing world constitutive process.” Id. The New Haven School, on the other hand, is not concerned with formal structures of government. It instead remains focused on policy so that it can explore the interplay between law and the world community through the lens of social processes. Specifically, the New Haven School explores the processes of decision making with specific regard to the “legal process, by which … [McDougal and Lasswell meant] the making of authoritative and controlling decisions.” See Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1, 9 (1959). The New Haven School’s lead scholars suggest that international law is a “world constitutive process of authoritative decision,” and not simply a conventional set of regulations, perhaps referring to existing legal regimes such as the u.n. Charter. The goal of international law, the School’s founders argue, is the establishment of world public order by instituting regimes of effective control and moving away from existing regimes of ineffective control. See generally McDougal et al., at 253.

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the creation and maintenance of the institutions of authoritative decision making.14 Placing the concept of sovereignty within the map of the social, power and constitutive processes, sovereignty reflects the allocation of fundamental decision making competencies about the basic institutions of governance itself. Within a nation-state, it is the authorization and recognition of persons or institutions competent to make basic decisions about governing power at all levels. On the international stage, the stabilization of expectations in political bodies with effective control over populations, over territorial bases, over the instruments of internal governance and external recognition leads to the creation of sovereignty with independence and international legal personality.15 It is important to appreciate how human rights claims, human rights institutions, human rights activism, and choice making can be mapped to fully appreciate a more complete map of the dynamic between state power and individual freedom and justice. Human rights activists must be agents of dynamic change for justice. Human rights are not problems exclusively for lawyers, judges and jurists as it is a problem for all human beings. Human rights activists must perceive and understand the critical role of institutions of decision making that can either help or hurt human rights. The problem of the state for human rights is that the state has unlimited power and often abuses its powers. Within a nation, the civil society attempts to prevent or at least minimize the abuses of power. Within the global society, the civil societies and global ingos attempt to minimize abuses of power. Sovereignty Versus Personhood: A Central Problem of the u.n. Charter Classic international law was a law of sovereign states. In turn, the individual had no legal personality as a matter of doctrine in this scheme. Human rights

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McDougal and Lasswell offer a configurative conception of jurisprudence that is the end result of an authoritative decision making process. See Lasswell & MacDougal, at 24–25. They argue that a scientifically grounded answer to any policy-oriented problem can be reached that might promote the common interest to achieve a world order based on fundamental principles of human dignity. Id. at 34–36. Scholars and policymakers regard their approach to decision making as a rigorous one embedded in a social context. Id. Scholars disagree about the extent to which recognition is required to establish legal personality, or if legal personality can indeed exist independently of recognition. If legal personality can exist without recognition, recognition is transformed into a legal duty possessed by the state. See Peter H.F. Bekker, The Legal Position of Intergovernmental Organizations 74 (1994).

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were thus impossible to define because the individual could not be the bearer of their rights and duties. Instead they were held by each sovereign, an entity that rarely concedes power. In fact, many states hold that there are no human rights independent of sovereign agreements and consent. Not surprisingly, this is a view strongly held by authoritarian and totalitarian states. The agreement and practices of states continue to weaken this doctrinal position. Perhaps the most important factor that has moderated this view over time is the dynamic of globalization. One of the main characteristics of globalization is the erosion of state sovereignty in the world community. This caution is appropriate as we consider the constitutional position of sovereignty and human rights in the world community. The challenge of the legal status of the individual in the world community is the challenge of how the individual may be an authorized participant in the global constitutive process. This process is still unfolding. The u.n. Charter is widely considered to be our global constitution. For our purpose, the important question is—what exactly is the status of the individual and nonstate aggregates of individuals in the u.n. Charter system? The real questions here are, what is a constitution, and what makes a global constitution. Our task is to identify the key participants indicated in the u.n. Charter and assume that this Charter has all the political and legal elements resembling a constitution. The key players are as indicated in the u.n. Charter Preamble: “We the people.” Membership in the United Nations is largely confined to sovereign states. In addition, the u.n. Charter is replete with references to human rights indicating that individual human beings are components of the universe of constitutional participants. The United Nations is an organization. It has structures with defined spheres of authority and competence. These include the General Assembly, the Security Council, the Office of the Secretary General, the International Court of Justice, the Economic Council on Social, Cultural and Economic Rights, as well as the Trusteeship Council. The u.n. Charter read literally, incorporates a wide spectrum of participant actors. Human rights are specifically referred to in the Preamble to the u.n. Charter. Articles 55 and 56 indicate inter alia obligations on the part of states to promote and defend human rights through the organization, either acting unilaterally or cooperatively with others. However, human rights are not defined in the u.n. Charter. While there is no specific definition of human rights, we assume that Chapter 6 of the u.n. Charter specifies peaceful methods of dispute resolution and a process component for what the substance of human rights entails. Collective measures which may require coercion under Chapter 7 also may be read as an important process complement to the substance of human rights. Article 51, which provides for the right of self-defense for states, could be read to justify

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the struggle of a people against aggression. This aggression may target a state’s survival, existence, or indeed, their right to self-determination and independence. Because sovereignty runs in tandem with the development of human rights law, it is important to review the u.n. Charter from the perspective of sovereignty. The u.n. Charter is an instrument by which members both assert and limit their sovereignty. One of those limitations is tied to the obligation of states to respect, promote, and defend fundamental human rights. The Charter is more than a formal constitution for the international community. It is, from the point of view of contextual mapping, an outcome of the world’s social and power processes. It was a reaction to World War ii, the experience of total war, and the Holocaust. As a preventative measure, the u.n. Charter placed limits on its members’ sovereignty. Paradoxically, membership in the United Nations is an important means of asserting sovereignty. An examination of the history and text of the u.n. Charter reveals this tension. Sovereign nation states wrote the u.n. Charter for all nation states in the world community. Many of these sovereigns had been members of the United Nation’s predecessor, the League of Nations. The u.n. Charter inherited a sizable body of international law that preceded the process. One of the principles it inherited was the principle articulated in the Lotus case,16 that restrictions upon the sovereignty of states could not be presumed. This issue suggested that some deference must be given to the expectation that in the international legal system there are no presumptive limitations to sovereignty. It also should be noted that the failure of the League of Nations was rooted in the principle that any individual sovereign state could exercise the veto in the League. The u.n. Charter would have to respond to these and other problems in defining the scope of sovereignty and the force of international obligation. The u.n. Charter does not define sovereignty. In the Preamble of the u.n. Charter, the first words introduce key terms: “We the Peoples of the United Nations determined ….”17 The references to “peoples” and “nations,” coupled with the term “determined,” suggest that the peoples of the world are the ultimate source of international authority. Moreover, the peoples have determined, or made an affirmative decision, to adopt a Charter of the u.n. because of certain problems and conditions of global salience.18 It is best to say that member states of the United Nations are sovereign. Sovereign legitimacy and authority 16 17 18

See The Case of the S.S. Lotus, 1927 p.c.i.j. (ser. A) No. 10. u.n. Charter Preamble. The promulgation of the u.n. Charter in 1945 created an unambiguous, globally codified constitution that is “not merely a treaty … [but rather] the constitutive instrument of a

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under the u.n. Charter is derived from “the peoples.”19 This assumes that in the international community, sovereign national authority is constrained by the consent of the people it seeks to symbolize or represent.20 The tacit assumption of the authority of sovereignty is rooted in the perspectives of all peoples in the global community. People are not objects of sovereignty but subjects of it. The demands of “the peoples” are expressed in five fundamental principles on which the u.n. is premised; prevention of war,21 protection of human rights,22 respect for social progress according to the rule of law,23 higher living standards,24 and development for all.25 The concepts of “United” and “Nations” must be understood conjunctively. When read together, these terms generate conflicts about the nature of sovereignty. One such conflict is evident. The key operative components of the United Nations are sovereign nations.26 Accordingly, the efficacy of the United Nations should be measurable by examining the sum of its parts. It is a body of coordinate sovereigns. Its institutional authority cannot aspire to more

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living global organization.” See Thomas M. Franck & Faiza Patel, un Police Action in Lieu of War: “The Old Order Changeth,” 85 Am. J. Int’l L. 63, 66–67 (1991). u.n. Charter Preamble. Article 1 of the u.n. Charter provides that “[t]he Purposes of the United Nations are … [t]o maintain international peace and security, and … to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” See id. art. 1. This statement of purpose safeguards the rights of the individual, because the u.n. Charter recognizes that the responsibility of maintaining international peace and security falls squarely on the shoulders of individuals. See id. Preamble (proclaiming the United Nation’s pledge “to maintain international peace and security, and … to ensure … that armed force shall not be used, save in the common interest”). See id. (proclaiming the United Nation’s goal of reaffirming “faith in fundamental human rights [and] the dignity and worth of the human person”). See id. (proclaiming the United Nation’s pledge to “promote social progress”). See id. (proclaiming the United Nation’s pledge to respect “the equal rights of men and women and of nations large and small”). These principles were based on Roosevelt’s four freedoms, freedom from fear, freedom from want, freedom of expression, and freedom of conscience and belief, all of which constituted the war aims of the Allies. See Four Freedoms Speech, Franklin D. Roosevelt, 1941, in The Public Papers and Addresses of Franklin D. Roosevelt 663 (Facts-on-File, Inc. ed., 1995). Oppenheim asserts that the phrase “sovereign nation” entails two kinds of sovereignty possessed by each State: dominium, or territorial sovereignty, which is supreme authority over all persons, items, and acts within that state’s territory, and imperium, or personal sovereignty, which is supreme authority over all citizens of that state, be they at home or abroad. See 1 Oppenheim’s International Law § 123 (H. Lauterpacht ed., 8th ed. 1955).

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authority than that reposing in the will of the sovereigns themselves. On some occasions the United Nations has authority to invoke an institutional capacity broader than the sum of its sovereign parts. In turn, here lies the tension in the u.n. international constitutional system whereby principles of international concern and obligation are pitted against individual sovereign, territorial, and political independence. The Preamble and Article 1 of the u.n. Charter delineate the scope of international concern and the limitations on sovereignty.27 Article 2 gives us a different structure of the division of competence and concern. For example, Article 2(1) states that the United Nations is “based on the principle of sovereign equality of all its Members.”28 Article 2(7) comes closest to defining sovereignty by indicating that the United Nations is not authorized to intervene “in matters which are essentially within the domestic jurisdiction of any state.”29 This Article also could be read in light of Article 2(4), which prohibits the threat or use of force to attack the “territorial integrity or political independence of any state.”30 Among the specific restrictions on state sovereignty in Article 2 are that states are subject to a good faith obligation to honor charter values, and that they must settle disputes by peaceful methods.31 A further criterion that strengthens the principle that the u.n. Charter is a sovereignty limiting instrument is found in the membership provisions of Chapter ii. Article 3 states that the original members of the United Nation “shall be…states.”32 Article 4(1) states that membership in the United Nations is open to “all other peace-loving states which accept the obligations contained in the present Charter.”33 Although membership in the United Nations is exclusively a matter of state sovereignty, an institutional set of limits is imposed; the state must be “peace-loving,” accept all Charter obligations, and accept the obligations of international law as developed under the u.n. Charter. Article 6, though it may be exercised only in highly unusual or exceptional cases, stipulates that a state may be expelled from the United Nations if it is a persistent violator of the u.n. Charter.34 This has never occurred. The scope of prohibited activity that results in expulsion may be controverted. It might 27 28 29 30 31 32 33 34

u.n. Charter Preamble & art. 1. Id. art. 2(1). Id. art. 2(7). Id. art. 2(4). Id. arts. 1(2) & 1(3). Id. art. 3. Id. art. 4(1). Id. art. 6.

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also impose a duty on remaining members not to recognize an expelled entity or its acts in the context of international relations and law. It remains hotly debated whether Article 6 expulsion may be pushed to the limit of regime replacement. In theory, the Article 6 procedure implicates the idea that the sovereign equality of states is conditioned by u.n. Charter obligations, and that a persistent violation of these obligations erodes the authority and international legitimacy of the state. Implicit in Article 6 and the competence to expel is the principle that the u.n. Charter supports a particular kind of sovereignty, good governance oriented sovereignty. It also aims to discourage other forms of government that seek to position sovereignty above Charter obligations. There are other u.n. Charter limits on sovereignty. u.n. Charter Chapter iv outlines the composition and workings of the u.n. General Assembly and gives that Assembly the power to highlight any issue by making it a matter for international discussion. Specifically, Article 10 states that “[t]he General Assembly may discuss any questions or any matters within the scope of the … Charter.”35 In addition, the u.n. General Assembly has the power to initiate studies and make recommendations.36 This “promotional” Assembly function may shape international expectations. Assembly recommendations may even create “soft” international law that might be binding on sovereign states in limited circumstances.37 The u.n. Security Council’s powers confer special security related competences upon certain member states. The five permanent members exercise what some scholars deem to be super-sovereign powers.38 The five permanent 35 36 37

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Id. art. 10. Id. art. 13. The International Court of Justice (icj) has advanced the notion that each u.n. General Assembly Resolution is a form of soft law that is in itself gradually becoming a binding form of law. The icj asserted in the Nuclear Weapons Advisory Opinion that “General Assembly resolutions … provide evidence important for establishing the existence of a rule or the emergence of opinio juris ….[A] series of [General Assembly] resolutions may show the gradual evolution of opinio juris required for the establishment of a new rule.” See Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996 i.c.j. 226, 254–55 (July 8). Oscar Schachter argues that a unanimous assertion in good faith by all states manifests opinio juris communis (instant custom) and thus, “[I]f nearly all States agreed on what is the law, was there a sufficient reason to deny effect to that determination?” See Oscar Schachter, International Law in Theory and Practice, in Int’l Law 114, 116 (Barry E. Carter & Phillip R. Trimble eds., 1991). See Leland M. Goodrich et al., Charter of the United Nations 290–309 (3d ed. 1969) (discussing the history of u.n. Charter and offering justifications as to why the Security Council is imbued with such power).

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members have the special veto power in the Council.39 Other temporarily elected members have extra powers by virtue of membership in the Council, but do not have veto power. The importance of these powers cannot be denied. The Security Council is given the primary global responsibility for peace and security40 and has the competence to enforce its decisions peacefully (Chapter vi) or by the use of force (Chapter vii).41 It has the authority to make the determination whether there exists “any threat to the peace, breach of the peace, or act of aggression.”42 The powers of the Security Council, even when supported by the five permanent members, are nevertheless subject to certain inherent powers or rights of sovereign states. Article 51 of the u.n. Charter assures to members “the inherent right of…self-defense…until the Security Council has taken the measures necessary to maintain international peace and security.”43 The term “inherent” is ambiguous.44 It seems to make reference to the notion that Article 51 itself codifies this inherent right. At the same time, however, inherent may refer to rights which are not clearly articulated in Article 51 but exist antecedent to the u.n. Charter. It is one of the most contested provisions in the entire u.n. Charter and possibly in all of international law.45 39 40 41 42 43 44

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u.n. Charter art. 27(3). Id. arts. 24, 41, 42. Id. art. 42. Id. art. 39. Id. art. 51. The International Court of Justice has not interpreted the term “inherent” as used in Article 51 regarding a state’s right to self-defense. Accordingly, it can be interpreted using one or more of the following seven methods: summary, literal, systematic, logical, historical, functional, and authoritative. The summary approach relies on an intuitive understanding of what is a natural or an ordinary meaning. The literal approach emphasizes the meaning of words in isolation and in the syntax of the sentence to which they belong, while the systematic approach attaches significance to the meaning of words in the wider context of the treaty as a whole. The objective of the logical approach is to eliminate selfcontradictions, inconsistencies, and absurdities by conclusive reasoning. In the historical approach, the meaning of the text is clarified by reference to the drafting history. The functional (or teleological) approach considers the functions that a particular clause or treaty as a whole is intended to fulfill in regulating the legal relations between the parties. Finally, the authoritative approach calls for the joint interpretation of a legal document by the parties. See George Schwarzenberger, A Manual of International Law 153–54 (4th ed. 1960). For example, assume that State A has stockpiled weapons of mass destruction and that the relations between State A and B are and have been conflict-prone. Can State B consider the stockpiling of wmd to be a “threat” sufficient to provoke an anticipatory level of

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What is clear is that the u.n. Charter represents a continuing constitutional process of conflict and collaboration with respect to the basic architecture of international law. Often the contest reflects a strong Lotus version of sovereignty, thus seeking to weaken the scope of international obligations. Other times, it is the strength of the international obligation supported by the u.n. Charter that appears to weaken the scope of sovereignty. The classic tension between what is a matter of international concern under the u.n. Charter, and what is exclusively reserved to the domestic jurisdiction of a state, generates controversies in the actual practice of international law and international relations. When we examine the u.n. Charter as a continuing process of working through and refining precise allocations of competence in the international system, it is like a work of art still in progress. The scope of international obligation and domestic sovereign competence is and will remain controverted. The rights of peoples within the constitutional system, with its undefined boundaries of authority, will consistently challenge the institutional foundations of the u.n. system itself. It is important to understand the international constitutional system, including its International Bill of Human Rights, within a broad community perspective. We have earlier indicated the dimensions of conflict and struggle for progress. Would we have had the American Declaration of Independence and its ringing proclamation that all men are created equal without struggle, conflict, and the United States Revolutionary War? In modern South Africa, there is a new constitution, and it is one of the most human rights sensitive constitutions in the world. Would this outcome have occurred without the liberation struggle and sacrifice? The Indian Constitution is widely admired and has secured Indian democracy and freedoms since independence. Would India have had such a constitution without the struggle for freedom led by Gandhi, Nehru and others? The u.n. Charter is a global constitution which was the outcome of a bitter global struggle for human peace and progress. Like all self-defense under Article 51? Since the use of force, even in defense, may implicate the jus in bello and general human rights standards, what are we to make in retrospect of the problem of nuclear weapons deployments and the theory of deterrence based on mutually assured destruction? Weapons that cannot be constrained by principles of necessity or proportionality or humanitarianism challenge the concept of sovereignty to the extent that the use of force may be without limit or restraint. Thus, the lawfulness of the threat or use of force using nuclear weapons was given a careful juridical appraisal in the icj advisory opinion on this issue. A majority of the Court held that nuclear weapons might be used consistently with Article 51 only where the “survival” of the state was at stake under the prevailing state of international law conditions. See generally Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996 i.c.j. 226 (July 8).

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constitutions, the u.n. Charter is dynamic and its promise continues to unfold. What we present in the following is a careful review, using a method of contextualized mapping, to understand the community context, the context of power and conflict, and the context of constituting and stabilizing fundamental expectations about peace, security, progress, human rights and the rule of law. The Human Rights Problem as a Peoples Problem: Humanistic Demands and the Struggle for Dignity The cumulative upsurge in the demand for human rights has not, by any reasonable measure, been matched by the effective realization of such rights in the public and civic orders around the world. Responses by both transnational and national authoritative decision makers, and implementation to these rising common demands, have been halting and inadequate.

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A The Power Process and Constitutional Processes If we conceive globalization as creating a community having a global social process character, the most important political fact about that global process is whether it produces an outcome or sequence of outcomes. Perhaps the most important outcome of this process is the way it actually produces and then allocates power. Power is important to the human rights context because it is a double-edged sword. It is the central component of stability, change, or reaction. Depending on who has it, and how it is used, it will affect the distribution of the good and bad things in social process. Power can be employed to generate security or insecurity, peace or war, freedom or oppression, loyalty or hate, and respect or the depreciation of respect. If we consider the map of the social process, which describes the context of the world community, and our attention is drawn to the marker designated outcomes, we will quickly discover that one of the most important outcomes of globalization is the global power process and the global war system. These outcomes have tremendous impacts on the enhancement or depreciation of human rights. Two actors are of obvious relevance: the state and the individual. There are, however, others. These include political parties, private armies, pressure groups, and other clusters of interest groups within a civil society. We must consider carefully how we are to describe the global power process: unipolar, bipolar, polycentric, anarchic, etc. The conflict about human rights is, in part, a conflict about the deprivation of all values that constitute the idea of respect and dignity. These deprivations relate to power and its abuse. Conflicts about power itself are among the most destructive of human rights values. This is so whether conflict comes in the form of international aggression or in the form of contests for

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power occurring internally inside the state itself. Sometimes conflicts about power involve external and internal contestants. The outcomes of conflicts about power often continue patterns of conflict, e.g., Israel-Palestine, IndiaPakistan, and China-Tibet. On the other hand, conflicts often are managed or stabilized. Power moves from conflict to constituted power whereby the forms of conflict or potential conflict often are acted out in terms of expectations of stability. These expectations may be recorded in a document or constitution that takes the behavioral constitution and gives it a formal placement in the framework of stabilized power and stabilized expectations of authority. The constitution is an outcome of power conflicts in general. The American Constitution is the result of a revolt against colonial rule. It was also a revolutionary war involving internal and external dimensions of conflict. The German Constitution emerged after World War ii, and it resolved the power problem in favor of the allies’ interest in democratic constitutional order as well as the German interest in democratic values. At the same time, the world community created a global constitutional order reflecting, in part, the war aims of the victorious allied powers. That Constitution is the United Nations Charter. The United Nations Charter includes the codification of human rights expectations. It provided the basis for the progressive codification of an International Bill of Rights. How then do we describe this global human rights sensitive, constitutional process? How can we economically, but comprehensively, assess the global constitutive Bill of Rights process? This generalized sketch of the community social process in global terms is radically contextual. In turn, the relevance of community and the conflicts within community to the enhancement or disparagement of human rights is an integral part of this process. Human rights in community are not a glorified set of codes. Rather, human rights in community are an arena of conflict and struggle. Human rights are a symbol of the struggle for change, for a new paradigm of governance, of public order and of human relations based on the human dignity principle. This means that the role of lawyers is more than the business of drafting human rights codes or trying to apply them. Lawyers professionally serve as both decision makers and advocates. The role of law and lawyers lies in reshaping the very nature of the constitutive process and working to create institutionalized expectations in a decentralized constitutional context. When human rights are conceptualized as a process concerned with the struggle for human dignity on a global basis, then the role of the lawyer assumes not only a more enriched vista of professional challenge, it enhances the very identity of the profession. The lawyer becomes an important instrument in the promotion and defense of public and

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constitutional orders which are committed to a more comprehensive vision of the rule of law and the dignity of man. The roles of lawyers are influenced by and structured around codes of professional responsibility. These codes are usually prescribed for the profession by professional associations operating along national and state lines. However, codes of ethics and professional responsibility do not exhaust the need to understand the normative basis of law and lawyering. The larger question of lawyering roles and professional responsibility touches on the central issue of the scope of the rule of law and how professional ideas of the rule of law are to be made a more explicit and conscious part of the idea of professionalism. The rule of law aspect of professionalism is impacted by the reality of globalization, which provides a vista of opportunity for enhanced professionalism as well as a challenge to parochial ideas about lawyering, lawyer roles, and lawyer identifications. The central issue may well be that the practice of law is becoming less local. The average practitioner dealing with local issues may discover that those local issues implicate fundamental rights guaranteed by both domestic constitutional law and/or international law. The practitioner may find that in ordinary local transactions, the laws of more than one state or body politic are implicated. The purely local identity of the practitioner may be under pressure from the forces of globalization. Human rights law partakes of the local to global connecting links. All legal problems emerge from transactions, occurrences, or events that have local consequences. Their resolution might, and often does, provoke concerns of wider import. For example, their consequences may be of national or international concern. Human rights present an impressive challenge to one’s casual parochial identifications of lawyers. This identification provides an impressive challenge to traditional notions of professionalism. Human Rights: A Functional Humanistic Approach to Activism and Legal Intervention The markers identified as functions of decision making are kept discrete for analytical and descriptive purposes. They are, however, inherent in the processes of decision making and in practice, and influence one another in complex ways. The result is a decision or choice. For our purposes, the emphasis will be on the decision function of promotion or advocacy. This emphasis is meant to clarify the role of advocacy (or interest articulation) within the structure of decision in order to maximize and influence beneficial outcomes in choice and decision that sustain human rights expectations. Moreover, this emphasis gives us a clearer sense of the actual workings, prospects, and efficacy in the actual human rights decision process.

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Advocacy depends on knowing the facts, identifying the players, and understanding the problems that require interest articulation. The relationship of advocacy or interest articulation to decision making is often under appreciated in the sense that the focus of inquiry tends to be on the decision outcome, and not the forces that drove interest articulation in the first place. However, without interest articulation, without the express demand for the basic values to which human beings feel they have a right, decision making would be a pale shadow of its appropriate social and political importance. This phenomenon is partly observed in societies involved in transition to democracy. When those freedoms are initially established, the culture of interest articulation and advocacy remains weak as a function of the pre-existing political order. Thus, there is often the outcome of democracy denuded of effective interest articulation and effective advocacy. In our time, we have witnessed the growth and strengthening of civil society on a global basis. This development is not simply random and inexplicable. Civil society is the outcome of the demand and the need for advocacy in the demand for good governance, the rule of law, and universal human rights. Civil society, by definition, is not the state. It is part of the community comprising the state. That community insists that its voice be heard and that its advocates promote and defend the interests of ordinary people. Further, the growth of civil society is not confined to states. It is a global phenomenon. Thus, the term ‘global community’ refers to global civil society and even more to the processes that generate focused interest articulation and effective advocacy. One of the most important global outcomes inherent in the civil society process has been the development of civil society interest groups specialized on a global basis to the promotion and advocacy of human rights. A central problem that effective human rights advocacy encounters is the problem of obtaining the facts about human rights deprivations, and also predicting the prospect of human rights violations in the future. Thus, the human rights problem for which advocacy and promotion are demanded will need an intelligence predicate to determine whether to proceed, and, if so, how to tactically and strategically present and prosecute such a claim or demand in a forum most effectively calculated to respond meaningfully to the problem. Without reliable facts or intelligence, advocacy and promotion are weak, and intervention is correspondingly undermined. A weak intelligence predicate weakens the strategic and tactical options of the advocate as well as the ultimate decision making forum. The approach to human rights that stresses problems and interventions, such as advocacy and decision making, must examine carefully what is implicit in such ideas as advocacy, representation, and decision making (such

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as adjudication). Functional theory has distilled seven decision functions that are expressed or implied in human rights inquiry. These decision functions are triggered by the processes of interest articulation and advocacy. To be effective as an advocate and to effectively influence decision making, advocacy must target its expression of interest articulation with a view to providing a credible foundation upon which the normal functions of decision making made be deployed, and hopefully in the service of enlightened and altruistic interest articulation. It is therefore obvious that the functions of decision making are matters that fall within the strategic and tactical vantage point of human rights advocacy. What follows is a summary of the central functions of decision making but essayed through the lens of effective advocacy as a strategy of interest or value articulation. A The Advocacy Functions of Intelligence Human rights advocacy whose facts or intelligence predicate are flawed, may have disastrous consequences for the credibility of human rights advocacy as a whole. In cases of grave human rights deprivations, it is usually the state that is the responsible actor. However, the management of information concerning these deprivations is a matter of the state’s claimed monopoly over classified information generated by its intelligence services. Thus, a significant element of human rights work pits the intelligence claims of the state against the intelligence claims of human rights advocates. This is a very sensitive matter and is often at the heart of whether human rights work succeeds. Human rights organizations claim access to information using their own methods and research. Thus, they generate databases with case specific material, and a great deal more. Their work is sensitive and often cannot compete with the state’s claim to secrecy over intelligence that may implicate the state in wrongdoing. It is through the intelligence network, especially of ngos, that we understand the scope, relevance, and capacity for intervention and its limitations. Facts are a critical basis for decision making responses or interventions. It is from facts that we garner the scope of human rights deprivations. Human rights groups, therefore, claim the right to gather, process, and distribute human rights intelligence. It is also a critical intelligence demand inherent in human rights advocacy that it be based on intelligence that meets the criteria of “dependability, comprehensiveness (within which we include systematic contextuality), selectivity (relevance), creativity, openness, availability, and economy.”46 Without an 46

Myers S. McDougal et al., The Intelligence Function and World Public Order, 46 Temple l.q. 365–448 (1973).

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effective process of intelligence development, the deployment of critical human rights advocacy functions are weakened. To appreciate the centrality of human rights intelligence to human rights advocacy and decision making, it is important to appreciate how intelligence influences all the other functions of advocacy and decision making. B The Advocacy Functions of Promotion To understand the human rights problem is to begin the process of promoting a solution. The problem of mass murder based on race in World War ii generated the promotion/advocacy functions of seeking an international prescription criminalizing certain forms of mass murder or group extinction. The systemic response was the adoption of a general policy outlawing genocide, The Convention Proscribing and Punishing the Crime of Genocide.47 Advocacy may also take the form of involvement in specific cases or issues such as those associated with survival rights. Often particular cases lead to an awareness of a practice and to levels of advocacy that have enhanced the scope and specificity of the International Bill of Rights. It is hard to imagine the extent to which a Bill of Rights for mankind could have developed as it has during the past fifty years without the elements of advocacy, promotion, and attendant activism. One of the great functions of promotion is that it accesses the modern means of communication as a mechanism for influencing world public opinion. C The Advocacy Functions of Prescription Prescription is largely a legislative undertaking. Legislatures and sometimes executives make law or other effective prescriptions. What is noteworthy in the human rights context is that there is no super-legislature or super-executive. Human rights activism has often been merged into human rights lawmaking involving state, non-state, as well as international or regional institutional action. Human rights ngos often have been the triggering mechanism through research, advocacy, and activism to create the momentum that states and institutional actors need to create international or regional human rights regimens. The focus on courts, legislatures, and executives as lawmaking agents is important. But this focus may obscure the broader array of participants who facilitate, or even make, human rights law. The central truth about official lawmaking, be it legislative, executive, administrative, or juridical, is that, without some demand, without some counter demand that generates a problem in which modern communication systems facilitate the processes of advocacy 47

The Convention Proscribing and Punishing the Crime of Genocide, Dec. 9, 1948, 78 u.n.t.s. 277.

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and claiming, the official prescriptive outcome of a state would indeed be very modest.48 The focus upon the role of lawyers must not, of course, blind us to other decision making participants and institutions that have responsibility for participating in the prescription, application, and enforcement of human rights. For example, a joint resolution of the u.s. Congress requests the Executive Branch to be more active in action against torture. The resolution requests that the chief of mission, usually the ambassador, actively investigate allegations of torture and make representations on behalf of the victim. This would require the ambassador to use his diplomatic position to facilitate compliance with basic human rights. The u.s. Foreign Assistance Act makes foreign aid contingent upon some measure of human rights performance.49 This makes both the Congress and the executive branch of the u.s. Government responsible for the employment of economic assistance as a vehicle to advance human rights and trends toward democratization. At another level, there are many u.n. agencies whose work directly or indirectly impact upon the delivery or non-delivery of human rights. The Committee Against Torture does not require that its experts be lawyers. The Committee on Civil and Political Rights similarly does not mandate a legal training for its members. The special rapporteur on torture may be a lawyer, but there is no explicit rule requiring this. The u.n. Human Rights High Commissioner in this situation was a distinguished politician. This all suggests that the culture of human rights in global context includes advocates, decision specialists, as well as scholars and scientists from very diverse backgrounds, cultures, and professions. What ties them to the culture of human rights is that they are directly or indirectly involved in aspects of decision making that have human rights consequences and impacts. D The Advocacy Functions of Invocation Lawyers in both advocacy and adjudicatory roles are familiar with the processes of fact-problem-prescriptive characterization of issues for the purpose of the specific application of human rights norms. The case of Filartiga v. Pena Irala50 is a good illustration of the invoking function. However, invoking is not 48

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Winston P. Nagan & C. Hammer, Communications Theory and World Public Order: The Anthropomorphic, Jurisprudential Foundations of International Human Rights, 47 Va. J. Int’l L. 725 (2007). Foreign Assistance Act (Pub. L. 87–195, 75 Stat. 424, enacted September 4, 1961, 22 u.s.c. section 2151 et.seq.). 630 F.2d 876 (2d Cir. 1980).

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confined to courts, be they national or international. Any human rights institution of intervention can and often does perform this function. Thus, when Amnesty International focuses on an urgent action death penalty, torture, or disappearance case, it is in fact performing this kind of provisional function often in contexts of extreme crisis. E The Advocacy Functions of Application In an application situation, the advocate has a crucial role in specifying the nature and practical efficacy of the remedy. A central challenge for human rights is invariably the scope of the remedy. It is the advocate’s job to define that scope for the authoritative decision maker. Where the institutionalization of the decision maker is at a higher level (e.g., the European Court of Human Rights, or the u.s. Supreme Court), the greater the ability of the advocate to predict an actual, effective, and final application and enforcement of human rights prescriptions in concrete situations. Application is a significant problem for human rights in an era of globalization, during which there is still great dependence upon the decentralized application of human rights policies and prescriptions. The international community has created a significant consensus as to what human rights are and what general prescriptive force they must have. On the one hand, the application of human rights norms through the United Nations represents institutional weaknesses as well as financial and logistical limitations. On the other hand, provisions in key human rights covenants prescribe state obligations to prosecute or extradite offenders. These treaties required obligations impose on states obligations many believe to be their reserved domain of sovereignty and domestic jurisdiction. Decentralization comports with political and legal reality, and generates an inconsistent, untidy political mosaic of practice and precedent. The growth of human rights institutions, such as regional commissions and courts, has added coherence to the application of human rights standards. Moreover, constitution making in the post-cold war world has generated institutions of basic law in some states that are extraordinarily human rights sensitive. The application of human rights norms also requires skills in grounding human rights values in specific cases. These cases represent important political challenges for theory and practice. But, central to the success of advocacy is the ability to craft a framework that persuades the authorized decision makers that application is necessary and effective. F The Advocacy Functions of Termination The termination of advocacy may mean that a favorable result has been achieved. It also could mean the abandonment of advocacy that has the

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effect of terminating the possibility of decision making responses. All decision making affirms and disaffirms certain preferences. The central challenge of the terminating function in human rights law is impressive. For example, human rights law in comprehensive perspective seeks to terminate all law and practice which is incompatible with the dignity of man. Termination thus is more than simply prescribing, promoting, and applying human rights law. It is terminating reactionary, retrogressive law of the old system. The importance of termination is vividly illustrated in u.s. death penalty litigation. The u.s. Supreme Court could not quite develop a consensus to outlaw capital punishment.51 It did not terminate the practice. Instead, using loopholes and strained constructions, the Supreme Court has in fact validated the execution of the mentally retarded, children, and upheld convictions where race is a factor. An important objective for the human rights advocate is to ensure that argument persuades the decision maker that the decision will terminate the problem. G The Advocacy Functions of Appraisal Human rights law, like natural law, provides a standard against which positive law can be rationally evaluated. It provides thus a critical component in addition to reason and rationality in the appraisal of the state of both domestic and international public order. Human Rights as a Dynamic Struggle for Dignity: A NonConventional Post-Modern Theory In setting out the issues and problems that limit the scope of contributions that academics can make to the human rights agenda, the core ingredients of a solution to the dilemma can be identified. The solution requires a theory for inquiry about human rights. The theory must have a decision making focus to have practical relevance, since only effective decision making will apply human rights perspectives and operations to particular situations and contribute to a human rights-conditioned future. A theory about human rights that is decision focused policy must selfconsciously concern itself with the policy process itself. It must integrate actual human rights problems that require policy responses. Both the problems and the decisional responses to them must occur in a disciplined contextual setting. The decisional responses must employ processes that meaningfully clarify the policy basis of human rights prescriptions. Theoretical inquiry about this kind of emphasis must embrace cross-disciplinary tools of inquiry

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Gregg v. Georgia, 428 u.s. 153, 96 S.Ct. 2909 (1976).

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to give scientific credibility to the enterprise. This requires fidelity to at least four essential features of a theory about human rights inquiry from a policy perspective. Comprehensive Mapping Fundamental to an inquiry is the expression of a comprehensive map of human rights problems specified in terms of functional value categories and which permit continuing refinement and elaboration. A systematic expression of these problems will underline the difference between human rights deprivation and human rights realization. The lexical formulation of human rights as rights is frequently the tail end of a process that needs illumination. Relevance of Context Factual, theoretical, historical, and political contextual relevance must drive the theory. All human rights, in the sense of process, must be seen in relation to every relevant community context, from local to global. Relevance of Policy and Decision The focus on policy and decision requires the identification of past, present, and future decisional mechanisms at every level of community that may be relevant in clarifying, specifying, protecting, and enhancing human rights. Relevance of Key Intellectual Tasks for Inquiry The relevance of the identification and use of appropriate intellectual tools is necessary to clarify the rational, theoretical and factual basis of the context of human rights, as well as the procedures for their realization in fact. Thus, a theory for inquiry about human rights and decision from the perspective of the policy sciences has four primary characteristics: the importance of maintaining an observational standpoint, the contours of the focus of inquiry, the specification of basic public order goals by unambiguous postulation, and the execution of central scholarly-intellectual tasks. A

The Importance of Maintaining Creative Orientation and Locating Shifting Vantage Points Any inquiry into the distribution of values in social processes inevitably will reflect the inquirer’s biases and preconceptions, both conscious and unconscious. Human rights are not value-free, and neither are decisions that promote or denigrate human rights. The observer faces the challenge to remain as disengaged, objective, and articulate as possible about the framework of values implicated in the inquiry. At the same time, the normative implications of decision focused scholarship necessarily implicate the observer, at least

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indirectly, in the value choices that are the subject of inquiry. The inquirer faces the dilemma of influencing choice by choice or influencing choice by the intellectual artifice of not influencing choice. There is no value-free way out of this dilemma, and confronted with the choice about value choices, the scholar may have to consider whether choices reflecting the common interest of all are better than choices honoring the special interest of the few. A scholar’s commitment to the common interest of all implies a deep, self-conscious identification with the interest of the many, rather than with the interest of the few. Human rights-conditioned scholarship requires this kind of ethical commitment. Indeed, as Professors McDougal, Lasswell, and Chen have pointed out, “the clarity and fidelity with which the standpoint is maintained, affects every other feature of inquiry: how problems are defined, what goals are postulated, and what intellectual skills are employed.”52 B The Focus from Orientation to Inquiry about Values and Practices The insistence that inquiry be both comprehensive and selective is one of the more problematic aspects of decision focused inquiry. The fundamental insistence is that the inquirer appreciates particular problems and particular responses to problems in the context of the social processes from which they emerge and the social processes upon which they impact. A great deal of controversy surrounds the tools by which one may adequately describe the social processes of any community or interrelated communities. It has become increasingly urgent for lawyers to find methods of inquiry that may help them identify problems within the social processes and decisional responses to them. This demonstrates the distinctive contribution of the policy focused approach to inquiry about law, to provide formulations that permit a degree of intellectual mapping of the relevant elements of social and decision processes. Human rights are relevant to policy because there are human rights problems implicated in social process for three principle reasons. First, agencies and entities of decision exist in social processes. Second, these agencies frequently respond to problems as a function of social process. Third, agencies’ responses impact positively or negatively on social process. The most elemental, and most elegant, formulation of social process, and a distinctive contribution to the scientific culture of law and social science, appears in drawing social process boundaries with interaction, interdependence, inter-determination, value processes, institutional practices, and the dynamics of personalities, which are frequently power-conditioned personalities and cultures. In this formulation, 52

Myres S. McDougal, Harold D. Lasswell & Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of International Law of Human Dignity (1980).

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human beings acting individually and collectively seek to enhance their preferred value positions through institutional modes and resources that they can marshal to secure the allocation of claimed values. The human rights specified in the Universal Declaration translate into empirically manageable process oriented terms. The value/institutional categories developed by the policy oriented approach have permitted the human rights agenda of the Universal Declaration to use terms relevant to the entire global social process. These categories have been summarized earlier.53 Each of these values and others intersects and interpenetrates every other identifiable value process. The phase analysis tests the structure of any value process and the manner in which it relates to other value processes. This analysis offers a policy centered inquiry whose distinctive system maps problems into social process, and maps social process into decision making processes at every level of social organization. The social process, or any particular value process within it, fits the description offered by the following terms: participation (individual and group, governmental, and non-governmental), perspectives (demands, identifications, and expectations), and situations (geographic, temporal, institutional, and crisis), bases of power (authoritative, controlling, both implicit and explicit), strategies (diplomatic, ideological, economic, and military) and outcomes (shaping and sharing values). This particular approach, which only a few people have applied to the human rights process, is advantageous since it compels the inquirer to embrace a level of cultural sensitivity and appreciate the universality and solidarity of the larger common interest that embraces the whole of humanity. Additionally, this approach maintains respect for relevant cultural and historical contexts.

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These categories include: Respect: Freedom of choice, equality, and recognition. Power: Making and influencing community decisions. Enlightenment: Gathering, processing, and disseminating information and knowledge. Well-being: Safety, health, and comfort. Wealth: Production, distribution, and consumption of goods and services; control of resources. Skill: Acquisition and exercise of capabilities in vocations, professions, and the arts. Affection: Intimacy, friendship, loyalty, positive sentiments. Rectitude: Participation in forming and applying norms of responsible conduct. Aesthetics: Distinctive cultural values rooted in creativity and aesthetic demand. See id., at 83.

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C

Individuals, Community and Human Rights: Interdependence and Struggle The relation of human rights to community process remains an important but distinct human rights challenge facing human inquiry. Conventionally, the most fundamental element of human rights is that the deprivations frequently implicate individual human rights and they are matters of international concern. International human rights, by definition, thus implicate community process at the local level as well as at the global level. Indeed, human rights problems implicate community process at all levels from the local to the global. This raises the important issue of the conditions in the community that affect decision and human rights. The process of interaction and interdetermination frequently makes human rights concerns the problem of all, rather than the problem of a relatively low number of individuals. Understanding the conditions that impact the relationship between decision, human rights, and social process means including the framework of inquiry conditioned variables such as culture, class, interest, personality, and crisis. These variables influence not only the global constitutive process, but also the nature and quality of the public order we seek to produce. Decision is an outcome of context. It responds to problems which too are outcomes of context. For lawyers and officials, it means understanding the global context roles of lawyers in constitutional roles. D Demands or Claims Relating to Human Rights Claims or demands define the social process about the nature of public order and about the nature and quality of justice and dignity in society. If there were no claims for essential values in the struggle for dignity and justice, the process of justice and human rights articulation would have little or no effect on social process. From the work of McDougal, Lasswell, and Chen, we partially reproduce the claims for human rights with respect to all demanded values. The categories of these values are respect, power, enlightenment, well-being, wealth, skill, affection and rectitude. The demands that can be made are innumerable, ever-recurring, and multifarious. This reproduction represents a very small summary of human rights claims in the world. • Some demands that can be made relating to respect are the following: Freedom of choice for all individuals; • Equality of opportunity that precludes discrimination based on race, color, sex, religion, political opinion, language, or other grounds; • Participation in shaping and sharing of respect; • Protection of respect even under conditions of crisis;

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• Freedom from forced labor and from imprisonment for debt; and • Freedom from terrorist activities and other acts of violence. Some demands that can be made relating to power are the following: • • • • • •

Recognition as a human being; Participation in both the processes of government and effective power; Freedom from discrimination in participation; Freedom to acquire a demand for power; Freedom of access to, movement within, and egress from territory; Freedom to initiate and constitute power and of access to adequate power and other value institutions; • Freedom to employ instruments to enhance the shaping and sharing of power; • Freedom from arbitrary seizure and confinement; and • Protection of equality before the law; Some demands that can be made relating to enlightenment are the following: • Provision of basic enlightenment to all individuals; • Access to enlightenment and other value institutions on the basis of capability and contribution; • Freedom from distorted communications (misinformation); • Freedom in the assembly of resources for enlightenment; and • Freedom from coerced deprivations of enlightenment like censorship, indoctrination and distortion. Some demands that can be made relating to well-being are the following: • Optimum shaping and sharing of well-being; • The right to life; • Basic minimum in safety, health, comfort, and for additional opportunities in accordance with choice; • Optimum physical and psychological development throughout life; • Environment that is conducive to survival and development; • Availability of processes adequate to defend and fulfill demands for well-being; • Freedom from coerced experimentation and other deprivations; • Freedom to accept or reject medical service; and • Freedom to employ specific strategies in birth control;

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Some demands that can be made relating to wealth are the following: • The maintenance of high levels of productivity; • A basic minimum of benefits from the wealth process (guaranteed income, social security, elimination of poverty); • Participation in wealth shaping and sharing (working, investing, employing resources, etc.); • Freedom to acquire or reject a demand to participate in the wealth process; • Availability of effective power to defend and fulfill wealth demands (including the right to property); • Freedom to accumulate and employ resources for productive purposes; and • Freedom to employ all strategies in production, conservation, distribution, and consumption. Some demands that can be made relating to skill are the following: • An optimum aggregate in the acquisition and exercise of skills; • Acquisition of minimum of skills relevant to participation in all value processes; • Additional acquisition in terms of talent and motivation; • Unrestricted opportunity to acquire and exercise socially acceptable skill; • Special assistance to overcome handicaps; • Exposure to training; and • Freedom from coercive strategies other than those inherent in compulsory education; and Some demands that can be made relating to affection are the following: • The basic acceptance necessary for individuals to acquire the motivations and capabilities of functioning effectively in the shaping and sharing of values; • Additional affection in terms of capability and contribution; • Giving and receiving affection on a reciprocal basis, free from restrictions irrelevant to capabilities; • Freedom of association; • Freedom to participate in the affection process; • Freedom to initiate and constitute intimate and congenial personal relationships; and • Freedom in the cultivation of positive sentiments and loyalty, free from coercive and discriminatory strategies.

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Some demands that can be made relating to rectitude are the following: • The maintenance of public and civic order for the common interest; • Movement toward a fuller participation of all in responsible conduct; • Freedom to participate in the formulation and application of standards of responsibility (religious and secular); • Freedom from discrimination in the shaping and sharing of rectitude; and • Freedom to employ all relevant strategies, without coercion or discrimination, in the pursuit of rectitude. From Decision as Advocacy to Decision as Authoritative and Controlling Choice Law is a response to problems that emerge from the social context. The ubiquity of law in social organization means thatproblems of legal salience are meant to target responses in the form of authoritative and effective decision making. Problems do not exist without decisional mechanisms responding to them either effectively or ineffectively. Because problems, decisions, and value processes are linked in complex ways, there is an important intellectual and scholarly value in understanding not only what decisions are, but how they may promote the common interest shared by everyone. A policy driven approach to law differs from conventional rule based conceptions of law. Conventional conceptions of law assume that the existence of rules and the decision making functions of rule based systems are simply matters of what is within that particular rule. The broad conception is that law is a process of decision whereby members of the community seek to clarify and implement their common interests. To the extent that the human rights processes are concerned with the clarification and implementation of the common interest, there is a close relationship that the human rights process shares with law and jurisprudence. A central distinction appears in policy oriented jurisprudence between those decisions that are made from perspectives of authority and those decisions that are made without authority. Law is not simply a process of decision, but a process of authority and controlling decision. According to Professors McDougal, Lasswell, and Chen, the conceptions of authority and control refer to the expectations of community members about who is to make what decisions, in what structures, by what procedures, and in accordance with what criteria. Control is effective participation in the choices that are in fact put into community practices. In the absence of decision characterized by authority, human rights are left dependent upon naked power or arbitrary whim.

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To identify the agency decision that responds to human rights problems, a task of global proportions is confronted. Different kinds of decisions have different characteristics and impact world order in various ways. Two kinds of decisions can be distinguished. First, there are decisions of constitutional import. These are decisions that establish and maintain constitutional order at all levels of social process. This exemplifies a decision process that authorizes authoritative and controlling decisions. The second kind of decision is the type which directly affects the allocation of human rights values. Again, either constitutional or public order decisions, in terms of the decision makers’ identities, what basic perspectives they hold, what power basis they control, what procedures permit what kind of decisions, what application a decision has, and how the decision impacts the target community can be described. Decision itself has a distinctive anatomical structure. Indeed, to describe a decision in terms of being administrative, legislative, judicial, or executive states very little about the functions that a decision explicitly or implicitly maintains. The following decision functions are relevant to almost any phase of law or decision: intelligence (obtaining information about the past, making estimates of the future, and planning); promoting (advocating general policies and urging proposals); prescribing (projecting authoritative community policies); invoking (making a provisional characterization of a concrete situation in terms of a prescription); applying (making a final characterization and executing prescriptions in a concrete situation); terminating (ending a prescription or arrangement within the scope of a prescription); and appraising (comparing goals and performance in the decision process).54 vii Paradigms of Globalization, Lawyer Roles, Advocacy, and Choice There are multiple perspectives of globalization. These perspectives may most usefully be understood as competing or contending paradigms. The u.n. Charter represents one paradigm of international constitutional and public order. The u.n. paradigm was challenged by the Cold War and the division of the world in the view of the major powers, between the capitalist oriented free market systems, the socialist oriented peoples’ regimes, and the more diffuse non-aligned block of nations. World peace through trade movements, envisaged a world order under the direction of the captains of corporate monopoly efficiency, a vision which comprises a diffuse human rights agenda focusing on the role of ngo’s and an enhanced role for the corporate side of civil society. 54

Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Society (1992).

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As early as 1975, Professor Richard Falk, in anticipation of an accelerated trend toward globalization, identified several contending paradigmatic options for the world order. These paradigms are as follows: (1) The Paradigm of World Government (Clark-Sohn); (2) Concert of Great Powers (Kissinger/ Pentagon design); (3) Concert of Multinational Corporate Elites (implicit in the work of Trilateral Commission); and (4) Global Populism (Falk and like minded alternative thinkers).55 In addition to these generalized models, partial models of regional world order have emerged, such as the idea of an African renaissance in governance and political economy, an Asian century based on self-sustaining processes of economic development and integration (sometimes called an Asian renaissance), as well as a common market type for the Americas. All these paradigms may influence how we reconceptualize law, how observers redefine lawyer roles, and how lawyers are educated for the critical tasks inherent in the global paradigm itself. Lawyers influence globalization by facilitating or constraining it through the discharge of lawyer roles. Lawyers condition the images, symbols, narratives, myths, and normative priority of the competing global paradigms themselves. They influence a trend toward globalization based on the rule of law beneath that ideal. Lawyer identifications are challenged by the pressures of parochial localism and the challenges of cosmopolitanism and universalist identifications.56 Legal practice tends to have a strong local emphasis. For this reason, the average local practitioner may have no explicit sense of the world of global and continental events. The local practitioner may be unaware of the problems that shape his patterns of identification, much less be aware of the changing character of both legal practice and the larger sense of a contemporary lawyer’s roles and responsibilities regarding human rights.

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These criteria might include several distinctive emphases, including (1) the importance of the observer’s perspective; (2) the delimitation of the inquiries’ focus, including the relevance of context, problems and processes of decision, and others; (3) the performance of key intellectual tasks, including goal clarification, trend and factor study, appraisal, predictive, and futuristic studies; (4) the explicit postulation and clarification of the content of human rights goal values. This enables evaluation and provides predictive coherence for the realization (or lack of it) of human rights values, and an opportunity to create mechanisms to approach desired goals; (5) the process of decision making (formal and informal and the anatomy of decision processes at all levels); and (6) the development of principles of content and procedure to assist decision makers in clarifying and grounding human rights value judgments in instances of specific application. Burns H. Weston, Human Rights, in 20 Encyclopedia Britannica 713 (15th ed. 1985).

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Dynamic Humanism in an Unequal World: Africa in the Global Economic Community The description of globalization from the global perch to a vantage point of globalization from a developing continent follows. This is to underline the importance of different vantage points in the understanding and workings of globalization and its impact on human rights. The experience of Africa and globalization provide a pertinent illustration. There is a short and simple African perspective on globalization. For Africa, globalization means the unremitting entrenchment of human deprivation on a continental scale. Africa sees its perilously accelerating impoverishment and deprivation as the dynamic thrust of globalization. This simple view of globalization sees a cluster of negative externalities accelerating African poverty and deprivation. Stability in this global environment has a special meaning for Africa. It is an illusion which masks a reality of regressive change and a rapid deterioration of human values. This view is as dismal as it is challenging. The dismal part of it might well generate, not simply an African, but a new round of global Afro-pessimism. The challenging part of this simplistic view is that merely preserving an unhappy status quo is not enough. Africa must engage in change that is pointed in the opposite direction, change dedicated to African progress and for the realization of the African Renaissance. Africa represents the sharp edge of globalization’s global problem. In a great irony, Africa’s postapartheid world now inherits the term, previously confined to a single African country, as a symbol of the continent’s deprivation in the global scheme of things: Global Apartheid. This position is a popular, simplistic understanding about globalization and its global and African discontents. A more discriminating view of globalization for Africa must account for global conditions which significantly shape Africa’s position in the world economy. It must give an appraisal of Africa’s impact on the global community and the values that sustain it. Such an account of globalization requires deft theorizing, powers of description, and careful analysis. These are the challenges to understanding and the fundamental epistemology of globalization in the world community. These challenges are a matter not confined to public policy and include the scientific and intellectual challenges touching on political and social responsibility of both academics and professionals in Africa today.

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A Ubuntu and Society: Grounding African Values Part of the challenge of comprehension is a matter of intellectual responsibility. That responsibility includes a commitment to research and the development of advanced teaching methods for higher education and and professional

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training. This intellectual responsibility and challenge confronts critical challenges for the future of Africa and, in a larger sense, the “have-not” sector of the world community. Understanding the concept of community in its broadest parameters is a distinctively African contribution. This contribution, with its potentials and deficits, is essential for the human and African prospect. The critical African gloss on what is meant by human rights is captured in the term, Ubuntu. Ubuntu, in African law and political economy, is a term that is not merely descriptive but also carries a powerful normative message. Descriptively, Ubuntu requires focus on people. The focus of responsible social and legal inquiry is the human. The person is connected to other persons in relationships that extend to the family, clan, tribe, and community. This insight is critical if globalization is to be revealed, if we are to understand the nature of the social forces that drive it, are impacted by it, benefit by it and victimized by it. The descriptive focus implicit in Ubuntu provides the orientation to understanding globalization from the vantage point of different academic disciplines and professions. The other focus implicit in Ubuntu is the relationship expressed in the translation that human beings express themselves in relation to and interaction with other human beings. The implication here is mutual understanding and respect, which is the cornerstone of the aspiration of universal dignity. Globalization has to be described and evaluated in the context of the dynamics of interdependence, inter-determination and complex human and associational interaction. The Ubuntu perspective provides a clearer picture of how Africa might protect and secure their interests in peace and security, social progress, and human rights. Human rights include the fundamental right to pursue economic, social, cultural and legal development as the pathway to a better future. This formulation of globalization is more complex and challenging and imposes important challenges for Africa’s intellectual, scientific, professional leaders, and opinion makers. The African Claims and Globalization: Rooting Globalization in Human Relations The term globalization must assume a social, community context. Because that context must be global, the context of globalization involves a global community with all the cultural diversity, levels of development, disparate levels of power and authority, as well as security and insecurity. In this community, human beings may act in groups, associations, political parties, pressure groups and groups committed to social deviance. This description of the global community takes into account a range of actors who participate. In Africa, there

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are other forms of socio-economic organizations with appropriate levels of legal capacity and identity. These include regional trading blocks and developed continental institutions of governments such as the African Union. Beyond the African reality and apart from other non-African nation states, there are the well-developed institutions of international governance such as the United Nations, World Bank, International Monetary Fund, World Health Organization, International Court of Justice, and other institutions such as the European Union and the Organization of American States. The global village has about 195 state actors, non-state actors, commercial and political actors, international non-governmental organizations and associations and individuals which constitute global civil society. The important players and actors in global society are complex and multitudinous. Their forms, functions, and impacts on the human prospect are vital if one is to get a picture of how one’s fundamental values are being depreciated, protected, or enhanced. This picture of globalization is one that is not in stark contrast to the importance and reality of the nation state. It reflects the fact that the nation state is not the only player of importance in the globalization context. Globalization is a social, political, economic, and legal process in which the actors project their power and interests and seek to vindicate their actions using the techniques important to interest articulation and realization, and the security of those interests. These include interests of fundamental value concerns facing humanity; security, cooperation, self-determination, independence, social development, defense of humanitarianism and human rights. The depreciation of human dignity during World War ii led to the adoption of the u.n. Charter. The issue of human rights and human dignity is one of the important outcomes of the creation of world order based on the u.n. Charter. The instrument emphasizes, as one of its prime purposes, the achievement of universal dignity under the international rule of law. The u.n. Charter recognizes that to provide for human security, humanity must fulfill its commitments to fundamental human rights, the dignity and worth of the individual, equal rights for men and women and equal rights of large and small nations. The u.n. Charter recognizes that its promise, as it seeks to vindicate its high purposes, must be founded upon the notion of an international rule of law. This description of global social process can only work, at least in terms of the values of human rights and human dignity, if globalization is not a prescription for anarchy and oppression. The above is the first perspective of globalization which must be tempered by a second perspective. This second perspective recognizes the importance of law as a descriptive tool in providing meaning and understanding to the context of globalization. At the height of the influence of legal positivism on

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international law, an elegant and concise way of defining international law was developed by defining international law as the law that operated between coordinate sovereign states. This was and remains a powerful model that deeply influences fields such as international economic law, international relations, international diplomacy, as well as world politics. The above model did not account for the world of non-state actors and civil society participants. It is a model that works on an assumption that all law, including international law, comes from the state, which is vested with sovereignty. This is not a model that allows for human activity which cuts across state and group lines as a component of the world of positivist elegance. The more modest view of globalization is that it is a process that on one hand erodes sovereign state boundaries, and on the other hand, admits a freer flow of goods, services, capital, finance, labor, technology, science, education, and human migration. In this sense, global reality seems to weaken the omnipotence of the sovereign state by the erosion of its juridical, political, economic, communications, and expands social mobility and migration in ways that limit the state’s power to control and regulate. These views of globalization contain important components of truth. They require a degree of reconciliation and integration to gain a clear picture of this phenomena and how it affects the lives of people, their governments and their institutions of civil society. The central matter for investigation is the question of the conditions which inspire global causes and consequences with impacts on security, well-being, and dignity. The conditions may be integrated in broader paradigms which describe the conditions of global power as a starting point for understanding globalization’s essential problems: what conditions generate the problems, and how the potentials of globalization may receive direction for securing the common interests of rich and poor on a global basis. This gloss on globalization joins a theory of human rights with the idea of the struggle for justice. One technique to understand the problem of power and powerlessness, poverty and abundance, affection and hate, education and ignorance, respect and its extinction, is to be able to map the human rights struggle and opportunity within the framework of a global mapping process. x Normative Guidance: Human Dignity as a Preferred Construct There is a long-standing problem about how scholars objectively justify human rights. The problem of an objective justification of human rights and the precept of human dignity has limited rather than facilitated inquiry about the dimensions of accepted human rights agenda. When the only inquiry that permeates human rights discourse focuses on a statement of universal

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absolutes that are supposed to be objectively true, human rights will become overly simplistic. A convenient intellectual tool that permits inquiry about problems, prospects, and directions lies in the postulation of the goal value of human dignity as well as in the specification and use of intellectual skills. This helps us to understand and shape society in ways that aspire to a practical sense of human dignity. A policy scientist as scholar would recommend public order committed to the dignity of mankind and a human rights culture of politics and law that seeks to establish the human dignity precept. At the most general level, a public order that shares in and promotes human rights values such as power, wealth, respect, and enlightenment represents society’s empirical reference point. A Humanistic Theory for Inquiry into Human Rights: The Intellectual Tools for Humanistic Dynamism Having formulated an approach to inquiry about human rights, the question then becomes which intellectual tools are necessary to study the complex relationship between decisions, social process, problems, and the delivery of human rights. The intellectual tools for inquiry have confronted an awkward epistemological problem. The problem is especially acute in the context of human rights. Human rights mandate a clarification and an application of fundamental value commitments. However, from an epistemological point of view, the discourse about goals, values, and norms is a matter of distinctive normative discourse. On the other hand, the problems and crises of human rights are produced from social reality and are matters of fact. Factual discourse is a discourse that is tied to science and the exploration of what “is.” Thus, we deal with two distinctive intellectual tools, namely the techniques of goal and norm thinking as well as the tools of science, i.e., thinking in terms of conditions and consequences. The policy approach requires the use of thinking skills and technical tools to integrate them in terms of understanding advocacy, which responds to problems and to decision making. Policy theorists expand and enrich the framework of thinking tools for problem solving purposes. We summarize the main outlines of this approach.

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Clarification of Community Policies Every human rights problem will implicate policy choices that are to be preferred or avoided if human rights are to be meaningful. One of the specific tools that policy scientists recommend is clarifying policy in relation to problems and decisions, and the goals of public order. The ability to clarify policy is

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an important skill in understanding how human rights may beneficially influence a choice making process in a common interest. Description of Past Trends in Decisions The description and analysis of past trends in decision bring experience to bear on public policy. This experience is a useful indicator of community expectations which generates important information about what has been done in the past. The study of past trends aids choice since these give a clue about what to confirm and what to avoid. Conditions of Decisions It is important not only to understand what was decided, but also what conditions supported the decision. If the conditions that compelled the choice no longer exist, it may undermine reason and rationality to maintain fidelity to such a decisional outcome. Focus on the factors affecting decision brings a scientific consideration of all variables of decision-to-decision studies. Projection of Future Trends A decision’s impact on choice hopefully leads to a preferred future. The task of projection asks a simple but basic question: from a given set of conditioning variables, what choice will maximize the probability of a preferred future and avoid an undesirable one? The Invention and Evaluation of Policy Alternatives This task is a challenge to the imagination because it makes the creation of alternative, desired futures a factor that the inquirer might commend to the policy process. The task of inventing and evaluating policy alternatives may enable us to approximate the preferred future that we have postulated as a public order of human rights and human dignity. The central question that scholars can ask is what kind of constitutional order, public order and civil society does the system of governance, culture and law promote and defend? The human rights challenge answers, one that defends and promotes the dignity and respect of all. The interplay of social, political, economic and cultural rights represents a face of humanity, a profile of the measure of human dignity. If we accept, then there is a challenge for global solidarity. That challenge confronts us with an integrated rather than a partial view of man.

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Emotion: Love, Hate, and the Human Rights’ Boundaries of the Law This chapter highlights the importance of sentiment for understanding and ­addressing human rights norms and human rights violations. Sentiment comes in the form of both negative and positive emotion. Severe human rights problems are frequently driven by addiction to negative sentiment as reflected in the emotions of hate, racism, or sexism. Conversely, human rights values universally reflect recognition of positive sentiment. Positive sentiment implies the capacity to identify, in terms of affect and solidarity, with all the h ­ umanity and the dignity and worth of each human person. The authors explore the ­crucial conditions and factors for mobilizing positive sentiment and solidarity to constrain or eliminate the consequences of negative sentiment. These conditions and factors are significantly new features that have been brought to the discourse of human rights. At this point in the book, we introduce a new contextual dimension ­crucial to human rights promotion and advocacy, and crucial for a deep understanding of the foundations of human rights problems. This new dimension includes an in-depth description and analysis of human rights issues with a deliberate emphasis on the contextual nature of personality predisposition and emotion. Distinctive to the foundations of human rights is the influence of the personality predisposition orientation, which is a critical driving force in shaping its social context. This orientation is rooted in the complex emotions that are packaged in the concept of sentiment. It is our contention that sentiment—as a driving factor in the shaping of personality predispositions—is also a critical factor in the impact of those predispositions on decisions that shape human rights perspectives and operations. The point we stress here is that the character of decision making about human rights is tied to the nature of the political personality, as an actor in the defense or depreciation of human rights. It is useful to be reminded of the characteristics of the politically driven personality. Such a personality comes with a complex baggage of private motivations. These motivations reflect d­ ifferent forms of sentiment. Some forms of sentiment are positive and influenced by affect, love, and solidarity. Other forms of sentiment are negative. These sentiments are influenced by negative emotions which may be tied to hate, or dis-identification with “others” as essentially human and worthy © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_009

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of respect. Critical to the understanding of sentiment in the behavior of the power-conditioned political actor is the fact that the actor displaces these possibly unacknowledged sentiments or emotions on public objects, which may include important human rights values. The central challenge posed by such behavior is that the political actor then seeks to rationalize sentiment driven choices as being in the public interest. i

Positive Sentiment, Affect, Emotion and Feeling

One of the universal elements of human consciousness is the element of feeling. Regardless of spatial or temporal distance, all human beings experience feeling. Feeling is expressed in the form of human emotion. Emotion is an important indicator of both individual and collective orientation. One of the most important human emotions is the feeling of love. There are many dimensions to love and it may be most realistically understood in terms of the ideas of affect or affection. Love is a feeling or emotion which is expressive of the subjectivity of positive sentiment. Positive sentiment may be observed crossculturally and underscores the near universality of the experience and importance of affect. The communication of affect trans-generationally is that it is often encapsulated in culturally communicated myth, ritual and complex symbols that reinforce its archetypical characteristics which repose in the deeper vistas of the human psyche. To the extent that myth performs an educational function, it may be that an exposure to myth and an appreciation of its multilayered meanings provide humanity with an existential understanding and appreciation of the myth of affect. That understanding might illumine the inner psyche of the person into more profound and deeper meanings that the myth of affect holds for expanding human consciousness and possibly moral and spiritual awareness. Humanity exhibits, cross-culturally, a strong desire to better understand the myths of “love,” “positive sentiment” and “affection.” In this study we try to map and comprehensively describe what we call an affection process. The description of this process may lose some value if the myth of affect is not wholly understood. The myth of affection may be an important emotional and intellectual bridge to understanding the affection process in global cross-cultural terms. Therefore, the signs and symbols that are depicted in the multitude of myths about affect and love turn out to be the crucial interpretative pathway to the archetypes of affect that repose in the deeper recesses of human consciousness. An important insight, in general, into the power and humane potentials of myth is suggested by Moore as follows:

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A myth is a sacred story set in a time and place outside of history, describing in fictional form, the fundamental truths of the nature of human life… Myth reaches beyond the personal to express an imagery reflective of archetypical issues that shape every human life.1 The global value of a myth is that it provides a picture of the basic themes of human experience cross-culturally. While the images and pictures may be culture specific, the matters they implicate are universal. Myth permits us to cut through cultural parochialism to reach the greater values and themes of humanity. For example, when a myth is effectively used it reveals a universal theme, such as the myths of affection and love, and it provides a guide to a deeper and more effective understanding. In this illustration, it is a deeper understanding of love, affection and positive sentiment. The myth of affect may for example be expressed in the form of human sexuality and this latter subject has been a matter of strong scholastic and intellectual interest. A deeper and more authentic expression of what sexuality means in human experience may have practical consequences for individuals in either accepting or rejecting the validity of how people feel and feeling in general. In Hindu myth, two of the most popular deities from the Vedic Tradition are Siva and Vishnu. Siva is symbolized by the penis or lingam. In this sense, the love of God is tied to the primary male sexual organ. Vishnu is often symbolized by the symbol of the vulva on the forehead of the deity. In this myth the worship of Vishnu is implicitly also a devotion to female virtue. These symbols represent ordinary experience connected to myth. The connection to myth is a connection to Dharma which is the pathway which, through devotion and ­positive sentiment, leads to Moksha or liberation. The pathway to Moksha is one that step-wise includes wife and husband, parent, community member with assigned duties and later life of non-attachment to material and sexual matters. Within Dharma, positive sentiment, affect and love are transformed from the existential to the spiritual. Central to the idea of Dharma and the commitments to positive sentiment are the duties which the person performs arising from love and devotion. These duties may include marital sexual duties and the duty to reciprocate in the pleasures of sexual intimacy. These duties ­resulted in the rich Indian literature on pragmatic human sexuality as ­indicated in the ­ancient Indian book, Kama Sutra.2 The tantric approach 1 2

1 Thomas Moore, The Care of the Soul, 220 (1992). 2 Alain Danielou, The Complete Kama Sutra: The First Unabridged Modern Translation of the Classic Indian Text, Inner Traditions (1993).

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to Hinduism and Indian philosophy sometimes stresses the idea of sex as a ­sacred duty.3 In western tradition, Shakespeare captured the power and durability of the myth of love: Let me not to the marriage of true minds. Admit impediments. Love is not love which alters when it alteration finds, or bends with the remover to remove: O no! It is an ever-fixed mark that looks on tempests and is never shaken; it is the star to every wandering bark, whose worth’s unknown, although his height be taken. Love’s not Time’s fool, though rosy lips and cheeks within his bending sickle’s compass come: Love alters not with his brief hours and weeks, but bears it out even to the edge of doom. If this be error and upon me proved, I never writ, nor no man ever loved.4 Myth, Belief and the Destruction of Affect in the Evolution of Gender and Sexual Values The interplay in historic terms of culture, in the form of politics and myth systems based on belief, has invariably meant that politics is driven by both existential claims as well as the elaborate justifications of comparative myth systems in which religion is often dominant. Culture is infected with rules and in particular, moral rules. Religion answers the question, whose rules are they? Since they are transcendent, they cannot be changed. The rules can be interpreted. Practical politics and its offshoot, practical law, will thus use such primary rules as it may selectively appropriate and implement. The rules may provide a preference to one group of power claimants and not another. However the governing process is structured, there will be a contestation for controlling a myth system, which validates the claim to power— be it formal and/or effective. The operative rules of sexual relationships and their boundaries are thus justified by recourse to the religious myth and the moral rules that the religious/operative elite prefers, because religion itself is an institution of critical dualism—the bridge between Man and God. Religion invariably holds sufficient rectitude to compel social submission to religion in the culture. However, to sustain that social consequence, religious elites also use the power of religious myth to influence the dynamics of power, wealth, ­affect, education, and all other social values. In short, religion (as a

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3 Sunyata Saraswati and Bodhi Avinasha, Jewel in the Lotus: The Sexual Path to Higher Consciousness, 77–90 (1987); Daniel Odier, Yoga Spandakarika: The Sacred Texts at the Origins of Tantra (2004). 4 Shakespeare, William, Sonnet cxvi, Electronic Text Center, University of Virginia Library.

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form of r­ ectitude) could serve as a base of power to secure and consolidate its ­institutional p ­ osition of preference with regard to all other social forms; and, a powerful religious myth will often mandate submission to the will of God as understood by the controlling religious elite. Religious elites seek to use their symbols and beliefs to promote themselves in power, to acquire wealth and, very critically, to acquire considerable power over the most intimate and critical components of individuated ­humanity— the power over how we must feel. Religion often seeks to monopolize the control over the process of developing, displacing, and reproducing a most misunderstood, but critical component of social process and human identity. This component is the structure and process that seeks to control and regulate the giving and receiving of “affection” (the giving and receiving of positive sentiment). Love is therefore one of the most ritualized, and often sanitized, elements of the dynamics of human feeling. It is often preempted by the claims of institutionalized religion. Religion continually insists, cross-culturally, that God or the universal spirit—however concrete or opaque the Supreme Being is symbolized—is “love” itself. Other forms of displacing love are, therefore, innate deviations from the supreme obligation, and ultimately require a distinctive religious imprimatur of either permissibility or restraint. When we use an ­observer’s focal lens, we see the comparative differences that evolve from how one culture and religious tradition sanctify certain permissions and punish deviances according to the lines drawn in a particular culture and its distinctive religious experience and tradition. Reconstructing the Adam and Eve Myth and Analogous Comparative Myth The importance of myth to the displacement of human emotion follows. Myths have the traction to shape how people feel. It may be of some value to start with the biblical story of Adam and Eve, a famous religion-based myth. It is a myth that has significantly shaped human sentiment and feeling, especially the dynamic between men and women, and the consequences of human reproduction. This story is known cross-culturally, and it is directly integrated into the religious systems of Judaism, Christianity, and Islam. Adam and Eve are God’s creation. They live in paradise in the Garden of Eden. They are innocent and uncontaminated by gratification or the desire for possession. This tranquil state of innocence ends when Satan, in the form of a serpent, persuades Eve to eat the forbidden fruit of the tree of knowledge; and she persuades Adam to do the same. It is conventionally assumed that the knowledge acquired by Adam and Eve is about conscious sexual intimacy. Such knowledge or experience is mutually created out of sin and, c­ orrespondingly, B

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the fruit of such knowledge (children) are conceived in sin, thus the original sin myth. The idea that children are conceived in sin is an utterly pernicious idea. More than that, the idea that a child who is innocent and not absolved from sin must spend eternity in purgatory is another dark fantasy. The story is, of course, a religious myth and may therefore be interpreted as a myth which is designed to teach, educate and to enlighten. This myth may do the opposite unless one gives it a construction in keeping with the apparent nature of God as God. If the story were originally a myth as a gift from God, what was the lesson that God sought to communicate? Of course, the conventional wisdom is, fear God: God is vengeful and unforgiving. The innocent suffer even more than the guilty. That interpretation is only one, and one that could suit the desire for social control based on the notion that every time a couple feels a natural sexual urge, they are morally flawed, laced in sin and fit for hell. Is there an alternative construction of this “story”? A plausible, and possibly more edifying alternative, is that God is a God of love. The creation of Adam by God was an act of love. The creation of Eve (as an aspect of both God and Adam) was the creation of love. The nature of God’s love is that it is love without boundaries. Thus, the love of God for Adam and Eve is an unbounded love. The love of Adam and Eve for each other and for God is an unbounded love. That is the love ideal. Love means the complete merger of the self with the other, the woman and the man, and with God whose nature includes man and woman. What then disturbs this relationship of unbounded love? The metaphor of the apple is really a metaphor that the unbounded love ideal is to be earned and something that must be learned. We learn this by learning to love one another, and love is the vehicle for breaking down the barriers of otherness. When we learn true love, and break down the barriers of love between a man and a woman, we also learn the pathway of unbounded love to God. Adam and Eve, in acquiring sacred knowledge, actually know mature sentiment. They have received God’s love as a gift. Now they must earn God’s love as a component of growth and emotional maturity. They must learn to love each other in order to have children and the children must, in turn, grow and learn to love and replicate the cycle of love as an unbounded ideal between people among themselves and with God. The boundaries between God and Adam, God and Eve, as well as the boundaries between Adam and Eve, represent the concept of human self-­ determination, free choice, and the capacity (boundaries of selfhood) to make moral and ethical choices consistent with human responsibilities for mutual caring and development. However, the boundaries that are implicit here are

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the ­boundaries of individual self-awareness, distinctiveness, and essential personhood. Thus, self-knowledge is about the importance of the ego for the human being. The ego is the foundation of the concept of respect, and the concept of respect establishes that every human being has a boundary within which that person’s human capacity develops. The relationships of person-to-person and person-to-God are in part, a relationship of knowledge and the awareness of wisdom and spiritual growth which start with the boundaries of the self. The individual must understand love and when it is experienced. This understanding creates the greatest possible achievement in human emotional experience and also, one of its greatest threats. Love is not trivial. To properly experience it, love involves the substitutability of the object of one’s love on a reciprocal basis. To drop the boundary is to promote unbounded love. To drop the boundary and be exploited or abused brings abuse to an acme of deprivation. It is precisely the former kind of love that is characteristic of God’s unbounded love. This kind of love is a matter that requires responsibility, growth, generosity and ultimate altruism. Thus the Adam and Eve myth is a powerful story and its truths are timeless. Such is the power of myth. Finally, there is the question of Adam and Eve in the Garden of Eden with fully developed sexual organs and apparently having no sexual desire. This scenario is an odd assumption. Perhaps the better assumption is that, in a certain state of nature, the relationship between Adam and Eve does not preclude the mutual giving and receiving of sexual intimacy. Since the intimacy is not exploitative, it is natural, mutual and almost a religious expression of love without boundaries. However, with the recognition of boundary in the self-system comes the recognition of ego and ego demands. These demands pit the idea that both Adam and Eve effectually compete to take something from each other. Essentially, Eve is there to gratify Adam from Adam’s male perspective and Adam is there to gratify Eve from Eve’s female perspective. Thus, the boundary would see the relationship now as a matter not of the substitutability of the man, or the woman in the relationship, but rather a competition as to who can get maximum gratification for self. This competition is therefore corrosive of love as dissolution of boundaries reinforces the idea of self as an atomized entity incapable of taking the steps toward transcendent love. These boundaries therefore are put there as the challenge of being human and is perhaps the proper meaning of the Adam and Eve myth. The boundaries of the self are necessary and do not drop automatically. God does not expect them to be dropped automatically. The boundaries are there for us to learn and grow and be worthy of the love of God and at least on earth, the love objects of one’s life. In the first instance, the self must have

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a boundary in which it can learn to love itself and then dissolve that boundary when appropriate to broaden the circle of love inclusively. The reduction of the Adam and Eve story to an epic transgression which is condemned in the eyes of God and replete with the notion that sin engulfs both the innocent and the guilty is a particularly cruel distortion of the idea of a loving God. This interpretation is a high point of misunderstanding. Other interpretations would seem to be less offensive to common sense ideas of moral aspiration. Humanity inherits a vast edifice of myths and myth systems. It remains a critical task for responsible scholarship to critically examine myth to ensure that the interpretation given it does not depreciate the essential dignity of men and women. The illustration of an alternative interpretation given to the Adam and Eve myth is suggestive of such a challenge. C Tradition and Sexual Pluralism In the Old Testament, men are assumed to have a divine sanction to have multiple wives. A man may have multiple wives concurrently. God forgave and blessed David who murdered the husband of a woman with whom he was infatuated. David was rewarded with a son by Bathsheba. His name was Solomon who was the wisest of the wise. Solomon, too, loved women by the multitude. According to the Bible, Solomon had hundreds of wives and concubines. It is also recorded in the Bible that Solomon not only married the Pharaoh of Egypt’s daughter, but also a substantial number of princesses from other neighboring kingdoms who were not Jewish.5 Possibly his wisdom reflected or anticipated the importance of cultural diversity and the love for the women of the other. Among Solomon’s great sexual experiences was the African Queen of ­Sheba.6 Apparently, she was black. The fact that Solomon never gave up in his effort to seduce her, assures us that Solomon with divine blessing, was one of the great precursors of diversity and sexual integration in traditional Jewish history. Jesus of Nazareth was of course a descendent of the David-Solomon line and therefore, the bloodline may include a Judeo-African line of prominence as well. The Old Testament of the Bible does not endorse monogamy. It does not repudiate polygamy or concubinage. Religious apologists often suggest that God does not approve of plural marriage because it disrupts family and social life. This suggestion however seems to be an a posteriori rationalization better 5 6

5 The Holy Bible, 1 Kings 11:1–3. 6 The Holy Bible, 1 Kings 10:1–13.

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articulated in terms of contemporary ideas of dignity and feeling than in the psychology of antiquity. In Hinduism, it appears that the Hindu myths simply overmatch the Jewish tradition. Krishna, at least in popular culture, appears to be an enormously attractive prospect for women. The girls love him and he graciously reciprocates.7 Krishna’s passion and love as God is limitless. But Hinduism goes ­further in its mythology. In the Mahabaratha, the Queen Draupadi, reportedly a woman of astonishingly beauty and character, is married to several brothers. Thus, as a matter of principle, the Hindu myth not only permits but also, actually makes a woman with multiple husbands an iconic heroine. Islam provides for polygamy. However, the religion places a prudential limit on the number of wives that a man may have simultaneously. The Holy Quran also stipulates that all women married to the same man must be treated equally. How far this goes is not precisely recorded. Some Islamic theorists hold that the standard is impossible to meet for most men and, therefore, any further limitation on polygamy is in essence a rule that prohibits it in fact, although making it permissive in form. There is controversy in Islam over the desirability of polygamy. Below is a representation in support of polygamy and in ­opposition to it.8 After the Iran-Iraq war, the Iranian Republic experienced a significant population loss of men, who were casualties of the war. The religious elite developed a policy for a more flexible and equitable distribution of men and women, given the reality of the shortage of men and the abundance of eligible women. The Ayatollahs came up with the idea of limited term marriages. That is to say, a man and a woman could enter into a contract of marriage for a fixed term and then leave. This practice is analogous to leasing a husband. If there were children, different rules would apply. This example is used because it would suggest an utterly radical idea in terms of the giving and receiving of affect with the expectation of sexual intimacy. The creators of this system, however, see themselves as fundamentalists and conservatives. Women wear coverings that clearly show a depreciation of any ostentatious projection of self in terms of attractiveness. These creators therefore are an important illustration of a religious elite that is particularly ­attentive 7 8

7 In the Mahabaratha, it is indicated that it is highly appropriate for women to experience the pleasures of appropriate sexual intimacy. There is even a suggestion that women experience eight times more pleasure than the men (although I am uncertain of the means by which this calculation was arrived). 8 Pictures available at http://www.islamwatch2010.wordpress.com and http://www.zeldalily .com.

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to the issue of the distribution of affection and respect. Perhaps this system is based less on God’s revealed morality than a politically astute recognition of a serious social problem. Here we have a depletion of the male population by an unfortunate war and therefore there are more eligible women than men in the marriage market. The religious elite was not going to be defeated by gender demographics. They manipulated the rules for political benefits and gave those rules a religious blessing. D Expectations Relating to Sexual Relations and Family Forms We see in many societies today that the control and regulation of affect has taken interesting twists and turns accounting in part for the survival of traditional religious beliefs. It is commonly assumed that in the Judeo-Christian tradition that there is a relationship between sex and sin. We have referred to this in the story of Adam and Eve. The widely held interpretation is that the act of sexual intercourse is immoral and sinful and organized religion condemns it. State policy also seeks to regulate and possibly punish it in certain contexts. Marriage provides an exception for sexual intercourse that is permissible. ­Permissibility does not often extend to the conception of a child. In traditional Christian terms, the child is still conceived in sin, whether the parents are married or not. The logical consequence is that the child in utero is conceived in sin. If the child is aborted for any reason, the child is condemned to purgatory. Baptism cleanses the sin on a child, but if abortion occurs prematurely then no baptism happens and the child is consigned to purgatory. If one accepts the belief behind the myth, the prohibition of abortion may be construed as a humane outlook. The child should be baptized to save its soul from purgatory. However, s­ ocial reactionaries see the cleansing of sin as the end of the moral obligation. If the child dies in circumstances of extreme deprivation such as from hunger, ­exposure to cold, neglect or abuse, that does not garner the concern of social responsibility when compared to the benefits of baptism. Lloyd de Mause’s ­essay9 draws our attention to the state of childhood in the 18th ­century ­Europe. European cities had child “dumps” where the unwanted newborn children were simply discarded.10 This myth is no longer tenable today. It has been ­replaced 9 10

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Lloyd de Mause, On Writing Childhood History, The Journal of Psychohistory 16 (2) Fall (1988). It is perhaps remarkable that the concept of a child as a being per se rather than a “small” adult is a recent insight generated by deepened understanding of the human prospect. In a famous essay in the Journal of the History of Children, Lloyd de Mause, drew attention to the fact that 17th and 18th century Europe cities had “dumps” for discarded children.

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by a more powerful child-centered moral proposition, rooted in human rights that a child is a being per se. Under the moral assumption that the right to life is absolute, a woman ­exercising reproductive choice may face condemnation of religion, and possibly the criminal law powers of the state. The child’s right to life does not extend so far as to require the state to pay for the costs of pregnancy, birth, and responsibilities for care and nurture after birth. Perhaps the assumption is that the family (including the husband or partner) will pay the bill. Where this does not happen there is no further social responsibility. In particular, those who insist on the right to life oppose the right to continued life, which involves health and social services expenditures. Thus, the absolutist right to life principle is destroyed by social reactionaries who support their position selectively with ­pious deference to confessional beliefs. In this sense, the new religious right, like the old religious right, seeks to exercise a critical degree of control over women who bear the responsibility of pregnancy, birth, and after birth care, while simultaneously evincing a lack of moral concern for human well-being for both mother and the child. In the United States today the most important family form is the dyad. The second most important family form is the matriarchal monad. Thus, the dilemma of how far family values extend when it comes to the allocation of social responsibility to women who bear the costs of ­support, child-caring and, at the same time, are active in the workplace in order to survive, exists. The alternative is to be parodied in the political ­marketplace as “welfare queens.” Taking the women’s issue in another direction, when it comes to the role of the state in seeking to control and regulate intimacy, feeling and affect today, a vast number of states worldwide proclaim themselves to be states that legislate the validity of monogamous marital forms. In many traditions, this form was cemented into place by limiting access to divorce. For the wealthier c­ itizens, the solution to this limitation on the freedom to divorce is simply to temporarily migrate to another state, meet the technical requirements of domicile, get a divorce and return home single. Thus, many jurisdictions would have at least two forms of marriage coexisting concurrently. One form, defined by economic factors, is marriage for life for the poor, who are destined to experience holy (or unholy) deadlock. The other form of marriage is for the convenience for those with funds to afford out-of-state procedures to end marriage. Eventually, this system of hypocrisy resulted in the concept of a no-fault divorce.

Philis Aries, Centuries of Childhood, showed human lack of insight into the child as a ­being per se.

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In effect, one could get a divorce on demand (with some reasonable time delays) and remarry. The result being that, in form, marriage is a monogamous system. In fact, however, it is a system of extant structural polygamy. A male or female may now have multiple marital partners so long as these partners are experienced sequentially rather than concurrently. There is a factor that stands out in the control and regulation of affect in this short overview. It is that the control of affection, however effective, is seen as vital to the system of political identification and solidarity with a religion, state, or patriotism, which may infuse both religious values and state power with consequences that go well beyond a narrow conception of intimacy and micro-social family values. Whichever conception of marital form we consider this much is clear: without state or effective community intervention (local, national, regional or international) the control and regulation of affect will be manipulated by guilt, terrorists, organized crime, social reactionaries, religious fanatics and variously-situated left or right political fanatics, pedophiles and psychopathological sexual predators. This concept does not state anything new. It was an insight implicit in much of Freud’s work, especially his work on meta-psychology. In fact, Freud focused attention on precisely the question of how affect is controlled and regulated so that culture and cooperation as well as personality development may proceed in constructive ways. Thus, in his book, Totem and Taboo,11 Freud rooted the universal restraints on the displacement of affection in terms of universally experienced incest taboo. This insight was a powerful philosophical one if not demonstrable fact. However, the insight is of critical value on modern society. For example, we ideologically promote the importance of family values and correspondingly family privacy. The state and the community are restricted from intervening in the sacred space of civic privacy, which forms the boundary of family autonomy and freedom of choice regarding interactions within the bounds of the family. In Civilization and Its Discontents,12 Freud more carefully examined the cultural implications of unrestrained sexual expression. He is particularly concerned that the cultural rules and their legal equivalents are in general a critical part of the concept of civilization itself. Of course, this defense of the rules of restraint specifically in intimate human relations is not designed to reproduce ­psychopathological governmental repression. The insights concerning the ­universality of the incest taboo are particularly striking. 11 12

11 12

Sigmund Freud, Totem and Taboo (1919). Sigmund Freud, Civilization and Its Discontents (1989).

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Political Culture, Personality, and the Complexity and Relevance of Affect We revisit some of the applications of Freud to the broader context of political culture. Possibly the most important and widely accepted idea in Freud’s thinking was that there was an implicit insistence on the human vulnerability of human sexuality and identity. This idea itself suggests that society be less judgmental and more tolerant of human weaknesses and vulnerabilities. The implications today seem fairly obvious. We know more about sexuality and identity and appreciate its complexity. We also understand that the ubiquity of human variability in gender and sex orientation underline the element of diversity as an existential datum. An adequate appreciation of Freud’s general insights provide us with a deeper understanding of the nature of freedom, the responsibilities inherent in it at a deeper psychological level, and—perhaps more than anything—he gives us insights to understanding the nature of childhood and the construction of identity. As well as in Freud’s meta-psychology, there is ideologically an insistence on tolerance about human vulnerability. This insistence may be contrasted with the role of hack specialists in rectitude and their hack political acolytes: the religious frauds and the crude prosecutors on the make who stand as a barrier to the intellectual insights that are provided to humanity as a great legacy. Freud’s contribution arguably improved our understanding of women and the politics of sex and gender. It is at this point that we move from Freud to the legacy of Freud in a broader cultural manner. Perhaps the most arresting insight in Freud’s work is the issue of how personalities are formed or deformed in family culture and society. The Freudian tradition provides further insights into the reproduction of human personalities, some of whom become political leaders; some of those may be dictators. The insight here is uncomplicated. Children are born into a family unit. The child’s personality will be shaped in substantial measure by the character of innocent practices of child nurturing and care. Freud’s insights showed us that children are not little adults or Rousseuian homunculi. They are beings, per se. For example, the child’s sense of time and its experience of deprivation may be completely different from that of a teenager or an adult. A short period of time which might be involved in neglect may be a minor matter for a mother or care-giver but may be an eternity for a child. Similarly, the deprivation of food, warmth, or discomfort may be dramatic for the child but a minor matter for the adult. Thus, deprivations and the child’s experience of time, which are interdependent issues, are also critical indicators of personality development be it normal or possibly dysfunctional. E

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One of the earlier efforts to apply Freudian insights more broadly is found in the work of Harold Lasswell. Before World War ii, Lasswell wrote several important works creatively applying Freud’s ideas to the concern that political leaders may have psychopathological deficits. For example, one of his earliest books (given a brave title that could have only come from Lasswell’s own youth at the time) was titled: Psychopathology and Politics.13 Today, the idea that many bloodthirsty dictators have psychopathological predilections is a commonplace idea. Hitler, Stalin, Franco, Idi Amin, Pol Pot, Mao Tse Tung, and Pinochet come to mind. How does a society reproduce a pathological personality capable of mass murder without conscience or remorse? Can a society invent preventive politics that can limit the damage done by such personality types? Later, Lasswell looked more carefully at the social construction personal insecurity from a global perspective. These were important insights into the applications of general psychoanalytical insights in a study of political behavior. From the perspective of women’s rights and feminism, we might look to the work of some key figures in the so-called Freudian left. Among the important of these figures was the psychoanalyst, Wilhelm Reich. Reich was particularly interested in why certain cultures reproduced personality types that were essentially authoritarian in character. This interest led him to tease out the idea that in certain cultures such as in Germany, there was a tendency to expect children to manage deprivations as a method of reproducing strong little G ­ ermans. What Reich saw was a process of reproducing authoritarian personalities in abundance or the reproduction of personalities prone to accept authoritarian culture. In a remarkable book, The Mass Psychology of Fascism,14 Reich made the link between psychoanalysis and the political culture of authoritarianism which has influenced contemporary culture in many important ways. The authoritarian style is intolerant of ambiguity, markedly passive-repressive regarding feelings of affect and intimacy, and promotes guilt and fear as a critical style of governance. Reich saw it as critical to challenge the moral certitude of inherited authoritarianism concerning social repression. Social repression also meant the repression of women because they were centrally the objects of male sexual desire. Thus, the sexual allure of women would be seen as something socially disruptive and itself a matter of assumed guilt for all women as a cultural norm. Of course, there was male repression and therefore male guilt; but these forms of self-examination were rather less judgmental. Thus, male feelings about sex, although repressed, could still express itself in 13 14

13 14

Lasswell, Harold, Psychopathology and Politics (1930); World Politics and Personal Insecurity (1965); Power and Personality (1966). Wilhelm Reich, The Mass Psychology of Fascism (1946).

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ways that did not carry the same quantum of social guilt and condemnation as with the situation of women. Here, the assumption was that women had presumably more control over their bodies because they tolerated sex or were thought to repress feelings of pleasure since this was discouraged for women. Reich confronted this matter so directly that even today the title of his book startles the reader. That book’s title was The Function of the Orgasm.15 Reich argued that both men and women experience orgasms, and that it is completely unscientific to suggest that men only experience orgasm and, consequently, only men have a right, culturally, to an orgasm. On the other hand, it was clear that women, biologically and psychologically, also experience orgasms. A powerful cultural myth stipulating that there is something deeply wrong, evil or profoundly immoral in the experience of female orgasm, is both biologically and psycho-analytically a matter of fantasy or cruel political manipulation sustained by scientific ignorance. These insights took some time to percolate into the general culture but, were influential in generating an important intellectual movement loosely called the “Freudian Left.” Perhaps the term left overstates the matter. Nevertheless, it was from these roots that the great feminist writers began to sustain a withering attack on all the bastions of cultural, psychological, legal, and political dimensions of male hegemony and gender inequality. This approach touched off a critical intellectual discourse in developed societies, and in different forms, began to express itself globally. For example, the idea that genital mutilation is a mandate of religion is shown to have nothing to do with faith-based beliefs. It seems more to have more in common with male control, male insecurity, and male domination. This idea is supported by an implicit social pathology covered up by the mask of tradition, cultural relativism, and cultural diversity. The emphasis on women’s rights and the broader framework of gender equality, sexual equality, and respect is underlined by the concept of struggle. This concept of effective advocacy is a critical part of the culture of human rights and change, for this struggle continues. It is a struggle for the dignity of most of the people on the planet. It is sometimes forgotten that the promotion of dignity and respect has radiating effects, which broaden the scope of human rights for all. The focus on women’s rights is also a critical dimension of the struggle for the rights of men and, more broadly, for the inclusive rights of all of humanity. The global insistence on respecting identity, the evolution and development of human rights norms of non-discrimination and equal respect became critical at all levels of social activism. That process continues today and human rights activism is a critical part of that struggle. 15

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Wilhelm Reich, The Function of the Orgasm (1942).

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The issue of women’s rights and gender equality is invariably tied to the complexities of intense, small, micro-social relationships. The most obvious example is the concept of the family. Human reproduction is the most obvious practical condition for the creation of family ties. Women in general will monopolize reproduction, in the sense that women conceive and give birth to children within or outside of marriage. Either way, the mother and child relationship functionally constitutes an elemental “family” tie. In short, a family may exist without marriage. Nonetheless, there is a close and important connectivity between the concept of marriage and the concept of family. Marriage usually presupposes the creation of a family unit. Nevertheless, a family unit does not necessarily presuppose marriage. This insight, simple as it is, is made more complex when we recognize that concepts of family and marriage are culturally universal. On the other hand, what exactly a family is in one culture or in one part of history may be vastly different to the meaning given to that term cross-culturally or in another gyre. Similarly, the rituals, forms, and expectations of marriage may be vastly different in terms of culture and tradition. Empirically, there are very wide ranges of family forms. Cultures generally appear to believe that their own family forms are cultural constants and immune to change. Sometimes, these expectations are vested with high normative commitments. Thus, issues of marriage and the family, which touch the most intimate components of shared intimacy and social responsibility, are often tenaciously defended; and, changes to the particular system are often viewed within that system as culturally subversive and possibly even destructive of the bonds of social solidarity. For example, the dominant form of marriage in a Western society is influenced by the tradition of monogamy, which is supported by modern religion. Efforts to change the monogamous relationship or to tolerate a variety of different family forms run into the strenuously ­asserted political debate about the “family values.” In the Islamic tradition, a form of polygamy is accepted as part of an appropriate marital form. This tradition remains strenuously defended by the Islamic religious establishment, which in other respects appears to be rather strict in the definition of sexual morality outside of marriage. Many African traditional systems appear to be polygamous and coexist in pluralistic societies with other religiously based marital forms. This poses a problem about the rights of parties to establish intimate relationships and the extent to which those relationships may receive the blessing of the state or the religion as ­officially valid unions. The problem becomes more complex when we pose the question as to what precisely are the human rights issues, which may be furthered or depreciated

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by different cross-cultural expectations about marriage, family, and intimate associations. Is it appropriate to vest monogamy with an exclusive claim to virtue in the moral universe of family values? Is polygamy, which permits only the male to have more than one official female spouse, a limitation on the human rights of women? Or is it an abuse of human rights on the part of the male sanctified by the law of male dominance? Is there something morally virtuous or superior in a dyadic male/female relationship? Does the virtue lie in the union exclusively of male and female participants? This is not obvious; and perhaps there is something magical in the relationship of two persons, which is morally superior. In the latter case, we would then be confronting the question of the appropriate status of same sex or trans-sexual or other monogamous or dyadic relationships or ties. The normative question here is frequently collapsed into the gate-keeping function of the ritual of marriage. Here, the gate-keeping function expresses the depth of emotional and moral commitment to certain kinds of relations and, at the same time, precludes others. In Christianity, this is a matter that vests marriage with a sacramental character. When a man and a woman otherwise eligible are married by the church, the marriage bond (the vinculum) is a bond created by God and it is essentially a sacrament. Today, marriage is an institution largely monopolized by the state. However, the state, in general, has not merely seen marriage as a matter of two parties contracting with each other to make a complicated deal for life. It is a status; and the state seeks to regulate, guard, and control all aspects of its creation, duration, termination, and post-termination effects. Marriage is a status, which has contractual aspects, but it is vastly regulated. In many other traditions, such as Islam and traditional African and Asian cultures, marriage is seen as a contract often with families being represented and settlements being agreed to. Similarly Roman law recognized the maritagium or marital property estate. Thus, marriage is not often cross-culturally seen as vested with high religious implications but is seen in a much more exchange-oriented approach analogous to a complex institutional transaction. However, this view does not mean that the cultural foundations of marriage in this sense are not strenuously ­defended from outside influences or forms of intervention. When we view this background in human rights terms, we are confronted with certain difficult and tenaciously resistant problems. Human rights are meant to be rights of individuals. To what extent do basic micro-social ­structures respect individual rights in terms of choice, security, and the capacity  for human development in all of its forms? Since the family is so critical to the  survival and development of the human personhood (including p ­ ersonality), the human rights issue involves not only the relationship

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­ artners but also the relationship of additional members adopted or created p in the relationship. The poet, Wordsworth, with a brilliant insight said, “The child is the father of the man.”16 Perhaps, we can underline the importance of human relations in family units by noting that it is precisely in these social units that we reproduce the next generation of social participants. Thus, within the family, within innocuous practices of nurturing, caring, and rearing, we are reproducing personality types, which may be the most important human resources for either a productive or a destructive future for humankind. We suggest that the issue of women’s rights and gender seen in the context of the broader framework of intimate micro-social relationships crossculturally and globally may well be suitable material for a modest degree of re-conceptualization. This approach might provide a greater clarity about precisely what human rights law values are implicated in all the complicated relational situations and structures that constitute micro-social groups in which intense intimacies are experienced, whether these are in terms of sexual exchange or in terms of exchanges that prohibit sexual intimacy (this is the relationship of parenting figures to children). Instead of starting (as conventional scholarship insists) with a focus on an institution (the family) and then focusing on the culturally specific rituals of “marriage,” we might start with a different focus. In doing this, we stress again that a culturally specific institution of the family in one culture may not constitute a family in another culture. The marriage ritual of culture A may not be recognized or even respected in culture B. It may be of value to ask the following: what fundamental expectations do human beings anticipate when small group ties are established and maintained with expectations of reciprocal emotional and psychological intimacy in which expectations of identity and sexual exchange (normally heterosexual but not exclusively) with appropriate limits occur? The emotive drive that energizes this process is commonly called “love.” Love without limits is of course not love. It is gratification, narcissism or extreme self-love and on the extreme end, sexual or gender terrorism. Love is an emotion universally admired. There is universal aspiration for this emotion. The moral foundations of love imply that it expresses a human ideal of the self in relation to other selves and in ultimate expression reflects the ultimate indication of moral altruism and virtue. It is a sentiment that begins in the most elemental of human relationships and has the capacity to radiate wider expressions of positive sentiment ultimately shaping the nature of micro-social 16

16

William Wordsworth, My Heart Leaps Up, Wordsworth Poetry (1770–1850).

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experience such as the self in the family. That experience in turn radiates into other social relationships and ties in kinship units and broader community structures ultimately extending to the structure of the nation and the state. Positive sentiment transcends the state as well as shaping the character of the state as founded on the institutionalization, protection, and enhancement of positive sentiment that gravitates from love to loyalty to patriotism. When positive sentiment transforms and transcends the state and sovereignty, we gravitate to the notion that human planetary solidarity is founded on a broad inclusive conception of love as positive sentiment, which permits identification and empathy with all of humankind and the entire eco-system, and all the sentient and non-sentient life forms that constitute the earthspace community. At the heart of love is the conception of positive sentiment from the micro-social to the global level. The institutional expression of this form of positive sentiment today is rooted in the conception of human rights in the broadest sense. This conception in part explains why modern human rights which emerges in terms of ostensibly secular initiatives and processes none the less finds a deeply empathic partner in virtually all religious traditions, when those traditions are not corrupted by the imperfections of human faithlessness. The major religious traditions see some form of God or the universal spirit as the ultimate ideal of what God is. That ideal is translated in one way or another in terms of love. God is love. The ultimate ideal of Godliness is the capacity to love and be loved, on a completely selfless basis. The purest expressions of positive sentiment—love between human beings and between God and human beings—cannot be limited by boundaries. Love and positive sentiment mean complete altruism, selflessness. Complete altruism of the self is merged in the ideal of love. God symbolizes love. From this perspective, the relationship of positive sentiment to human rights is often assumed but not adequately understood. Whether we base the justification of human rights in secular, existential ­values about positive sentiment and love for one another, or whether that justification is based on religion rooted in God’s love and redemption through love, both secular philosophy and spiritual experience converge on the centrality of love and positive sentiment as a universal moral virtue. This virtue is as well the ultimate moral foundation of human rights and human dignity. From a secular point of view, the highest aspiration of moral philosophy rests on the universal respect and dignity of the human person. From a religious point of view, the greatest human contribution to the celebration of God is the dignity and worth of the human being on a universal basis. If, according to religion, we are God’s creatures, we love God and in doing so, we celebrate the

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dignity, worth and beauty of the human being in all its complexity and wondrous unfolding dimensions. The truth is that human rights are founded on the universal centrality of the giving and receiving, the exchange and experience of positive sentiment at every level of psycho-social experience. Thus, when we look at a subject matter of relationships called “domestic relations,” “family law,” “family values,” we immediately begin to focus on the form, the value implications of the particular form or the legal cultures that institutionalize particular social or cultural forms of micro-social experience. The discourse itself starting from this premise may in fact be observing or focusing with cultural biases and prejudices that presume unfamiliar forms that simply do not exist or should not exist or should be discouraged or destroyed. Thus, we obscure what we must actually do as a matter of practical, social policy to rationally promote and enhance values of love and positive sentiment. The values we contend are at the heart of human rights and a great deal of religious experience. The approach conventionally taken is one that focuses on how the community and/or the law seek to control and regulate what the community defines as the appropriate or legitimate family form. Thus, in modern law, what we call “family law” is about the control and the regulation of the family and certain rights incidental to it. The central word here is control. To say that society controls the family and certain incidents involving family ties and relations is serviceable; but it comes at a price. To control a form and its incidental features may not be the same thing as controlling emotion, feeling and intimacy, prescribing how people must feel about each other, what level of sexual feeling may itself be controlled and regulated on the basis that such feelings express an intimacy, may be criminal and may be punished. Communities may go further and hold that controlling the sexuality of women may be critical to the control of the family. Thus, controlling the capacity for gratification through sexuality must be done by either psychological or legal repression or in certain cases, the genital mutilation of women on a community-wide basis. We see that we may be in the business of obscuring important human rights issues simply by the conceptual lens and focus that we deploy for inquiry. In short, the concern in this context is that practices, which may be indefensible from the perspective of positive sentiment and human dignity, are made routine by custom, tradition and simply convention. In this sense, reshaping the tools of inquiry is a critical component of human rights as an agent of change. Correspondingly, such an approach gives human rights advocacy a clearer objective in terms of the nature of the violation, the strategies of advocacy, the institutions of intervention, and the possibility of improving the human rights landscape.

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It may therefore be startling if we acknowledge the rather simple observation that culture, law, and tradition seek, on a universal basis, to control and regulate affection, which we describe as positive sentiment. In short, the community seeks to control how we feel at every level of social organization. The community seeks to control love in the sense of what intimate relationships may be established and protected or prohibited and punished. It may seek to establish what broader social ties of sentiment are included in the “I,” the “we” and excluded in the “other.” It will seek to do this by strengthening the “I” and the “we” and often demonizing the other, the enemy. Thus, solidarity, loyalty, patriotism, internationalism, humanitarianism, human rights and dignity e­ xist on a continuum, which in varying degrees, are conditioned by the dynamics of affect and positive sentiment, as well as by the dynamics of otherness, prejudice, discrimination, hate (negative sentiment), and extermination. F Personality, Political Culture and Positive Sentiment The effort to make sentiment a critically important part of the contextual background that generates the problems of human rights essentially draws on the intellectual tradition of scholars who saw the importance of political psychology for the nature of the public order. In part, these scholars were influenced by the broader implications of the insights into personality and culture drawn from the Freudian tradition.17 According to Lasswell, for instance;

17 18

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18

If the personality system is divisible into the reaction patterns assignable to impulse, conscience, and reason, it follows that the meaning of any social object to any particular person is to be interpreted in terms of its appeal to one or more of these main divisions. Persons, institutions, occasions, policies and practices, doctrines, and myths and legends may be examined for the purpose of discerning their appeals to impulse, conscience, and reason.18 See, e.g., Harold Lasswell, Psychopathology and Politics (1930); Dwaine Marvick, Harold Lasswell on Political Psychology, Chapter 16: “The Psychology of Hitlerism” (1977); Harold Lasswell, World Politics and Personal Insecurity (1965). See also Harold Lasswell, Shared Subjectivity: The State as a Manifold of Events, in Marvick, at 75–92. Lasswell’s exploration of the interplay of culture and personality is summarized in “Systemic Analysis: Culture and Personality,” in Marvick, at 93–107. Lasswell’s exploration of the inner workings of personality and its relevance to cultural values is reflected in his article, The Triple Appeal Principle: A Contribution of Psychoanalysis to Political and Social Science, 37 American J. of Sociology 523 (1932). The central idea here is that personality structures contain identifiable elements of impulse, conscience, and reason. Marvick, at 282.

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In the context of the study of human rights, the challenge of this tripartheid division is the challenge of whether the “triple appeal principle” may be constructively directed by human rights management techniques. Here, management would seek to maximize the appeal of positive sentiment and to constrain the appeal of negative sentiment. In these areas Lasswell’s early work in particular, such as the exploration of the element of psychopathology in political decision making and his understanding of the role of global events on the sense of personal insecurity, are indicators that sentiment, be it positive or negative, has a significant influence on decision making which shapes the consequences of public order. In short, sentiment is a reflection of the importance that emotions hold for personality, including personalities who exercise naked power or exercise power according to the system of authority and control. This premise, however, is not a matter that has received adequate attention in the scholarship and practice of human rights.19 Since setting out our thoughts on the importance of emotion in the form of positive and negative sentiment for the culture of human rights, and the challenges of human rights advocacy, our attention has been drawn to the work of Professor Dominique Moisi. Professor Moisi has written an important book,20 followed by his talk to the Carnegie Council,21 which stresses the issue that bringing the fact of emotion into the calculus of world geo-politics is intellectually provocative. Most problematically, emotions are subjective events. How is it possible to integrate the ubiquity of emotion with the broader stress on objectivity and rationality in the tradition of such scholarship? Moisi stresses that, without accounting for emotion, one “simply cannot understand reality of the world in which…we live.”22 He gives several examples to illustrate this 19 20 21 22

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20 21 22

Inasmuch as modern human rights have certain constitutional elements that integrate the idea of authority with control, it is worthy to note that Lasswell gave particular attention to the importance of personality and constitutive authority. See Harold Lasswell, Political Constitution and Character, in Marvick, 319–35. One of Lasswell’s central ideas here was that “the stability of the constitution depends upon the molding of the appropriate form of character (personality).” Id. at 334. This therefore stresses the importance of the form of character, in terms of the ideals of positive sentiment, as an appropriate fit for the authority foundations of a human rights culture. For a tabulation of issues important to constituting and sustaining authority, see Lasswell’s summary 19 points, id. at 3334–35. Dominique Moisi, The Geo-Politics of Emotiion: How Cultures of Fear, Humiliation and Hope are Reshaping the World (2009). Dominique Moisi, Presentation to the Carnegie Council on May 11, 2009. (http://www .cceia.org/resources/transcripts/0161.html). Id.

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point. One of the strongest illustrations is taken from the Israeli/Palestinian conflict in Gaza. Emotion here is an encounter which touches on the fear of the Israelis and the humiliation of the Palestinians. Moisi stresses the point that “the world of our global age is at the same time transparent and interdependent.”23 There is no privilege of innocence. We know everything. According to Moisi “the very rich know how the very poor are doing, and the very poor know how the very rich live.”24 In Moisi’s effort to map the ubiquity of emotion in world politics, he distills three critical markers: the emotions of “fear, humiliation, and hope.”25 The idea of hope, a positive sentiment is critical for social progress. The idea of humiliation does the opposite. It is accompanied by both anger and hate. In destructive form, it implies that, because “I cannot make it to your level; I want to reduce you to my level.”26 In the culture of humiliation, hope is extinguished and there is no future. The other emotive marker is the marker of fear. Fear has the consequence that generates fear of others, fear for the future and the fear of the extinction of identity. Moisi’s goal is to demonstrate that emotions are critical for an understanding of the world as it is. The critical challenge of wise policy in general and human rights policy and practice in particular, it would seem, is to create a recipe for the reduction of fear and humiliation and facilitate the cultural-emotional currency of hope. We have tried to explore these themes in terms of the social processes which generate both positive and negative sentiment, how these factors are important to our understanding of the challenges of human rights and the possibility of devising constructive practices and perspectives for the emotional improvement of the human prospect. A threshold outline of the salience and sentiment for understanding the character of human rights problems, which are outcomes of the global social process context, follows. A preliminary appraisal of two key forms of sentiment reproduced in human interaction, namely, love and hate, is presented. In so doing, an orientation to the problems of sentiment experienced crossculturally in institutions that are specialized to enhancing ‘affect,’ but which may undermine rather than enhance it is developed. Once this has been explained, how prominent religious myths may well unintentionally contribute to the undermining of affect and its importance in human relations is explored. As a preliminary manner, we must first address the conflicts about gender and sexuality in human relations, which may be packaged as tradition versus 23 24 25 26

23 24 25 26

Id. Id. Id. Id.

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sexual/gender pluralism, and how these conflicts influence the reproduction of family forms.27 Since family forms have important influences on the shape of personality, it is important to know the extent to which the nature of family forms are actually predisposed to “affect” rather than negative sentiment. We explore literature which seeks to eliminate these issues and their implications for the human rights of women and human rights generally. The chapter concludes with a preliminary model of how to contextualize the social processes of positive sentiment relevant to the culture of human rights. The chapter also concludes the preliminary outline of the social processes of negative sentiment which we suggest provides a deeper clarification of the scope and nature of important human rights deprivations such as genocide, racial discrimination, anti-Semitism, apartheid, torture and modern trafficking. These deprivations are expressions of negative sentiment and are frequently accompanied by the prospect of either low or high intensity conflict. One of the modern illustrations of this is the problem of ethnic conflict, which is frequently claimed to be inexplicable and therefore resists the power of positive and constructive intervention. In later chapters, we focus on the political and juridical implications of the displacement of sentiment in the human rights law of deprivations as well as the human rights law relating to torture. The central factor of importance in this approach is to better understand the role of sentiment and its impact on the practice of human rights as well as its potential impact for the improvement of human rights practices. Sentiment is an outcome of the social process context of human interaction. Sentiment comes with powerful emotional drives and predispositions which have critical influences on the nature of human choice in particular, choices that deal with the defense and promotion of human rights values. It would be useful to see sentiment on a continuum with positive sentiment at one end and negative sentiment at the other. The strongest version of positive sentiment could be expressed in terms of the social processes, which implicates love and affection. The strongest version of negative sentiment could be expressed in terms of hate and repression. For this reason, we provide a background to and development of the relevant social process markers which delineate the social process context of positive and negative sentiment. We then explore specifically, the negative aspect of sentiment in terms of the human rights practices of deprivation. Reference is made to mass murder, genocide, slavery, racial discrimination, apartheid and the mass extermination of the “other” as in mass murder and genocide. 27

27

A general overview of these issues in law is found in Eskeridge and Hunter, Sexuality, Gender and the Law (2011).

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This part of the book will conclude with the understanding that these forms of human rights deprivation are generated in the context of social conflict. This process may be explored in terms of social division and stratification as a basis for group deprivations. The work then stresses the problems of structural determinism and the critical role of agency in making social choices. The chapter concludes with insights into an approach to so-called ethnic conflict and uses the Schmidt et. al. approach to the five stages of conflict and their implications for intervention to prevent catastrophic outcomes. ii

Human Sentiment and Human Rights

Love and hate are emotions that are universally embedded in the psychosocial experience of humanity. The theme of this book—the prospect of global human rights protection and normalization—cannot be understood without focusing on the causal effects of sentiment. Therefore, this chapter directs the reader to assess the force of sentiment, whether produced through affirmation of positive sentiment (affection) or through its depreciation (negative sentiment)—hate. Law and culture ubiquitously prescribe the boundaries of these emotions in human interaction in ways that are often unacknowledged and surprising. The importance of emotion, of love and hate, is its salience for the person and for the survival and success of social organization. A social process, which succeeds in reproducing and sustaining the idea of love in the biography of each individual, may perhaps be more successful in the satisfaction of human needs and aspirations. Here we broaden the idea of love and suggest that it reflects the critical importance of affection. Perhaps a less controversial way to express this is to see affect as included in the still broader idea of positive sentiment. The idea of positive sentiment includes such important values for human identity as compassion, empathy, and affection. It is widely accepted that newborn children may not survive the experience of the ubiquitous deprivation of affection. If they survive, they may develop pathologies, which may therefore reproduce personality types that are possibly lethal and destructive. Such personality types may in effect displace the deprivations that they have experienced in innocuous processes of childcare, in ways that make the relationship between personality, culture and politics important for morality, law, and culture. Society may reproduce personality types not socialized or acculturated to the values of affection, empathy and compassion, but to a predisposition or orientation that enhances the capacity for negative sentiment and its displacement on others. In worst case scenarios,

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it is possible that society reproduces the psychopathological personality which finds gratification in the ruthless exercise of domination and extermination of those it imagines as threats—non-self others. Both positive and negative sentiments are outcomes of social process. Connecting personalities to culture has a long and distinguished pedigree in the social and behavioral sciences. Harold Lasswell had a serious interest in the issues of personality, culture and their influence on politics. He had an interest in the impact of personality on politics and especially the problems of psychopathology in political leadership for public order. Additionally, Lasswell was interested in the impact of the symbols of insecurity at all levels on the political orientation of the individual. We realize that in the war on terror there are sufficiently credible threats to security that may be used for purposes of acquiring political power by the exploitation of the dynamic of insecurity. In fact, in the war on terror in the United States, a key statute has the short title of “The Patriot Act.” The title has carried an implication that those who are disquieted by the great allocations of power to the executive may well be suspect in terms of their commitment and loyalty to patriotism in this context. There is also interest in the psychology and the function of sentiment in the terrorist, suicide bomber, torturer and mass murderer. Sentiment may be explored in terms of both micro- and macro-social relationships. Sentiment of course is emotion and emotion may be characterized by feelings that are positive, negative or something in between. Emotions are no simple matter. For example, no one will quibble about the value of love. However, when love is seen to be a component of sexual expression that requires restraint, it may be culturally destabilizing. If psychoanalysis is correct, the human libido, unless moderated by self-control reinforced by law and culture, is generally excessive and love then, in this sense, is subversive of itself and social order. All societies have some rules about the creation of ties of intimacy, how they endure, and how they are terminated. These rules in a sense seek to control and regulate the legitimate targets of affect within which the exchange of positive sentiment is anticipated. The family is often seen as morally preferred in part because of the experience of the most important and defining components of human feeling and expression: love. Contemporary justification of the zone of affective expression in micro-social units is a theme of the book, The Family as a Haven in a Heartless World.28 However, it is in the family, however defined, that we reproduce the next generation of social participants. Their 28

28

Christopher Lasch, the Family as a Haven in a Heartless World (1977).

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personality structures and orientations will tell us a great deal about the kind of society we reproduce. To what extent for example, do we reproduce the values of affect, empathy and compassion? To what extent do we subordinate or destroy such an orientation with the value of negative sentiment for a negative utopia? Thus, the family is a social unit that is vested with high political and cultural importance for the transmission of human values. The values of affect (empathy and compassion) are values that require the self to transcend its boundaries and, from a human rights point of view, to extend those boundaries universally or globally. The political challenge is that the reproduction of negative sentiment may feed the impulse to parochialism, an impulse that may enhance the evolution of policies and practices of human rights deprivation. Therefore, the critical challenge to the future of human rights is the biographical capacity of individuals to enlarge the sense of personhood via affect to include all non-self others. That would seem to be one of the important foundational stones of a culture of human rights and a foundation for human rights law. The human rights law, which seeks to prevent deprivations such as genocide, mass murder, torture, inhumane treatment or punishment, is a law that seeks to constrain the compulsions driven by negative sentiment (hate). A The Exchange of Emotion and Sentiment As indicated above, one of the factors in human feeling and emotion namely love, is also a factor that may be culturally destabilizing. The rules relating to the management of positive sentiment are the rules that come packaged as “family law.” Rules operate cross culturally. These are rules that ultimately generate control about who the legitimate targets are for the displacement and experience of the intimacies of emotion that are driven by affect and, in a stronger sense, love. The rules of incest are of universal import. There is variability in the reach of these rules in different cultural contexts. The rules prohibit certain possible targets of affect and love in terms of shared sexual and reproductive expectations. The rules favor individuals looking outside of blood or proximate relations for appropriate affective ties.29 The limitation on who may establish a morally and culturally approved “affection” unit is a matter of considerable social commentary sometimes characterized as “culture wars.” These issues include gender/sexual identity, reproductive freedom, gender transformation, 29

29

See Winston P. Nagan, Conflict of Laws and Proximate Relations: A Policy Science Perspective, 8 Rutgers Camden L.J. 416 (1977).

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recognizing and protecting single sex unions, or marriages, and the punishment of polygamy. The cultural incentives to control and regulate the most intimate feelings and emotions tend to involve some degree of competition for power. Culture frequently assumes that the foundation of its identity and stability is rooted in the cultural prescription indicating how basic human emotions such as love and affection are to be shaped and shared. There is a general resistance to changing cultural norms implicating human intimacy. Implicit in this is a collective fear that unsanctioned changes will provoke threats to cultural survival or group solidarity. The issue here is the problem of power, affect, and sexuality. Feminist scholars have generated important insights into the way in which the sex aspect of affective relations has become corrupted by male patriarchy, so that ­patriarchy—expressing itself sexually—has become an instrument of political domination, exploitation, and the repression of women. In short, we must have a much more acute eye in the examination of the rules that govern the creation, duration, and termination of affective ties in relationships, in order to ensure that these rules and structures have not degenerated into instruments of exploitation, repression, and prejudice. Catherine MacKinnon—a ­leading feminist theorist on the problems of sex, dominance, and power— contends that sexuality defines each person’s conception of lack of power, per se. D ­ istinguishing between the exploitation of the worker and the exploitation of the woman via sex, she argues that “the relations in which many work and few gain and in which some fuck and others get fucked are the same moment in p ­ olitics.”30 The phrase “same moment in politics” refers to the ubiquity of power in human relations over employment and intimacy. In the intimate sphere, sexuality remains “a primary sphere of male power.”31 What is distinctive to human intimacy and sexuality is that there are symbols of morality and idealization that obscure the reality of sexual dominance, repression, and exploitation. One of the tasks of feminist realism is to unmask the mythology of the idealization of women’s sexuality. This means, “a broad unmasking of attitudes that legitimize and hide women’s status, the ideational envelope that contains women’s body, notions that women’s desire provokes rape, that girls’ experience of incest are fantasies, that career women plot in ­advance by sexual parlays, that prostitutes are lustful, that wife-beating 30 31

30 31

Catherine A. MacKinnon, Feminism, Marxism, and the State: An Agenda for Theory, 7 Signs 515 (1982) (excerpted in part in Theories of Sexuality, Gender and Law, 446). Id.

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e­ xpresses the intensity of love.”32 These ideas obscure the coercive nature of patriarchy and the “broad connections to the woman’s social definition as a sex.”33 MacKinnon concludes insightfully: Sexuality, then, is a form of power, gender, as socially constructed ­embodies it, not the reverse. Women and men are divided by gender, made into sexes as we know them, by the social requirements of heterosexuality, which institutionalizes male sexual dominance and female sexual ­submission. If this is true, sexuality is the lynchpin of gender inequality.34 We are in broad agreement with Professor MacKinnon’s effort to contextualize and socially construct human sexuality and, indeed, account for the important consequences of the distribution of power in favor of men, to the disadvantage of women. Among the most important issues about gender or sexual identity has been the depreciation of the status of women worldwide. Nevertheless, we suggest that we need an even broader contextualization of the relationship between the value of affect, power, and all other values in the universe of ­human relations. MacKinnon has importantly plotted a pathway, and we shall try to explore the broader trails and perspectives that flow from there. The concern for the equality of women has by implication served to raise the general question of equality and affect in terms of men, women and other variations of gender perspective. This issue of affect and equality has generated fundamental questions about the imposed ascription of identity by ­culture, society or the state. The critical question is how far should the self’s conception of the self be given deference in the ascription of identity by political ­authority which then allocates rights and obligations. These problems provide a normative challenge of mediating between traditions that are repressive and those that are supportive of a human centered deference to positive emotional values that are compatible with fundamental rights and to develop strategies for change when change is mandated by the moral priority of fundamental human rights values. Arrangements and processes for establishing, maintaining and ending the institutional arrangements of affect through which intimacies are legitimately created are supported by confessional experience or cultural taboos sustained by totemic ritual. To the extent that control and regulation over the 32 33 34

32 33 34

Id. Id. at 448. Id.

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entire ­process has become secular, the politics of the modern state legislates to change the nature of the relationships of intimacy. Some changes have emerged from secular interpretations of fundamental rights. Largely, political authority may seek to provide progressive change for better equality and protections in different family forms. However, even political authority may be resisted. Human rights law, as well as the higher law of comparative and international constitutional law, provides important challenges to cultural norms and expectations about questions of sexual morality, intimacy, and human dignity. B The Focus on Positive Sentiment, Freedom, and Equality Discriminations in law and social practice are ubiquitously based on gender or sexual identity. From a global perspective, it is largely women who are discriminated against because they are women. Other factors may contribute to the scope and virulence of unfair discriminations, e.g., race, class, crises, cultural inertia, religious myopia, and more. In the context of contemporary ethnic conflict, such as that in the Balkans, women were targeted as an object of violent, strategic war making.35 Thus, the conflict produced rape camps, forced impregnation, and processes that specifically sought to depreciate the sexual identity of women. The discrimination that victimizes gender or sexual identity, targets a condition of being. It is a physical, biological, and psychological fact. It is a fact that can rarely be altered or changed. It therefore represents unfair discrimination based on a condition of being. This fact is not a condition that a victim can alter or change, nor should the victim be required to. Indeed, it should not alter or change from the perspective of the rights of personhood of the woman. This fact explains the salience that modern human rights law vests in the human rights of women. It is clearly analogous to other forms of human rights violations based on the ascription of identity as a critical factor that conditions human rights violations. The human rights of women are a matter of critical global concern in this millennium. Historic and cross-cultural experience underlines the global depreciated status of women. Cultural domination—be it gender or sex based— is rooted in anthropomorphic norms which reify cultural experience as “patriarchal.” In general this means that the cultural expectations implicating gender and sex start with an implied perspective of male preference, male regulation, and, often, male domination. 35

35

See Roy Gutman, A Witness to Genocide (1993) (Pulitzer Prize-winning dispatches on the “ethnic cleansing” of Bosnia).

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In a recent decision of the Constitutional Court of South Africa,36 the Court was confronted with an inheritance case. The wife was married under African customary law. She had children. The husband died fortuitously. Her right to inherit, on her own behalf and on behalf of her female children was challenged by a stranger. The stranger was a male (distant relative of the husband), unknown to the wife or her children. He claimed that he had a primary right to inherit as the oldest male member of the tribal clan. In this case, both the deceased and the wife lived in an urban area and were working normal jobs in the wage labor economy. For the oldest male to inherit would have been not only to expropriate the children of their birthright, but would have expropriated the wife’s property and earnings as well. The Court ruled for the wife. The Court would not countenance a rule of custom based on male patriarchy. The principle of equality and respect in the new Constitution, trumped the customary law rule. The institution of patriarchy invariably means female subordination and, in the Bhe case, the exploitation and appropriation of the earnings of a woman is included. Matriarchal societies do exist. These societies are the exception not the rule. Matriarchal societies are not generally known to subordinate and dominate men. The culture of patriarchy is invariably reflected in the cultural and legal rules that make women second-class citizens. It may be of value to simply canvas some obvious illustrations from comparative experience to see how deeply resistant cultural rules and expectations are to change consistent with human rights standards and expectations. In South Africa, it is a common practice (African customary law) in traditional society that a “bride price” must be paid by the bridegroom’s family to the family of the bride. This practice means that a male who cannot afford an elevated “price” will have his freedom to marry limited by an inability to meet the demanded price. The institution of the South Africa bride price is known as the labola. The labola is normally given in terms of cattle. In short, a bride’s worth to her family and the bridegroom is measured in the currency of cows. The institution of labola has a tenacious hold on traditional marriage customs and the freedoms to marry. Change will doubtless be resisted and practice will tend to ignore the claims for change. In India, the institution of dowry has a tenacious hold on the freedom to marry. The bride’s family would have to organize a store of precious metals and jewels as part of the dowry for transfer to the family of the intended ­bridegroom. Marriage was often an exchange of a woman for value, for the 36

36

Bhe v. Magistrate Khayelitsha & Ors. 2005 (1) bclr 1 (cc), 15 Oct. 6. 2004.

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“privilege” of marriage. If the dowry was not sufficiently lucrative, the bride in the custody of the husband’s family would simply be assigned the role of a servant. Frequently, the possibility of getting rid of a bride whose dowry was modest provided an incentive for improvident accidents in the home of the husband. The bride might perish in a household accident, thus providing the husband a second opportunity of selling himself for a dowry in the marriage market. The dowry sometimes provided an incentive for scandalous human rights violations inside the family. These atrocities were difficult to police by the state. The state law now prohibits this practice, but it still apparently has some cultural traction. In the tradition of Common Law, a woman would often have no legal identity apart of that of the husband. The parties would marry, and became metaphorically “one,” but he was the “one.” Her property became his property. It was widely held that the married women’s acts of the 19th century had less to do with protecting women’s property rights from male patriarchy than with the reality that women now in the industrial labor market would make bad workers if the husband had the right to expropriate their wages. Women’s rights evolved as trust for capitalism rather than a concern for the dignity of women. In the tradition of Islam, one of the most obvious examples of patriarchy is found in the principle that a husband may unilaterally end a marriage by simply pronouncing three ritual words “Talak, talak, talak.” This right was not given to women. These examples are rather simple illustrations of the rootedness of patriarchy in cultural expectations, which validate male supremacy and female subordination. These illustrations are not meant to obscure the complexity of gender and sex in the broader picture of social coexistence. The working categories “male” and “female” have a correspondence with obvious markers in psycho-social experience. These categories reinforce the processes of how we conceptualize the concept of “female” and “male.” These categories implicate normative priorities, which are often based on the interplay of symbol, myth and religion. As cultural rules, they include a claim to cultural distinctiveness and moral preference. For the above reasons, human rights theorists confront the question of the clash between the mandates of human rights and cultural diversity, which implicates the cultural relativism of the “other.” The rules “tolerated” by cultural relativism (justified by diversity) may be oppressive or discriminatory with regard to women’s rights. Cultural relativism is often justified by the assumed virtues of diversity as an intrinsic “good.” If the “good” of diversity is not ­self-justifying, then the reasoning is supplemented by the notion that the goodness of diversity is supported by the goodness of tolerance. Thus,

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the c­ ategories of maleness and femaleness become infused with culturally constructed justifications of morality and tradition. In the context of social process, these constructions, custom, tradition, or legislation, are prescribed, applied, and enforced with social pressure or organized coercion which may be public, or which may be organized in the private sphere with the tacit consent of the elite in the public domain. There is variability about issues of gender and sexuality; and their interrelationships are not simple. They implicate complexity, and they implicate intimations of what it is to be human and to experience feelings and emotions without unreflective or unrestrained social pressure or repression. For example, a person whose social markings are male for gender purposes may have a sexual orientation, which targets males, or targets both males and females. In this sense, there is a clear distinction between the notion of gender and the notion of sexual orientation. Similarly, a person conventionally marked f­ emale may have a sexual orientation that targets other women, or both men and women. In this sense, the issue of gender and sexual orientation implicates a complex range of understandings about the individual’s perception of the self and the social ascription of what is permissible for the self’s construction of the self. Historically, people in this social group experience persecution. Another aspect of the gender/sexual orientation issue is the case of the preand post-operative transsexual. A pre-operative transsexual is a person whose gender and sexual orientation is either male or female, but that person is g­ oing through the preliminary procedures for eventual surgical transformation. These procedures may involve hormone therapy and cross-­dressing. What exactly is the approach of the law to a person in this situation? A ­post-operative transsexual is a person who wants and gets the hormonal and surgical t­ reatment for reassignment from one gender to another. The courts have had to grapple with the legal effects of such a transformation. The English courts have held that the medical procedures cannot change the biological facts. These facts are in the structure of the chromosomes of the person. If the chromosomes remain unchanged, which is invariably the case, the operation does not legally change the person from male to female, or female to male. American courts have gone in a diametrically opposite direction. Those courts hold that it is not a matter of chemistry or chemical reality. The central fact of legal salience is the psychological reality of the post-operative transsexual’s condition of being. If that post-operative reality is consistent with the psychological reality of what the person feels the person is, that is the reality which is recognized and given legal effect. Society places limits on whatever one’s feelings are about one’s true self. Such feelings, predispositions, or orientations cannot be displaced as sexual

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aggression, predatory sexual practices, and the abuse of others. The community and the state seek to protect its vulnerable members who may from time to time be targets of predatory behaviors regardless of the degree of maleness, femaleness, or any other aspect of the gender or sexual orientation. This discourse is complex and important. It seeks to understand and mediate between self’s perception of the self and the appropriateness of the social and cultural expression of this indicator of personhood. To the extent that the expression of personhood in this sense, invades the boundaries of others by exploitation, coercion, or aggression, such conduct must invariably be restrained or proscribed. This is so when those “others,” targeted by such conduct are vulnerable and depend on human restraint for their physical and psychological survival and well-being. iii

Human Rights and Positive Sentiment: The Control and Regulation of Affection

The title of this section connects human rights law with positive sentiment. The concept of positive sentiment, like human rights, has a descriptive element to it but it is also reflective of the critical relevance of the normative implications of both human rights and affection. The second part of the title focuses on control and regulation, and this means that there is an assumption that affection and power are interrelated in terms of both description and the normative implications that each concept brings to the specific description and conception of the human rights of affect. To some extent, human rights norms, when seen in terms of a fundamental normative concept, may not be controversial. Thus, to equate human rights with the norm of human dignity would not raise any particular intellectual concerns. It is when a specific aspect of human dignity relates to a specific aspect or conception of affect that the concerns emerge about the precise scope and content of the specific human rights conception being analyzed. One aspect of analysis that is critical is the extent to which there is at least an articulate social context, which may elucidate the problems as articulate social constructs. This analysis is precisely the problem when the traditional focus is on, for example, small group forms such as the family. It may be insignificantly inclusive to adequately describe and then identify all of the specific problems that emerge from the process by which small group institutions such as families and other micro-social units are created, sustained, terminated and changed. This identification is obvious if we simply note that micro-­social units of intimacy vary considerably from one culture to another and show

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considerable variance as well in terms of discernible time lines in particular cultures. Thus, a better description of the conditions which create such units of social organization across state lines, as well as the consequences that flow from such social relations will give us a clearer picture of the nature of human rights problems including the issues of gender, sexuality, reproduction, children’s status, property, psychological and material well-being. All of these issues and a great deal more generate complex and sensitive human rights issues. However, to understand these issues as problems, we must have better tools, that work cross-culturally, that permit us to mark and map problems in appropriate contexts for which there is a need for human rights advocacy and intervention. To this end, we revisit and give a short description of the affection process itself, which we had earlier delineated. The specific point of the exercise, supra, is to illustrate that, cross-culturally; the affection process is an outcome which is it, contextually rooted in the concept of community and social process writ large. The task of contextually mapping affect and power requires both a map and set of markers to guide inquiry within the map. Therefore, we use the markers invented by Lasswell and his colleagues for general contextual mapping. These markers are appropriate for a description of community value institutional processes at any level. At the global level, that process may be described as follows: • Who?—human beings (comprising a multitude of identifications as well as a plurality gender-based perspectives) • Do what?—pursue all the values in social organization that they need, want and claim • Where?—in institutions specialized to the values themselves • How?—via the sustenance or facilitation enabled by resources accessible to the demanding or claiming parties (including ones who want or demand power) • With what result?—the outcomes of such a social process will be an entire framework specialized to power relationships, claiming, exercising, allocating, and institutionalizing the social dynamics of power—an outcome that we call the “processes of effective power.” Included in the dynamics of social relationships is the issue of sentiment. There is in society a dynamic, which deals with the giving and receiving of affection and positive sentiment. This may be briefly as human beings energized to express needs, wants, claims and demands for access to and enjoyment of affection and positive sentiment. These demands normally target the micro-social institution specialized, however aptly, to the giving and receiving,

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the promotion and enhancement of affection. The objectives of demanding affection are frequently sought through the strategies involving other bases of power such as power itself or wealth. These values, other than affect, serve as bases to strengthen or enhance the demands to support the claims to affection. These values as resources also promote the institutional form in which the claim is honored. That institutional form therefore provides a cultural institutionalization of what is a preferred form specialized and preferred for the experience of the demanded value. Thus, cross-culturally, societies may sanction a multitude of affection units (forms) that are preferred or disparaged. In the narrowest of formulations, the affection process is a process that generally involves human agents generating claims for the reciprocal giving, receiving or exchange of positive sentiment. In many such claims, the expectation of physical, sexual exchange of biological and psychological intimacies is expected. Intimate relations also encompass intense demands for intimacy beyond the specific ties of individual emotionally and sexually driven parties. Thus, the relationships generate intense emotional demands and attachments, which require strong subordination of sexual drives while enhancing the emotional interdependence based on positive sentiment between the members of a small micro-social group. Such outcomes may be accurately described as affection units in whatever the precise form these units are specialized or however skilled they are to the giving and receiving of positive sentiment and affection. The affection process therefore is a process in which claiming and deciding about the nature and quality of human intimacy uses the methods of communication, of appropriate signs and symbols, of affect, positive sentiment, and love (including romantic love). In addition to the communication of the appropriate signs and symbols of affection, the behavior of the parties is sustained by expectations of collaboration so that practical conduct and behaviors enhance the reciprocal flow of positive sentiment. Thus, the affection process is a pattern both of communication and of collaboration transmitting and exchanging the symbols and ideals of love, loyalty, positive sentiment, patriotism, and ultimately the love of man and God, as well as the actual operational behaviors, which sustain the ideals. A The Affection Process As we have seen above the social construction of the affection process requires the development of precise markers to guide inquiry. At the global level, the process of community or the social process may be delineated along the ­following lines: human beings (comprising a multitude of identifications as well as a plurality of gender-based perspectives) pursue all the values in social

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organization that they need, want and claim through institutions specialized in some degree to the values themselves. Those claims or needs are generally sustained or facilitated by the resources accessible to the demanding or claiming parties. Among the claimants will be those who want or demand power. The outcomes of such a social process will be an entire framework specialized to power relationships, claiming, exercising, allocating, and institutionalizing the social dynamics of power. This outcome we call the processes of effective power. Included in the dynamics of social interrelationships is the issue of sentiment. There is in society a dynamic which deals with the giving and receiving of affection and positive sentiment. We may describe this briefly as human beings energized to express needs, wants, claims and demands for access to and enjoyment of affection, and positive sentiment. These demands normally target the micro-social institution specialized however aptly to the giving, receiving, promotion and enhancement of affection. The objectives of affection are frequently sought through the strategies involving other values such as power and wealth to enhance the claims to affection, to promote the institutional form in which the claim is realized and to otherwise provide a preferred and protected social and political position for the particular micro-social form of the family in that particular society or culture. In the most narrow of formulations, the affection process is a process that generally involves claims for the reciprocal giving and receiving or exchange of positive sentiment. In many such claims, the expectation of physical, sexual exchange of biological and psychological intimacies is expected. Intimate relations also encompass intense demands for intimacy beyond the specific ties of individual emotionally and sexually driven parties. Thus, the relationships generate intense emotional ­demands and attachments which require intense subordination of sexual drives while enhancing the emotional interdependence based on positive ­sentiment between the members of a small micro-social group. For convenience, we can maintain that cross-culturally such outcomes may be accurately described as affection units in the sense that whatever the precise form these units are specialized however skilled they are to the giving and receiving of positive sentiment and affection. The affection process is therefore a process in which claiming and deciding about the nature and quality of human intimacy uses the methods of communication, of appropriate signs and symbols, of affect, positive sentiment and love including romantic love. In addition to the communication of the appropriate signs and symbols of affection, the behavior of the parties is sustained by expectations of collaboration so that practical conduct and behaviors enhance the reciprocal flow of positive sentiment. Thus, the affection process is a pattern both of communication and

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collaboration, transmitting and exchanging the symbols and ideals of love, loyalty, positive sentiment, patriotism and ultimately the love of man and God as well as the actual operational behaviors which sustain the ideals. B The Politics and Human Rights Dimension of Sentiment In the above section, we indicated that positive sentiment or affection is one of the outcomes of social organization and we call this an affection process. There is another side to this premise. We also spoke of social processes reproducing negative sentiment. In short, society frequently generates complex processes which reproduce personality types suited to claiming and demanding the v­ alues of a negative utopia. Thus, history demonstrates the ubiquity of social institutions which symbolize human indignity on a colossal scale. Thus, society ubiquitously reproduces its ideals in the form of love, altruism and ­affect and at the same time reproduces the negation of those ideals; hate, selflove and narcissism and ubiquity of the genocide-prone pathological personality. We have discussed some of these issues in Chapter in which we described a social process of deprivations on a global basis. Below we provide a table which parallels the social process of affection and the social process of deprivation to underscore the critical challenge posed by the question of the control and regulation of both positive and negative sentiment and its importance to ­human rights and the dignity of man on a universal basis. C The Social Process of Affection and Positive Sentiment There exists a formal myth of love and affection. This myth may be concealed and informal, but nonetheless, it is a real myth reinforcing the symbols of the togetherness of the target of love and affection and those within the “in-group” of the community context. A symbol-myth system of solidarity, affection, and positive sentiment is a crucial component of the perspectives of the community or its elite, traditional and opinion leaders. These subjectivities or perspectives of positive sentiment are outcomes of complex behavior patterns, which are characterized by affective sentiments and strong portrayals of the target of affect as appropriate for the displacement of positive inference and meaning. There are emergent patterns that consolidate the collaborative behaviors of the “we” or the “in-group,” vesting that group with the idealization of appropriate community acceptance and love and the foundation for the licit family form which is also culturally preferred and valued. There are further emergent, often graduated, behaviors in the primary group, which consolidate and sustain the image of community solidarity through patterns of collaboratively conditioned behavior. These behaviors include the communication of discrete signs, symbols, operational codes, myths, narratives, and reified stereotypes

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which symbolize the institutionalization of the ideals of love and a positive sense of community. The process of affection also involves the manipulation of signs, symbols, codes, myths, narratives and stories between members of the “in-group” and between members of the “in” and “out-groups.” Positive sentiment may be used in a way to also isolate those not included in this universe. The system of generalized affective behaviors, thus, involves distinctive, and often, discrete pattern of communication of relevant signs and symbols of the “in-group” loyalty and solidarity, as well as signs and symbols that identify, disparage, or threaten members of the “out-group.” The patterns of communication are sustained or enhanced by collaborative operations in the exercise of public or private power. These operations may mean repression and exploitation for some and exploitation of positive sentiment for base motives on the other. Thus, solidarity and patriotism may be promoted in such a way that it underlines by implication the vulnerability and validity of victimizing others such as the social pariahs, outcasts, those who are different to the situation of all others. Human beings conditioned to generate positive sentiment (affection) as an ordinary aspect of personal identity are obviously desired from a human rights perspective. The predispositions of the personality inclined to positive sentiment, invariably creates environments in which micro-social relations reflect the normative priority given to the reproduction of positive sentiment or affect. Thus, innocent child-rearing and nurturing in which love and affection are practiced generates personality types better suited to reproduce personality types partial to democratic political culture. On the other hand, a person may be raised in a climate of negative sentiment where repression, deprivation and fear wittingly or unwittingly reproduce insecurity and intolerance of others in the self system. Thus, the practices of negative sentiment in family or affection units may be a dangerous social inheritance. When such personality types mature, they exhibit the partiality to authoritarianism and domination. They reproduce the cycle of negative sentiment. Reproducing the cycle of positive sentiment is critical to the culture of human rights and its sustainability on a global basis. Thus, the micro-social (affection) units ostensibly specialized to positive sentiment or love and affection are critical for a healthy, normal society that does not institutionalize compulsive, neurotic or psycho-pathological outcomes. In short, a psycho-political culture of positive sentiment reproduces the social and political foundations of the culture of human rights. Perhaps even more than that it is giving to those committed to the love of God, the religious redemption of the love ideal through human rights. The nine markers are mapped with greater precision in terms of the wide range of issues and problems that are implicated in the human prospect, infra

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Table 7.4 The social process of positive sentiment (affect): the relevant analytical markers

Formal Myth System

The formal myth of love and affection may be ­concealed (or otherwise appear informal); it is ­nonetheless a real myth, reinforcing the symbols of togetherness of the target of love and affection and those within the “in-group” of the community context. Symbol-Myth The symbol myth system of solidarity and affection is a System ­crucial component of the perspectives of the community or its elite, or its traditional and opinion leaders. Subjectivities/ The subjectivities or perspectives of positive sentiment Perspectives are outcomes of complex behavior patterns, which are ­characterized by affective sentiments and strong portrayals of the target of affect as appropriate for the displacement of positive inference and meaning in terms of shared affect. Subjectivities should be understood, as well, in terms of Lasswell’s “Triple Appeal Principle,” which implicates the Freudian idea of the id, ego, and superego. It suggests that these components of personality function in special ways in person-to-person ­relationships, in the role and ­meaning of institutions, and in person-to-events ­relationships. The essential point of this principle, in the context of social interaction, is that institutions, relationships, and behaviors all relate to the ­personality demands, which include id, ego, or superego. They derive their strength for the ­person in the capacity to survive and capacity to satisfy such demands.37 Emergent Emergent patterns consolidate the collaborative ­behaviors of Patterns the “we” or the “in-group” and vest that group with the idealization of appropriate community acceptance as positive sentiment and love and the ­foundation for the licit family form which is also culturally preferred and valued. Propaganda There are further emergent, often graduated, behaviors in the primary group, which consolidate and sustain the image of community solidarity through patterns of collaboratively conditioned behavior conditioned by positive sentiment. These include the communication of discrete signs, symbols, operational codes, myths, narratives, and reified stereotypes,

37

37

See Arnold Rogow, Towards the Psychiatry of Politics, in Politics, Personality, and Social Science in the 20th Century: Essays in Honor of Harold Lasswell 123, 133, 134 (1969).

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which symbolize the institutionalization of the ideals of love and a positive sense of shared affect in the community. Denotation The process of affection also involves the manipulation of and Isolation signs, symbols, codes, mythos, narratives, and stories between members of the “in-group” and between members of the “in-” or “out-group.” Positive sentiment may be used in a way that also isolates those not included in this universe of affect and solidarity. Alliance and The system of generalized affective behaviors involves Allegiance distinctive and often discrete patterns of communication of relevant signs and symbols of the “in-group” loyalty and solidarity, as well as signs and symbols that identify, disparage, or threaten members of the “out-group.” The patterns of communication are sustained or enhanced by collaborative operations in the exercise of public or private power. This may result in repression and exploitation for some and the power to exploit positive sentiment for base motives on the other. Thus, solidarity and patriotism may be promoted in such a way that it underlines by implication, the vulnerability and validity of victimizing others such as the social pariahs, outcasts, or those who are indifferent to the situation of all others. Nurtured Human beings conditioned to generate positive sentiment Predispositions (affection) as an ordinary aspect of personal identity are obviously desired from a human rights perspective. The predispositions of the personality inclined to positive sentiment invariably create environments in which micro-social relations reflect the normative priority given to the reproduction of positive sentiment or affect. Thus, innocent child rearing and nurturing in which love and affection is practiced generates personality types better suited to reproduce personality types partial to democratic political culture. On the other hand, a person may be raised in a climate of negative sentiment where repression, deprivation, and fear wittingly or unwittingly reproduce insecurity and intolerance of others in the self-system. Thus, the practices of negative sentiment in family or affection units may be a dangerous social inheritance. When such personality types mature, they exhibit the partiality to anti-democratic perspectives such as authoritarianism and domination. They reproduce the cycle of negative sentiment.

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Table 7.4 The social process of positive sentiment (affect): the relevant analytical markers (cont.)

Social ­Reinforcement through ­Positive Feedback Mechanisms

Reproducing the cycle of positive sentiment is critical to the culture of human rights and its sustainability on a global basis. Thus, the micro-social units (affection units) ostensibly specialized to positive sentiment (or love and affection) are critical for a healthy and normal society that does not institutionalize compulsive, neurotic, or psycho-pathological outcomes. A psycho-political culture of positive sentiment reproduces the social and political foundations of the culture of human rights. Perhaps even more than that, it is giving to those committed to the love of God, the religious redemption of the love ideal through human rights.

Chapter 8. Implicit in what is suggested however, is a normative challenge. The critical challenge is to the boundaries of law in our time. Law, tradition, human rights law, and evolving custom are not instruments of social control that are blind, deaf, and dumb to the past. On the contrary, they are important challenges for the human aspect of choice and decision in avoiding the negative and affirming the positive. This affirmation means enhancing the balanced shaping and the sharing of positive sentiment (affection). The alternative puts law and legal culture in a position of complicity in enhancing the outcomes of negative sentiment with the destructive potential for the future of our species. Our intuitive sense is that we reproduce too little affection. It will also be seen in the next section that the social process of negative sentiment (hate) and variations of this, represent one of the most important challenges to world order and human rights. The power of positive sentiment is clearly challenged by the power of reproducing negative sentiment as the world becomes fragmented and polarized in culture wars, and wars are inevitable conflicts about universals inherent in the ostensible clash of civilizations. We summarize the framework of the social process of negative sentiment. We note parenthetically that, from a human rights perspective, the misidentification of the other is a short distance from the application of the strategies fed by hate and destruction for the extermination or depreciation of the other. In human rights law, we have made progress in seeking to define the boundaries of behaviors fed by negative sentiment. This progress includes laws prohibiting genocide, persecution on grounds of religion, racial prejudice, apartheid, and in general, crimes against humanity.

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The Focus on Negative Sentiment and Human Rights Deprivations

Human rights deprivations are closely linked to expressions of identity and targeting of hatred. The most conspicuous fact of social organization is that human beings identify with, and are invariably affiliated with, a group of some sort. If we describe social processes as involving human beings (participants) pursuing values (desired goods, services, honors) through institutions (political parties, corporations, labor unions, colleges, hospitals, churches, etc.), based on resources (bases of power, base values); then it will be apparent that institutions are often group based and specialized to the vindication of basic values. For example, power and ideology find expression in political parties, the wealth interests in commercial actors, the professional concern for health care in the institutions of health care, education in the schools and universities, the skill interest in organized labor and professional groups, as well as the moral concern of religious or faith-based groups.38 Moreover, there is a socio-psychological basis of negative sentiment in the construction of the “other.” The universal nature of groups in social order is as ubiquitous as the “individual,” who is invariably a part of an aggregate or group.39 Sometimes groups are easy to identify, some people are “black” and 38 39

38

39

See Harold Lasswell & Myres McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (1992), Vol. i, Part ii, Chapter 2 (Particular Value-Institutional Processes), at 375–507. The group nature of American society is well-documented and often comes under the label, “American pluralism.” A critical question emerges as to the nature of national American identity and the sub-identities of various groups, ethnic and otherwise, which constitute the body politic. See, e.g., Michael Lind, The Next American Nation: The New Nationalism and the Fourth American Revolution (1995). “The American people, then, constitute a genuine nation; with its own nation-state, the u.s.a., and with its own genuine, if largely inarticulate, nationalism. The more interesting argument, it turns out, is not the stale debate between multiculturalists and democratic universalists but about what kind of non-national state the United States is: multi- or post? It is another controversy, a less familiar dispute, over how the ‘nation’ in the American ‘nation-state’ is to be defined. In this debate among nationalists, the two sides are nativists and liberal nationalists.” Id. at 7; see also Lasswell & Kaplan, Power and Society (1950), Section 1.3: Symbols, Identification, and Personality, 10–15. Lasswell and Kaplan discuss the process of identification and group identity, stating: “An ego is an actor using symbols…. Identification is the process by which a symbol user symbolizes his ego as a member of some aggregate or group of egos…. Symbolizing distinguishes the process but does not exhaustively characterize it: other acts, externalized as well as internalized, occur in conformity with the symbolic relationship….The self is the ego and whatever it identifies with that ego. The concept is

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belong to the black group. Others are “white” and belong to the white group. Others may be “brown” and belong to the Hispanic group, and so on. Sometimes the same person may have an ascribed “ethnic identity” based on physical characteristics, but will have voluntarily affiliated with a political party and acquire a political identity (e.g., Republican or Democrat). A person’s income may weaken or strengthen the links of “ethnic” identity if that person’s primary neighborhood and professional associations are in striking correspondence with economic and/or skill related patterns of stratification.40 Social organizations witnesses a rich plurality of “groups” as outcomes of social process, and depending on context, a wide proliferation of individual identifications with multiple group-based processes. These processes of individual group relationships constitute the foundations of social interaction.41 Moreover, the outcomes of some group processes have important consequences for the system of power relations, both within States and across State lines.42 For the purpose of prospectively preventing human rights violations, or even to address the underlying obstacles to creating human rights norms, advocates and activists 40 41 42

40

41 42

closely to what William James designated as the ‘social self’: A man ‘has as many different social selves as there are distinct groups of persons about whose opinion he cares. He generally shows a different side of himself to each of these different groups.’ The self as here defined is the set of these ‘different sides’ in their inter-relatedness. It thus comprises all the roles which the ego adopts, and is characterized by specifying the individuals and groups with which the ego identifies.” Id. at 10–13 quoting William James, Psychology (1892), Vol. i, at 294. See generally Ethnic Conflict and International Security (Michael E. Brown, ed.) (1993); Evan, Dimensions of Participation in Voluntary Associations, 36 Soc. Forces 148 (1957); Intergroup Relations: Sociological Perspectives (Pierre van den Berghe, ed.) (1972); Latham, The Group Basis of Politics: Notes for a Theory, 46 Am. Pol. Sci. Rev. 376 (1952); Theodore M. Mills, The Sociology of Small Groups (1967); Lionel Tiger, Men in Groups (1969); McDougal & Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1 (1959); Sommer, Studies in Personal Space, 22 Sociometry 247 (1959); Zimmer & Hawley, The Significance of Membership in Associations, 65 Am. J. Soc. 196 (1959). See M. McDougal, W. M. Reisman & A. Willard, The World Community: A Planetary Social Process, 21 U.C. Davis L. Rev. 807 (1988); Lasswell & McDougal, at 141 (on wealth, 473–508; on skill, 525–38); Lasswell, Politics: Who Gets What, When, How (1958). The classic studies on economic stratification are to be found in the work of Marx and Engels, Selected Works, Vol. i and ii (1962). See also Karl Marx, Selected Writings in Sociology and Social Philosophy, (T.B. Bottomore and Maximilien Rubel, eds.) (1956), Chapter 5 (Social Classes and Class Conflicts), at 186–209. See generally McDougal, Reisman & Willard. For a detailed analysis of these themes, see Lasswell & McDougal, Vol. i and ii. See also Power and Policy in Quest of Law (McDougal and Reisman, eds.) (1985).

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Emotion: Love, Hate Table 7.5 The social process of negative sentiment (hate): the relevant analytical markers

Formal Myth System

Symbol-Myth System Subjectivities/ Perspectives

Emergent Patterns

Propaganda

Denotation and Isolation

Alliance and Allegiance

The formal myth of love and affection may be concealed (or otherwise appear informal), but it is nonetheless a real myth, reinforcing the symbols of otherness of the target “out-group.” A symbol-myth system of prejudice, fear, and hate is a crucial component of the perspectives of the dominant group or its elite and opinion leaders. These subjectivities or perspectives are outcomes of complex behavior patterns, which are characterized by negative sentiments and negative portrayals of the “other,” such that the symbolic “other” is reinforced as a target for negative inference and meaning. There are emergent patterns that consolidate the collaborative behaviors of the “we” or the “in-group,” vesting that group with a sense of superiority, or “herrenvolkism,” paternalism, and further, seeking to enhance the value position of that group at the expense of the “out-group.” There are further emergent, often graduated, behaviors in the dominant group, which consolidate and sustain the image of the victim group through patterns of conflict conditioned behaviors. These behaviors include the ­communication of discrete signs, symbols, operational codes, myths, narratives, and reified stereotypes such as ­racism, anti-Semitism and more. The process of group deprivations also involves the ­manipulation of signs, symbols, codes, myths, narratives and stories between members of the “ingroup” and also between members of the “in-” and “out-group.” The system of generalized group deprivations involves distinctive, and often, discrete patterns of communication of relevant signs and symbols of the “in-group” loyalty and solidarity, as well as signs and symbols that identify, disparage, or threaten members of the “out-group.” The patterns of communication are sustained or enhanced by collaborative

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Table 7.5 The social process of negative sentiment (hate): the relevant analytical markers (cont.)

o­ perations in the exercise of public or private power that move beyond discrimination, anti-Semitism, prejudice, or hate to the possibilities of wholesale extinction of cultures and masses of human beings. Nurtured Human beings, who are conditioned to generate negaPredispositions tive sentiment as a normal aspect of the predisposition of personality, invariably create environments in which micro-social relations reflect the normative priority given to the reproduction of negative sentiment. Thus, innocent child rearing and nurturing practices, although covered in an ostensible mantle of love, may in fact impact on personality development so that the person that emerges is ill suited to a democratic political culture. On the contrary, the person may be raised in a climate in which repression and fear unwittingly reproduce insecurity and intolerance of others. As such personality types mature, they exhibit the partiality to authoritarianism and domination. They reproduce the cycle of negative sentiment. Therefore, the micro-social units ostensibly specialized to positive sentiment or love and affection may actually be specialized to doing the opposite. In short, such psychopathological political culture may be reproducing the “Anti-Christ of human rights.” Halting the Cycle of Breaking the cycle of negative sentiment is critical to Social ­Reinforcement the culture of human rights and its sustainability on a by ­Derailing ­Negative global basis. ­Feedback Mechanisms must be aware of the social, anthropological, and psychological bases of identity, groups, prejudice, and hate. The relationship between human rights deprivations and the social process of negative sentiment is a critical relationship if we are to eliminate the worst aspects of human rights deprivations from the global-social process. In the following paragraphs, we provide an introduction to the scope of the influence of negative sentiment on human rights and deprivations.

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A Groups, Power, and Negative Sentiment One of the most important outcomes of the social reality of groups is the problem of group “dominance” and group “subjugation.”43 Often, the case is that “minorities” are the subjugated, at risk class (as in the United States). ­However, a majority may be subjugated by a minority and consequently become the subjugated or dominated class, as in the Republic of South Africa during the Apartheid era.44 Some problems that are invariably central problems of ­governance and constitutional order45 are also key problems of world order, threats to peace and security,46 gross violations of human rights,47 suppression of the right to self-determination,48 and justifications for undemocratic forms of governance.49 In short, these problems are denials of the central precepts of international justice that come under the label human dignity.50 A critical component of human rights deprivation includes the concerns for group rights, discriminations, deprivations, and the repression of groups and individuals based on group labels of identity remain central problems for the maintenance of international peace and security, as well as conditions that inhibit the progressive developmental agenda envisioned in the higher purposes and objectives of the Charter system. Discrimination against “minorities” is a critical concern. Although the regime of unvarnished dominance (apartheid) 43 44 45 46 47 48 49 50

43

44

45

46

47 48 49 50

See Myres McDougal, Harold Lasswell &, and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980), ­Section 3 (The Elimination of Apartheid), at 521–60. See John Dugard, Human Rights and the South African Legal Order (1978), Part i ­(Introduction: South Africa and Its People), at 4. See also generally Donald L. Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society (1991). See generally Brown, Ethnic Conflict and International Security. See also McDougal, ­Lasswell & Chen, Chapter 4 (The Global Constitutive Process of Authoritative Decision), 161–363. See generally Rummel, Death by Government (1994); Brown. See also Antonio Cassese, Violence and Law in the Modern Age (translated by S.J.K. Greenleaves) (1988). For more specific examples relating to the former Yugoslavia, see Bennett, Yugoslavia’s Bloody Collapse (1995); War Crimes in Bosnia-Hercegovina, Helsinki Watch Report (1992); War Crimes in Bosnia-Hercegovina, Vol. ii, (1993); Alexandra Stiglmayer, Mass Rape: The War against Women in Bosnia-Herzegovina (1994). See also The United Nations and Rwanda 1993–1996, The United Nations Blue Books Series, Volume x (1996). Id. Id. Id. Id.

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has now been dismantled,51 the problems of cultural dominance are still a major international concern and have once more evolved into even more brutal measures of political reaction.52 A formal systemic myth or a concealed, informal, but nonetheless, real myth reinforces the symbol of the otherness of the target “out-group.” A symbol-myth system of prejudice, fear and hate is a crucial component of the perspectives of the dominant group or its elite and opinion leaders. These subjectivities and perspectives are outcomes of complex behavior patterns, which are characterized by negative sentiments and negative portrayals of the “other,” such that the symbolic “other” is reinforced as a target for negative inference and meaning. There are emergent patterns that consolidate the collaborative behaviors of the “we” or the “in-group,” vesting that group with a sense of superiority, or “herrenvolkism,” paternalism, and further, seeking to enhance the value position of that group at the expense of the “out-group.” There are further emergent, often graduated, behaviors in the dominant group, which consolidate and sustain the image of the victim group through patterns of conflict conditioned behavior. These behaviors include the communication of discrete signs, symbols, operational codes, myths, narratives, and reified stereotypes that include such issues as racism, anti-Semitism and more. The process of group deprivation also involves the manipulation of signs, symbols, codes, myths, narratives and stories between members of the ­“in-group” and also between members of the “in” and “out-group.” The system of generalized group deprivations, thus, involves distinctive and often, discrete pattern of communication of relevant signs and symbols of the “in-group” loyalty and solidarity, as well as signs and symbols that identify, disparage, or threaten members of the “out-group.” The patterns of communication are sustained or enhanced by collaborative operations in the exercise of public or private power that move beyond discrimination, anti-Semitism, prejudice or hate to the possibilities of wholesale extinction of cultures and masses of human beings. Human beings conditioned to generate negative sentiment as a normal aspect of the predisposition of personality, invariably create environments 51 52

51 52

See generally Rights and Constitutionalism: The New South African Legal Order. (Dawid van Wyk, John Dugard, Bertus de Villiers, Dennis Davis, eds.) (1994). See, generally, e.g., Rummel, Death by Government; Cassese, Violence and Law in the Modern Age; Bennett, Yugoslavia’s Bloody Collapse,; Stiglmayer, Mass Rape: The War against Women in Bosnia-Herzegovina; The United Nations and Rwanda 1993–1996.

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in which micro-social relations reflect the normative priority given to the reproduction of negative sentiment. Thus, innocent child-rearing and nurturing practices although covered in an ostensible mantle of love, may in fact impact personality development so that the person that emerges is ill-suited to a democratic political culture. On the contrary, the person may be raised in a climate in which repression and fear unwittingly reproduce insecurity and intolerance of others. As such personality types mature, they exhibit the ­partiality to a­ uthoritarianism and domination. They reproduce the cycle of negative sentiment. Therefore, the micro-social units ostensibly specialized to positive ­sentiment or love and affection may actually be specialized to doing the opposite. In short, such psycho-political culture may be reproducing the “Anti-Christ of human rights.” The idea of sentiment, crucial to the social processes of controlling and regulating “positive sentiment,” is also crucial to the social processes of human rights later in deprivations, which we describe subsequently in terms of negative sentiment. B Groups and Mass Murder In a survey map provided by the Associated Press,53 mass killings (which are essentially the outcomes of the problems of “otherness,” cultural dominance, and conflict in the 20th Century) provide a staggering specter of what would technically be called genocide, but perhaps more realistically, may be called domicide since the mass killings reflect group levels of identity, broader than indicated in the Genocide Convention. Thus, in Africa, as far back as 1904 and 1907, German colonial conquests of South-West Africa resulted in the killings of 100,000 Hereros.54 Similarly in 1972 in Burundi, between 80,000 and 130,000 Hutus were killed.55 In Ethiopia between 1983 and 1984, one million people perished.56 In the context of Iraq (1915 and 1918), 1.5 million Armenians were killed.57 Between 1939 and 1945, the Nazis killed approximately 11 million people.58 In 1992, it is estimated that one million Muslims were killed in Bosnia.59 In 1965 53 54 55 56 57 58 59

53

54 55 56 57 58 59

Arlene Levinson (from the Associated Press), For This Century’s Homicide Regimes, ­ enocide is a Snap, The Gainesville Sun, 1G, 4G (September 24, 1995), especially the map G (Mass Killings of the 20th Century). Id. See especially the map (Mass Killings of the 20th Century). Id. Id. Id. Id. Id.

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and 1966, between 500,000 and one million people were killed in ­Indonesia.60 It is estimated that between 60 million and 100 million people died under Communist rule in China, beginning in 1949.61 In the Latin American state of Guatemala, between 1980 and 1984, at least 100,000 people were killed.62 The problems of constitutional order, world order and group dominance and subordination or extermination remain important problems for international lawyers and specialists in the law of humanitarianism and human rights.63 For example, the rules of international humanitarian law address a fundamental problem of how to humanize the “other” in the context of armed conflict, be it international or internal. In the context of war or armed conflict, the hallmark of identification is the “other” (the enemy) and the “us” (the “we”). Thus, it may be seen that the rules of humanitarian law are concerned not with the justification of war as such, but with the limitations that international law and moral order require, viz., humane treatment for the enemy, the “other.”64 The central normative point of all of humanitarian law is the recognition of the “other” on the basis of a shared, common humanity. If armed conflict is occasioned by the problem of “groups” and their power-relations, then it should be acknowledged that armed conflict often includes the problem of “minorities,” but more broadly, the struggle for dominance, or indeed, freedom from dominance. Moreover, among the key pillars of modern international law are (1) the rules designed to protect aliens,65 (2) the international law of 60 61 62 63 64 65

60 61 62 63

64

65

Id. Id. Id. The specific response, with respect to the deprivations relating to the war in the former Yugoslavia was a key factor in the creation of the International Criminal Tribunal for the former Yugoslavia, and later, for Rwanda. See generally M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996); The United Nations and Rwanda 1993–1996. This is illustrated in the collection of Burns H. Weston, Richard A. Falk, and Hilary Charlesworth, Supplement of Basic Documents to International Law and World Order, 3d ed., (1997), 135–336. See also Meron, Towards a Humanitarian Declaration on Internal Strife, 78 a.j.i.l. 859 (1984) and Human Rights in Internal Strife: Their International Protection (1987); Willemin & Heacock, The International Committee of the Red Cross (1985); Forsythe, The Red Cross as Transnational Movement, 30 International Organisation, 607 (1967); Secretary-General’s Report on the Tribunal for the former Yugoslavia, Pursuant to para. 2 of s.c.Res. 808 (1993); Security Council Resolution 808, Security Council Doc. S/25704 (1993). See Guha Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law, 55 a.j.i.l. 863, 866, 888 (1961). See also Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide Bosnia

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­humanitarian intervention,66 and (3) the international protection of minorities or rules to protect the individual.67 After World War ii, the protection of human rights has further defined the scope of the problems to which international law must respond.68 However, the heart and inspiration of the udhr regime is rooted in the idea that aggression can also be an instrument of domination; and, in particular circumstances, aggression identifies both groups designated as “others” and groups often deemed to be physically undesirable.69 Thus, the war of Nazi aggression was 66 67 68 69

66 67

68

69

and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Provisional Measures i (Order)), icj Reports 3 (April 8, 1993) and (Provisional Measures ii (Order)), i.c.j. Reports 325 ­(September 13, 1993); Anglo-Iranian Oil Co. Case, icj Reports 89 (1951); Interhandel case, icj Reports 6 (1959); Barcelona Traction, Light and Power Company, Limited, icj ­Repports 3 (1970); Military and Paramilitary Activities in and against Nicaragua, icj ­Reports 14 (1986). Louis B. Sohn & Thomas Buergenthal, International Protection of Human Rights (1973), Chapter iii (Humanitarian Intervention), at 137–211. For a discussion on international law protection of minorities, see id., Chapter iv ­(International Protection of Minority Rights: The League of Nations System and PostWorld-War-ii Arrangements), at 213–335; Patrick Thornberry, International Law and the Rights of Minorities (1991). On the international laws protecting the individual, see, e.g., The Universal Declaration of Human Rights, g.a. Res. 217 (iii 1948), u.n. gaor, 3rd Sess., Pt. i, Resolutions, at 71, u.n. Doc. A/810 (1948); reprinted in 3 Weston iii.A.1 (adopted by the u.n. General Assembly, December 10, 1948); The u.n. Charter, 1 u.n.t.s. xvi, 1976 y.b.u.n. 1043; 1945 Can. t.s. 7; 1945 s.a.t.s. 6; 1946 u.k.t.s. 67, Cmd. 7015, 145 b.f.s.p. 805; u.s.t.s. 993, 59 Stat. 1031; reprinted in 1 Weston I.A.1 (concluded at San Francisco, June 26, 1945; entered into force, October 24, 1945) especially arts. 1, 55, and 56 (provisions on human rights); International Covenant on Civil and Political Rights (i.c.c.p.r.), 999 u.n.t.s. 171, 1966 u.n.j.y.b. 193; 1977 u.k.t.s. 6, Cmnd. 6702; reprinted in 6 i.l.m. 368 (1967) & 3 Weston iii.A.3 (adopted by the u.n. General Assembly, December 16, 196 (g.a. Res. 2200, 21 gaor, Supp. 16, u.n. Doc. A/6316, at 52); entered into force March 23, 1976.); International Covenant on Economic, Social, and Cultural Rights, 993 u.n.t.s. 3, 1966 u.n.j.y.b. 170; 1977 u.k.t.s. 6, Cmnd. 6702; reprinted in 6 i.l.m. 360 (1967) & 3 Weston iii.A.2 (adopted by the u.n. General Assembly, December 16, 1966 (Annex to g.a. Res. 2200, 21 gaor, Supp. 16, u.n. Doc. A/6316, at 490); entered into force, January 3, 1976). See id. (Sohn & Buergenthal), Chapter vi: The United Nations as Protector of Human Rights, 505–997, and Chapter vii: The European Convention on Human Rights, 999–1265. See also generally Raphael Lemkin, Axis Rule in Occupied Europe (1944). Myres McDougal, Harold Lasswell, and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980); Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals, Text and Materials (1996). For works dealing with the development and impact of the Universal Declaration of ­Human Rights, see N. Robinson, The Universal Declaration of Human Rights: Its Origins,

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not simply a war of internal aggression against Jews and other groups inside Germany, it was a war of aggression against all those deemed sub-human by the ideology and practice of Nazi racialism in states large and small.70 A close and deadly affinity developed in the context of prejudice and racial domination on the one hand and naked aggression on the other.71 Thus, in the aftermath of conquest, the “peace” of the concentration camp and the death camp superseded the dynamic of war and created a crisis for international law and moral order.72 This crisis provided a deepened humanitarian c­ oncern 70 71 72

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Significance, Application, and Interpretation (1958); E. Schwelb, Human Rights and the International Community: The Roots and Growth of the Universal Declaration of Human Rights, 1948–1963 (1964); and A. Verdoodt, Naissance et Signification de la Déclaration Universelle des Droits de l’Homme (1964). See Rummel, Death by Government, Chapter 6 (20,946,000 Murdered: The Nazi ­Genocide State) at 111–22. The Nazi state, according to Rummel, killed most likely around 21 m ­ illion people, among whom were “men, women, handicapped, aged, sick, prisoners of war, forced laborers, camp inmates, critics, homosexuals, Jews, Slavs, Serbs, Czechs, Italians, Poles, Frenchmen, Ukranians, and so on.” Id. at 111,113. Rummel comments on the racist beliefs of Nazi leaders, who “believed utterly in the superiority of their Aryan race.” Id. at 118. He points to a text on Eastern Europeans that was distributed to the ss from the ss main office. According to the distribution text: “The sub-human, this apparently fully equal creation of nature, when seen from the biological viewpoint, with hands, feet and a sort of brain, with eyes and a mouth, nevertheless is quite a different, a dreadful creature, is only an imitation of man with man-resembling features but inferior to any animal as regards intellect and soul. In its interior, this being is a cruel chaos of wild, unrestricted passions, with a nameless will to destruction, with a most primitive lust, and of unmasked depravity.” Id. at 118–19 (quoting Ihor Kamenetsky, Secret Nazi Plans for Eastern Europe: A Study of Lebensraum Policies (1961), 38–39). Rummel continues: “So science proved, they thought. And therefore no inferior group could be allowed to pollute their racial strain … Nothing could allow the master race to be weakened. Therefore, the Jews and Gypsies must be exterminated. So must also the homosexuals and handicapped. So must also the Slavs, not only because of their biological inferiority but also to make room for the superior race to expand and grow.” Id. at 119. See International Military Tribunal sitting at Nuremberg, reported in Trial of the Major War Criminals before the International Military Tribunal (1949) (the “Blue Series”); Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (1949) (the “Green Series”); The Charter and Judgment of the Nuremberg Tribunal: History and Analysis, Memorandum submitted by the Secretary-General (Lake Success, United Nations General Assembly, International Law Commission, 1949). See generally Lemkin; McDougal, Lasswell, and Chen; Sohn & Buergenthal, Ch. 6 & 7; Study of the Question of the Prevention and Punishment of the Crime of Genocide prepared, Nicodéme Ruhashyamiko, u.n. Doc. E/CN 4/Sub. 2/416 (July 4, 1978); Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: beyond the Nuremberg Legacy (1997).

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b­ ecause of the fact that grotesque violations of humanitarian values can and do happen in times of war or in levels of armed conflict, not t­ echnically “war.”73 These violations also occur in times of peace.74 As such, it became imperative that the rules of humanitarianism be extended to armed conflicts not ­technically “war” in the strictly legal sense.75 Even more importantly, there was the recognition that regardless of the condition of war or peace, there ­remained an international obligation to respect the human rights of “others” and ­“non-others,” for that matter.76 The Genocide Convention, although inspired by humanitarian values, was the first real human rights treaty.77 It predates the udhr (which is a un ­Declaration).78 The heart of the Genocide Convention in the sense of its ­“spirit” is that it responds to the problem of not only discriminating or dominating “others,” but extinguishing or conspiring to extinguish them.79 In a non-­technical sense, the conceptual basis of the definition of genocide must assume certain facts about the nature of social organization on a worldwide basis. First, it must assume the group nature of world society. Second, it ­assumes that certain enumerated categories of group identity are most intensively identified with the business of mass killings. In this latter context, the symbols of “national,” “racial,” “ethnical,” or “religious” identity are included. These symbols are indeed important culturally defined symbols of identity; and one does not need a scientific study to indicate that “genocide,” as defined in the Convention, 73 74 75 76 77 78 79

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See M. Cherif Bassiouni & Peter Manikas, The Law of the International Criminal ­Tribunal for the Former Yugoslavia (1996), Ch.7, Section  2 (Armed Conflict of an International Character), 448–54 and Section  3 (Armed Conflicts of a Non-International Character), 454–58. Id. Id. Id. Convention on the Prevention and Punishment of the Crime of Genocide, 78 u.n.t.s. 277; 1951 a.t.s. 2; 1949 Can. t.s. 27; 1970 u.k.t.s. 58, Cmnd. 4421, 151 b.f.s.p. 682; S. Exec. Doc 0 818–8, at 7–12 (1949); reprinted in 3 Weston III.J.1 (concluded at New York, December 9, 1948; entered into force on January 12, 1951). As of January 1, 1994, 111 states were parties to the Convention; on February 10, 1986, the United States Senate gave its advice and consent to the ratification of the Convention. The Universal Declaration of Human Rights was adopted by the un General Assembly on Dec. 10, 1948, whereas the Convention on the Prevention and Punishment of the Crime of Genocide was adopted December 9, 1948. See generally The Universal Declaration of Human Rights. Cf. The Convention on the Prevention and Punishment of the Crime of Genocide. See Convention on the Prevention and Punishment of the Crime of Genocide, at art. ii and iii.

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r­ equires action based on some culturally accepted symbol of race, nationality, ethnicity, and belief system. What is critical about this legal instrument is that it must presuppose a social process of worldwide ­ubiquity in which: 1. 2. 3.

distinctions are made which are culturally understood about race, ­ethnicity, religion, as well as nationalism; these distinctions serve as the basis for providing security or insecurity, entitlements or disentitlements, the weal of social organization or the woe, and even life and death; and, these distinctions incorporate the capacity of society to identify and allocate the benefits and burdens of organized social order to culturally identifiable targets of identity.

This supposition leads to a troublesome but important point. First, ‘distinctions’ are widespread. They are endemic to society in its most universal sense. Second, how are we to determine the how, why, which, and when of distinctions that enhance or disparage the basic humanitarian values of public o­ rder? When, for example, is a distinction “discrimination” that disparages human values? When is discrimination “domination,” and when is “domination” ­simply a conspiracy to destroy a group in whole or in part, or an act designed to achieve this result? These are practical questions that strike at the core of operational law when judges, national or international, must confront the specific prescription and application of anti-discrimination norms, anti-dominance norms (e.g., the suppression and punishment of the crime of apartheid), or the norms that relate to the processes of mass killings. C On Ethnic and Other Markers of Group Identity It may be useful at this point to shift gears somewhat and to focus in a preliminary way upon the nature of the problem of prejudice, discrimination, group deprivations, and genocide. Since these problems depend upon a critical culturally understood symbol of ascriptive identity, it may be useful to provide some threshold clarity about the nature of the problems of group deprivations of which such forms as racial prejudice, anti-Semitism, cultural dominance, and genocide are significant outcomes. Racial discrimination is a necessary, but insufficient, condition of group dominance. Both racial discrimination and group dominance are necessary, but not sufficient, conditions of genocide. In short, it is not simply valuable socially to punish the perpetrators of genocide. It may be vitally important that we prevent the necessary conditions of genocide by giving greater importance to the interventions and remedies we

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­develop to moderate, ameliorate, or cure racial discrimination and the conditions of group dominance. The semantic ambiguity illustrated above is also a component of the issue of race in American constitutional history. Race issues have implicated interpretations of the First Amendment (sit-ins and public demonstrations), the rights of the criminally accused (death penalty, picking jurors), democratization (voting rights, reapportionment), the problems of slavery, and various ­manifestations of racial discrimination (family law, housing, employment, education and remedies, including affirmative action). Indeed, one may fairly misuse the Holmesian insight about the brooding omnipresence of natural law by suggesting that race is another kind of brooding omnipresence over ­American public order, its constitutive processes, as well as its civil society arenas. To further illustrate the complexity of these juristic labels of group identity, it may simply be suggested that the terms ‘ethnic’ and ‘national’ are often used interchangeably, and the term ‘racial’ is often absorbed into the term ‘ethnic.’ Religious identifications are sometimes collapsed into the notion of ethnic or the notion of the national or indeed, the notion of the racial. As a social ­psychological datum, culturally generated labels of group identity cover far more than what is indicated by the Genocide Convention. Thus, alienage, language, political affiliation, class affiliation, clan affiliation, cast affiliation, skill affiliation, and indeed just about any symbol that is culturally understood to differentiate in practical terms between the ‘we’ and the ‘other,’ generate an essential predicate for the diversity of forms of group deprivation. The necessary condition of genocide and mass murder is the transmission of culturally understood markers identifying and distinguishing the ‘we’ and the other. Let us start by analyzing the most obvious label of cultural identification: ethnic affiliation. The term ‘ethnic’ is often defined tautologically. One is a ‘Serb’ because one is a ‘Serb.’80 The Genocide Convention Implementation Act of 1987 (The Proxmire Act) provides a good illustration of the circularity 80

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Groups are the central mechanism for providing individuals with their identity; rather than thinking about individuals “sacrificing” part of their identity when the ‘I’ become part of a group, [we should regard] individual identity as possible only in the context of secure group attachments… The notion of individuals apart from groups…is a product of western thought, not the human experience. Marc H. Ross, The Management of Conflict: Interpretations and Interests in Comparative Perspective (1993).

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and ambiguity surrounding the legal issue of group definitions.81 For example, the term ‘ethnic group’ means a set of individuals whose identity as such is ­distinctive in terms of common cultural traditions of heritage.82 The term, ­‘national group,’ means a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.83 The term, ‘­racial group,’ means a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent.84 The term, ‘religious group,’ means a set of individuals whose identity as such is distinctive in terms of common religious creed, beliefs, doctrines, practices, or rituals. 81 82 83 84

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u.s.c. Title 18—Crimes and Criminal Procedure; Section 1091. Genocide. “(a) Basic Offense.—Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to ­another group; or attempts to do so, shall be punished as provided in subsection (b). (b) ­Punishment for Basic Offense—The punishment for an offense under subsection (a) is—(1) in the case of an offense under subsection (a)(1) (Footnote 1) where death results, by death or imprisonment for life and a fine of not more than $1,000,000, or both; and (Footnote 1) So in original. (2) a fine of not more than $1,000,000 or imprisonment for not more than twenty years, or both, in any other case. (c) Incitement Offense.—Whoever in a circumstance described in subsection (d) directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both. (d) Required Circumstance for Offenses.—The circumstance referred to in subsections (a) and (c) is that (1) the offense is committed within the United States; or (2) the alleged offender is a national of the United States (as defined in section  101 of the Immigration and Nationality Act (8 u.s.c. 1101)). (e) Nonapplicability of Certain ­Limitations.—Notwithstanding section  3282 of this title, in the case of an offense under subsection (a)(1), an indictment may be found, or information instituted, at any time without limitation.” See Pierre Van den Berghe, The Ethnic Phenomenon (1981), 237–50; Brown, at 4–5. Social Identity Theories are particularly good in explaining how minority and majority groups define themselves as such, and how majority-minority conflict develops through stages. See Tajfel, Henri Human Groups and Social Categories: Studies in Social P ­ sychology (1981); see also D.M. Taylor & D.J. McKirnan, Theoretical Contributions: A Five-Stage Model of Intergroup Relation, British Journal of Social Psychology, Vol. 23: 291–300 (1984). Expanding interdependence within a divided world arena may not necessarily undermine chauvinistic identities. On the contrary, both direct and reported contacts with alien cultural mores and lifestyles may enhance preoccupation with the self. Over longer

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More scientific efforts suggest membership in an ethnic “group” which exhibits: 1. common cultural traits; 2. a sense of community; 3. a presumed common historical heritage; 4. a “feeling of ethnocentrism”; 5. ascribed group identity; and 6. territorial identification.85 These criteria—culture, community sense, history, ethnocentric feelings, ascriptive identity, and territorial ­identification—are simply too broad to give any precise empirical ­specification of the ethnic dimension of political behavior (such as behaviors that generate “conflict,” “violence,” and “war”). They are just as circular and opaque as the legal efforts at definition. Stated bluntly, group labels are best explained when group identities are contextualized by the community’s processes of effective power as well as the community’s constitutive and “public order” ­characteristics. Using ethnicity as an operating symbol of group identity, let us unpack this kind of expression by contextualizing it. A more promising approach to the “ethnic” factor in social and political processes may be to root our explanations in the psychological processes of individual and group identity.86 From this perspective, ethnicity may be seen as an aspect of identity of politico-cultural salience. The basic elements of identity are not difficult to comprehend. First, we start with the individual selfsystem, the “I.” The “I” is born into a family or primary kinship unit where the sense of the “I” is broadened to include those figures through whom one’s intimate needs and gratifications are secured. The “I” gradually internalizes these ­“symbolic” parent and sibling figures as part of an ever evolving and expanding “we” self-system. However, the boundaries of the “we” are not limitless. The family or kinship unit of primary affiliation may constitute a “boundary” of the “we” for the individual self-system in which other similar units are symbolized in the negative as either the “non-we” or more affirmatively as the “other.”87 85 86 87

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time intervals, the preoccupation with the self’ may lead to a reshaping of personality and culture by the incorporation of traits of the ‘other.’ However, this incorporation does not necessarily lead to identification with all cultures and all peoples. See Pierre Van den Berghe, The Ethnic Phenomenon (1981), 237–50; Michael Brown, ­Ethnic Conflict and International Security, at 4–5. Social Identity Theories are particularly good in explaining how minority and majority groups define themselves as such, and how majority-minority conflict develops through stages. See Tajfel, Henri Human Groups and Social Categories: Studies in Social Psychology (1981); see also D.M. Taylor & D.J. McKirnan, Theoretical Contributions: A Five-Stage Model of Intergroup Relation, British Journal of Social Psychology, Vol. 23: 291–300 (1984). Expanding interdependence within a divided world arena may not necessarily undermine chauvinistic identities. On the contrary, both direct and reported contacts with alien cultural mores and lifestyles may enhance preoccupation with the self. Over longer time intervals, the preoccupation with the “self” may lead to a reshaping of personality

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Precisely how the boundaries of identity are drawn between the “I,” the c­ ontingent “we,” and the out-group, “non-self” or “other” represents a great challenge. This challenge centers on the sense of “community,” the integration and cohesion of the nation state and the coherence and viability of regional alignments for the myriad purposes encompassed in the “common interest” (i.e., collaboration for security, for economic advantage, for the promotion of human rights in the broad sense of global solidarity). The ultimate challenge for those who believe in a public order that makes human dignity on a global basis its most critical priority is whether the boundaries of the “I” and the “we” can be extended with sufficient coherence and sustainability to support an identification with the solidarity and dignity of humanity as a whole. The un Charter aspires to this kind of system of identity.88 Progress has been made in expanding the boundaries of parochial (or ­chauvinistic) identities to more inclusive levels.89 Yet, in a world of ubiquitous insecurity (political, military, economic, as well as cultural) the reinvention of chauvinism and nativistic dis-identity with humanity as a whole, as well as the denial of our mutual interdependence and inter-determination, lurk around the corner in some parts of the world. The problem of “ethnic” conflict generates important empirical questions: What is the ethnic identity; what is its relationship to “political” identity? How are political and or ethnic identities 88 89

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and culture by the incorporation of traits of the ‘other.’ However, this incorporation does not necessarily lead to identification with all cultures and all peoples. The United Nations Charter incorporates the identification of solidarity and dignity of humanity as a whole in its opening paragraph: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed forces shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims.” Charter of the United Nations (as amended), 59 Stat. 1031, t.s. No. 993, 3 Bevans 1153 (1945) (signed at San Francisco on June 26, 1945; entered into force, October 24, 1945; latest amendments are at 24 u.s.t. 2225, t.i.a.s. 7739) (emphasis added). The framework of human rights identification is a typifying example. Identifications based on liberal nationalism provide potential for more inclusive identifications.

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shaped and developed over time? Is there such a thing as an anti-democratic, human rights-denying system of identity? The normative questions critical to those who seek normative guidance in the description, evaluation and predictive prospects for a meaningful ­resolution of so-called “ethnic” conflicts are: what “future” system of identity is desirable? What kind of future system of political identity should scholars and activists promote and defend for a defensible world order? The very conception of “ethnic” remains both undefined and rather amorphous. The phrase “ethnic identity” is often tautologically defined.90 Ethnic identity is meant to designate “national identity,” and correspondingly, national identity is ethnic identity. It will remain so unless we are willing to understand it in the c­ ontext of actual social and power processes. What we label “ethnic” or “national” i­dentity is more generally the appropriate culturally transmitted sign or ­symbol by which the individual self-reproduces the “I,” the “we,” and, at the same time internalizes by this symbolic-cultural marker, the “other” as in another. These symbolic pegs or markers might include color, racial pedigree, group affiliations, age, birth status, language, religion, ideology, class status, caste position, gender ­differences, and so on. To begin to understand the social process behind the formation of root identifications, one must account for the conditions that shape personality formation in early childhood.91 Innocuous child rearing and nurturing practices may, in sum, amount to “deprivations” from the perspective of the child, but may be viewed as “normal” from the adult vantage point. Early years are crucial in the individual becoming conscious of the self (i.e., becoming aware that the self is an “I”). A vital part of early childhood development is the emergence of an awareness of individuals other than one’s self (non-self others).92 90 91 92

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For an analysis of the manipulation of the definitions of ethnicity, see War and Ethnicity: Global Connections and Local Violence (David Turton, ed.) (1997). See Albert Bandura, Social Foundations of Thought and Action: A Social Cognitive Theory (1986). Every function in the child’s cultural development appears twice: first, on the social level, and later, on the individual level; first, between people (inter-psychological) and then inside the child (intra-psychological). This applies equally to voluntary attention, to logical memory, and to the formation of concepts. All the higher functions originate as actual relationships between individuals. L.S. Vygotsky, Mind in Society: the Development of Higher Psychological Processes (Cole, et al., eds.) (1978). Symbolic inter-actionism emerges from the Chicago School of Sociology in the 1930s and later, particularly from the work of George Herbert Mead. The central premises of symbolic inter-actionism are as follows: People understand things by assigning meaning to their experience. Human perception is always mediated by a filter of symbols. Meanings are learned in interaction between

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Some of these “selves” are internalized as a “we” and some as the “other” or as “they.”93 It is often thought that anxiety, insecurity and allied deprivations influence or condition the individual’s conception of the self as an “I” will be defined to include “others” in the sense of the “we.”94 In other words, early years shape fundamental identification patterns and determine the essential “I” and contingent “we.”95 Patterns of nurturance and early socialization do not take place in a vacuum.96 Children are born into contexts in which the facts of social diversity are ubiquitous. The patterns of social stratification (including a consciousness of social diversity) represent a culture context that is transmitted inter-­ generationally in varying degrees of symbolic intensity to every personality system.97 The anthropology of social differentiation is much disputed. That it 93 94 95 96 97

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people. Meanings arise from the exchange of symbols in social groups. All social structures and institutions are created by people interacting with one another. Individual behavior is not strictly determined by prior events, but is voluntary. The mind consists of an internal conversation, which reflects interactions one has had with others. Behavior is enacted, or created in the social group in the course of interaction. One cannot understand human experience by observing overt behavior. People’s understandings—the meanings they assign events—must be ascertained. George H. Mead, Mind, Self and Society from the Standpoint of a Social Behaviorist (1934). See T.F. Pettigrew, The Ultimate Attribution Error: Extending Allport’s Cognitive Analysis of Prejudice, Personality and Social Psychological Bulletin, 5, 461–76 (1979). These conceptualizations occur across contexts. Political opinions, for example, are “badges of social membership”, declarations of social identity. M. Brewster Smith, Jerome S. Brunerand Robert W. White, Opinions and Personality (1956). It must be pointed out that socialization continues from infancy through the end of every individual’s life span as various facets of society occur across the life course of an individual. Childhood socialization is stressed here due to its relative strength and salience to the present context. W.R. Looft, Socialization in a Life-Span Perspective: White Elephants, Worms, and Will-O’-The Wisps, Gerontologist, 13, 488–97 (1973). The average child in the United States sees over 20,000 commercials per year. R.P. Adler, B.Z. Friedlander, G.S. Lesser, L. Meringoff, T.S. Robertson, J.R. Rossiter, and S. Ward. ­Research on the Effects of Television Advertising on Children: a Review of the Literature and Recommendations for Future Research, report prepared for the National ­Science Foundation, Research Applications Directorate, Research applied to National Needs (rann)—Division of Advanced Productivity Research and Technology (1977). Take a comparison between Western socialization and Japanese socialization for example. “The Western concept of ‘self’ refers essentially to the uniqueness of the individual, or the substance of the person, which has maintained its sameness and continuity over time and across situations, although it is recognized as a product of interaction with other humans. Whereas, the Japanese concept of ‘jibun’ refers to one’s sharing which is something

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exists is undisputed, that it has been accentuated in contemporary society by the division of labor and specializations that attend it is also commonplace. When patterns of social stratification emerge more concretely from the social process, and when these patterns have a close alignment with the distribution of power, wealth, and indeed all other base values which sustain and modify these class and caste divisions, powerful symbol-events (generated from these interactions) create the conditions under which the “I” defines the “self” by including, within the “we,” groups that are most closely identified with the “class,” “caste,” or “ethnic” position of the kinship (or family) unit of primary affiliation.98 The key factor which lays the foundation for the exclusivist ­identity lies ultimately in the seemingly innocuous patterns of child rearing and nurturing.99 The ability of the self to identify with an in-group and to identify and exclude an out-group appears to derive from events relating to identification patterns that are accorded a symbolic character.100 Thus, such facts as sex, color, race, group affiliation, age, birth, language, religion, political belief, appearance, class, and intellect are the ubiquitous symbolic pegs that the individual internalizes as part of the “we.”101 The implication of this analysis is that ethnicity is a part of the socio-political processes that vest political importance to the symbolic “markers” that shape patterns of affiliation, loyalty and group identity. Needless to say, the same individual may experience a multitude of 98 99 100 101

located beyond the boundary of ‘self’ in the Western sense. The amount of one’s sharing varies depending upon dynamics of a situation. ‘Jibun’ does not have a definite consistent boundary.” Y. Minoura, Life in-between: the acquisition of cultural identity among Japanese children living in the United States (Ph.D. dissertation) (1979). 98 The “knowledge-gap hypothesis” states that people of higher socioeconomic status acquire information from the media at a faster rate than do those of lower socioeconomic status, thus increasing the difference between the two groups in the amount of information held on any issue. P.J. Tichenor, G.A. Donahue, and C.N. Olien, Mass Media and ­Differential Growth and Knowledge, Public Opinion Quarterly, 34, 158–70 (1970). 99 See Harry C. Triandis, Individualism and Collectivism (1995). 100 A simplified model of information processing is used here for relevancy and brevity. A more complex model is provided, but is not required for a basic understanding of this discussion. See R.S. Wyer and T.K. Srull, The Processing of Social Stimulus Information: A Conceptual Integration (1980), in Person Memory: the Cognitive Basis of Social ­Perception (R. Hastie, T.M. Ostrom, E.B. Ebbersen, R.S. Wyer, Jr., D.L. Hamilton, and D.E. Carlston, eds.) (1980). 101 For an overview, see The Future of Social Psychology: Defining the Relationship between Sociology and Psychology (recent research in psychology). (C.W. Stephan, W.G. Stephan, T.F. Pettigrew, eds.) (1991).

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“group” lives of varying levels of intensity,102 and correspondingly internalize a plurality of “symbolic” markers as that person experiences acculturation and political socialization. But, the group “label” is the critical condition of inter-group conflict and genocide and mass murder.103 In short, critical to the ­reproduction of mass murder and heinous human rights violations is the ­marking of the other and the generation of emotional support effectually ­(negative sentiment) to give operational effect to these dark emotions. Threshold Outcomes of the Global-Social Process of Negative Sentiment From the perspective of contemporary conceptions of world order, the concerns for group rights, discriminations, deprivations, and repression of groups and individuals based on “group” labels of identity remain central problems for the maintenance of international peace and security, as well as conditions that inhibit the progressive developmental agenda envisioned in the higher purposes and objectives of the Charter system. Discrimination against “minorities” is a critical concern. Although the regime of unvarnished dominance known as Apartheid has now been dismantled,104 the problems of cultural dominance are still a major international concern and have once more evolved into even more brutal measures of political reaction.105 In a survey map provided by the Associated Press,106 mass killings, which are essentially the outcomes of the problems of “otherness,” cultural dominance, and conflict

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102 It has been shown that to the extent that it decreases the salience of categorization on any one dimension, multiple group categorization decreases bias. Ethnic groups were crossed with a laboratory manipulation of group membership and more intergroup bias was found when memberships along these two dimensions coincided than when they were crossed. W. Doise, Intergroup Relations and Polarization of Individual and Collective Judgments, Journal of Personality and Social Psychology, 12, 136–43 (1969). 103 Brown, at 6–12, discussed a three-pronged approach to pinpointing the causes of ethnic conflict (at the systemic level, the domestic level and the perceptual level), much of which is directed by the intensity of acculturation and political socialization experienced by these groups. 104 See generally, Rights and Constitutionalism: The New South African Legal Order, Dawid van Wyk, John Dugard, Bertus de Villiers, Dennis Davis, eds. (1994). 105 See generally, e.g., Rummel, Death by Government; Cassese, Violence and Law in the Modern Age; Bennett, Yugoslavia’s Bloody Collapse; Stiglmayer, Mass Rape: The War against Women in Bosnia-Herzegovina; The United Nations and Rwanda 1993–1996. 106 Arlene Levinson (from the Associated Press), For This Century’s Homicide Regimes, ­Genocide Is a Snap, The Gainesville Sun, 1G, 4G (September 24, 1995), especially the map (Mass Killings of the 20th Century).

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in the 20th Century, provide a staggering specter of genocide. As far back as 1904 and 1907, G ­ erman colonial conquests of Southwest Africa resulted in the killings of 100,000 ­Hereros. Similarly in 1972, between 80,000 and 130,000 Hutus were killed in Burundi. In Ethiopia between 1983 and 1984, one million people perished. In Iraq (1915 and 1918), 1.5 million Armenians were killed. Between 1939 and 1945, the Nazis killed approximately 11 million people. In 1992, it is estimated that one million Muslims were killed in Bosnia. In 1965 and 1966, between 500,000 and one million people were killed in Indonesia. It is estimated that between 60 million and 100 million people died under Communist rule in China, beginning in 1949. In Latin America between 1980 and 1984, in the state of Guatemala, at least 100,000 people were killed. These figures are estimated and, according to the Associated Press, the sources include the work of scholars as well as reports by the Associated Press.107 These estimates may be usefully compared to the figures provided by Professor R.J. Rummel, quoted later in this Chapter. The problems of constitutional order, world order, group dominance, and subordination or extermination remain important problems for international lawyers and specialists in humanitarian and human rights law.108 For example, the rules of international humanitarian law address a fundamental problem of how to humanize the “other” in the context of armed conflict, “international” or “internal.” In the context of war or armed conflict, the hallmark of identification is the “other” (the enemy) and the “us” (the “we”). Thus, it may be seen that the rules of humanitarian law are concerned not with the justification of war as such, but with the limitations that international law and moral order require (namely) humane treatment for the enemy, the “other.”109 107 108 109

107 Id. 108 The specific response, for example, with respect to the deprivations relating to the war in the former Yugoslavia was a key factor in the creation of the International Criminal Tribunal for the former Yugoslavia, and later, for Rwanda. See generally, M. Cherif Bassiouni & Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996); The United Nations and Rwanda 1993–1996. 109 This is illustrated in the collection of Burns H. Weston, Richard A. Falk and Hilary Charlesworth, Supplement of Basic Documents to International Law and World Order, 3d ed., (1997), 135–336. See also Meron, Towards a Humanitarian Declaration on Internal Strife, 78 A.J.I.L. 859 (1984) and Human Rights in Internal Strife: Their International Protection (1987); Willemin & Heacock, The International Committee of the Red Cross (1985); Forsythe, The Red Cross as Transnational Movement, 30 International Organisation, 607 (1967); Secretary-General’s Report on the Tribunal for the former Yugoslavia, Pursuant to para. 2 of s.c.Res. 808 (1993); Security Council Resolution 808, Security Council Doc. S/25704 (1993).

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The central normative point of humanitarian law is the recognition of the “other” on the basis of a shared, common humanity. If armed conflict is occasioned by the problem of “groups” and the problems of their power relations, then it may be acknowledged that armed conflict often includes the problem of “minorities,” but more broadly, the struggle for dominance, or indeed, freedom from dominance. Moreover, among the key pillars of modern international law are (i) the rules designed to protect aliens,110 (ii) the international law of humanitarian intervention,111 and (iii) the international protection of minorities or rules to protect the individual.112 The Genocide Convention, although inspired by humanitarian values, was the first real human rights treaty.113 It predates the un’s Universal Declaration 110 111 112 113

110 See Guha Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law, 55 a.j.i.l. 863, 866, 888 (1961). See also Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Provisional Measures i ­(Order)), icj Reports 3 (April 8, 1993) and (Provisional Measures ii (Order)), i.c.j. Reports 325 ­(September 13, 1993); Anglo-Iranian Oil Co. Case, icj Reports 89 (1951); Interhandel case, icj Reports 6 (1959); Barcelona Traction, Light and Power Company, Limited, icj Repports 3 (1970); Military and Paramilitary Activities in and against Nicaragua, icj Reports 14 (1986). 111 Louis B. Sohn & Thomas Buergenthal, International Protection of Human Rights (1973), Chapter iii (Humanitarian Intervention), at 137–211. 112 For a discussion on international law protection of minorities, See id., Chapter iv (International Protection of Minority Rights: The League of Nations System and Post-WorldWar-ii Arrangements), at 213–335; Patrick Thornberry, International Law and the Rights of Minorities (1991). On the international laws protecting the individual, see, e.g., The Universal Declaration of Human Rights, g.a. Res. 217 (iii 1948), u.n. gaor, 3rd Sess., Pt. i, Resolutions, at 71, u.n. Doc. A/810 (1948); reprinted in 3 Weston iii.A.1 (adopted by the u.n. General Assembly, December 10, 1948); The u.n. Charter, 1 u.n.t.s. xvi, 1976 y.b.u.n. 1043, 1945 Can. t.s. 7, 1945 s.a.t.s. 6, 1946 u.k.t.s. 67, Cmd. 7015, 145 b.f.s.p. 805, u.s.t.s. 993, 59 Stat. 1031, reprinted in 1 Weston I.A.1 (concluded at San Francisco, June 26, 1945, entered into force, October 24, 1945) especially arts. 1, 55, and 56 (provisions on human rights); International Covenant on Civil and Political Rights (i.c.c.p.r.), 999 u.n.t.s. 171, 1966 u.n.j.y.b. 193, 1977 u.k.t.s. 6, Cmnd. 6702; reprinted in 6 i.l.m. 368 (1967) & 3 Weston iii.A.3 (adopted by the u.n. General Assembly, December 16, 196 (g.a. Res. 2200, 21 gaor, Supp. 16, u.n. Doc. A/6316, at 52), entered into force March 23, 1976.); International Covenant on Economic, Social, and Cultural Rights, 993 u.n.t.s. 3, 1966 u.n.j.y.b. 170, 1977 u.k.t.s. 6, Cmnd. 6702, reprinted in 6 i.l.m. 360 (1967) & 3 Weston iii.A.2 (adopted by the u.n. General Assembly, December 16, 1966 (Annex to g.a. Res. 2200, 21 gaor, Supp. 16, u.n. Doc. A/6316, at 490), entered into force, January 3, 1976). 113 Convention on the Prevention and Punishment of the Crime of Genocide, 78 u.n.t.s. 277; 1951 a.t.s. 2; 1949 Can. t.s. 27; 1970 u.k.t.s. 58, Cmnd. 4421, 151 b.f.s.p. 682; S. Exec.

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of Human Rights (udhr).114 The heart of the Genocide Convention in the sense of its “spirit” is that it responds not only to the problem of not simply discriminating or dominating by “others,” but also extinguishing or conspiring to extinguish them.115 The phenomenon of genocide is one of the extreme examples of the consequences of the reproduction of negative sentiment. In a non-technical sense, the conceptual basis of the definition of genocide must assume certain facts about the nature of social organization on a worldwide basis. First, it must assume the group nature of world society. And, second, it must assume that certain enumerated categories of group identity are most intensively identified with the business of mass killings. In this latter context, the symbols of “national,” “racial,” “ethnic” or “religious” identity are included. These symbols are indeed important culturally defined symbols of identity; and one does not need a scientific study to indicate that “genocide” (as defined in the Genocide Convention) requires action based on some culturally accepted symbol of race, nationality, ethnicity, and belief system. What is critical about this legal instrument is that it must presuppose a social process of worldwide ubiquity in which: • Distinctions are made which are culturally understood about race ethnicity, religion, as well as nationalism; • These distinctions serve as the basis for providing security or insecurity, entitlements or disentitlements, the weal of social organization or the woe, and even life and death; • These distinctions, thus, incorporate the capacity of society to identify and allocate the benefits and burdens of organized social order to culturally identifiable targets; and • The impulse to conspire or actually act to exterminate the “other” (as an “other”) is driven by the emotions included in the phrase “negative sentiment.” (The target of negative sentiment is the culturally-identified “other.”) 114 115

Doc 0 818–8, at 7–12 (1949); reprinted in 3 Weston iii.J.1 (concluded at New York, ­December 9, 1948; entered into force on January 12, 1951). As of January 1, 1994, 111 states were parties to the Convention; on February 10, 1986, the United States Senate gave its advice and consent to the ratification of the Convention. 114 The Universal Declaration of Human Rights was adopted by the u.n. General Assembly on Dec. 10, 1948, whereas the Convention on the Prevention and Punishment of the Crime of Genocide was adopted December 9, 1948. See generally, The Universal Declaration of Human Rights. Cf. The Convention on the Prevention and Punishment of the Crime of Genocide. 115 See Convention on the Prevention and Punishment of the Crime of Genocide, at art. ii and iii.

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This analysis leads to some troublesome, but important, points. First, distinctions are widespread. They are endemic to society in its most universal sense. Second, how are we to determine the how, why, which, and when of distinctions that enhance or disparage the basic humanitarian values of public order? When, for example, is a distinction discrimination that disparages human values? When is discrimination domination, and when is domination simply a conspiracy to destroy a group in whole or in part, or an act designed to achieve this result? These are practical questions that strike at the core of operational law when judges, national or international, must confront the specific prescription and application of anti-discrimination norms, anti-dominance norms, such as the suppression and punishment of the crime of apartheid, or the norms that relate to the processes of mass killings. v

Human Rights and the Regulation of Human Sentiment

These questions represent a significant departure from the traditional thought process through which family law and related systems of kinship regulation have been conceptualized, described, and normatively appraised. Central to traditional approaches has been the starting point of conceptualization from which description flows. That starting point is a structural starting point. It is reflected in the literature of law and the social sciences that describe the study of the context of positive sentiment, its control and regulation, and the study of “the family” or in a comparative cross-cultural sense the, study of smaller forms of kinship affiliation. The study assumes the centrality of these micro-social or small group structures as the bedrock of social organization and cohesion. Thus, the family is vested with an implicit but powerful normative quality, namely that the particular structure is in effect the foundation of a viable social order. The focus on structure without regard to the animating conditions both pre-dispositional and environmental generates, we submit, complex and vague preferences about the most fundamental values implicit or extant in micro-social units. In short, this focus obscures this vital psycho-social reality. It is not the case that taking into account micro-social structures is unimportant. They are. However, to provide a more realistic assessment of policy and human rights values, the focus requires a shift in emphasis. Shifting the emphasis, we submit, will create clarity about the practical issues involving the human rights of people in micro-social situations, acknowledging more critically the continuing relevance of the diverse structures validated cross-culturally in creating, protecting and terminating family and family-like structures, but, at the same time, permitting a focus on those

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­structures that strengthen the culture of human rights and those that undermine it. The emphasis that we recommend as the starting point or focus of an adequate conceptualization is the emphasis on the giving and the receiving of the positive sentiment affection. In part, the problem of adequately understanding the scope and relevance of human rights in the context of intimate, micro-social relationships, is a conceptual problem. It is the lack of a sufficiently broad, adequate focus of inquiry that makes sense comparatively, cross-culturally and internationally about how society at all levels seeks to control and regulate the giving and receiving, the displacement and distribution of positive sentiment to secure the common interests of culture, society, and ultimately the self system. From this focus, the starting point of observation, description and analysis of value to human rights in a cross-cultural diverse world is to focus on the most foundational of all the animating sentiments of humanity, the generation and the distribution of positive sentiment. By positive sentiment, we mean the shaping and sharing of affection at every level of organization with a particular focus on micro-social affection units. The term, affection unit, permits us to focus on the universality of affect and positive sentiment in all human beings. The reference to ‘affection unit’ would refer to whatever micro-social structure is an outcome in any particular culture of how that culture controls and regulates the affection process. Structures are not irrelevant but they cannot presume an a priori moral value preference without a careful clarification of what precise issues involving positive sentiment or affect are enhanced or depreciated and what contextual factors are affected by such policies and practices. In short, an adequate description with an appropriate focus would center the centrality of the value of affection in all human relations. It would enquire into the social processes by which it is created, reproduced and distributed. It would enquire into the ways in which the value of affection is protected and secured as a desired or preferred social outcome and as such, whether such outcomes enhance or depreciate human rights. It would also enquire into the processes by which the value of affection as expressed in institutionalized forms may serve as a base of power to secure other values central to the culture of human rights. Finally, it would enquire into the relevance of other values that may condition the nature of the affection process itself. Thus, enquiry would look toward the relationship between power and affect, or religion, wealth, education and enlightenment, skill, health and well-being as factors contextually relevant to the nature of the affection process itself. Perhaps this suggests a more comprehensive and novel paradigm of thinking and conceptualizing about the nature of family relations, kinship ties and other affection units in a complex world with heightened expectations for the universality of human dignity based on the culture of human rights.

chapter 8

Slavery, Tolerated Exploitation and Human Trafficking Introduction Since the 1990s, human rights literature and public discourse have increasingly reported signs of the emergence of so-called new forms of slavery at the hands of trans-border organized criminal networks. The phenomenon has emphasized a resurgence of some forms of domestic exploitation. Descriptions of slavery like forms of labor in agriculture and industry are reported. Far from being a resurgence of known forms of slavery, the indignation and passions attendant to these new forms largely tend to oversimplify another stage in a complex evolution of the exploitation of humans by humans as summarized by J. Allain: If one were to consider the long history of the ‘abolition of slavery’ in international relations, the epochs could be set out as such: the nineteenth century would be characterized by the move to abolition the slave trade; while the twentieth century could be divided into two three distinct phases: the dominance of colonial powers and abolition of slavery (­1920–1945); the decline of empire and the abolition of servitudes (1945– 1966); and the post-colonial era and the development of the political term ‘slavery-like practice’(1966–1998). The twenty-first century, for its part, is poised to move beyond the political – a post-post-colonialism if you wish – to once more emphasize the legal basis of the ‘abolition of slavery’, but this time by holding individuals responsible under international criminal law, as opposed to States under general international law or international human rights law.1 The trends of historical emancipation built on arbitrary laws and renewed ­emphases on parochial and nationalistic chauvinism has transformed slavery 1 J. Allain, Mobilization of International Law to Address Trafficking and Slavery, conference held at the 11th Joint Stanford-University of California Law and Colonialism in Africa Symposium: Trafficking Women and Children after the End of Slavery: Historical and Contemporary Perspectives from Africa and Beyond (March 19–21, 2009).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_010

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to a matter of criminal control rather than an arbitrary and prescribed moral set of dicta and fiats.2 The abolition of slavery has resulted in the rise of new forms of extreme exploitation. These new forms equate slavery to the reduction of the human person to a mere commodity. The practices discussed in this chapter include forms of extreme human exploitation distinguishable from ordinary abuses of power by persons or institutions over others. Many forms of modern production labor, described by the humanist, Simone Weil,3 2 By post-history, it is not so much Kojeve’s “alignment of provinces” popularized by Fukuyama, but as the German philosopher Peter Sloterdijk’s vision of post-history as a crystal palace, inspired by Dostoevsky’s Notes from the Underground. For Sloterdijk, globalization does not simply represent the apogee of world capitalism; it constitutes the history of contemporary Western civilization itself. Starting in 1492, when men first experience the world as a globe by sailing its oceans, it ends when men become electronic seamen able to convoke the whole world on their digital screens. This process completed, the Western civilization has retracted itself within an air-conditioned bubble of extreme comfort, consensus and cosmopolitism, protecting it from external reminiscence of history and aggressions and ugliness. Dostoevsky was one of the first thinkers to understand and describe the future of modernity when he visited the Crystal Palace of the Universal Exhibition in London in 1864. For the purpose of the exhibition, a gigantic air-conditioned glass house had been erected that could host 17,000 exhibitors. Linking his impressions to Nicolay Chernyshevsky’s Marxist utopian novel What is to be Done? (1863), where the author imagined the “ New Man” who, once the social question was resolved, would live in a glass and metal communitarian palace in an eternal spring of consensus, Dostoevsky understood with fright the looming nightmare of Western civilization: a large air-conditioned indoor, a protected abode, a large immune incubator in which one would have to surrender his own interiority. For Dostoevsky, it seemed evident that this lifeless and mandatory happiness would soon bring new forms of human madness which would materialize in the form of arbitrary crimes motivated exclusively by boredom and committed by men in search of lost necessity. See Peter. Sloterdijk, Le Palais de Crystal [The Crystal Palace], 237–53, (2006). See also, Jean-Christof Rufin, L’Empire et les Nouveaux Barbares [The Empire and the New Barbarians], (1991). Rufin compares the modern world after the fall of the Berlin wall to the Roman Empire after the fall of Carthage. For Rufin, the market-integrated parts of the World have retracted behind a new limes, protecting themselves from the new Barbarians identified with a South viewed as a mass zone of turbulence. Only a few states located along the limes deserve attention, where the universal support to democracy has been sacrificed to a new complacency with totalitarian or authoritarian states if they provide more abundance (China, Singapore, Saudi) and/or prove able to ensure regional stability or maintain the illusion they are (Egypt, Pakistan until recently). See at 135–48. The conflation of safety and security seems to be a part of this trend in the West as secular New Leviathans are built. See Thomas Hobbes, Leviathan [1660]. 3 Weil chose to work on assembly-lines for over a year and described the inhumanity of wage labor as follows: Nothing is worse than the mix of monotony and hazard; they aggravate each other, at least when the hazard is source of anguish. It causes anxiety in the factory, since it is

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are located in authoritarian-capitalist China where she worked. The practices of these tolerated if not accepted forms of production labor reduce workers to commodities by separating body and soul. That is not slavery but is a consequence of slavery. Drawing Lines Drawing the lines between socially tolerated practices and other forms of exploitation illustrates the weakening of the fundamental principles embodied in the International Labour Organisation (ilo) Declaration of Philadelphia.4 Those principles are that labor is not a commodity and that a life entails both material well-being and spiritual development of freedom and dignity. Again, Weil: [t]he difference between a slave and a citizen [echoing Montesquieu and Rousseau]: a slave is subject to his master and the citizen to the laws. It may happen that the master is very gentle and the laws very harsh: that changes nothing. Everything lies in the distance between caprice and rule.5 Thus, this chapter is concerned with the situation of human beings who are fully taken from any rule of law, even if harsh law, by these new forms of servitude. Distinguishing the Merely Tolerated from the Wholly Unacceptable The forms of exploitation covered here are distinguished. They represent distinct situations, correspond to different legal regimes and also correspond not recognized there; in theory, though anybody knows it is not so, there is no shortage of boxes to drop processed work, the adjusters are never late and any slowdown always is the consequence of the worker’s fault. Thought must always be ready to follow on the one hand the monotone rhythm of indefinitely repeated actions and find resources to cope with the unexpected. Contradictory, impossible, exhausting obligation. The body is sometimes exhausted, at night, after the working day, but the thought is always so, even more. Whoever experienced this exhaustion and did not forget it can read it in the eyes of almost every worker who file past a factory at night. How much one would love to be able to leave her soul, while clocking in, and have it back intact at clock-out time! But it is the contrary that happens. One takes her soul with her in the factory, where it suffers; at night this exhaustion has annihilated it, and the leisure hours are lost. See Simone Weil, Expérience de la Vie d’Usine, [Experiment of Factory Life] in Oeuvres Complètes [Complete Work] 199 (Gallimard ed. transl. by the author) (1999). 4 See International Labour Organization Const., Declaration of Philadelphia (annexed 1944). 5 Simone Weil, Gravity and Grace 141–42 (1997).

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to different prophylactic approaches. Although slavery and forced labor are criminalized, the legal regimes protecting their victims are rights-based and focused exclusively on a search for liberation. In this respect, those regimes are historic and participate in a movement of emancipation and progress. On the contrary, the rationale behind the approach to migrant smuggling and trafficking in persons is one of border and crime control and more generally of protection of the comfort secured within the crystal palace and from the dangers accumulated beyond the limes.6 The Slave as Commodity in a Business Model A trend in transborder crime is to approach the crime as an enterprise for profit with no particular concerns except net monetary gain. However, the business model is both without human value as well as having no redeeming moral or ethical characteristics. Typifying the pseudo-amorality of this international criminal business model is the slave trade in which a slave is a commodity which can be bought and sold on the spot. The business model and its practices cause societal erosion and the depreciation of human rights. The Structure of this Chapter This chapter explores the business of extreme exploitation today. Part i will expose the multiplicity of forms of human exploitation and distinguish them in nature from the modern forms of exploitation. Part ii discusses the phenomenon and legal regime of forced labor. Part iii discusses the phenomenon 6 The state of mind of the “new Man” in the crystal palace was also observed and reported by de Tocqueville in Democracy in America: [T]he First thing that strikes the observation is an innumerable multitude of men all equal and alike, incessantly endeavoring to procure the petty and paltry pleasures with which they glut their lives. Each of them, living apart, is a stranger to the fate of all the rest—his children and his private friends constitute to him the whole of mankind; as for the rest of his fellow-citizens, he is close to them, but he sees them not—he touches them, but he feels them not; he exists but in himself and for himself alone; and if his kindred still remain to him, he may be said at any rate to have lost his country. Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications, and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent, if, like that authority, its object was to prepare men for manhood; but it seeks on the contrary to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly harbors, but it chooses to be the sole agent and the only arbiter of that happiness: it provides for their security, regulates the descent of property, and subsidizes their inheritance—what remains, but to spare them all the care of thinking and all the troubles of living. de Tocqueville, at 869–70.

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and the legal regime of human trafficking. Part iv draws conclusions from the other parts. Part i I The Slavery Standard A The Centrality of the Notion of Slavery The notion of slavery is central for our purposes. Though slavery is an historic and ancient concept, universally abolished, it remains the standard by which all forms of human exploitation are measured and is thus the paradigmatic definition of human exploitation. The closer exploitation comes to treating human beings as titled chattel the stronger the harm to humanity becomes. In probably the most vibrant condemnation of slavery, de Tocqueville, in Democracy in America reminded us that this calamity, “which penetrated furtively in the world, and which was at first scarcely distinguishable amid the ordinary abuses of power,” had been revived by Christians in the 16th Century after Christianity had eradicated it.7 Though de Tocqueville noted that the slavery he witnessed in America was based on an exception to his era’s social system, and restricted to one of the races of mankind, he predicted that the wound thus inflicted to humanity, though less extensive, would be at the same time rendered more difficult to cure.8 His prescience was accurate because, as the 7 See de Tocqueville, at 414. The influence of Christianity certainly was decisive, but the doctrine of the Church carried with it the ferment which perpetuated it until the 15th century in Western Europe and would allow it to revive in the new world after it disappeared in the old one. To the credit of the Church, it is undeniable that its humanitarian influence was decisive in the disappearance of slavery in Europe in the 15th Century. Though during that time the Church never condemned slavery outright and often owned slaves, it still preached the virtue of freeing slaves on the basis of the principle of human equality preached by the Fathers of the Church. But the absence of an outright condemnation was based on theological explanations which would prove to be enduring. Though the Fathers of the Church had brought to an end the Aristotelian claim that slavery was grounded upon nature, they had nevertheless let it perpetuate through the artifice of the assimilation of slavery to a reminiscence of sinfulness consecutive to the fall from Eden, which explains how Christians revived it in the New World. 8 Id. de Tocqueville established a crucial distinction between slavery amongst the ancients and amongst the moderns. de Tocqueville noted that “the slave, amongst the ancients, belonged to the same race as the master, and he was often the superior of the two in education and instruction.” By introducing a slavery exacted only on one human race, the slavery contemporaneous to de Tocqueville introduced a new problematic. As de Tocqueville observed, “the tradition of slavery dishonors the race and the peculiarity of the race perpetuates the

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wounds of slavery exacted between the 16th century and the end of the 19th are still open, new forms of exploitation similar in intensity to slavery, but different in nature, were taking root. Slave or No? All forms of exploitation covered here are intimately related to slavery. However, it is important to know the differences among various states of lack of private liberty or curtailment of free will by private means. Politicization of the term “slavery” has produced a situation where all persons who have curtailed liberty from private means are called popularly “slaves.” This is not the case at all. One may argue in the Wittgensteinan and Suassuran senses that the language now shapes the perceptions of facts, erroneous as those perceptions may be. Part i explains why slavery is both the paradigm of forms of human exploitation and at the same time unique and different in nature from the posthistoric migrant smuggling and trafficking in persons. The Fallacy of Anachronism There is substantial literature on current slavery. Often it is quantitative commentary on what common modern (and some ancient) wisdom says: slavery is immoral and unethical in every sense. These commentaries attempt to add numbers to slavery. In the latter day it is a crime against humanity and therefore its promoters are subject to universal jurisdiction, just as torturers and genocidal tyrants. It has not always been so, and to understand the resurgence of exploitation, useful insight is found in the history of slavery. Slavery in Historical Context To understand the ontology and the teleological ends of slavery, one needs to look at it historically. Private human oppression in its various gradations and forms, as well as warfare and poverty, is a phenomenon observable in the record of all cultures.9 The most ancient of slave traders about whom we have t­ radition of slavery.” Hence, for de Tocqueville, “the greatest difficulty in Antiquity was that of altering the law; amongst the moderns, it is that of altering the manners.” The question now before us is what new problematic human trafficking is bringing, compared with slavery in the Antiquity and amongst the moderns. 9 For discussions of chattel slavery see Old Testament: Exodus 1:8–14, 21 i–ii; Leviticus 25:39–55; Deuteronomy 15:12–18; Aristophanes: Plautus [507–625] 635a–b; Plato: Lysis, 16c–18a; Laws, Book vi, 709a–710a; Book vii, 722d; Aristotle: Politics, Book i, Chapters 3–4 446d–447c; Chapter 8 [1256 (a)1–3] 449d; Book ii, Chapter 7 [1267(b) 10–19] 463b–c; Book vii, Chapter 8 [1328(a)35–38] 532c–d; Chapter 10 [1330(a)25–34] 534d; Rhetoric, Book i, Chapter 5 [1361(a) 12–14] 601c; Plutarch: Marcus Cato, 287d–279a; Crassus, 439a–c; Thos. Aquinas: Summa

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direct knowledge in the western tradition were the Phoenicians. The Egyptian economy was chattel slave-based as was the ancient Greek economy, which had a diversity of gradations of oppression. By the time of Justinian it had been thoroughly legitimated in law and society. It has had its apologists such as ­Aristotle. It has had its contemnors such as Zeno, the Stoic who was the first vocal Western protestor of the practice extant. In America, Wendell Phillips and others in the abolition movements used techniques of political and press in humanistic activism to proscribe it. Similarly, in the United Kingdom, William Wilberforce was the dynamic human activist and champion of change. Slavery has been ignored and it has been outlawed. It has been an enterprise of such great net gains that it has been called the most profitable enterprise in history. There have been violent uprisings of those oppressed in every civilization. The United States went to civil war over the practice. The United Kingdom grew and developed from the early seventeenth to the mid-nineteenth century on oppression’s enormous financial returns and capitalized privateers who practiced it. Thus, traders of the oppressed were integral parts of English royal money-making, starting under the reign of Henry vii.10 Supply and Demand for Slaves For those oppressed by being treated as products of a market and treated as chattel, there must be Smithian economic demand for them and traders willing to meet the demand with supply and delivery. If the state of oppression is the mortar of a labor based economy, trading in the oppressed comprises the bricks of the economic edifice. In modern times, piracy and lawful piracy

10

­Theologica, Part i–ii, Q 87, A 8, Ans 191d–192d; Q 105, Ans 4, Rep 1–4 318b–321a; Thomas Hobbes: Leviathan, Part iv, 216d–262a; Montesquieu: Spirit of Laws, Bk xv, 111d–112a; Bk xvi, 116a; Jn. J. Rousseau: Inequality, 353c–d; Adam Smith: The Wealth of Nations, Bk iv, 239c–240a; 253c–254a; Gibbon: The Decline and Fall of the Roman Empire. 16d; 17b–c; 147a–b; 498b–500b passim; 620a–b; E. Kant: Science of Right, 445c–446a; u.s. const. art. i, § 9; The Federalist No. 42 (James Madison), No. 54 (James Madison); E. Hegel: Philosophy of Right, Part i, par 66 29a–c; K. Marx: Capital, 95a–b [fn I]; 113c– 114a; 128d–129a; 266c; 267c; Leo Tolstoy: War and Peace, Book viii, 285b–d passim. The granting of letters of marque and reprisal evolved into the slave trade. Originally these letters permitted privateers under sovereign protection to harass the Spanish fleet and to bring the gold back to England. Doing so enriched the coffers to permit defense against the French. The privateers under license could also raid French ships and treasure. When the Spanish gold market declined, the supply of slaves to the Caribbean Islands under the same Crown capitalization came of age. Capt. Blight of the Bounty mutiny fame was on a botanical expedition to find breadplant specimens capable of being grown to feed the slave population on the plantations as well as in transit from the Slave Coast of Africa.

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under letters of marque and reprisal have often stood hand-in-hand in the British Crown’s acceptance and application of the practice. In many cases these persons were slavers by any other name. Slaves were salable and profitably so and were fair game along with other things of value. Slavers have never been socially exalted. Only after the English and American moral tide changed in the late 18th and early 19th century were they sought out for punishment. An Economic Institution with Moral Apologies It is well settled that slavery had been justified throughout the ages by economic considerations. It also found moral support and civilized societies took it as granted that slavery was based upon the laws of nature or were justified by theological artifices. The belief that slavery was rooted in nature finds its best expression in Aristotle’s questioning on property rights in slaves. Aristotle, in his analysis of property, indeed, paused on the property in slaves: But is there anyone thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a ­violation of nature? There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing, not only necessary, but expedient; from the hour of their birth, some are marked out for slavery, some for rule.11 That was what Aristotle called “natural” slavery. Another form of slavery known in Greece was the more conventional form, that resulting from capture in war. Aristotle admitted that there were powerful arguments for condemning the pretension of anyone to reduce another to slave condition by the mere exercise of force.12 In a subtle variation from the Greeks, the Romans13 attributed 11 12 13

Aristotle, Laws, I.4–5, cited in John M. Kelly, A Short History of Western Legal Theory 37 (1992). See Kelly, at 37. The Romans had a fully developed law of slavery by the time of Justinian. See Digest and Pandects and Commentaries of Justinian ii, Slavery (right of, ii, 8. Slaves, restrictions of funerals of, I, 75; for what reasons manumitted, 84; when they became Latins, 86; powers of masters over, 88; harshness to, forbidden, 88; female, issue of, and Roman citizen, status of, 94; acquire for themselves everything obtained after patron’s death, 132; may be liberated under a trust, 148; if belonging to another must be, 354; purchased and manumitted, 148; when manumitted under a trust are freedmen of emancipator, 148; under thirty years cannot be appointed heirs and declared free, 148; or animal killed, appraised, 181; suit, or prosecution for act, 182; cause for manumission, necessary, 224; statement of, free when manumitted by insolvent master, 224; cannot be manumitted to defraud creditors,

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slavery to the ius gentium (the general instinct of mankind) which considered a conquered enemy as forfeit, and recognized any terms on which he was permitted to live by his captor as licit. If an enemy’s body is forfeit, then he or she must have had value prior to forfeiture and therefore can be enslaved and exploited to the extent of that value. Even St. Paul, who had taught human equality, had also enjoined upon slaves’ obedience to their masters.14 Although the early Church regarded the freeing of slaves as a virtuous act, no stigma was attached to continuing slave ownership, as Christian bishops themselves might have servants of slave condition15 as did many of the staunch Church of England-affiliated Founding Fathers of the United States. The Christian Fathers The Church’s Fathers elaborated a secondary theory to explain and justify the institution of slavery against natural equality of humankind. According to them, equality of humankind was related to an ideal era before the corruption of human nature by the original Adamic sin, and it was the condition of

14 15

224; when made by a Latin, 224; free on condition, 225, 226; of whom the freedmen, 226; fugitive, rules governing, 261; female, debauchery of, 264; are tortured, 289, 290; defense of, 310; cruelty to, not allowed, ii, 231; production of in court, 284; services of, not lost by forfeiture of civil rights, iii, 268; included in usufruct, 268; when action brought for, 268; how must estimate value, 268; corruption of, who not liable for, iv, 75; when action lies, 75; when slave made worse, 76; right of usufructuary, 78; action granted for double damages, 78; appraisement necessary, 78; action perpetual, 79; debtor entitled to action, 79; estimate of damages, how made, 80; suit for granted by husband against wife, 80; who conceals fugitive a thief, 80; who arrests fugitive, bound to produce him, 81; careful custody necessary, 81; defects of, liability of vendor for, v, 181–83; when prospect of freedom concealed, 204; accused for not aiding master when killed, examples, vi, 323, 324; when man sells himself for part of purchase-money, ix, 136; what action will lie, 140; when liable for acts, xiii, 26; when to be exported, 116; when not to be prostituted, 116, 117; alienation of, on condition, 117, 118; when runaways sold, 119; fugitive, how punished when captured, 289, 290; when liable when runaways sold, 119; fugitive, how punished when captured, 289, 290; public, must remain in own town, 290; concealment of, penalty, 291; action when property stolen by, 291; when legacy bequeathed to, without freedom, xiv, 5,6; status of, how determined, 140; rights of, not prejudiced, when, 140; freeman cannot become, by agreement, 141; cannot remain by choice, 143; patron can revoke freedom of, 144; when cannot state that they are free, 148; right to peculium of, 153, 154; when no emancipated, usucaption of, 156; harboring fugitive, is theft, xv, 39,40; when manumitted, has testamentary capacity, xvii, 240; of Emperor can dispose of property, 241; cannot testify, 250; theft of, penalty for, 263; when permitted to marry free persons, 286. Ephesians 6:5–9. See M.I. Finley, The Ancient Economy 64, 84 (1979).

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­ uman society, which has rendered slavery justifiable and necessary. Slavery h was the consequence of man’s sinfulness16 in the Adamic fall. It meant that a slave was not enslaved by his master, but by sin itself.17 By relating it to the fall of Adam, women could be taken care of neatly and directly thereby in that theology. Though slavery had died out in northern Europe (except in England) by the 12th century, merging with the status of villein,18 it remained common in southern Europe. Succeeding the Church Fathers and relying on the P ­ andects and commentary, canon and civilian lawyers perpetuated the justification whereby the origin of slavery [was] to be found not in some inherent and natural distinction in human nature, but in the fact that sin [and Eve], had depraved men’s nature, so it [had] also disordered all the natural relations of human society.19 Slavery formally disappeared in all of Western Europe between 1400 and 1500, partly for economic justifications and partly for moral reasons.20 Yet, during this time slavery began a fresh life in the New World with the start of the transAtlantic slave trade. This commercial practice and the ensuing domestic institution would soon become America’s original sin with little grace to leaven it.

The Abolitionist Movement in the 18th Century and the Wave of Abolitions in the 19th Century Slavery remained well-entrenched in the West until the Enlightenment ignited large and popular abolitionist movements. The first formal abolition of slavery occurred in Denmark in 1792, followed by France in 179421 and finally spread to all Western European nations comprising Austria, France, Portugal, Prussia, Russia, Spain, Sweden and the United Kingdom in the Declaration relative to the Universal Abolition of the Slave Trade adopted during the Congress of ­Vienna in 1815.22 The movement culminated with the United Kingdom’s 16 17 18 19 20 21 22

See e.g. Commentary on St. Paul’s letter to the Colossian 4.I cited in Kelly. See id. The villain were tied to the land and worked largely for the Lord’s benefit but could not be bought and sold. R.W. and A.J. Carlyle, A History of Medieval Political Theory in the West, ol. 2 119 (1903–36) cited in Kelly. See Kelly, at 193. Reinstated by Napoleon in 1802 and abolished again by Napoleon during the 100 days. Declaration Relative to the Universal Abolition of the Slave Trade, 8 February 1815, ­Consolidated Treaty Series, vol. 63 No. 473.

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S­ lavery Abolition Act of 1833, the decree-law Schoelcher of April 27, 1848 in France and the Thirteenth Amendment to the United States Constitution ratified in December 1865 after a bloody civil war. International Instruments Prohibiting Slavery Slavery is now almost a universal crime formally abolished almost e­ verywhere.23 The prohibition of slavery is recognized as a rule of customary international 23

Slavery was abolished in Sweden (including Finland in 1335 but not until 1847 in the c­ olony of St Barthélemy; Japan in 1588 when Toyotomi Hideyoshi ordered all slave trading to be abolished, however, his successor Tokugawa Ieyasu also continued abolishment of slavery although severe servitude was still on practice until the fall of the Tokugawa Shogunate in the 1860’s; Portugal in 1761 and Portuguese India 1836 and the African colonies of Angola and Mozambique; England and Wales in practice in 1772 from Somersett’s Case although the legal effect of this was limited; Scotland in 1776 as a result of Wedderburne’s Case; Commonwealth of Vermont, an independent republic created after the American Revolution, on July 8, 1777 (joined the United States of America in 1791); Haiti in 1791 by a revolt among nearly half a million slaves; Upper Canada in 1793, by the Act Against Slavery; France (first time) in 1794–1802, including all colonies (although abolition was never carried out in some colonies under British occupation); Lower Canada in 1803, William Osgoode, then Chief Justice of Lower Canada, ruled that slavery was not compatible with British law; Chile in 1811 partially, and in 1823 for all who remained as slave and “whoever slave setting a foot on Chilean soil”; Argentina in 1813; Gran Colombia (Ecuador, Colombia, Panama, and Venezuela) in 1821, through a gradual emancipation plan (Colombia in 1853, Venezuela in 1854); Federal Republic of Central America, present (Guatemala, El Salvador, Honduras, Nicaragua and Costa Rica) in 1824; Mexico in 1829; British Empire in 1833, including all colonies (with effect from 1 August 1834; in East Indies from 1 August 1838) although slavery was ruled illegal in England in 1772 and in 1807 slave trading was abolished enforced by the Royal Navy against ships of any flag; Mauritius on 1 February 1835, under the British government; Denmark in 1848, including all colonies; France (second time) in 1848, including all colonies; Peru in 1851; Moldova in 1855; Wallachia in 1856; Russia in 1861 where Tsar Alexander ii emancipated 20 million serfs; Netherlands in 1863, including all colonies, but used ‘recruits’ from Africa until 1940; United States of America in 1865, after a civil war although several states abolished between 1777 and 1864; Puerto Rico in 1873; Cuba in 1880 (the latter were colonies of Spain); Ottoman Empire in 1876 although as late as 1908 women slaves were sold; Brazil in 1888 and the the last country to do so in the Americas. The Imperial Princess Isabel de Bragança abolished all forms of slavery existent in the Brazilian Empire; Korea in 1894 and hereditary slavery in 1886; Madagascar in 1896; Zanzibar in 1897, the slave trade abolished in 1873; China in 1910; ­Nepal in 1921; Sudan in 1924 but currrently practiced; Iran in 1928; Burma in 1929; Morocco in the 1930s; Ethiopia in 1936, by order of the Italian occupying forces; Qatar in 1952; Tibet in 1959, by order of the People’s Republic of China; Saudi Arabia in 1962; Yemen in 1962; United Arab Emirates in 1963; Oman on 1970; Mauritania in 1980 but formally abolished by the French government in 1905 and implicitly abolished in the constitution of 1961 and expressly abolished in October 1961 upon joining United Nations although there are

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law.24 It is also identified as a legal obligation erga omnes25 and as a part of jus  cogens—a peremptory norm of international law.26 Further, under the Rome Statute, “enslavement” is deemed a crime against humanity under Article 7(1)(c), and defined at Article 7(2)(c) as: the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”27 The ubiquity and variability of its practices have required a specific and consistent prescription of both international and domestic norms seeking to control both slavery and slave like practices. For example, article 4 of the udhr prohibits slave holding and slave trading.28 This article specifically indicates that the prohibition applies to all forms of this practice. Article 8 of the I­ nternational Covenant in Civil and Political Rights affirms the udhr and adds involuntary servitude and compulsory labor to the list of prohibited ­practices.29 These ­human rights standards must be read as a complement to the Slavery Convention of 1926 and the amending protocol which formally brought it into the ­international human rights framework of the United Nations.30 The Supplementary Convention on the Abolition of Slavery broadens the scope of the

24

25 26 27

28 29 30

reports of slavery currently being practiced; Slavery in Mauritania was criminalized in August 2007. Niger abolished slavery in 2003 although slave markets in Niger were closed during the French colonization; slavery in Niger was criminalized in 2003. Curiously, the English practice of “indentured servitude,” by which Australia and North America were largely populated has never been fully explored as merely the rental for a time certain of a slave rather than titular ownership of the person in perpetuity. The only difference in the African sold in chains and the Scotsman sold into indebture was the leasehold period of the servitude. True slavery has no expiry. See e.g. Prosecutor v. Kunarac, Kovac & Vukovic, Case IT-96-23-T and IT-96-23/1-T, icty Trial Chamber, Feb. 22, 2001 (Kunarac judgment), at para. 520; M.C. Bassiouni, Enslavement as an International Crime, 23 n.y.u.j. of Int’l L. and Pol 445 (1991) cited in Gallagher, at 178. See Gallagher. See id. See u.n. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int’l Criminal Court, Rome Statute of the International Criminal Court, arts. 7(1)(c), (2)(c), u.n. Doc. A/CONF.183/9 (July 17, 1998). Universal Declaration of Human Rights art. 4, g.a. Res. 217A, u.n. Doc. A/810 (Dec. 12, 1948). International Covenant on Civil and Political Rights art. 8, Dec. 16, 1966, 999 u.n.t.s. 171, 6 i.l.m. 368. See generally Slavery Convention of 1926, Sept. 25, 1926, 60 l.n.t.s. 263.

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Slavery Convention and its protocol, taking into account practices similar to slavery, such as debt bondage, serfdom (defined in modern terms), and certain forms of family dynamics which treat women as a sexual and household commodity.31 The 1926 Slavery Convention32 The 1926 Slavery Convention defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”33 The instrument distinguished this state from slave trade defined as all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.34 This Convention also distinguished forced labor, providing that “forced labor may only be exacted for public purposes” and requiring States parties “to prevent compulsory or forced labor from developing into conditions analogous to slavery.”35 The 1926 Slavery Convention required states parties to “prevent and suppress” the slave trade; thus, it merely asked them to “bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.”36 The Council of the League of Nations also approved the list of various forms of slavery identified by the Temporary Slavery Commission in 1924. The list included: (1) (c) Slavery or serfdom (domestic or predial); (2) Practices restrictive of the liberty of the person, or tending to acquire control of the person in conditions analogous to slavery, as for example: 31 32

33 34 35 36

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery art. 2, Sept. 7, 1956, 266 u.n.t.s. 40. Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (hereinafter 1926 Slavery Convention), League of Nations Treaty Series, vol. 60, p. 253; entered into force on 9 March 1927. Id. at art. 1(1). Id. at art. 1. (2). Id. at art. 5. Id. at art. 29(a) and (b).

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(a) Acquisition of girls by purchase disguised as payment of dowry, it ­being understood that this does not refer to normal marriage customs; (b) Adoption of children, of either sex, with a view to their virtual ­enslavement, or the ultimate disposal of their persons; (c) All forms of pledging or reducing to servitude of persons for debt or other reason…. [and] (4) System of compulsory labor, public or private, paid or unpaid.37 The 1926 Slavery Convention had identified weaknesses. The instrument ­neither contained enforcement measures, nor appointed a permanent monitoring body, and it granted the states parties the possibility to exempt certain territories placed under their sovereignty from whole or part of its provisions. However, the 1926 Slavery Convention served as the opening tool to the League of Nations to encourage the implementation of legislation abolishing slavery in countries such as Burma (1928) and Nepal (1926).38 This Convention also identified several practices directly linked to the process of slavery itself and defined slave trade as all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged and, in general, every act of trade or transport in slaves.39 The Supplementary Convention and Practices Similar to Slavery40 In 1949, the United Nations Economic and Social Council (ecosoc) appointed an Ad Hoc Committee of Experts on Slavery which found that there was “not sufficient reason for discarding or amending the definition contained in 37

38

39 40

Report of the Temporary Slavery Commission to the Council of the League of Nations (A.17.1924.VI.B), 1924, quoted in “The suppression of slavery” (Memorandum submitted by the Secretary-General to the Ad Hoc Committee on Slavery), United Nations document ST/SPA/4 (1951), para. 22. V. Nanda and C. Bassiouni, Slavery and the Slave Trade: Steps Toward Eradication, Santa Clara Lawyer, vol. 12, 424, 430 (1971) cited in Weisbrodt & Anti-Slavery Int’l, Abolishing Slavery and its Contemporary Forms 5 (2002). 1926 Slavery Convention at art. 1(2) 1926. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (adopted Apr. 30, 1956, entered into force Apr. 30, 1957) (hereinafter 1956 Supplementary Convention).

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­ rticle 1 of the Slavery Convention 1926,”41 and recommended that a suppleA mentary convention be drafted to cover other forms of servitudes which had been touched upon but left out, by the 1926 Convention. In 1956, the United ­Nations adopted the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. The Convention mandated the states parties to adopt all measures to abolish “progressively  and as  soon as possible,” the following practices, identified as “servile status”:42 Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his ­control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labor on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status; Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, ­family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person; Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.43 Ownership of the Servile Another way to look at this is to see the practices similar to slavery referred to in the 1956 Supplementary Convention as practices constituted by the exercise 41 42 43

Report of the Ad Hoc Committee of Experts on Slavery, United Nations document E/AC.33/13 (1951) para. 11. Art. 7(b) of the Convention defines servile status as “the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention.” 1956 Supplementary Convention, at art. 1.

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of the powers attaching to the right of ownership. That approach finds support in the definition of private ownership which can, as exemplar, be found at art. 544 of the French civil code: Ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations. Commentators of the civil code have distinguished three powers associated with ownership: the usus, (the right to use the chattel) the fructus, (the right to receive the revenues derived from its exploitation) and the abusus (the right to dispose of the chattel).44 Looking closer at practices similar to slavery, they strike very close to all of the powers attaching to the right of ownership. An exception may be the full abusus power although the sale or gift of children for exploitation could fall within this power. Bondage A person for whom a bond is posted for his or her presence at work and subsequently becomes the equivalent of a bond slave is a person in bondage. The bondholder’s contract is similar to that of the wage slave’s employer contract. The bondholder attempts to collect the forfeited bond from the person who has escaped bondage by private means. Thus, a forfeit bond creates a bounty hunter going after the bond breaker. Debt bondage is one aspect of the slaverylike practices identified in the 1956 Supplementary Convention as a “servile status.”45 Debt bondage is defined as the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of these services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined[.]46

44 45

46

See e.g. Jean Carbonnier, Introduction au Droit, 265 (1995). A person of servile status is defined in art. 7(b) of the 1956 Supplementary Convention as: “a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention.” 1956 Supplementary Convention at Art. 1(b). See also Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, 1999 (No. 182), art. 3, 38 ilm 1207. ilo Conv. No. 182.

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Debt bondage is a kind of voluntary enserfment. Traditionally, a situation of indebtedness toward a landowner makes it possible for the owing noble to draw up contracts for tenants pinning them down to one owned real estate.47 The beneficiary of the debt bondage has the usus and the fructus over a person, but not the abusus or the power to sell or transfer the person. The person is captive by her condition of debtor on the estate but is in no way owned by the creditor. Serfdom Like debt bondage, serfdom is identified as one of the servile status practices which abolition was mandated by the 1956 Supplementary Convention. The Supplementary Convention defines serfdom as the condition or status of a tenant who is by law, custom or agreement bound to live and labor on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status[.]48 Serfdom also encompasses some ancient notions such as indenture, peonage, fosterage and wage slavery.49 Here again, the landowner has the usus and the fructus powers but not the abusus. The link between the serf and the land makes him transferrable to subsequent owners or users of the land. Servile Forms of Marriage and Exploitation of Children The 1956 Supplementary Convention identified as servile status practices forms of marriage or children exploitation. The practices as defined by this Convention are as follows: 47 48 49

See Fernand Braudel, Civilization and Capitalism, Vol. 2, The Wheels of Commerce, 267, transl S. Reynolds, (1982). 1926 Slavery Convention, at Art. 1(c). Wage slavery is a political term used to describe a variant between indenture and slavery. The wage slave is kept in self-perceived slavery usually by the use of debt. That is, a wage slave may be hired and paid but is required by contract to pay back his passage fee and other fees and to buy necessaries from the company store and to live in company housing and to pay rent to the hiring company. Wages are quite low and even though the contract may be adjudicated as unconscionable, the wage slave can never repay. Often the civil manager has bribed or in other ways controls the laws of the work site so that if the wage slave runs he or she may be apprehended and tried for theft for breaking the contract. If the manager uses self-help and the wage slave is killed or maimed in the process, there are few consequences. Some extractive industries such as in coal and gold have notoriously used wage slaves as do some manufacturing industries or ‘sweat shops.’

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(c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person; (d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labor.50 The situation here is closer to giving the person receiving the services all the powers attaching to the right of ownership. However, the case of forced marriage for financial consideration does not de jure fully transfer ownership to the husband. It only waives consent as a condition of marriage. Submitting a woman to an extreme form of authority exercised by a husband must be distinguished from full ownership. The same applies to the transfer of women or children for money which should be analyzed in terms of transfer of parental or marital authority and falls short of giving the transferees the full powers of a private owner like the slave owner. All Forms of Extreme Exploitation are Not Slavery A controversy has emerged in recent years about assimilation of trafficking to slavery. The two practices present analogies and are viewed as identical in general public discourse. Both tend to involve transnational movements of persons for exploitation. Both are also now conducted informally for private profit. Each negates individual autonomy. Elaborating on a report of the SubCommission on Promotion of Human Rights of the United Nations,51 some activists have argued that any situation where loss of free will, the appropriation of labor power and the use of threat and violence were powers attached

50 51

Id at art. 1(c). See u.n. Sub-Commission on Promotion and Protection of Human Rights, Contemporary Forms of Slavery: Updated Review of the Implementation of and Follow-Up to the Convention on Slavery Working Paper Prepared by Mr. David Weissbrodt & Anti-Slavery International, u.n. Doc. E./CN.4/Sub.2/2000/3, May 26, 2000.

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to the right of ownership should constitute slavery.52 On the other hand, some scholars have expressed concerns that such an extensive interpretation will “cover such a wide range of practices” as to render it “virtually meaningless.”53 The controversy has gained vigor after the European Court of Human Rights and the International Criminal Tribunal for the former Yugoslavia have made contradictory determinations on the definition of slavery. In the 2005 case, Siliadin v. France, a Togolese child in France was held as an unpaid domestic worker for more than four years, often working fifteen hour days with no days off. The European Court held that these acts constituted a violation of the provisions of the European Human Rights Convention touching on servitude, but not slavery.54 Because the term “slavery” carries an intense political and emotional weight, a distinction is forged to separate the classic connotation. This has of course led to a good deal of controversy.55 The strategy of the advocates of such an 52 53

54 55

See Bales and Robbins, No One Shall be Held in Slavery or Servitude: a Critical Analysis of International Slavery Agreements and Concepts of Slavery, 2 h.r.l.r, 18, at 32 (2001). See Suzanne Miers, Slavery in the Twentieth Century, 453 (2003) cited in J. Allain, A ­Legal Consideration ‘Slavery’ in Light of the Travaux Préparatoires of the 1926 Convention (2006). Siliadin v. France, App. No. 73316/01 (2005). See e.g. in France, On May 21, 2001, the National Assembly adopted a law known as Taubira law providing in its Art. 1 that the French Republic recognizes that the transatlantic slave trade, as well as the slave trade in the Indian Ocean on one side, and slavery the other side, perpetrated from the fifteen century, on the American continent and in the Caribbean, in the Indian Ocean and in Europe against the African, Amerindian, Malagasy, and Indian populations constitute a crime against humanity. To guarantee the enforcement of the new provisions, the legislator also introduced a new provision into the Law on Freedom of Press of 1881 under which the associations which, by their charters, purport to defend the memory of slaves and the honor of their descendants, to fight racism or assist the victims of discriminations based upon their national origin, ethnicity, racial or religious origin, may decide of the opportunity of criminal prosecutions, which decision is normally exclusively made by the prosecutor, who is an independent judge. Surprisingly, a large bulk of prosecutions initiated by these associations did not so much concern personalities of the far right, but academics and intellectuals who questioned the qualification of crime against humanity. It is on the basis of the provisions of the Taubira law that an historian, Olivier Pétré Grenouilleau, whose book les traites négrières [the slave trades], had been awarded several prestigious awards, was sued before a civil court for “minimizing slavery” in an interview where the historian expressed doubts as to the qualification of genocide of the slave trade and because he focused in his book not only on the Transatlantic slave trade, but also on the slave trade perpetrated by the

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extensive reach also has legal implications since the prohibition of slavery is recognized as a rule of customary international law. More importantly, in 1998, the Statute of the International Criminal Court established that the act of ‘enslavement’ constituted an international crime. Thus, it is possible to hold an individual—internationally—criminally responsible for slavery. This means that the States which do not wish to have their citizens tried internationally for the crime of enslavement must try them domestically. This forces States to take seriously possible cases of enslavement or face the prospect of being embarrassed internationally for failing to act. In light of the competing interpretations, however, the question remains of the status of trafficking; Is it a form of slavery? The Drafters’ Intention The 1926 Slavery Convention defines slavery as “the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised.”56 However, the Convention does not define the powers attaching to the right of ownership. The most authoritative attempt to define the notion of slavery under the 1926 Convention has been conducted by J. Allain, based on the travaux préparatoires, who concluded that the expansionist interpretation was a misreading of the drafters’ intention.57 Allain emphasized that while the term ‘slavery’ ha[d] been used as an umbrella to cover socalled ‘contemporary forms of slavery’, it should be understood that the term ‘slavery’—proper—has a very specific meaning in law, as the Preparatory Works of the 1926 Convention make plain.58 Allain argued that efforts to expand the notion to include the concept of servitude were explicitly rejected by States who were united to ensure that the scope of the prohibition was strictly limited.59 That does not mean that types of exploitation, like trafficking, could never slip into slavery. What it means is

56 57 58 59

Arabs and by Africans against Africans. The associations later withdrew their c­ omplaint. See, Jérome Gautheret, peut-on comparer les traites ? L’“Affaire” Pétré Grenouilleau, Le Monde January 10, 2006; Jean Baptiste de Montvalon, Les historiens pris sous le feu des mémoires, Le Monde December 17, 2005. 1926 Slavery Convention, at art. 1(1). J. Allain, The Slavery Convention, the Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (2008). J. Allain. See Allain, at 69–79.

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that a condition of ownership needs to emerge for such practices to be held as slavery. Allain’s restrictive interpretation finds further support in the subsequent international instruments which all draw a line between slavery and servitude.60 It also finds support in a 1953 u.n.’s Secretary-General report to the Economic and Social Council in which he considers the meaning of the phrase “any or all of the powers attaching to the right of ownership are exercised.” According to the Secretary-General, one “does not find in the travaux préparatoires of the International Slavery Convention of 1926 any precise indication of the meaning of the ‘powers attaching to the right of ownership’ to which the drafters of that Convention intended to refer, or of the legal system by which they were guided.”61 The Secretary-General continued: In the absence of such an indication, it may reasonably be assumed that the basic concept which they had in mind was that of the authority of the master over the slave in Roman law, the ‘dominica potestas.’ This ­authority was of an absolute nature, comparable to the right of ownership, which included the right to acquire, to use, or to dispose of a thing or of an ­animal or of its fruits or offspring. By virtue of this right, in its most general form, the master could utilize the services of the slave in his house or on his land. The children of the slave also belonged to the m ­ aster, and he could sell them separately from their mother and father. As a result of the evolution of Roman law, the authority of the master over the slave was subjected successively to more and more limitations; but even though it was restricted, the master never had towards his slave the obligations that an employer has today towards his servant or employee.62 Elaborating on this reasoning, Allain explained, based on the travaux préparatoires that the drafters intended slavery to be limited to situations where a ­person can, by law or enforceable custom, or de facto claim such property in ­another person as would be claimed if he were an inanimate object.63 The ­Report of the un Secretary-General in 1953 provides a very useful list of 60 61

62 63

See e.g. 1956 Supplementary Convention on Slavery art. 1; udhr, art. 4: “no one shall be held in slavery or servitude;’’ iccpr, at arts. 8(1) (2). See u.n. Economic and Social Council, Slavery, the Slave Trade and Other Forms of Servitude: Report to the Secretary General, u.n. Doc. E/2357, Jan. 27, 1953 (Hereinafter ecosoc 1953 Slavery Report). Id. Id.

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f­ actors indicating whether a situation is one of ownership as opposed to mere ­exploitation. The report identified six characteristics of the “various powers attaching to the right of ownership”: 1. 2. 3. 4. 5. 6.

the individual of servile status may be made the object of a purchase; the master may use the individual of servile status, and in particular his capacity to work, in an absolute manner, without any restriction other than that which might be expressly provided by law; the products of labor of the individual of servile status become the property of the master without any compensation commensurate to the value of the labor; the ownership of the individual of servile status can be transferred to another person; the servile status is permanent, that is to say, it cannot be terminated by the will of the individual subject to it; and the servile status is transmitted ipso facto to descendants of the individual having such status.64

This approach must be contrasted with the approach of the international criminal tribunal for the former Yugoslavia in the Kunarac case or the Rome Statute of the International Criminal Court. Both of these seem to open the door for a qualification of slavery based on the intensity of the deprivation of liberty.65

Against Trafficking: A Notion Centered on Control But Not Emancipation The definition of trafficking in person shows a difference of nature with the condition of slavery. The fight against slavery was one against a law that prescribed it. The fight against human trafficking is one of law enforcement. This fight takes its roots in the faltering of the sovereign state as a form of human organization and its unachieved and uncharted transition to a new form of community of values. Further, abolition struck a lethal blow to the institution of slavery because it marked the triumph of the capitalistic mode of production over the last remnants of feudalism. Alternatively, trafficking is a perversion of the capitalistic system and uses its channels to recycle its profits. Whereas slavery derived its force from law or custom which failed to prohibit

64 65

ecosoc 1953 Slavery Report, at 183–84. See Gallagher, at 184–85.

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it, trafficking in persons is a pure manifestation of force. In other words, with slavery exploitation is consequential to ownership but is the prime aspect in trafficking. Whereas the slave owner owned the body of the slave, the trafficker keeps his soul under captivity. But more than anything else, trafficking finds its source in the uncoupling of large populations left outside the crystal palace and from the goods of globalization, albeit with a constant window open to the inside with modern information exchange media.66 Politics preceded the legal emancipation from slavery. The opposite can be observed with trafficking. It is a crime emblematic of a depoliticized world and one which puts to the test human rights as a vector of forming a community of value. Unsurprisingly, the prospects are bleak of human rights triumphing from trafficking without politics. Part ii Forced Labor The Phenomenon of Forced Labor The struggle against forced labor rests largely on the International Labor ­Organization (ilo). The ilo was established in 1919 as part of the Treaty of ­Versailles and other treaties as an entity to promote social justice.67 Based in Geneva, its founding assumptions acknowledge that widespread, inhumane and depriving exploitation exists worldwide, and that universal peace is founded on social justice.68 The four fundamental principles that it aims to achieve are the elimination of forced labor, freedom of association, the abolition of

66

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Perhaps the best description of the reasons of the “push” effect can be found in Proust’s A l’Ombre des Jeunes Filles en Fleurs. In a striking passage, Proust describes the dining room at the Grand Hotel in Balbec as an “immense and wonderful aquarium against whose wall of glass the working population of Balbec, the fishermen and also the tradesmen’s families, clustering invisibility in the outer darkness, pressed their faces to watch, gently floating upon the golden eddies within, the luxurious life of its occupants, a thing as extraordinary to the poor as the life of strange fishes or mollusks (an important social question, this: whether the wall of glass will always protect the wonderful creatures at their feasting, whether the obscure folk who watch them hungrily out of the night will not break in  some day to gather them from their aquarium and devour them.” M ­ arcel Proust, A l’Ombre des Jeunes Filles en Fleurs 1:681 (Gallimard ed. transl. C.K. Scott-­Moncrieff, (2000) cited in Pascal Bruckner, Perpetual Euphoria 163 (2010). Constitution of the International Labor Organization, 28 June 1919, pmbl., 15 u.n.t.s. 35. Id.

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child labor and ending discrimination in employment.69 In a report published in 2005,70 the ilo’s Director General gave startling figures about forced labor. It estimated that at least 12.3 million people were victims of forced labor worldwide, of which an estimated 9.8 million were exploited by private agents, including more than 2.4 million in forced labor as a result of human trafficking. Pursuant to the ilo, another 2.5 million were forced to work by the state or by rebel military groups.71 In the 2005 report, the Director General noted that coercion and compulsion associated with forced labor were transmuting into newer ones and were no more contained in the agricultural sector as it was ­traditionally the case.72 He distinguished between “traditional” forms of forced labor, embedded in older beliefs, customs or agrarian and other production structures, sometimes as a legacy of colonialism… [or] from long-­standing patterns of discrimination against vulnerable groups, whether tribal and caste minorities in Asia, or indigenous peoples of Latin America, and “modern” forms, relating to globalization and migratory trends, which are characterized by the search for financial profits by a range of actors, some involved in organized crime.73 The report identified four main trends regarding forced labor. First, it noted that forced labor is exacted by private agents rather than directly by the state. Second, it emphasized the feature of induced indebtedness as a key instrument of coercion, backed by the threat of violence or other sanctions against forced workers or their families. Third, it identified the precarious legal status of irregular migrants as a fertile ground for coercion. Fourth, it expressed the ilo’s concerns about the developed nations’ legislative gaps which made it difficult to move forward against the hidden and often subtle forms of coercion in the private economy, particularly in conjunction with forced labor situations associated with human trafficking.74

69

70 71 72 73 74

See The ilo Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted on June 18, 1998 by the International Labor Conference at its eight-sixth session, ilo document CIT/1998/PR20A. A Global Alliance Against Forced Labor, Global Report under the Follow-up to the ilo Declaration Fundamental Principles and Rights at Work. Id, at 10. Id. at 1. Id, at 9. Id, at 2.

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The ilo Forced Labor Conventions In the Forced Labor Convention, 1930 (No. 29),75 the ilo defines forced labor as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”76 However, this convention provides for exceptions with regard to work or service exacted in virtue of compulsory military service laws for work of a purely military character, work such as minor communal service which forms part of normal civic obligations, work of prisoners who have been duly sentenced by a court of law or work exacted in cases of emergency.77 This convention was supplemented in 1957 with the ilo Convention (No. 105) concerning the Abolition of Forced Labor, which specified that forced labor can never be used for the purpose of economic development, or as a mean of political education, discrimination, labor discipline or punishment for having participated in strikes.78 ilo Conventions No. 29 and No. 105 (collectively referred to as the “ilo Forced Labor Conventions”) apply to work or service exacted by governments, public authorities or by private bodies and individuals, including slavery, bonded labor and certain forms of child labor.79 Other ilo Conventions are ilo Convention No. 182 concerning the elimination of the worst forms of child labor,80 ilo Convention No. 97 on Migration for Employment81 and Convention No. 143 on Migrant Workers.82 The ilo Convention No. 182 calling on states to abolish the worst forms of child labor “as a matter of urgency,”83 defines the worst forms of child labor as: all forms of slavery or practices s­ imilar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced and compulsory labor, including forced or compulsory recruitment of children in armed conflicts; the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; the use, procuring or offering of a child for illicit activities, in particular for 75

76 77 78 79 80 81 82 83

ilo Forced Labor Convention, 1930 (No. 29), 39 u.n.t.s. 55, entered into force May 1, 1932. The ilo Forced Labour Convention, 1930 is the most widely ratified ilo convention with 158 States parties. ilo Forced Labor Convention (No. 29) at art. 2(1). Id, art. 2(2). Abolition of Forced Labour Convention, 1957 (No. 105), 320 u.n.t.s., 291 entered into force January 17, 1959. Report of the ilo Governing Body, ilo document gb 265/2 (1996), para. 32. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, 1999 (No. 182), 38 ilm 1207. Migration for Employment Convention, 1949 (No. 97), 120 u.n.t.s. 70. Migrant Workers (supplementary Provisions) Convention, 1975 (No. 143) 1120 u.n.t.s. 323. ilo Convention No. 182, at art. 1.

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the production and trafficking of drugs as defined in the relevant international treaties; work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.84 The ilo Conventions on Migrant workers illustrate the category of persons put into harm’s way in the new forms of slavery: migrant workers. Pursuant to ilo Convention No. 97, a “migrant for employment” is any person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment but does not extend to frontier workers, artists and professionals entering a country for a short-term stay, and seamen.85 The Convention urges states to provide migrants for employment with accurate information and to prevent misleading propaganda on emigration and immigration.86 Moreover, this convention provides that the migrants should not be discriminated against in ­relation to remuneration, membership of trade unions and social s­ ecurity.87 ilo Convention No. 143 contains measures designed to respect the basic ­human rights of all migrant workers, including illegal ones and provisions on equality of opportunity and treatment.88 These two Conventions have a limited weight in the fight against trafficking considering that they have not been widely ratified. Other International and Regional Instruments The international Covenant on Civil and Political Rights provides that “No one shall be required to perform forced or compulsory labor.”89 The ccpr does not contain, any definition of the terms “forced and compulsory labor.” Compulsory labor refers to compulsory participation in public interest works. The ccpr provides for similar exceptions as the ilo Convention No. 29, i.e. military service, prison work, situations of emergency and civic duties.90 The European Convention on Human Rights and the American Convention on ­Human 84 85 86 87 88 89 90

Id. at art. 3. ilo Convention No. 97 at art. 11(1) and (2). Id. at art. 2 & 3. Id. at art. 6. See Sylvia Scarpa, Trafficking in Human Beings, 134 (2008). International Covenant on Civil and Political Rights, art. 18 (adopted December 16 1966 entered into force May 23, 1976) 999 u.n.t.s. 171 (ccpr). Id. at 8(3)(3).

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Rights both contain almost identical provisions.91 The African Charter on Human and Peoples’ Rights does not contain any provision prohibiting forced labor. Interpreting the European Convention on Human Rights, the European Court of Human Rights has identified the elements of forced or compulsory labor as being, first, that the work or service is performed against the will of the person concerned and, secondly, that the requirement that the work or service is performed is unjust or oppressive or the work or service itself involves unavoidable hardship.92 Identification of the Victims of Forced Labor According to the ilo, the victims of forced labor fall into three categories. The first category is forced labor imposed by the state and includes the main categories of forced labor exacted by the military, compulsory participation in public works, forced prison labor and forced labor imposed by rebel groups. The second category is forced labor imposed by private agents for commercial sexual exploitation, which includes women and men who have involuntarily entered prostitution or other forms of commercial sexual activities, or who have entered prostitution voluntarily who cannot leave including all children who are forced into commercial sexual activities. And the third category is forced labor imposed by private agents for economic exploitation, which comprises all forced labor imposed by private agents other than for commercial sexual exploitation. It includes, among other things, bonded labor, forced domestic work or forced labor in agriculture and remote rural areas. The last two categories suffer no exception and states have the obligation to prosecute them when they detect such occurrences. However, the first category, with the exception of forced labor imposed by rebel groups, suffers exceptions under international and domestic law. Exceptions to Prohibition Certain activities fall outside the scope of the prohibition of forced labor by their very nature. This is either because the activity is punishment, or because it exceeds the framework of private interests to venture into public interest or civic duty. Forced labor in prison and detention centers is excepted. All instruments distinguish between forced labor in prison under a lawful order and prison labor without due sentence. The ilo Convention No. 29 provides an ­important 91 92

See echr, at art. 4(2); see also Am. Conv. H. R., at art. 6 (2). See Decision on the Admissibility of Application No. 4653/73, X. v. the Federal Republic of Germany, Collection of Decisions 46, 22, 32.

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restriction that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or association.93 This restriction has caused many contemporary dilemmas in certain developed countries, especially in the United-States, because of the increasing move toward the privatization of prisons and the practice of contracting out prison labor.94 ilo’s attention has been particularly focused on the Reeducation Through Labor (retl) system in China, where the official estimation in early 2004 reported that 260,000 persons were detained under the retl system and that the recourse to such practices was on the rise in response to rising crime rates, rising political dissidence and because the gradual expansion of defendant rights in the formal criminal justice system encourages police to rely more heavily on administrative detention.95 The main instruments, although of non-binding nature, addressing the prison-labor condition are the un Resolutions 663C [xxiv] and 2076 [lxii] which mandate that the Prison labor must not be of an afflictive nature, that all prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer, that sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day and that so far as possible the work provided shall be such as will maintain or increase the prisoners, ability to earn an honest living after release.96 Other Service Art. 2(2)(a) of the ilo Convention No. 29 provides that the term forced or c­ ompulsory labour shall not include any work or service exacted in virtue of compulsory military service laws for work of a purely military character. The iccr, the European Convention on Human Rights and the American Convention on Human Rights contain almost identical provisions.97 However, the ilo Convention No. 182 affords an increased protection for children against forced and compulsory labor.98 93 94 95 96

97 98

ilo Conv. No. 29, at art 2(2)(c). See Stopping Forced Labor, at 187 et seq. See A Global Alliance Against Forced Labor, Global Report under the Follow-up to the ilo Declaration on Fundamental Principles and Rights at Work, at 110–13. unu.n. Res. 663 C Adopted by the First United Nations Congress, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (xxiv) of July, 31 1957 and 2076 (lxii) of May 13, 1977. iccpr, at art. 8(3)(b); echr, at art. 4(3)(b); Am. c.h.r., at art. 6(3)(b). ilo Conv. No. 182, at art. 3.

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Civic Obligations The ilo Convention No. 29 the term forced or compulsory labour shall not ­include any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country.99 The cpcr, the echr and the American Convention on Human Rights contain almost identical ­provisions.100 Comparative law provides an interesting provision, contained in the German Fundamental law which provides that “[n]o person may be required to p ­ erform work of a particular kind except within the framework of a traditional duty of community service that applies generally and equally to all.”101 The European Court on Human Rights has quashed challenges from professions such as attorneys and dentists on permanence and legal assistance.102 An interesting judgment from the French cour de cassation also affirmed that art. 4 of the European Convention On Human Rights does not prohibit the state parties from enacting mandatory legislation in furtherance of a social i­nterest, provided that the constraining character of the regulation is not abandoned to the discretionary will of the service benefiting from such labor.103 The international instruments also exclude from the scope of application of forced or compulsory labor “minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.”104 Finally, “any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in ­general any circumstance that would endanger the existence or the well-being of the whole or part of the population,” does not constitute forced or compulsory labor.105

99 100 101 102

ilo Conv. No. 29, at art. 2(3)(b), art. 2(2)(e) 2(2)(d). cpcr, at art. 8(3)(c); echr at art. 4(3)(d); Am. c.h.r., at art. 6(3)(d). German Fundamental Law, at art. 12(2). See Van Der Mussele v. Belgium, 1983 echr 13 (on attorneys); Iversen v. Norway, 6 ybk 278 (1963) (on dentists). 103 Cass. Crim. 9 nov. 1993, bc No. 331. 104 ilo Conv. No. 29, at art. 2(2)(e). 105 ilo Conv. No. 29, at art. 2(2)(d).

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Part iii

Trafficking in Persons and Migrant Smuggling: The Protection of the Crystal Palace The Phenomenon of Human Trafficking106 Globalization has led to increased movements of capital and goods. But while borders have opened for trade, investments, tourists for the developing world’s kleptocratic elites, it abandoned beyond the Limes entire populations of the “wretched of the Earth” at the mercy of necessity in the form of failed states and economies, poverty and corrupt governments. It is within these new “­terrae incognitae” that trafficking flourishes. Trafficking has been identified by the International Organization for Migration as the “most menacing form of irregular migration due to its ever increasing scale and complexity involving, as it does, arms, drugs and prostitution.” The u.n. Office on Drugs and Crime describes it as the world’s fastest-growing international organized crime. The International Labor Organization and the ilo estimate that between 2.4 and 2.5 million persons are exploited in forced labor as a result of trafficking with profits estimated at least at $32 billion per year.107 According to u.n. estimates, about 2.5 million people from 127 countries have been trafficked to 137 countries for purposes such as forced labor, sexual exploitation, the removal of ­organs and body parts, forced marriages, child adoption and begging.108 The elements characterizing human trafficking bear resemblances with slavery: abduction, abuse of weakness, transportation, loss of freedom, molestation, violence and deprivation. The victims are isolated in foreign countries facing linguistic barriers, controlled and reduced into submission by various emotional techniques, made dependent on drugs and alcohol and made to feel obligated to repay the costs invested by their traffickers in their smuggling and transport. The most visible aspect of trafficking involves sex. But trafficking also provides slave-like labor for agriculture, domestic services and industry. Relatively little is known about the traffickers, except that the expectation of 106 See esp. Carolina Moorehead, Women and Children for Sale, 54 New York Review of Books (2007). 107 International Labor Organization, A Global Alliance against Forced Labor, Global Report under the Follow-up to the ilo Declaration on Fundamental Principles and Rights at Work, 93d Session 37 (2005); The Cost of Coercion, Global Report under the follow-up to the ilo Declaration on Fundamental Principles and Rights at Work, ilo 98th Session, 2 (2009); unu.n. News Centre, UNU.N.-backed container exhibit spotlights plight of sex trafficking victims, February 6, 2008. 108 un News Centre, UN-backed Container Exhibit Spotlights Plight of Sex Trafficking Victims, February 6, 2008.

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profits from trafficking has attracted organized crime to expand its activities beyond drugs and arms, to include corruption among police forces and border officials. The traffickers often lure the victims into submission with the false promise of lucrative and respectable jobs in distant countries. The origins of trafficking can be traced to white slavery in the nineteenth and 20th century, but it remained a peripheral issue until the mid-1990s. The origins of the current forms of human trafficking are diverse. First of all, trafficking involves a matching supply and demand for trafficked services and goods as explained by the un Secretary General in his 2002 Report on Traffic in Women and Girls: The growth in trafficking reflects not just an increase in “push” factors from countries of origin but also the strong “pull” of unmet labor demands, particularly in the informal sector. There is clearly a need to ­address those demand factors in countries of destination which make trafficking so profitable in the first place.109 In South East Asia, the trafficking business took roots in Thailand during the Vietnam War when American soldiers used the brothels of Bangkok for “rest and recreation.” In the 1970s criminal groups, alerted to the possibility of large profits, ­began to arrange sex tours in Thailand for European men. The phenomenon became regional in the 1990s when the faltering economic growth in Indonesia, Malaysia, the Philippines, and Singapore led women were drawn into the “entertainment” business. Today there are believed to be around 200,000 trafficked women working in Japan’s saunas, massage parlors and sex telephone clubs. According to End Child Prostitution in Asian Tourism, children, sold by destitute parents or abducted by criminal syndicates, are currently being trafficked from Vietnam to Thailand, from Burma to the Pacific Rim countries, and from Nepal to India. With the internet, the demand for trafficked services has literally exploded, with access to more and more à la carte live shows and catalogues, thereby increasing the supply and the profits. In Southeast Europe, the transition from centrally planned to market economies, as well as the disintegration of the former Yugoslavia after several armed conflicts, provided wide pools of vulnerable victims to traffickers to feed the demand for trafficked services in richer Western Europeans countries. Even members the Peace-Keeping forces and ngos have been accomplice to the

109 unu.n.hr Report of the Secretary General, Traffic in Women and Girls u.n. Doc. E/CN.4/2002/80, 49 (2002).

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b­ uilding of a vast ­trafficking network originating from the Balkans and feeding all Western Europe starting with Italy. The Transnational Crime Approach The main international and regional legal instruments addressing the issue of human trafficking proceed from a radically different approach than the abolition of slavery or the combat against forced labor. Whereas the abolition of slavery represents the triumph of the liberal idea of progress of the enlightenment, and the combat against forced labor corresponds to the realization that the industrial Revolution had brought new forms of exploitation, the two movements are characterized by a concern for emancipation. The logic behind migrant smuggling is very different. Perfectly identified by the circumstance that the main international instruments addressing these issues are supplementary protocols to the Transnational Organized Crime Convention, the underlying basis for addressing these issues at the international level is one of containment and control. Paradoxically, this comes when the human rights have ceased to be the final rampart against the arbitrary, as the minimum ­required to guarantee individual freedom to become the paramount organizational norm of collective consciousness and the standard of public action.

The Legal Instruments Addressing Trafficking

The Transnational Organized Crime Convention

The Convention against Transnational Organized Crime (‘ctoc”) was adopted on November 2000 and entered into force on September 29, 2003. The ctoc’s stated purpose is to promote interstate cooperation in order to combat transnational crime more effectively.110 It searches for a common, legal basis for a range of purposes including the taking of evidence, effective service of judicial documents, execution of searches, identification of the proceeds of the crime and production of information and documentation. More specifically, the Convention targeted “safe havens” where organized criminal activities or the concealment of evidence or profits can take place by promoting the adoption of basic minimum measures.111 There are three prerequisites for the convention to apply. First, the relevant offence must somewhat be transnational.112 110 Organized Crime Convention, at art. 1. 111 United Nations Office for Drug Control and Crime Prevention, Summary of the United Nations Convention Against Transnational Organized Crime and Protocols Thereto, December 2000. 112 Organized Crime Convention at art. 3(1) and (2). The convention defines a transnational offence as one which is committed in more than one State; or committed in one State but

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Second, it must involve an organized criminal group.113 Third, it must constitute a “serious crime.”114 The core obligation of the ctoc is that of criminalization. States are required to criminalize a range of offences, whether committed by individuals or corporate entities, including; participation in an organized criminal group;115 public sector corruption;116 laundering of the proceeds of the crime;117 and obstruction of justice.118 The Convention recognizes the principle of proportionality of punishment.119 The obligation of criminalization is independent of the transnational nature or the involvement of an organized criminal group.120 That is to say they are not considered elements of the crimes to criminalize. Other provisions in the Convention established rules on the confiscation and seizure of the proceeds of crime, including establishing co-operation between parties to this effect;121 also rules on extradition and on the transfer of sentenced persons,122 mutual legal assistance,123 the conduct of joint investigations,124 cooperation in the use of special investigative techniques,125 law enforcement126 and witnesses and victims protection.127 State parties are requested to establish joint investigative bodies,128 come to formal agreement

113

114

115 116 117 118 119 120 121 122 123 124 125 126 127 128

substantially planned, directed, or controlled in another State or committed in one State but having substantial effects on another State. Check. Id. at art. 3(1). An organized criminal group is defined as a structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences… in order to obtain, directly or indirectly, a financial or other material benefit. Organized Crime Convention at art. 3(1)(b). “Serious crime” refers to conduct constituting a criminal offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty: id, art. 2(b). Check. Organized Crime Convention, at art. 37(3). Id. at art. 8. The Protocol uses the same definition as in the oecd Convention. Id. at art. 6. Proceeds of the crime is defined in art. 2(e). Id. at art. 23. Id., at art. 11(1). Id., at art. 34(1). Id., at art. 12–13. Id., at art. 16–17. Id., at art. 18. Id., at art. 19. Id., at art. 20. Id., at art. 27. Id., at art 24, 25. Id., at art. 19.

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on the use of special investigative techniques,129 consider the transfer of criminal proceedings130 and sentenced persons;131 and also facilitate extradition procedures for applicable offences.132 Further, the Convention also encourages capacity building of law enforcement structures in the prevention, detection and control of transnational crime.133 Regarding the victims of transnational crime, the Convention requires that States parties take appropriate measures within their means to provide assistance and protection to victims, particularly in cases of threat of retaliation or intimidation.134 They must establish appropriate procedures to provide access to compensation and restitution135 and, subject to their domestic laws, to enable the victims to be presented and considered during the criminal proceedings.136 The Convention also mandates State parties to take appropriate measures to protect witnesses from potential retaliation or intimidation.137 The ctoc establishes a Conference of the ­parties to promote and review its implementation as well as to improve the capacity of states to combat transnational organized crime.138 The ctoc can be viewed as the parent instrument of three additional protocols, dealing with Smuggling of Migrants, Trafficking in Persons139 and Trafficking in Firearms. This Convention set out rules governing the relationship with its protocols using four basic principles. First, states must ratify the Convention before ratifying any of the Protocols and could not be bound by a Protocol unless they become party to that Protocol.140 Second, the Convention and its Protocols must be interpreted together.141 Third, the provisions of the Convention apply, mutatis mutandis, to the Protocols.142 Fourth, offences 129 130 131 132 133 134 135 136 137 138 139

Id., at art. 20. Id., at art. 21. Id., at art. 17. Id., at art. 16. Id., at art. 29. Id., at art 25(1). Id., at art. 25(2). Id., at art. 25(3). Id., at art. 24. Id., at art 32(1). Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime November 15, 2000, S. Treaty Doc. No. 108–16 (2004), 2237 u.n.t.s. 319 (­hereinafter Trafficking Protocol). 140 Organized Crime Convention at art. 37(2), art. 37(3). 141 Id at art. 37(4); Trafficking Protocol at art. 1(1). See, Legislative Guide at 253–55. 142 Trafficking Protocol, at art. 1(2).

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established by the Protocols are to be regarded as offences established by the Convention.143 Levels of Obligation The Convention and the Protocols distinguish between provisions which are mandatory,144 while others require positive effort145 and still others are optional.146 The stated purpose of the Trafficking Protocols is threefold: first to prevent and combat trafficking in persons, paying particular attention to the protection of women and children; second, to protect and assist victims of ­trafficking; and third, to promote and facilitate cooperation among States parties to this end.147 In 2004, the United Nations Office for Drugs and Crime issued a Legislative Guide to the Convention and its Protocols. The official ­records (travaux préparatoires) of the negotiation process of the Convention and the Protocols were released in 2006. They include more than a hundred “Interpretative Notes.”

The Maturation of the Notion of Trafficking until the Trafficking Protocol

The Origins of the Legal Response against Trafficking: Prostitution and White Slavery

Though not formally defined until December 2000, the criminalization of ­human trafficking as we know it can be traced in the evolution of the legal treatment given in the 20th century to prostitution. After observing the g­ radual abolition of slavery which has existed as long as civilization, the international legal community engaged on a movement to bring an end to prostitution. The term traffic first came to use in the very early part of the 20th Century in relation to white slavery, that is to say the forcible or fraudulent recruitment to prostitution. A convention, adopted in 1904, sought to suppress the “criminal 143 Trafficking Protocol, at art. 1(3). 144 See e.g., “[e]ach party shall adopt such measures as may be necessary to establish its ­jurisdictions over the offences established in accordance with articles 5, 6, 8, and 23 of this Convention.” Organized Crime Convention, at art. 15(1). 145 See e.g. “[E]ach party shall endeavour to provide for the physical safety of victims of trafficking while they are within its territory.” Trafficking Protocol at art. 6(5). 146 See e.g. Organized Crime Convention at art. 12(7). States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law and with the nature of the judicial and other proceedings. 147 Trafficking Protocol, at art. 2.

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traffic” of women and girls compulsively procured for “immoral purpose.”148 A  few years later, the 1910 White Slavery Convention was adopted which obliged States to punish: Whoever, in order to gratify the passions of another person, has, by fraud, or by means of violence, threats, abuse of authority, or any other method of compulsion, produced, enticed or led away a woman or girl over age, for immoral purposes.149 From White Slavery to Trafficking The subsequent instruments abandoned the reference to white slavery and ­emphasized instead the organized coerced movement of women and girls abroad for the purposes of prostitution.150 Hence, the 1933 Convention established a duty to prohibit, prevent and punish the trafficking of adult women, irrespective of whether they consented to being trafficked.151 However, the convention did address the problem of purely domestic traffic. The production of international instrument on international women traffic resumed after the second world war with the adoption of the 1949 Suppression of Traffic Convention which consolidated earlier instruments relating to the “white slave trade” and traffic in women and children. This made it an offence to procure, entice or lead away another person for the purpose of prostitution, even with the consent of that person.152 Unlike the 1933 Convention, ­recruitment need not be across international borders to qualify as “traffic” ­under Art. 17 of the Suppression of Traffic Convention. In 1979, the General Assembly of the United Nations adopted the Convention on the Elimination of All Forms of Discriminations Against Women (cedaw) which obliges State parties “to take all appropriate legislative and other measures to suppress all forms of traffic in women and exploitation of

148 International Agreement for the Suppression of the White Slave Traffic, 1 lnts 83, May 4, 1904, entered into force July 18, 1905, amended December. 3, 1948, 30 u.n.t.s 23. 149 International Convention for the Suppression of the White Slave Traffic, 3 lnts 278, art 2,May 4, 1910, entered into force August 8, 1912, amended December. 3, 1948, 30 u.n.t.s 23 (1910 White Slavery Convention). 150 See e.g. International Convention for the Suppression of Traffic of Women and Children, 9 lnts 415, September 30, 1921, entered into force June 15, 1922, amended October. 20, 1947, 53 u.n.t.s 13; International Convention for the Suppression of the Traffic of Women of Full Age, 150 lnts 431, done October. 11, 1933, entered into force August. 24, 1934, amended October 20, 1947, 53 u.n.t 13. 151 1933 Traffic of Women Convention, at art. 1. 152 See Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, December. 2, 1949, 96 u.n.t.s. 271.

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the prostitution of women.”153 The cedaw convention constitutes a departure from earlier instruments154 as it focuses less on abolition of prostitution than on the exploitation and expands its reach on the underlying cause of trafficking and exploitation of prostitution.155 The reference to all forms of traffic also suggests that the drafters intended to cover trafficking for other purposes that prostitution.156 The Convention on the Rights of Child and its Optional Protocols (cpc)157 provides a comprehensive framework for the rights and dignity of children as well as their empowerment. Under Art. 34, “children are to be protected from all forms of economic exploitation, sexual exploitation, and sexual abuse.”158 And Article 35 requires states to “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in ­children for any purpose or in any form.”159 Art. 19 requires States to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” An Optional Protocol to the cpc, purporting to extend the scope of application of the Convention in relation to sale of children, child prostitution and child pornography was concluded through the u.n. Commission on H ­ uman 153 Convention on the Elimination of All Forms of Discrimination against Women art. 6, December 18, 1979, 1249 u.n.t.s. 13 (hereinafter cedaw) (prohibiting the trafficking and exploitation of the prostitution of women). 154 International Agreement for the Suppression of the White Slave Traffic, 1 lnts 83, May 4, 1904, entered into force July 18, 1905, amended December 3, 1948, 30 u.n.t.s. 23. International Convention for the Suppression of the White Slave Traffic, 3 lnts 278, art 2, May 4, 1910, entered into force August 8, 1912, amended December 3, 1948, 30 u.n.t.s. 23 (1910 White Slavery Convention). International Convention for the Suppression of Traffic of Women and Children, 9 lnts 415, September 30, 1921, entered into force June 15, 1922, amended October 20, 1947, 53 u.n.t.s. 13; International Convention for the Suppression of the Traffic of Women of Full Age, 150 lnts 431, done October 11, 1933, entered into force August 24, 1934, amended October 20, 1947, 53 u.n.t 13. 155 See Gallagher at 64–5. 156 Id., at 65. 157 Convention on the Rights of the Child, November. 20, 1989, 1577 u.n.t.s. 3 (prohibiting the abduction, sale, and trafficking of children, economic and sexual exploitation of ­children, as well as forced or exploitative labor). 158 Id., at art. 34. 159 Id., at art. 35.

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Rights in 2000.160 The crc Optional Protocol in large parts resembles the ­Trafficking Protocol. Hence, it requires the states parties to prohibit, criminalize and punish the relevant acts;161 and contain mostly provisions of a similar nature to the Organized Crime Convention.162

The Transition from a Human Rights Approach to a Transnational Criminal Law One The focus of the international legal community remained very much on prostitution until the 1990s. During this decade, following the changes caused by the fall of the iron curtain, the issue of women and children trafficking reached a priority status, helped by reports providing evidence that cross-border exploitation of women and girls was on the rise, particularly in Asia and the newly independent states of Central and Eastern Europe.163 Meanwhile, the media started to report incidence of servants in households in rich countries sequestrated and reduced into forms of human exploitation reminding those of the slaves in the Southern plantations before 1865. At the same time, literature linking migration control and organized crime moved beyond the cloister of far right populist rhetoric and began to be acknowledged.164 As the trafficking phenomenon attracted more attention and as migrant smuggling was increasingly viewed as a security concern by host countries for immigrant populations, the issue of human trafficking was snatched away from the United Nation’s various human rights and humanitarian agencies and

160 Optional Protocol to the Child Convention on the Sale of Children, Child Prostitution and Child Pornography, ga Res. 54/263, Annex i, 54 u.n. gaor Supp. (No.49), 7 u.n. Doc. A/54/49, Vol. iii (2000), done May 25, 2000, entered into force January 18, 2002. 161 Id., at art. 1(3). 162 See id,.at art. 4(5) (dedere aut judicare); art. 6 (mutual legal assistance); art. 7 (confiscation of proceeds); art. 8 and 9(4) (the rights of child victims and witnesses); art. 10 (international cooperation). 163 See e.g., Human Rights Watch, A Modern State of Slavery—Trafficking of Burmese Women and Girls into Brothels in Thailand (1993); Human Rights Watch, Rape for Profit, Trafficking of Nepali Girls and Women in India’s Brothels (1995); International Organization for Migration, Trafficking and Prostitution: the Growing Exploitation of Migrant Women from Central and Eastern Europe (1995). 164 See e.g. J. Salt & J. Stein, Migration as Business: the Case of Trafficking, 35 Int’l Migration 467 (1997); Int’l Centre for Migration Policy Development, The Relationship between ­Organized Crime and Trafficking in Aliens (1999); P. Williams ed., Illegal Immigration and Commercial Sex: The New Slave Trade (1999); Amy O’Neill Richard, Int’l Trafficking in Women in the United-States: A Contemporary Manifestation of Slavery and Organized Crime (2000), all cited in Anne T. Gallagher, The International Law of Human Trafficking, 17 (2010).

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fell on the desk of the un Crime Commission. In 1994, the un General Assembly adopted the Declaration of the Ministerial Conference of Naples, recognizing the need to adopt an international convention against transnational organized crime. In 1997, the General Assembly appointed an Open-Ended Intergovernmental Group of Expert and entrusted it with the task to prepare a draft convention.165 The group submitted a report containing a draft convention on the basis of which the un General Assembly adopted its resolution 53/111 of 9 Dec. 1998 establishing an Open-Ended Intergovernmental Ad Hoc Committee on the Elaboration of a Convention, which received a mandate to prepare an ­international agreement on transnational organized crime,166 and supplementary protocols on the specific issues of trafficking167 and migrant smuggling.168



The Trafficking Protocol

The Notion of Human Trafficking

The Trafficking Protocol provides the first sufficiently broad yet precise definition of trafficking in international law to encompass the phenomenon of ­severe human exploitation for profit in its most modern form.169 As Anne Gallagher puts it, though herself critical of the law and order approach to trafficking, the Trafficking Protocol was rather successful in that it resurrected “previously moribund international legal prohibitions on practices such as slavery, servitude, forced labor, bonded labor and forced marriage have been resurrected, reinvigorated, and in some cases reinterpreted as a result of their connection to trafficking.”170

165 u.n.g.a Res. 52/85 (December 12, 1997) u.n. Doc A/RES/52/85. 166 United Nations Convention against Transnational Organized Crime, 2225 u.n.t.s 209, done November 15, 2000, entered into force September. 29, 2003 (Organized Crime Convention). 167 Trafficking Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, done November 15, 2000, Ga Res. 55/25, Annex ii, u.n. gaor, 55th Sess., Supp. No. 49, at 53, u.n. Doc. A/45/49 (Vol. i) (2001), entered into force December 25, 2003 (hereinafter Trafficking Protocol). 168 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the ­United Nations Convention against Transnational Organized Crime, done November 15, 2000, Ga Res. 55/25, Annex iii, u.n. gaor, 55th Sess., Supp. No. 49, at 62, u.n. Doc. A/45/49 (Vol. i) (2001), entered into force January 28, 2004. 169 Trafficking Protocol at art 3(a). 170 Gallagher, at 3.

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The trafficking Protocol defines “trafficking in persons” as having three ­cumulative elements: An action, consisting of “recruitment, transportation, transfer, harboring or receipt of persons. The action of recruiting, transporting, transferring, harboring or receiving persons constitutes the Actus Reus, or the material element of trafficking. The Trafficking Protocol, and its travaux préparatoires do not provide a definition.”171 The drafter’s choice of actions covered operate to bring both the process (recruitment, transportation, transfer) and the result (harboring and receiving) within the definition of trafficking so as to encompass ­recruiters, brokers, transporters on one side, as well as owners, managers, supervisors and controllers of places of exploitation on the other. These latter places may include a brothel, farm, boat, factory, medical facility or household.172 171 However, a persuasive definition is provided in a recent study commissioned by the council of Europe and the u.n. on organs trafficking. Under this study, “[r]ecruitment is to be understood in a broad sense, meaning any activity leading from the commitment or engagement of another individual to his or her exploitation. It is not confined to the use of certain means and therefore also includes the use of modern information technologies … Transportation is also a general term and does not define any particular means or kinds of transportation. The acts of transporting a person from one place to another constitutes this element; as in the cases of trafficking in human beings for sexual or labor exploitation, it is not necessary for the victim to have crossed any borders, nor is it necessary for the victim to be present illegally in a state’s territory. The offence therefore includes transnational and national trafficking. The transfer of a person includes any kind of handing over or transmission of a person to another person. This is particularly important in certain cultural environments where control over individuals (mostly family members) may be handed over to other people. As the term and the scope of the offence are broad, the explicit or implied offering of a person for transfer is sufficient; the offer does not have to be accepted for the offence of trafficking in human beings to be constituted if the other elements are also present. The harboring of persons means accommodating or housing persons in whatever way, whether during their journey to their final destination or at the place of the exploitation. This, of course, also includes the accommodation of persons in a medical clinic or other place where the illegal removal of organs is conducted—and the criminal liability of the individuals involved who use one of the means described below to exploit the victims. The receipt of persons is not limited to receiving them at the place where the exploitation takes place either, but also means meeting victims at agreed places on their journey to give them further information on where to go or what to do.” 172 See Gallagher, at 30–31. Gallagher’s interpretation emphasizes that situations, such as intergenerational bonded labor or a working environment that changes from coercively exploitation, which are trafficking without any preceding process, would be considered trafficking under the Protocol because the victims are harbored for the purpose of exploitation.

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By means of “the threat or use of force or other forms of coercion, of a­ bduction, of fraud, of deception, of the abuse of power or of a position of ­vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. The means element, which requires the use of force or coercion, creates an association with prior instruments concerning other forms of human exploitation such as the Slavery Convention or the ilo conventions on forced labor. However, the Trafficking Protocol goes well beyond the forcible or coerced exploitation by referring to deception, abuse of power and abuse of vulnerability. Hence, even means of seduction or natural obligations, such as the obligations among spouses, if they trick a vulnerable person to accept to be transported for a purpose which she later discovers was exploitation could fall within the scope of application of the Trafficking Protocol under the abuse of power or vulnerability provision.”173 The “giving or receiving of payments or benefits” refers to the situation where the trafficker uses monetary means to purchase control over the trafficked person from her relatives. When the victim is under eighteen years old, the means requirement is waived and the offence mandated by the Trafficking Protocol is established if one of the actions provided at art. 3(1) is conducted for the purpose of exploitation. For “the purpose of exploitation.”174 This is the mens rea of trafficking. The un Office on Drugs and Crime (unodc) identified it as a special intent (­dolus specialis);175 that is to say that the intended result need not be achieved. It is sufficient that exploitation was the intention of the conduct. It presents a manifest interest with regard to migrant smugglers who do not necessarily intend to subject the migrants they smuggled to exploitation. The Protocol does not define “exploitation” but contains a savings clause which affirms a consistency between that instrument and existing rights, obligations and responsibilities under international law.176 This allows the definition to be borrowed from ­other instruments, such as the Convention on Slavery or the ilo Convention of forced labor, if the trafficking involves slavery and/or forced labor. Trafficking relies on a profit-based business model and the commoditization of the persons produced for its means. In the production phase it can be murderously brutal as well as smoothly fraudulent. The marketing may be by 173 The Travaux préparatoires refer to the abuse of power or position of vulnerability as “any situation in which the person involved had no real and acceptable alternative but to ­submit to the abuse involved.” 174 Trafficking Protocol, at art. 3. 175 u.n.odc Anti-Trafficking Practitioners’ Manual, Module 1, 4 (2009). 176 Trafficking Protocol, at art. 14.

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­conventional methods but more recently it has become a creature of the internet where trafficked persons are offered for sale in catalogs. Sales may be by any of the usual business ways including pre-sales from buyers and auctions. Hence, trafficking is a venture capitalized usually by third-party monies looking for a return on investment. Of course the return is free of taxation as the hidden fruits of unlawful activity. Monies may then be laundered in any of the  usual typologies and channelled into lawful business to create more ­capital for investment. The model in symbols is C, the capitalist, provides T, the ­trafficker with F, funds. T induces S, the subject trafficked, by various means a person to complete control of her. T then transports S to a buyer B or a market M for sale.

Regional Instruments

The European Union

The eu is one of the regions most affected by human trafficking. In 1997, it released an initial detailed Joint Action on the subject177 which was later replaced by the Council of the European Union’s 2002 Framework Decision on Combating Trafficking in Human Beings.178 This was followed by a Directive on short residency permits for victims of trafficking.179 Art. 5 of the 2000 eu Charter of Fundamental Rights, which came into effect on November 2009, prohibits trafficking in human beings.180 The 2002 Framework Decision on Human Trafficking The 2002 Framework Decision on Human Trafficking has a close connection with the Trafficking Protocol. Like the Trafficking Protocol, it is a crime deterring instrument rather than being centered on human rights. Like State parties to the Protocol, eu countries are required to criminalize and penalize a 177 Joint Action of 24 February 1997, concerning action to combat trafficking in human beings and sexual exploitation of children(97/154/JHA), oj L 063/2, March 4., 1997 (hereinafter Joint Action on Trafficking). 178 Council Framework Decision of 19 July 2002 on combating trafficking in human beings (2002/629/JHA), oj L 203/1, August. 1, 2002 (hereinafter 2002 Framework Decision on Trafficking). 179 See Council Directive 2004/81/EC of 29 April 2004, oj L 261/19, August 6, 2004(regarding the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who decide to cooperate with the competent authorities), (hereinafter eu Council Directive). 180 Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, 2000/C 364, 1.

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full range of trafficking-related offences whether committed by natural or legal persons.181 The Framework Decision, harsher than the Protocol, establishes a standard of “effective, proportionate and dissuasive” criminal penalties182 and contains aggravated offences in relation to the minimum penalties that are to apply.183 Further, in an important departure from the Protocol, Member States are required to ensure that, at least in relation to offences committed in their territory, the investigation and prosecution of trafficking cases do not rely merely on victim complaints.184 Only two provisions concern victims and these both apply only to children, or as they are known, “particularly vulnerable victims.”185 The 2002 Framework Decision on Trafficking inevitably t­riggered many criticisms. These were mostly for not containing an anti-discrimination clause of any kind or a savings clause that would operate to affirm and protect rights already established under international law, including refugee law and human rights.186 Evaluation and monitoring of the eu’s response to trafficking over the period of 2006–08 confirmed the dissatisfaction about the framework around the time of its enactment. It was observed that “the number of criminal ­proceedings and victims did not comply with the expectations in 2002 compared to the e­ stimated scale and the gravity of the crime.”187 In March 2009, the ­Commission adopted and submitted to the Council of the eu two proposals—one for a new Framework Decision on Trafficking,188 the other for a 181 182 183 184 185 186

2002 Framework Decision on Trafficking, at art. 1–5. Id. at art. 3(1). Id. at art. 3(2). Id., at art. 7(1). Id., at art. 7(2)–7(3). See u.n. High Commissioner for Refugees, Observations by the United Nations High Commissioner for Human Rights and the United Nations High Commissioner for Refugees on the Proposal for an eu Council Framework Decision on Combating Trafficking in Human Beings, (2001) ; see also Report on the Proposal for a Council Framework Decision on Combating Trafficking in Human Beings, (com (2000) 854-C5-0042/2001–2001/0024 (cns), A5-0183/2001, (2001). 187 Proposal for a Framework Decision on Preventing and Combating Trafficking in Human Beings, and Protecting Victims, repealing Framework Decision 2002/629/JHA, Europa Press Release MEMO/01/131, (2009) available at http://europa.eu/rapid/press­Releases­ Action.do?reference  =  MEMO/10/108 ; see also 2002 Framework Decision Implementation Report, and Commission of the European Communities, Evaluation and Monitoring of the Implementation of the eu Plan on Best Practices, Standards and Procedures for Combating and Preventing Trafficking in Persons, com (2008) 657 final, Oct. 17, 2008. 188 Commission of the eu, Proposal for a Framework Decision on Preventing and Combating Trafficking in Human Beings, and Protecting Victims, repealing Framework Decision

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Framework Decision on combating sexual abuse and sexual exploitation of children—each aimed at strengthening the provisions of its predecessor instrument.189 However, neither of these two proposals has yet been adopted. A proposal for a directive on Trafficking quasi-identical to the proposal of a new Framework Decision was tabled in March 2010.190 The eu Council Directive on Short Term Residency Permits This Directive seeks to prevent migrant smuggling and trafficking by providing victims of such practices with incentives to come forward and cooperate with authorities in the detection and prosecution of these crimes. The directive adopts a “minimum-standard” version of the national regimes that had already been established in a number of European countries to enable victims of trafficking to cooperate with law enforcement authorities by providing assistance and temporary residence permits to countries such as Belgium, Italy, the Netherlands, Spain, France and Greece. It applies to t­hird-country victims of trafficking and may also apply to victims of illegal immigration if Member States wish to extend its application in this way.191 Victims are to be informed, at the discretion of the national authorities, of the possibility of ­being granted temporary residence permits in exchange for cooperation with police or judicial authorities.192 Victims are to be granted a grace period allowing them to escape the influence of traffickers so they can make an informed decision as to whether to cooperate with criminal justice agencies in the investigation and prosecution of these persons, which could be terminated on grounds of public policy and national security, or if the victim actively, voluntarily and on her own initiative renews contact with the trafficker.193 During that period, the victims shall not be expelled and are entitled to emergency

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191 192 193

2002/629/JHA, com (2009) 136 final, 4, (2009) (hereinafter Framework Decision 2009 Proposal). Commission of the European Communities, Proposal for a Framework Decision on ­Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography, repealing Framework Decision 2004/68/JHA, com (2009) 135 final (2009). European Commission, Proposal for a Directive of the European Parliament and of the Council on Preventing and Combating Trafficking in Human Beings, and Protecting ­Victims, repealing Framework Decision 2002/629/JHA, com (2010) 95 final, 6 (2010) (hereinafter ec Directive 2010 Proposal); see also Proposal for a Directive on Preventing and Combating Trafficking in Human Beings and Protecting Victims, repealing Framework Decision 2002/629/JHA, MEMO/10/108(2010). eu Council Directive, at art. 3. Id., at art. 5. Id., at art. 6.

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medical and psychological care and material assistance.194 In order to secure a good cooperation from victims, Member States are also to provide them with free legal aid, translation and interpretation services.195 During or at the expiration of the grace period, a temporary residence permit may be issued on the basis of various requirements all decided by the receiving State’s authorities.196 The stated purpose of the directive was not victim or witness protection. This explains the restrictive approach, which triggered criticisms from the Group of Experts on Trafficking in Human Beings established by the European Commission in 2007, in a detailed opinion on June 2009 recommending a revision of the Directive.197 The Group criticized the directive for “insufficiently address[ing] the legitimate needs and rights of victims to support and assistance.”198

Council of Europe

The Convention on Action against Trafficking in Human Beings

The Council of Europe adopted a Convention on Action against Trafficking in Human Beings on May 3 and 4, 2005 which positions itself as a supplement to the Trafficking Protocol. This instrument is more rights-based than other instruments but still bears some strong connections with a containment ­approach. The stated purposes of the Convention are: to prevent and combat trafficking to protect the human rights of victims; to ensure effective investigation and prosecution; and to promote international cooperation.199 The Convention applies to all forms of trafficking including in women, men, and children. It applies to trafficking committed within as well as between countries and applies whether or not it is related to organized crime.200 The Definition of Trafficking The Convention complements the Protocol well. Hence, the explanatory report gives a number of important insights into several aspects of the definition: 194 195 196 197

Id., at art. 7. Id. Id., at art. 8. Opinion No. 4/2009 of the Group of Experts on Trafficking in Human Beings on a possible revision of Council Directive 2004/81/EC of 29 April 2004 (on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities). 198 Id., at 2. 199 European Trafficking Convention, at art. 1(1). 200 Id. at art. 2; see also Explanatory Report, at 60–61.

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Trafficking can occur even when a border was crossed legally and presence on national territory is lawful.201 That abuse of a position of vulnerability encompasses “any state of hardship in which a human being is impelled to accept being exploited,” including abusing the economic insecurity or poverty of an adult hoping to better their own and their family’s lot.”202 That there is no need for exploitation to have occurred for trafficking to take place.203 That while the Convention does not refer to illegal adoptions, such practices would fall within its scope if they amount a “practice similar to slavery.”204 Other Relevant Regional Instruments The saarc Convention.205 On Jan. 5, 2002, the South Asian Association for Regional Cooperation (“saarc”) comprising the States of India, Pakistan, Bangladesh, Sri Lanka, Nepal, the Maldives, Bhutan and now Afghanistan, adopted the saarc Convention on Preventing and Combating Trafficking in Women and Children for Prostitution. Its stated purpose is to promote regional cooperation to deal with the prevention, interdiction and suppression of trafficking and the repatriation and rehabilitation of victims. Though more limited in scope, the saarc convention participates from the same approach as the Trafficking Protocol and the Transnational Organized Crime Convention. The member States, a majority of which are now member to the un Trafficking Protocol, failed very largely to implement it to the extent that some author predict its termination through desuetude.206 The United States’ Trafficking Victims Protection Act On Oct. 11, 2000, the us Congress passed the Victims of Trafficking and ­Violence Protection Act (now commonly known as the Trafficking Victims Protection Act or tpva).207 The tvpa: 201 202 203 204 205

European Trafficking Convention Explanatory Report, at 80. Id., at 83. Id., at 87. Id., at 94. South Asian Association for Regional Cooperation Convention on Preventing and ­Combating Trafficking in Women and Children for Prostitution, done January. 5, 2002, entered into force December 1, 2005. 206 See Gallagher, at 132. 207 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106–386, 114 Stat. 1464 (codified as amended at scattered sections of 8, 20, 22, 27, 28 and 42 u.s.c.)

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Criminalizes procuring and subjecting another human being to peonage, involuntary sex trafficking, slavery, involuntary servitude, or forced labor;208 Provides social services and legal benefits to survivors of these crimes, including authorization to remain in the country;209 Provides funding to support protection programs for survivors in the United-States as well as abroad;210 and Includes provisions to monitor and eliminate trafficking in countries outside the United States.211 The tvpa will be discussed more in depth below especially with regards to the monitoring and the situation of trafficked illegal immigrants.

The Legal Regime of Trafficking in Persons: Criminalization, Investigation, and Punishment of Trafficking

A System Resting on the States’ Obligation to Exert Due Diligence to Prevent, Protect and Respond

The phenomenon of trafficking in persons being eminently international in nature, it is not surprising that the legal regime addressing trafficking derives from international and regional instruments. The most important of these being the un Trafficking Protocol and the European Convention on Trafficking. Overall, international instruments create obligations for States to prevent, protect and respond. Human rights literature has identified the positive obligation of States to take adequate steps to meet its obligations as a “due diligence” standard, under which the States are obliged to exercise a degree of care in preventing and responding to the acts of private entities that interfere with established rights. That standard was first enunciated in the 1988 decision of the Inter-American Court of Human Rights Velasquez Rodriguez v. Honduras,212 where the Court held that a State can incur responsibility when: a Violation of…rights…has occurred with the support or the acquiescence  of the government, [or when] the State has allowed the act to

208 209 210 211 212

(­hereinafter vtvpa). Division A of the vtvpa is further identified as the Trafficking Victims Protection Act of 2000 (codified as amended at 22 u.s.c §§ 7101–7110 (2000), and which incorporates 18 u.s.c. §§ 1589–1594 (2000)) (hereinafter tvpa). Id., at § 7109(a)(2) (§1590). Id., at § 7105(b)(1)(A). Id., at § 7110. Id., at § 7103. Velásquez Rodriguez v. Honduras, Inter-Am Ct h.r. (Ser. C) No. 4(1988).

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take place without taking measures to prevent it or to punish those responsible.213 A recent decision of the European Court of Human Rights, Rantsev v. Cyprus and Turkey, while not referring specifically to the obligation of due diligence, identified a number of factors which could serve as a useful guiding element with respect to Human Trafficking, including an obligation to effectively investigate trafficking cases and to engage in effective cross-border cooperation.214 Criminalization The Trafficking Protocol mandates that states criminalize trafficking when committed intentionally.215 Art. 5 requires States Parties to criminalize the inchoate offences of attempt216 and complicity,217 organization and direction.218 However, the obligation extends only to trafficking and not its constituent elements.219 The more rights-based European Convention on Trafficking contains criminal enforcement provisions. States are required to criminalize trafficking as well as acts committed for the purpose of enabling trafficking220 and are required to criminalize attempting, aiding and abetting.221 There is provision for legal persons to be held liable for a criminal offence established under the Convention.222 The European Convention is more explicit than the Trafficking Protocol regarding penalties. The offences established under the Convention are all to be punishable by “effective, proportionate and dissuasive” sanctions.223 This Convention establishes “aggravating circumstances,” which include instances 213 214 215 216 217 218 219

220 221 222 223

Id.,at 173. Rantsev v. Cyprus and Russia, [2010] echr 25965/04, echr (7 January 2010, 288–89). Trafficking Protocol, at art 5(1). Id., at art. 5(2)(a). Id., at art. 5(2)(b). Id., at art. 5(2)(c). Legislative Guide, Part 2, at 268–69: “[t]he obligation is to criminalize trafficking as a combination of constituent elements and not the elements themselves… Individual elements such as abduction or the exploitation of prostitution need not be criminalized, although in some cases supplementary offences may support the purposes of the protocol and States are free to adopt and maintain them if they wish to do so.” e.c.h.r., at art. 18, 20. Id., at art. 21. Id., at art. 18. Id., at art. 23.

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where the victim of the offence is a child; when the perpetrator is a public official; where it endangered the life of the victim; or where it was committed within the framework of a criminal organization.224 The Convention goes one step further than any other instrument by requiring States Parties to consider criminalization of those using the services of a victim of trafficking.225 This provision is aimed at owners of establishments using trafficked persons, such as brothels, as well as persons who knowingly use the services of a trafficker to procure a sexual service or an organ.226 The Convention also requires States Parties to ensure that investigations or prosecutions can be initiated upon the sole initiative of prosecuting authorities of member States.227 Establishment of Jurisdiction Because trafficking is defined as a crime involving recruitment in one country, followed by transport and exploitation into a different country, perhaps even several different countries, the exercise of criminal jurisdiction is equally complex. Both the u.n. Convention on Transnational Organized Crime and the European Convention on Trafficking provide that a state must establish jurisdiction over an offence when committed in its territory,228 by one of its nationals229 or against one of its nationals.230 Both also provide that a State Party can establish jurisdiction when an offender is present in its territory and the State does not extradite the offender.231 The Transnational Organized Crime Convention also provides for establishment of jurisdiction when offences are committed outside its territory but are linked to serious crimes or money ­laundering planned to be conducted there.232 In situations of concurrent jurisdictions, the Organized Crime Convention provides that the States Parties are to consider transferring the case to the best 224 225 226 227 228 229 230 231 232

Id., at art. 24. Id., at art. 19. See Eur. Convention On Trafficking Explanatory Rep., at 232. Id., at art. 27(1). Transnational Organized Crime Convention, at art. 15(1); European Trafficking Convention, at arts. 31(1)(a)–(c). Transnational Organized Crime Convention, at art. 15(2)(b); European Trafficking ­Convention, at arts 31(1)(d) Transnational Organized Crime Convention, at art. 15(2)(a); European Trafficking ­Convention, at arts 31(1)(e) Transnational Organized Crime Convention, at art. 15(3), 15(4); European Trafficking ­Convention, at art. 31(3). Transnational Organized Crime Convention, at art. 15(2)(c).

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forum in the “interest of the proper administration of Justice,” and “with a view to concentrating the prosecution.” Investigation and Prosecution Although the trafficking treaties do not explicitly require states to investigate and prosecute trafficking cases, all instruments make combating trafficking one of their key purposes;233 and the Trafficking Protocol provides that its scope of applications extends to the prevention, investigation and prosecution of the trafficking.234 The duty to investigate and prosecute is best examined through the States duty to exercise due diligence to prevent, protect and respond. The case law of the European Court of Human Rights is in this respect particularly important for the present purpose. The European Court has in this respect provided a set of indicia of an effective criminal investigation which include factors such as the independence of the investigators, the promptness of the investigation, whether the investigation is capable of leading to a determination on the unlawful character of the act committed and the identification and punishment of those responsible, whether reasonable steps have been taken to secure evidence and whether there is a sufficient element of public scrutiny of the investigation or its results.235 In its recent decision of Rantsev v. Cyprus and Russia, the court also emphasized that investigations into trafficking must cover “all aspects of trafficking allegations from recruitment to exploitation.236” The court also affirmed that: “member States are also subject to a duty in c­ ross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which ­occurred ­outside their territories.”237 In evaluating whether a state has met the due diligence standard in a ­trafficking case, it is determinant to examine whether the system put in place by the State prevented or discouraged the victim from making complaints and whether it is even possible to know what is happening in the country through the analysis of the trafficking data.238

233 Trafficking Protocol, at art. 2(a); European Trafficking Convention, at art. 1(1)(a); saarc Convention., at art. ii. See also Framework Dec. 2009 Proposal, at preambular para. 3; ec Dir. 2010 Proposal, at preambular para. 3. 234 Trafficking Protocol, at art. 4. 235 Finucane v. The United Kingdom, 29178/95 [2003] echr 328 (1 July 2003), 68–71. 236 Rantsev, 233. 237 Id., at 289. 238 See Gallagher, at 382–89.

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Effective and Proportionate Punishment The Organized Crime Convention requires that offenses established under that instrument liable to sanctions that take into account the gravity of the offenses.239 The Convention also requires that each State Party shall endeavor to ensure that any discretionary legal powers under its domestic law relating to the prosecution of persons for offences covered by the Convention are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences.240 The European Trafficking Convention requires trafficking and other offences established under that instrument to be punishable by “­effective, proportionate and dissuasive sanctions,” including custodial ­penalties that can rise to extradition.241 Both the Organized Crime Convention and the European Trafficking Convention further require that in cases of trafficking involving legal persons, that such person be made subject to effective, ­proportionate and dissuasive criminal or non-criminal sanctions, including pecuniary sanctions.242 The European Trafficking Convention requires that certain circumstances be regarded as aggravating circumstances, such as life endangerment and the involvement of a public official in the performance of his or her duties. Also when the offence is committed against a child or when the offence was ­committed within the framework of a criminal organization.243 Obligation to Seize and Confiscate Proceeds of Trafficking The Organized Crime Convention sets out rules and procedures for identification, tracing, freezing and seizure of assets and confiscation of proceeds of designated offences, including trafficking.244 States Parties to the Convention are required to create adequate powers to enable and support confiscation and seizure.245 Furthermore, States Parties are required to comply with requests for confiscation presented by another State Party.246 The European Trafficking Convention requires States Parties to “adopt such legislative and other measures as may be necessary to enable it to confiscate or 239 240 241 242 243 244 245 246

Org. Crime Conv., at art. 11(1). Id., at art 11(2). Eur. Traff. Conv., at art. 23(1). Org. Crime Conv., at art. 10(4); Eur. Traff. Conv., at art. 23(2). Eur. Traff. Conv., at art. 24. Org. Crime Conv., at art. 12–14. Id. Id., at art 13.

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otherwise deprive the instrumentalities and proceeds of [trafficking-related] offences or property the value of which corresponds to such proceeds.”247 Extradition The Organized Crime Convention requires States Parties to treat offences it covers as extraditable offences under their laws and to ensure that they are included as extraditable offences in every current and future extradition treaty.248 The saarc Convention and the crc contain similar provisions regarding trafficking.249 The European Trafficking Convention requires States Parties to impose penalties that give rise to extradition.250 When States refuse extradition, all relevant instruments give them the obligation to either extradite or prosecute.251 Mutual Legal Assistance The Organized Crime Convention requires States Parties to afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by that instrument.252 It also sets out a detailed legal and procedural framework for mutual legal assistance between States Parties.253 Law Enforcement Cooperation The Organized Crime Convention lists a range of objectives for law enforcement cooperation. Thus States Parties shall, in particular, adopt effective measures designed to facilitate informal cooperation including early identification of offences and exchanges of information and intelligence.254 It encourages States Parties to enter into bilateral or multilateral agreements or arrangements to enhance informal cooperation among law enforcement agencies. The Organized Crime Convention also encourages States Parties to conclude “bilateral or multilateral agreements or arrangements whereby, in ­relation to matters that are the subject of investigations, prosecutions or ­judicial 247 Eur. Traff. Conv., at art. 23(3). In addition, trafficking falls under the extraditable offences covered by the European Convention on Extradition., oj C 78/1, Mar. 30, 1995. 248 Org. Crime Conv., at art. 16. 249 saarc Conv., at art vii; crc Optional Protocol, at art. 4. 250 Eur. Traff. Conv., at art. 23(1). 251 See Org. Crime Conv., at arts. 15(3), 16(10); Eur. Traff. Conv., at art. 31(3). 252 Id. at art. 18(1). 253 Id. at art. 18(3) et seq. 254 Id., at art 27(1).

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­ roceedings in one or more States, the competent authorities concerned may p ­establish joint investigative bodies…[or alternatively, to undertake] joint investigations…by agreement on a case-by-case basis.”255 The Trafficking Protocol encourages cooperation through information exchange for purposes such as victim or perpetrator identification, document verification and intelligence gathering.256 Prevention

The Identified Causes of Trafficking

A lot has been written on the cause of the trafficking phenomenon without formulating a clear consensus. Nevertheless, three factors are cited: (1) the vulnerability of victims and potential victims; (2) the causes which encourage demand for goods or services produced by trafficked labor; and (3) the factors creating a favorable environment for traffickers by granting them a certain ­degree of immunity. Many reports and studies have explicitly recognized a link between poverty and economic inequality and increased vulnerability to trafficking.257 That poverty and inequality reduces choices and access to public goods such as education and expose populations to criminals eager to exploit gullibility and hopelessness. To address here the means at the disposition of the States to reduce economic equality would require extensive developments on development policies and is beyond our subject. Preventive Measures The Trafficking Protocol requires states to establish policies, programs and other measures aimed at preventing trafficking and protecting trafficked ­persons from re-victimization.258 They are further required to undertake additional measures, including information campaigns and social and economic initiatives, to prevent trafficking.259 These measures should include cooperation with ngos, relevant organizations and other elements of civil society.260 States are also required to adopt legislative or other measures “to discourage 255 Id., at art. 19. 256 Trafficking Protocol, at art. 10(1). 257 See Gallagher, at 418 et seq, citing Office of the u.n. High Commissioner for Human Rights, Human Rights and Poverty Reduction: a Conceptual Framework, u.n. Sales No. HR/ PUB/04/1 (2004) and Eur. Traff. Conv. Expl. Rep., at para. 104. 258 Trafficking Protocol., at art. 9(1). 259 Id., at art. 9(2). 260 Id., at art. 9(5).

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the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”261 Regarding law and enforcement and border controls, some provisions in the Trafficking Protocol reinforce the Organized Crime Convention. Hence, states have accepted the following obligations • To cooperate through information exchange aimed at identifying perpetrators or victims of trafficking, as well as methods employed by traffickers.262 • To provide or strengthen training for law enforcement, immigration and other relevant personnel aimed at preventing trafficking. To strengthen border controls as necessary to detect and prevent trafficking;263 • To take legislative and other appropriate measures to prevent commercial transport being used in the trafficking process and to penalize such involvement.264 • To take steps to ensure the integrity of travel documents issued on their ­behalf and to prevent their fraudulent use.265

The Status of Victims

Identification of Victims

The identification of victim is the crucial step in victims’ protection and the least satisfactory of the systems in place. In most instances, the victims are identified as illegal or smuggled immigrants and subject to the treatment ­commonly reserved for these “Wretched of the Earth.” The fundamental flaw consists in handling the task of identifying trafficking victims to the gate keepers, of the Limes. The fact is that the legal instruments establish a hierarchy of rights. At the highest level of protection, are the victims of trafficking. Then come the smuggled migrants who are not entitled to any of the special protections that states are encouraged to grant trafficked persons in relation to their personal safety and physical and psychological well-being. At the bottom of the hierarchy come the illegal or undocumented migrants. It is therefore not surprising that the bureaucracy of the Limes favors that category. It is simpler to handle and encouraged by political dividends for elected officials as illustrated by the controversies in France and Italy about the groups of “roms” in the last few years. As Anne Gallagher puts it, quoting the Explanatory Report 261 262 263 264 265

Id., at art. 9(5). Id., at art. 10(1). Id., at art. 11(1). Id., at art. 11(2)–11(4). Id., at art. 12.

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on the Convention against Trafficking in Human Beings,266 the recurrent failure to identify victims of trafficking and the subsequent deportation renders any rights granted to victims of human trafficking largely “purely theoretical and illusory.”267 The Trafficking Protocol, as if to guarantee its ineffectiveness, is particularly mute on the key issue of identification of victims. By contrast, the European Trafficking Convention provides that states are required to provide the necessary legal framework and the availability of competent personnel for the ­identification process.268 It also provides that each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations…[and that]…each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of…[trafficking]…has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for [the Convention].269 Trafficked persons are routinely criminalized, detained and deported for offences that relate directly to their status of victims. As on the issue of identification, the Trafficking Protocol is mute on the issue of prosecution for status-related offences as a result of a failure of the member States to reach an agreement.270 Although recent developments indicate that the States are moving away from their initial opposition to prosecution of status-related offences,271 the u.n. regime remains affected by this flaw. However, Article 26 of the European Trafficking Convention requires states to 266 Council of Europe, Explanatory Report on the Convention on Action against Trafficking in Human Beings, ets 197, 16.V.2005, at para. 131. 267 See Gallagher, at 279. 268 European Trafficking Convention, at art. 10(1). 269 Id., at art. 10(2). 270 United Nations on Drugs and Crime, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto, 368 (2006). 271 See Conference of the Parties of the United Nations Convention on Transnational Organized Crime, Report on the Meeting of the Working Group on Trafficking in Persons held in

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provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities as the result of coercion, abduction, fraud, deception, or abuse of power or of a position of vulnerability.272 As observed in the recent “roms” crisis, it has been largely circumvented by deportation without prosecutions. The international instruments are even muter on the detention issue. It is addressed only in the incantatory u.n. Trafficking Guidelines and the European Trafficking Convention Explanatory Report and considered inappropriate. Therefore, States are encouraged to ensure that trafficked persons are not, in any circumstances, held in administrative detention or other forms of custody.273 Victims Protection and Support Having largely failed on identification and prevention, the instruments are more satisfactory on the subsequent assistance to victims, although the tone remains largely incantatory. Under the Trafficking Protocol, states are required to: • Protect the privacy and identify of trafficking victims in appropriate cases and to the extent possible under domestic law, including by making legal proceedings confidential to the extent that this is also possible under domestic law;274 • Ensure that in appropriate cases, victims receive information on relevant court and administrative proceedings as well as assistance to enable their views to be presented and considered during criminal proceedings;275 • Endeavor to provide for the physical safety of trafficking victims within their territory;276 and • Ensure that domestic law provides victims with the possibility of obtaining compensation.277

272 273 274 275 276 277

Vienna on April 14, 2009, u.n. Doc. CTOC/COP/WG.4/2009/2, April 21, 2009, at Recommendation 1(H). European Trafficking Convention, at art. 26. See u.n. Trafficking Principles and Guidelines at Guidelines 2.6, 6.1; European Trafficking Convention Explanatory Rep., at 289. Trafficking Protocol, at art. 6(1). Id., at art. 6(2). Id., at art. 6(5). Id., at art. 6(6).

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Regarding victims assistance, the Trafficking Protocol encourages states : “consider adopting legislative or other appropriate measures to provide for the physical, psychological and social recovery of victims of trafficking.”278 Special reference is made to housing, counseling, and information in a language the victim understands; medical, psychological, and material assistance; and employment, education and training opportunities.279 Those provisions were however made optional because of the expected high cost they carry. States are required, however, to provide basic assistance to all victims of trafficking—even if only provisionally identified as such280—within their territory.281 These provisions cannot be reserved only for those agreeing to act as witnesses282 or agreeing to cooperate in investigations or criminal proceedings.283 They should aim to assist victims in their physical, psychological and social recovery, which assistance includes: standards of living ensuring their subsistence, including appropriate and secure accommodation; psychological and material assistance; access to emergency medical treatment; translation and interpretation services; and counseling, information, and assistance in ­relation to the legal process.284 For victims lawfully on the territory of a state, increased protections are granted regarding the access to full medical and other assistance as well as access to the labor market, vocational training and education.285 All protection and support measures are to be provided on a non-discriminatory,286 consensual and informed basis.287 The European Trafficking Convention recognizes that protection needs are likely to increase when victims cooperate with criminal justice authorities. Hence, Article 28 sets out the specific measures that must be implemented to provide “effective and appropriate protection” to victims and others (including families, witnesses and victim support agencies) from potential retaliation and intimidation, in particular during and after the investigation and prosecution process.288

278 279 280 281 282 283 284 285 286 287 288

Id., at art. 6(3). Id. Id., at art. 10(2). Id., at art. 12. Id., at art 10(1)–12(6). Id., Explanatory Report at 168. Id., at art 12(1). Id., at art. 12(3)–(4). Id., at art. 3. Id., at art 12(7). Id., at art. 28.

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Special Protections for Trafficked Children Under all instruments children receive special protection.289 The main difference in regime with adults is that the trafficking in children does not contain the means element required for adults. The European Trafficking Convention, echoed by the Legislative Guide to the Trafficking Protocol, requires states to presume the victim is a child where there is uncertainty about his/her age and there are reasons for believing he/she is290 The European Trafficking Convention, also echoed by the Legislative Guidelines to the Trafficking Protocol, requires States Parties to “provide [their] competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits…”291 The European Trafficking Convention also provides additional protection to the child by requiring that, as soon as an unaccompanied child is identified as a victim, each Party shall: (a) provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child;292 (b) take the necessary steps to establish his/her identity and nationality;293 (c) make every effort to locate his/her family when this is in the best interests of the child.294 289 See e.g. the justification provided in the u.n. Trafficking Principles and Guidelines: [t]he particular physical, psychological and psychosocial harm suffered by trafficked children and their increased vulnerability to exploitation requires that they be dealt with separately from adult trafficked persons in terms of laws, policies, programmes and interventions. The best interest of the child must be a primary consideration in all actions concerning trafficked children whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies. Child victims of trafficking should be provided with appropriate assistance and protection and full account should be taken of their special rights and needs. 290 European Trafficking Convention, at art. 10(3); Legislative Guide to the Trafficking Protocol, at Part 2, para. 65; see also unodc Model Law, at 47–48; ec Directive 2010 Proposal, at art. 12(2). 291 European Trafficking Convention, at art 10(1); u.n. Trafficking Principles and Guidelines, at Guideline 6.2. 292 European Trafficking Convention, at art. 10(4)(a); See also u.n. Trafficking Protocol Legislative Guide, at Part 2, para. 65(a). 293 European Trafficking Convention, at art. 10(4)(b); See also u.n. Trafficking Protocol Legislative Guide, at Part 2, para. 66. 294 European Trafficking Convention, at art. 10(4).

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The European Trafficking Convention also gives the following additional protections to child victims: child victims are to have access to education;295 the rights to privacy of child victims is subject to special protection;296 child victims are to be given special protection during trafficking investigation;297 states are required to ensure that in providing accommodation, education and health care to child victims of trafficking, due account is taken of their special needs and rights;298 and considerations of the best interests of the child victim shall govern the issuing and renewal of residence permits by states.299

The Obligations Related to Repatriation and Remedies Legal Status of Trafficking Victims

The links between immigration and human trafficking make the identification and protection particularly burdensome and warranty ineffectiveness. The victims of trafficking, themselves often involved in petty crime or stigmatized actions, are usually facing a Hobbesian choice between turning addressing the police, which is perceived, often with reason, as the bureaucracy of the Limes, and remain at the mercy of their traffickers. Unsurprisingly, most victims prefer to stick with the devil they know, which often ends in them falling in the nets of the bureaucracy of the Limes anyway. The Status of Victims Cooperating with Law Enforcement The Trafficking Protocol provides that the State is to consider adopting legislative measures permitting victims of trafficking to remain in their territories in appropriate cases.300 The legal status of victims of trafficking in countries of destination under the European Trafficking Convention was a point of compromise between providing incentives to the victims to cooperate with national criminal justice authorities in investigation and the migration control advocates. The Convention’s provisions on legal status and repatriation represent a vast improvement on what is available to victims under the Trafficking Protocol or the eu’s Directive. Victims are to be granted a thirty-day grace period, during which they will be given support and assistance and permitted to decide whether or not to cooperate with the authorities, and during which they 295 296 297 298 299 300

European Trafficking Convention, at art. 12(1)(f)). Id., at art. 11(2). Id., at art. 28(3). Id., at art. 12(7). Id., at art. 14(2). Id., at art 7(1).

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c­ annot be repatriated against their will.301 Once the grace period is up, states are to issue a renewable residence permit to victims if an extended stay is necessary owing to the victim’s situation or for their cooperation in an investigation or prosecution.302 The decision of the member State is unappealable. In the tvpa, the United States created a visa linked to law enforcement. In order to qualify for the visa, applicants must demonstrate that they have complied with all requests to assist in the investigation or prosecution of the traffickers.303 At any point after its issuance, the visa can be revoked by the law enforcement agency if it withdraws its endorsement or decides that a victim has refused to cooperate in an investigation or prosecution.304 The Repatriated Victim The Trafficking Protocol provides that states of origin are to facilitate and accept, without unreasonable delay, the return of their nationals and those who have a right of permanent residence within their territories.305 In returning a trafficking victim to another state, states of destination are required to ensure that such return takes place with regard for the safety of the trafficked person and the status of any legal proceedings relating to that person being a victim of trafficking.306 In order to facilitate repatriation, states are required to communicate with each other in verifying nationalities as well as travel and identity documents.307 The Trafficking Protocol also affords protection to the victims preserving the rights of victims under domestic law, as well as any other agreements that govern the return of victims of trafficking.308 In the European Trafficking Convention states must conduct return “with due regard for the rights, safely and dignity” of the victim, for the status of any related legal proceedings, and to ensure that such return “shall preferably be voluntary.”309 Countries of origin have two specific obligations regarding repatriation; they are to facilitate and accept the return of a trafficked national or resident and they are to cooperate in return, including verification of the 301 Id., at art. 13. 302 Id., at art. 14. 303 tvpa, at § 7105(e)(1)(C); see also New Classification for Victims of Severe Forms of ­Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 67 Fed. Reg. 4784, 4798 (Jan. 31, 2002), codified at 8 c.f.r. 103, 212, 214, 274a and 299. 304 Id. 67 Fed. Reg., at 4802. 305 Trafficking Protocol, at art. 8(1). 306 Id., at art. 8(2). 307 Id. at art. 8(3)–8(4). 308 Id., at art. 8(5)–8(6). 309 European Trafficking Convention, at art. 16(2).

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victim’s nationality or residence and issuance of travel documents.310 All states have an obligation to provide victims being repatriated with information,311 and to promote their reintegration and to work to avoid their re-­victimization.312 The practical effect is that victims of trafficking can be repatriated against their will with no risk assessment (except for children). Remedies The Organized Crime Convention requires states to “establish appropriate ­procedures to provide access to compensation and restitution for victims of ­offences covered by the Convention.”313 The Trafficking Protocol requires states to ensure that their legal systems contain measures that offer victims the possibility of compensation for damages suffered.314 To comply with their obligations, the states need only offer the legal possibility of compensation.315 The European Trafficking Convention provides a comprehensive instrument with respect to adequate and appropriate remedies for victims. This ­Convention requires that victims are to be provided with appropriate information including procedures they can use to obtain compensation,316 to be given access to legal assistance,317 that victims have a right to monetary compensation and also318 requires states to take steps to guarantee compensation of victims. Monitoring The two major trafficking treaties both contain compliance provisions and establish monitoring bodies. The Organized Crime Convention established 310 311 312 313 314 315

Id., at art. 16(3)–16(4). Id., at art. 16(6). Id., at art. 16(5). Org. Crime Conv., at art. 25(2). Trafficking Protocol, at art. 6(6). Legislative guide at Part 1, para. 368. According to the legislative guide, the compensation requirement under both the Organized Crime Convention and the Trafficking Protocol would be satisfied by the State establishing one or more of three options: (1) provisions allowing criminal courts to award criminal damages (paid by offenders); (2) to impose orders for compensation or restitution against persons convicted of trafficking offences; or (3) or provisions establishing dedicated funds or schemes to allow victims to claim compensation from the State for injuries or damages. Id. at Part 1, at 170 and Part 2 at 285–86; cited in Gallagher, at 362–63. 316 Id., at art. 15(1). 317 Id., at art. 15(2). 318 Id., at art. 15(3).

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a Conference of the Parties “to improve the capacity of States to combat ­transnational organized crime and to promote and review the implementation of [the] Convention.” To that end, the Conference of Parties (cop) will facilitate training, technical assistance and related activities and facilitate exchanges between states on organized crime and successful responses; and cooperate with all relevant.319 The cop is entrusted with an oversight function to review the implementation of the Convention and make recommendations to improve both the Convention and the implementation.320 The cop also extends its monitoring, information exchange, cooperation and other function to the Trafficking Protocol.321 In 2008, the cop established a Working Group with the purpose of advising and assisting the cop in the implementation of its responsibilities with regard to the Trafficking Protocol. Among other ­recommendations, the Working Group has recommended that states should “[e]nsure victims are provided with immediate support and protection, irrespective of the involvement in the criminal justice process.”322 The European Trafficking Convention establishes a system comprised of two bodies: (1) a technically oriented Group of Experts against trafficking in human beings (greta), and (2) a Committee of the Parties linked to the Council of Europe’s Committee of Ministers. This Convention provides for a detailed set of monitoring procedures, supplemented by Rules of Procedure adopted by greta in June 2009.323 Each party must “provid[e] the Conference of Parties with information on its programmes, plans and practices, as well as legislative and administrative measures to implement [the] Convention.”324 The us Evaluation and Reporting System The tvpa requires the u.s. Department of State to issue annual reports describing “the nature and extent of severe forms of trafficking in person,”325 The 319 Org. Crime Conv., at art. 32(3)(a)–32(3)(c). 320 Id., at art. 32(3)(d), 32(3)(e). 321 Conference of Parties to the United Nations Convention on Transnational Organized Crime, Decision 1/5, u.n. Doc. CTOC/COP/2004/6, September 23, 2004, at 5. 322 Conference of Parties to the United Nations Convention on Transnational Organized Crime, Working Group on Trafficking in Persons, “Report on the meeting of the working group on Trafficking in Persons held in Vienna on April 14 and 15, 2009,” u.n. Doc. CTOC/COP/ WG.4/2009/2, April 21, 2009, at para. 13(c). 323 Rules of Procedure for Evaluating Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the Parties, thb-greta 2009/3, June 17, 2009. See Gallagher on the monitoring procedure at 474–77. 324 Id., at art. 32(5). 325 tvpa, at §110.

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tvpa establishes “minimum standards” for the elimination of trafficking as well as criteria for evaluating the performance of States. The governments are required, at a minimum, to prohibit and appropriately punish trafficking, and make serious and sustained efforts to eliminate such trafficking.326 In evaluating governmental efforts, certain factors must be considered; victims protection and support, effectiveness of investigations and punishments, prevention, cooperation with other government in investigations and prosecutions, availability of extradition, effective monitoring of migration patterns and effective response, action to avoid or deter public officials involvement in trafficking, action to address demand for trafficking related to sexual exploitation and monitoring and providing of information to the u.s. government on national response to trafficking.327 According to one osce report, “there is a very strong correlation between trafficking and corruption” and “the trafficking of persons … flourishes in part through the corruption of public officials.”328 The link between corruption and trafficking remains unexplored partly because of the difficulty to collect data both on trafficking and on corruption. The main study on corruption and trafficking has identified that the opportunities for corruption exist at different chronological stages and involve many actors.329 All steps represent as many opportunities for bribes and favors, the recruitment of victims, the provision of documents to victims, their transport, which may include border-crossing, their control and exploitation as well as the laundering of the proceeds made through trafficking in persons. Corrupt actors within the trafficking process are endless: police, customs, visa offices, embassies, border control, immigration services, other law enforcement agencies, local officials, intelligence and security forces, armed forces (national or international) and persons and groups and parties with influence. Often, the traffickers also collide with private sector actors such as travel agencies, airlines, transportation sector, financial institutions and banks. The corrupt acts in the trafficking chain include ignoring, 326 Id., at §108. 327 See Gallagher, at 481. 328 L. Mann and I. Dolea, osce Trial Observation Manual for the Republic of Moldova (Chisinau:osce/odihr, 2006), 79; 182; cited in Leslie Holmes, Human Trafficking & Corruption: Triple Victimization?, C. Friesendorf ed., Strategies aganst Human Trafficking: The Role of the Security Sector, 83 (2009). 329 See unodc The Role of Corruption in Trafficking in Persons, Background Paper for the Side Event, the Role of Corruption in Trafficking in Persons, at the Third Session of the Conference of State Parties to the United Nations Convention against Corruption, Nov. 11, 2009 (Anti-Slavery International, Transparency International and unodc, “the Role of Corruption in Trafficking”), at 4.

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tolerating, participating in and organizing trafficking in persons. They also involve the violation of specific duties and the involvement in organized crime. Like in narco-traffic States, grand corruption and State capture also feeds trafficking in certain countries. This includes the drafting and adoption of legislation favorable to the operation of trafficking activities, such as prostitution or sexual entertainment. That kind of corruption very likely concerns parliamentarians and government officials. Corruption also occurs in the criminal justice sector either to secure the passivity of prosecutorial and investigation authorities or actively obstruct the course of justice. Finally, corruption opportunities can be identified in the protection and support of victims. The corrupt actors involved could be non-governmental and civil society organizations as well as social service institutions. Corrupt behavior could range from passivity and “trade-offs,”330 to betraying victims by revealing or selling their information. This could even lead to service providers being infiltrated by trafficking organizations. The unodc report refers to a survey among relevant practitioners on the issue of corruption and trafficking in persons.331 Pursuant to this survey, when asked to identify those most vulnerable to corruption in relation to human trafficking, 65% of respondents identified border control/immigration/customs, 50% indicated law enforcement and police and 25% considered civil society organizations most vulnerable.332 The Organized Crime Convention contains provisions requiring states to criminalize corruption, money-laundering and obstruction of justice.333 These provisions echo the instruments specifically targeting corruption and money laundering such as, the u.n. Convention against Corruption, entered into force in 2005,334 the oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, entered into force in 1999;335 the

330 The coe report “Trafficking in Human Beings and Corruption,” which the presentation is based upon specifies “trade offs” as “passivity in order not to compromise access to victims or cooperation with official institutions.” 331 See u.n.o.d.c. The Role of Corruption in Trafficking in Persons, Background Paper for the Side Event, the Role of Corruption in Trafficking in Persons, 382, at 9. 332 The particular survey question allowed for multiple entries. 333 See Org. Crime Conv., at arts. 6, 7 (Money laundering) 8, 9 (corruption) 23 (justice obstruction). 334 United Nations Convention against Corruption, 2349 u.n.t.s. 41, done October 31, 2003, entered into force December 14, 2005. 335 oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 37 ilm 1, done December 17, 1997, entered into force February 15, 1999.

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inter-American Convention against Corruption,336 the u.s. Foreign Corrupt Practices Act. Part iv Conclusion The phenomenon described in this chapter is particularly complex and multiform. Though instances of historical slavery remain observable, the extreme forms of exploitation have gone from legal forms of exploitation tolerated as a matter of principle by states, to illegal forms tolerated through hidden means. Though slavery-like exploitation forms are deeply rooted in history, they have intensified despite their illegality. Whereas they were often localized, they have now become a global phenomenon. By 2000, all but a few countries had signed the u.n. Convention against Transnational Organized Crime and the Trafficking Protocol. The Trafficking Protocol requires countries to draft new laws, criminalize trafficking, investigate and prosecute traffickers and protect the identity of trafficked persons. Its effectiveness is jeopardized by the lack of cooperation of victims, in legitimate fear of detention and deportation. There is no shortage of legal instruments addressing the issue of trafficking, and other forms of exploitation and the question is the usefulness of that massive production of legal instruments as the means of change. Legal proclamations are devoid of effect if they are not supported by politics. The abolition of slavery corresponds to a progress of human consciousness toward a vision that humanity is inalienable. The modern forms of exploitation correspond to the opposite effect as a result of the advent of a market society which has brought about a general commodification. That is to say the idea that everything that arises from desires or needs can be negotiated. Legal instruments requiring criminalization are powerless against such an anthropological change, well summarized by the narrator in Michel Houellebecq’s novel, Platform: You have several hundred million westerners who have everything they could want but no longer manage to obtain sexual satisfaction. They spend their lives looking without finding it, and they are completely miserable. On the other hand, you have several billion people who have nothing, who are starving, who die young, who live in conditions unfit 336 Inter-American Convention against Corruption, oas Treaties Register B-58, 35 ilm 724, done March 29, 1996, entered into force March 6, 1997.

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for human habitation, and who have nothing left to sell except their bodies and their unspoiled sexuality. It’s simple, really simple to understand: it’s an ideal trading opportunity. The money you could make is almost unimaginable, vastly more than from computers or biotechnology, more than the media industry; there isn’t a single economic sector that is comparable. Unless the condition of such ideal trading opportunity vary, the production of legal instruments is likely to remain a communications operation.

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Contextualizing Genocide, Apartheid, Racism, Mass Murder In this chapter, we explore the contexts in which racism, apartheid, mass murder, and genocide occur. As the slave is the “other,” so too is the victim of racism, anti-Semitism, apartheid or genocide. Deprivations based on racial discrimination overlap with the deprivations based on slavery. These deprivations also overlap deprivations based on the extermination of human aggregates or groups and the extermination of human beings in breach of the law that outlaws genocide. We closely examine the issues of racial prejudice, antiSemitism, racial discrimination and the more potent variation of this latter human rights violation, apartheid-like practices. i

Racial and Group Discrimination in National and Transnational Perspective

Race and group prejudice is a serious, universal problem for human rights and world order. From a global perspective, culturally defined symbols of group identity may vary but the political results have comparable patterns. A group is identified and the group is part of a community process of effective power. How the power process actually works indicates who benefits, who does not and who gets what, when and how. Discrimination, apartheid, anti-Semitism, genocide and mass murder are outcomes of the social process which generates negative sentiment and the practices that sustain it. Law and lawyers are often implicated in both the process and outcome of race relations. The law can be a mixed blessing.1 It can be an instrument of both oppression and of its legitimacy as witnessed in the United States prior to Brown v. Board of Education.2 In Dred Scott v. Sanford, for example, Justice

1 See generally Dred Scott v. Sandford, 60 u.s. 393 (1857) (an example of the law supporting the indignity of slavery); Plessy v. Ferguson, 163 u.s. 537 (1896) (an example of law supporting Jim Crow); Brown v. Board of Education of Topeka (Brown i), 347 u.s. 483, 74 S. Ct. 686 (1954) (an example of the law supporting essential dignity and freedom from invidious discrimination). 2 Brown v. Board of Education, 347 u.s. at 494–95 (overruling the “separate but equal” doctrine in Plessy v. Ferguson, 163 u.s. at 550–52 and holding that “separate educational facilities are © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_011

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Roger B. Taney wrote for the Supreme Court reasoning that blacks should be denied citizenship based upon a variety of sources including the Declaration of Independence. In the u.s. Constitution according to Taney, “there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.”3 Additionally, “[T]he Articles of Confederation … notwithstanding the generality of the words free inhabitants, it is clear that, according to their accepted meaning in that day, they did not include the African race.”4 Taney concluded that the naturalization law passed by the second session of the first Congress March 26, 1790 which confined the right to citizenship “to aliens being free white persons”5 was further evidence of the denial of civic status to African Americans. The case Hudgins v. Wright6 also emphasized the role of law in solidifying racial identities. Hudgins v. Wright demonstrated that the law serves not only to reflect but to solidify social prejudice, making law a prime instrument in the construction and reinforcement of racial subordination.7 In Hudgins, three generations of enslaved women sued for freedom in Virginia on the ground that they descended from a free maternal ancestor. Hudgins had planned to remove these slaves from Virginia when they sued for freedom. In the lower court (the Richmond District Court of Chancery), Chancellor Wythe examined the slaves and could find no visible negro features in them. Therefore, in the lower court, Hudgins had to overcome the presumption of proving that one of the women’s female ancestors had been a slave, which Hudgins failed to do.8 Virginia law, at the time, held the presumption that blacks were slaves, and thus, had the burden of proving a free ancestor. On the other hand, whites and Indians were presumed free; thus, the burden of proving their descent fell on those alleging slave status.9 On appeal, Justice Tucker formulated a test for race based on physical characteristics, e.g., facial complexion, hair texture, and width of the nose, to determine whether the women were black or Indian

3 4 5 6 7 8 9

inherently unequal” and that “such segregation is a denial of the equal protection of the laws”). Dred Scott v. Sandford, at 411. Id., at 418. Id., at 419. Hudgins v. Wright, 11 Va. (1 Hen. & M.) 134 (Sup. Ct. App. 1806). Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. Civ. Rts.-Civ. Libs. L. Rev. 1, 3 (1994). Hudgins v. Wright, at 134. López, at 2.

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(presumptively slaves or presumptively free, respectively).10 In formulating such a test, the Hudgins case reified physiognomic racial stereotypes and prejudices into the law. Another example of law as an instrument of both oppression and of its legitimacy which highlights social prejudices becoming legal prejudices and the close ties between race and law was the Greaser Act. In 1855, the California Legislature adopted the Greaser Act which targeted Mexicans as a racial group.11 The Greaser Act intended to discourage vagrancy, but specifically applied to “all persons who are commonly known as Greasers or the issue of Spanish and Indian blood … and who go armed and are not peaceable and quiet persons.”12 In Korematsu v. United States, the petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in a military area contrary to an exclusion order.13 Korematsu was apparently the first u.s. Supreme Court case to articulate the concept that a classification which curtails the rights of racial groups is “suspect” and must be subjected to the “most rigid scrutiny,” justified only if there is a “pressing public necessity.”14 Korematsu may also have been the only case in which this test was applied in a case involving discrimination against a minority race, for which the law, Civilian Exclusion Order No. 34, was upheld.15 According to Simon, [t]he Japanese exclusion cases [are] most troubling not because the Court found that the challenged rules would have been promulgated even apart from prejudice, but because it refused seriously to consider whether maintaining the exclusionary system and continuing its enforcement as of the time the cases reached the Court could be explained on grounds other than racial prejudice.16 10 11 12

Hudgins v. Wright, at 139–40. López, at 29. Cal. Stat. 175 (1855). See also Korematsu v. United States, 323 u.s. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944). 13 Korematus v. United States, at 215–16. 14 Norman Redlich, Bernard Schwartz and John Attanasio, Constitutional Law 396, 3d ed., (1996). 15 See id. The Civil Exclusion Order No. 34 of the Commanding General of the Western Command, u.s. Army, was one of a number of military orders promulgated during World War ii pursuant to Executive Order 9066 and prohibited persons of Japanese ancestry from a military area. Redlich, et. al., Consider, Larry G. Simon, Racially Prejudiced Governmental Actions: A Motivation Theory of the Constitutional Ban Against Racial Discrimination, 15 San Diego L. Rev. 1041, 1074 (1978). 16 Simon.

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In the present day, conservative theorists such as Dinesh d’Souza join in a critique of the minority claims to operational equality.17 The larger world community presents a mosaic that is not significantly different from the demographic context in the u.s. It is a world of diversity. The rules of international law have made enormous advances in the complex world of multiple group identities. These advances are clearly indicated in the development of, among other precepts, the right to self-determination. Although conservative theorists such as Henry Kissinger question the legitimacy of self-determination claims arising from countries like Bosnia, South Africa, and Tibet, the concept of self-determination is more than simply freedom from colonialism, alien rule or community autonomy.18 Self-determination represents a broader idea of both liberation and redemption. It is a vehicle of both individual and collective self-expression, respect, and coherent identity. In its many manifestations, racial discrimination and allied group prejudices are the antithesis of a respectinformed precept of self-determination at any level of social organization. A Legal Responses to Racial and Ethnic Prejudice We briefly compare and contrast the experience of American constitutionally-determined race relations law with developments in international law.19 One of the major contributions to the development of international law and the concept of international obligation is the effort on the part of the world community to create a regime for the protection of minorities20 as a central component of the establishment of a durable peace. The suppression of minorities and the denial of their basic rights frequently served as the germ of social conflict and even a cause of the condition of war. The regime of minorities predates the Universal Declaration of Human Rights (udhr).21 17 18

19 20 21

See generally Dinesh D’Souza, The End of Racism: Principles for a Multiracial Society (1995) and Illiberal Education: The Politics of Race and Sex on Campus (1992). For an example of Kissinger’s questioning of the legitimacy of self-determination claims of Bosnia, see Henry Kissinger, Limits to What the u.s. Can Do in Bosnia, Wash. Post, Sept. 22, 1997, at A19. For a third world perspective on race and equality, see C.G. Weeramantry, Equality and Freedom: Some Third World Perspectives (1976). See generally Thornberry. The Universal Declaration of Human Rights, g.a. Res. 217 (iii) A, u.n. Doc. A/RES/217(iii) (December 10, 1948). In contrast, the regime for the protection of minorities existed as early as the 1600’s in the form of treaty law. An early example is the Treaty of Oliva (1660) “by which Poland and the Great Elector ceded Pomerania and Livonia to Sweden, guaranteeing the inhabitants of the ceded territories the enjoyment of their existing religious liberties.” Thornberry, supra note 31, at 25 (citing Foques-Duparc, La Protection des

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This regime experienced no problem in understanding the principle of legal equality and minority rights. It would be useful to simply start with the law that developed in the context of the minority regimes created after World War i. Several important decisions emerged in the aftermath of the creation of minority regimes under the League of Nations. Among the most important and relevant decisions for an understanding of the concept of equality and the remedial concept of equality is found in the Minority Schools in Albania case.22 In this case, the Permanent Court of International Justice23 was asked to render an advisory opinion by the Council of the League of Nations on an issue that involved the interpretation of a declaration, which had been ratified by Albania, concerning the equal treatment of its minorities.24 Article 5 of the declaration provided the following: Albanian nationals who belong to racial, religious, or linguistic minorities will enjoy the same treatment and security in law and in fact as other

22 23 24

Minorités de Race, de Langue et de Religion, at 75–76). Another example is the Convention of 1881 for the Settlement of the Frontier between Greece and Turkey, whose Article iii provides that: “[t]he lives, property, honour, religion, and customs of those of the localities ceded to Greece who shall remain under the Hellenic administration will be scrupulously respected. They will enjoy exactly the same civil and political rights as Hellenic subjects of origin.” Hurst, Key Treaties of The Great Powers, Vol. 2, 592 (1972). A third example is the Treaty of Vienna (1607) between the King of Hungary and the Prince of Transylvania, granting the Protestant minority in Transylvania the freedom to exercise their religion. Balogh, La Protection Internationale Des Minorites 23 (1930). The protection of racial and other minorities was extended after World War i under the League of Nations system, including the following instruments which contain provisions protecting group members resident or born in the States concerned against the loss of nationality resulting from post-war territorial settlement and granting inhabitants the right to freely exercise any religion or belief whose practices were not inconsistent with public order. Minorities in Poland (June 1919); Minorities in the Free City of Danzig (November 1920); and Minorities in Turkey and Greece (July 1923). See also Protection of Linguistic, Racial, and Religious Minorities by the League of Nations, Provisions Contained in the Various International Instruments at Present in Force (Geneva, August 1927), League of Nations Publications ib Minorité 1927, ib 2. For a discussion on the rise of nationalism, the international protection of minorities up until 1914, and the protection of minorities under the League of Nations, see C.A. Macartney, National States and National Minorities (1968) (1934). Minority Schools in Albania, Advisory Opinion, p.c.i.j. (ser. A/B), No. 64, 4–36 (1935). This court was the predecessor to the current International Court of Justice. Minority Schools in Albania, at 6.

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Albanian nationals. In particular they shall have an equal right to maintain, manage and control at their own expense or to establish the future, charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.25 The Albanian government made all private schools in Albania subject to government regulation. In pertinent part, the regulation held that “[t]he instruction and education of Albanian subjects are reserved to the State and will be given in State schools. Primary education is compulsory for all Albanian nationals and will be given free of charge. Private schools of all categories at present in operation will be closed.”26 The face of the regulation appears to be ostensibly non-discriminatory. From the point of view of the Albanian Greek minority, it was viewed as, in effect, being discriminatory and a violation of Article 5 of the declaration.27 In agreeing that the regulation was a violation of the declaration, the Court agreed that the regulation was indeed a violation of the declaration.28 The Court noted that the drafters had inserted the terms “the same treatment … in law and in fact.”29 The Court determined that equality in fact supplements the meaning of equality in law.30 The Court pointed out that [a]ll Albanians and nationals enjoy equality in law stipulated in Article 4; on the other hand, the equality between members of the majority and of the minority must, according to the terms of Article 5, be an equality in law and in fact.31 The Court further noted that the declaration was designed to exclude the idea of a “merely formal equality.”32 Quoting from an earlier advisory opinion, The German Settlers in Poland, the Court restated, “[t]here must be equality in fact as well as ostensible legal equality in the sense of the absence of

25 26 27 28 29 30 31 32

Id., at 5. Id. Id., at 15–16. Id., at 22–23. Id., at 18–19. Id., at 19. Id. Id.

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discrimination in the words of the law.”33 The Court explained the distinction further by indicating that while equality in law “precludes discrimination of any kind,” equality in fact “may involve the necessity of different treatment in order to attain a result which establishes equilibrium between the different situations.”34 Indeed, the Court opined that “[i]t is easy to imagine cases in which equality of treatment of the majority and of the minority, whose situation and requirements are different, would result in inequality in fact.”35 The Court concluded that the provision meant that “[t]he equality between members of the majority and of the minority must be effective, genuine equality.”36 Finally, the Court went on to say that the rationale for giving the specific privilege to the minority merely assures that the majority is not given a privileged situation as compared to the minority.37 The juridical analysis of equality given by the Permanent Court of International Justice showed a greater understanding of the reality and moral realism of the minority compared to the majority and the importance of supplementing the conceptualism of a purely formal equalitarian prescription. This decision stands in sharp contrast to the evisceration of either contextual sensitivity or moral realism, an important message from Brown and a promise of equal justice under the law. In Brown, the u.s. Supreme Court penetrated the veil of equality with the foresight that lawyers would have to look at the social reality that separate institutions of education are inherently inferior when viewed in the context of u.s. race relations. This decision represents contextual sensitivity as well as moral realism. We may briefly make reference to other instruments of the post-World War ii period which carry on the tradition established in cases like the Minority Schools in Albania case. For example, Article 2 of the International Covenant on Civil and Political Rights (iccpr) prohibits distinctions based on race with regard to the human rights recognized in the instrument.38 Article 26 33

Id. quoting German Settlers in Poland, Advisory Opinion, p.c.i.j. (ser. B), No. 6, at 24 (1923); World Court Reports, Vol. i, 218-Ed. 34 Id., at 19. 35 Id. 36 Id. 37 Id., at 20. 38 Article 2, paragraph 1, states: [e]ach State Party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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of the iccpr stipulates that “all persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law”39 and prescribes a right to “equal and effective protection against discrimination on any ground such as race.”40 Racial discrimination is therefore prohibited by the international covenant. The language of Article 2 and Article 26, in which the former uses the term “distinction” and the latter uses the term “discrimination,” suggests that they could conceivably be different forms of interpretation of the relevant provisions. The term “distinction” is something of a synonym for the term “classification,” which the Supreme Court uses disjunctively to sever the link between the terms “race” and “discrimination.” On the other hand, the latter provision is explicit in the reference to racial discrimination. The question is whether the language of the iccpr would prohibit or limit affirmative action as understood in American practice. It is generally believed that the iccpr and practice under it supports affirmative action.41 The other principal convention dealing with race relations is the International Convention on the Elimination of All Forms of Racial Discrimination (cerd).42 This instrument is much more explicit in its support for affirmative

International Covenant on Civil and Political Rights (iccpr), g.a. Res. 2200 A (xxi) (December1 6, 2966) at art. 2, para. 1. 39 Id., art. 26. 40 Id. 41 See Jordan J. Paust, Race-Based Affirmative Action and International Law, 18 Mich. J. Int’l L. 659, 659–64 (1997). The Human Rights Committee created by the International Covenant on Civil and Political Rights (iccpr) has interpreted the iccpr as allowing certain forms of ‘differentiation.’ [T]he principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the [iccpr] .... Such action may involve granting for a time … certain preferential treatment in specific matters .... [A]s long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the [iccpr]. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, Hum. Rts. Comm., General Comment 18, para. 10, at 27, u.n. Doc. HRI/GEN/1 (1992) (hereinafter Human Rights Comments). Not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the [iccpr]. Human Rights Comments, General Comment 18, para. 13, at 27. 42 See generally International Convention on the Elimination of All Forms of Racial Discrimination (cerd), 660 u.n.t.s. 195, December 21, 1965, 660 u.n.t.s. 195, (entered into

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action programs. The cerd contains general measures for outlawing racial discrimination, but it also has a specific provision that supports affirmative action, and does not regard the form of affirmative action it sanctions as being a form of prohibitive racial discrimination.43 There is much to learn from the international law of human rights when the jurisprudence establishing non-discrimination in international law is understood in the context that social justice may require distinctions that are beneficial to equalitarian values substantive application.. Specifically, the idea of affirmative action is a strategy of preventive obligation. One cannot do away with racial discrimination unless one is able to improve the value position of those who continue to be disadvantaged by it, notwithstanding the force, January 4, 1969). The United States signed the Convention cerd on November 20, 1994. As of 1997, the State parties are as follows: Afghanistan, Albania, Algeria, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Congo, Costa Rica, Côte d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Fiji, Finland, France, Former Yugoslav Republic of Macedonia, Gabon, Gambia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Holy See, Hungary, Iceland, India, Iran (Islamic Republic of), Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Korea (Republic of), Kuwait, Lao People’s Democratic Republic, Latvia, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Luxembourg, Madagascar, Malawi, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Moldova (Republic of), Monaco, Mongolia, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Pakistan, Panama, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Rwanda, Saint Lucia, Saint Vincent & the Grenadines, Senegal, Seychelles, Sierra Leone, Slovakia, Slovenia, Solomon Islands, Somalia, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Tanzania (United Republic of), Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Arab Emirates, United Kingdom, United States of America, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Yugoslavia, Zaire, Zambia, Zimbabwe. 43 The relevant paragraph reads: Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. Id., art i, para. 4.

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equality reflected in the formal law of nations. International law teases out the operational code of inequality, the specific indicators of inequality, the transgenerational context of inequality and seeks to prescribe a framework of interventions to improve the condition of race relations in society. The cerd seeks to place limits on the freedom to communicate group hate and stigmatization.44 This limitation is recognition that racial discrimination is, in part, communication of the negative symbols which disparage the target group. These changes in prescription at the international level stand in sharp contrast to the decontextualization of the race relations problems by recent u.s. Supreme Court decisions. The development of this idea that contextualizes group deprivations and socially construct them finds textual support in the primary human rights documents concerning racial and other forms of discrimination. Articles 2(1), 4(1), and 26 of the iccpr provide an authoritative overview. For example, Articles 2(1) and 26 contain very broad anti-discrimination provisions, prohibiting discrimination not simply on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, [and] birth,” but also on the grounds of any “other status.”45 This provision means that a multitude of markers are recognized in the text of the iccpr and there is the implicit recognition that a socially constructed concept of discrimination is necessary if discrimination is to be firmly established at law. The terms “any other status” are consistent with the theory that any culturally grounded symbol of identity that differentiates one group from another is a necessary, but not sufficient, condition of discrimination that the iccpr seeks to prohibit. The United States has indicated “an understanding” with respect to these articles, which suggests that there is no inclination in u.s. law to provide a realistic social reconstruction of the terms “other status” to achieve the major purposes of the instrument.46 This understanding is meant to both qualify and restrict the reach of racial discrimination in the cerd to exclude other status groups from its protections. More consistent with the textual basis of international law relating to the prohibition of discrimination is the fact that the nature of discrimination involves a pattern of communication conjoined with the operational dynamics of deprivation and conflict. Article 4 of the cerd and Article 20 of the iccpr provide for states to “condemn all propaganda … based on ideas or theories of 44 45 46

See id., art. 4. See iccpr, at art. 2. See Proposals by Bush Administration of Reservations to International Covenant on Civil and Political Rights, Rep. of S. Comm. For. Rel. to Accompany Exec. E, 95–2 (1992) at 12.

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superiority of one race or group of persons of one colour or ethnic origin…”47 “All dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence” against such a race or group is a punishable offense.48 Article 1 of the cerd defines racial dis­ crimination as any distinction based on “race, colour, descent, or national or ethnic origin” that has the purpose or effect of impairing equal enjoy­ ment  of rights “in the political, economic, social, cultural or any other field of public life.”49 The International Legal Aspect of the Control and Regulation of Group Dominance: Apartheid Like the problems of racial discrimination, there is a loosely formulated sociohistoric concept of apartheid. It is a more comprehensive, coercive regime of discrimination based on racial or ethnic identity. There is also a narrower meaning of apartheid as indicated in the International Convention on the Suppression and Punishment of the Crime of Apartheid (the Apartheid Convention) that seeks to suppress and punish.50 Our exploration of racial discrimination in the law leaves us with basic questions that law leaves unresolved. What is racial discrimination? Is there an articulate theory of racial discrimination that can be effectively mapped to the legal decision process? The relevance of a theory of racial discrimination permits us to appreciate how racial discrimination differs from apartheid and genocide and how critical it is to an understanding of the theory behind these two systems. If we understand the conditions of racial discrimination as a species of group deprivation, we begin to understand some of the conditions of apartheid and genocide and better appreciate how to prevent it. Apartheid was the policy and practice of the ruling party of South Africa prior to the establishment of a government of reconciliation.51 South Africa had B

47 48 49 50

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See cerd, art. 4. See also iccpr, at art. 20. See cerd, art. 4(a). Id., art. 1. See International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 u.n.t.s. 243, Nov. 30, 1973 (entered into force July 18, 1976). The broad meaning of apartheid refers to the entire process of political, economic, social and cultural dominance. This is, in effect, a sociological meaning. The meaning, as indicated in this Convention, is narrower, emphasizing the extent to which apartheid is a grave violation of human rights and humanitarian law. Apartheid has been the policy of the Afrikaner based National Party since the party was elected into power in 1948 and began a program of racial segregation in Africa. Wilson & Thompson eds., supra note 44, Vol. ii: South Africa 1870–1966, at 374. In December 1993,

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historically been subject to both colonial and imperial dominance, and the ethnographic picture of South Africa that emerged after World War ii represented the ascendancy of the dominant Afrikaner elite.52 When the National Party won the elections of 1948, it began a program of systematic racial discrimination designed to cover every facet of human intercourse for which there might be trans-group contact or interaction.53 The justification for apartheid was founded upon the philosophy of C ­ hristian nationalism and rationalized under a neo-Hegelian formula known euphemistically as “separate development.”54 The edifice of apartheid was constructed along the lines of two pillars, one legislative and one administrative. The first pillar was the creation of legislative prescription covering every phase of social organization including power and economic exclusion, employment and professional relations, health and social services, family and affective relations, educational rights and freedom of conscience and belief. This comprehensive scheme of prescription covering every value process in social order was unique for its breadth and the detail of human interaction it sought to control. Such a system could not endure except for a framework of legislative and administrative prescription designed to repress resistance to the a­ pplication of

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the white controlled parliament of South Africa adopted an Interim Constitution for South Africa that ended 300 years of white minority rule. Zihad Motala, Constitutional Options for a Democratic South Africa: A Comparative Perspective 245 (1994). The Interim Constitution was to be in effect for five years during which time a permanent constitution was to be negotiated after the 1994 elections. That new permanent constitution was ratified in 1993. Rights and Constitutionalism: The New South African Legal Order, David van Wyk et al. eds., 132 (1994) (citing the Constitution of the Republic of South Africa (1993), Act 200 of 1993 as amended.). Donald Horowitz, Ethnic Groups in Conflict 9–11 (1985). The term “Afrikaner” refers to descendants of the first Dutch and other European settlers of South Africa. After coming into power in 1948, the Afrikaner based National Party began a program of racial dominance through a system of racial segregation. Wilson & Thompson eds., at 374, 402–16. During the 1950s, the South African government put in place a network of statutes to geographically and socially segregate the races. Horowitz, at 11. These statutes included the Population Registration Act (1950), assigning every person to a racial category; the Abolition of Passes and Coordination of Documents Act (1952), requiring all Africans (blacks) to carry identifying papers; the Reservation of Separate Amenities Act (1953), providing for segregation in public facilities; and the Group Areas Act (1950), segregating every locality by race. Id., at 11; Wilson & Thompson, at 402–16. For a discussion on the law of apartheid, see Dugard, at 53–106. H.F. Verwoerd, the Prime Minister of South Africa from 1958 until 1966, propounded the ideology of “separate development” for Africa. Horowitz, at 11; Dugard, at 53–54 and 102–04.

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these prescriptions and punish and proscribe values that were an alternative to apartheid. The administrative pillar of apartheid involved a creation of a vast bureaucratic structure to insure that the legislative dictates would be given operational efficacy on the ground. Thus, the educational bureaucracy was completely reorganized and structured along hierarchical ethnic lines. For example, there was a Bantu education department, a coloured education department, an Indian education department and a department that focused on white education. With regard to racial classifications, there was a board whose specialization was to classify, especially marginal classes, according to race. In the context of affective ties and family relations there was a bureaucracy within the framework of police practices which sought to vigorously enforce the Immorality Act which prohibited sex across racial lines. Even the framework of national security was collapsed into an apartheid conditioned security management system.55 The international system kept apartheid on its agenda of concern for a very long time and proceeded to document in detail the extent to which apartheid was incompatible with the international rule of law and the expectations of human dignity built into the U.N. Charter.56 In order to proscribe apartheid as a crime against humanity, the international system borrowed from the tradition of the Nuremberg Charter. The Nuremberg and international law principles of individual responsibility for crimes against humanity were codified in the Apartheid Convention.57 Article i (1) of this Convention declared that “apartheid is a crime against humanity”58 and

55

56

57 58

Under the regime of Prime Minister Botha, a complex legislative and administrative scheme was established to enhance the capacity of the State to repress resistance. It was, in part, influenced by a security doctrine advanced by the South African military called the Total Onslaught Policy. For a detailed analysis of the South African security management system, see Anthony Mathews, Freedom, State Security, And The Rule Of Law: Dilemmas Of The Apartheid Society, 198. On December 5, 1952, the United Nations General Assembly established the Commission on the Racial Situation in the Union of South Africa. g.a. Res. 616A (vii) u.n. gaor, 7TH Sess., u.n. Doc. A/2183 (1952). The Special Committee on the Policies of Apartheid of the Government of South Africa was formed on November 6, 1962. g.a. Res. 1761 (xvii). The Special Committee on the Policies of Apartheid of the Government of South Africa was renamed “the Special Committee on Apartheid” and expanded to a maximum of 18 members in 1970. g.a. Res. 2671 A (xxv). See generally International Convention on the Suppression and Punishment of the Crime of Apartheid. Id., art. i (1).

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that inhuman acts resulting from the policies and practices of apartheid … are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constitut[e] a serious threat to international peace and security.59 Article i (2) declared “criminal those organizations, institutions and individuals committing the crime of apartheid.”60 Additionally, Article iv (b) required the adoption of measures to “prosecute, bring to trial and punish … persons responsible for or accused of” acts constituting crimes under the Apartheid Convention.61 The inclusion of the Nuremberg principles in the Apartheid Convention extended those principles to human rights violations caused by the apartheid regime. If these principles were not drafted into the Apartheid Convention, their currency as general international law would have still made them relevant since the international community recognized the South African struggle against the apartheid regime and its human rights violations.62 This characterization of the South African problem made the Nuremberg principles concerning crimes against humanity and personal responsibility under international law directly applicable to South Africa. The international community increasingly recognized that the policies and practices of apartheid constituted a crime against humanity. Beyond the Apartheid Convention, this recognition found documentary and textual expression in the preamble of the Charter of the United Nations; Articles 1 and 55, in the Universal Declaration; the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights. Article ii (a) of the Apartheid Convention enumerates some of the crimes against humanity implicated in the apartheid scheme and criminalized by the Apartheid Convention and by customary international law: (a) Denial to a member or members of a racial group or groups of the right to life and liberty of person: (i) By murder of members of a racial group or groups;

59 60 61 62

Id. Id., art. i (2). Id., art. iv (b). See Christos Theodoropoulos, The Decolonization Approach to the Eradication of Apartheid, 18 N.Y.U… J. Int’l L. & Pol’y 899 (1986).

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(ii) By the infliction upon members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; (iii) By arbitrary arrest and illegal imprisonment of members of a racial group or groups.63 The essential condition in racial discrimination is a pattern of identification that distinguishes the target of discrimination from the dominant group. In apartheid, the domination as official governmental policy dramatically ­sharpened the distinction between the dominator (the in group) and the ­dominated (the out group). The domination was so all-encompassing that the pre-conditions of widespread atrocity targeted at the victim group were ­significantly enhanced. The prospect of conflict becoming genocidal in character became more ominous. Genocide can occur without the systematics of apartheid, but an apartheid state reinforces the conditions that make genocide a realistic expectation.64 The social tensions generated by apartheid can lead to genocide if the predisposition to exterminate emerges as a critical part of the principle of group dominance. Similarly, racial discrimination does not inevitably lead to apartheid or genocide, but a tolerance of widespread racial discrimination may unleash pathologies in decision makers that point to genocide as a realistic outcome or expectation. What apartheid adds to the understanding of racial discrimination is that the overt framework or pattern of informal discrimination may be concealed except for the outcomes. In the context of apartheid, what is implicit and unconscious is in fact explicit and brutally overt. The explicit and brutally overt nature of apartheid provides us with a deeper understanding of the social processes that sustain the ubiquity of racial discrimination and the

63 64

The Apartheid Convention, art. ii (a). In a technical sense, South Africa was the only state that has had a formal regime of apartheid. The systematics of apartheid provoked major conflicts during the past three decades. These conflicts, without intervention, may have led to a South African style holocaust. However, South African conflicts have today been muted by political interventions and initiatives which have led to the rejection of apartheid and the construction of a government of national reconciliation. We may, however, view apartheid in functional terms and hold that the regimes, which express themselves in extreme forms of cultural dominance, such as the policies and practices of Nazi anti- Semitism prior to World War ii, reinforced conditions which eventually made genocide an actual outcome of Nazi policy and practice.

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probability of genocide. Apartheid’s brutally overt nature and its proximity to genocide makes apartheid a crime against humanity. ii

Mass Extermination of the Other

A The Relevant Context An adequate historical gloss on the ubiquity of genocide supports the need for prescriptive interventions on a global basis that seek to prevent and punish genocide. Such a perspective will more firmly ground our understanding of the Genocide Convention and the contribution that it has made to the global consensus that genocide is criminal in both theory and practice. History holds an uncomfortable relationship to the policy process. The temptation to treat historic incidents as having a causal character may undermine the element of creative choice in policy process. History is of value insofar as the enlightened policy maker needs to know what to confirm and avoid in the relevant historical period. The danger of a historic overview of genocide is that ubiquity may breed fatalism and a willingness to accept genocide as the inevitable dark side of humanity. This chapter seeks to avoid that conclusion. The historic evidence indicates that genocide is no respecter of culture, class, confessional orientation, racial, ethnological, political or other pattern of identification. All have in some way been victims or perpetrators of genocide and mass killings. The history of antiquity is replete with records of genocidal practices. During 7th and 8th centuries b.c., the Assyrian empire achieved its imperial ambitions through genocide.65 Whole cities were routinely razed and entire populations were either carried off or were physically exterminated. The destruction of the legendary Greek city of Troy involved the wholesale destruction of the city and its male inhabitants, while the women were carried off into slavery.66 The Roman destruction of the ancient African city of Carthage involved the extermination of all the men, women, and children and the site of the destroyed city was sown with salt as a self- justifying symbol of its utter cultural and biological desolation.67 65 66 67

See Frank Chalk & Kurt Jonahsson, The History and Socioogy of Genocide 59–61 (1990). See id., at 58. See Leo Kuper, Genocide: Its Political Use in the Twentieth Century 11 (1981). But Cf. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 288 (1964) (indicating that wholesale massacres of enemy peoples in antiquity was the “order of the day,” implying that genocide was more the rule than the exception.).

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The influence of the great religions, especially Islam, did not provide effective levels of moral restraint on the impulse to exterminate, but tragically, and often furnished a comfortable justification.68 The more recent clashes of ­Hinduism and Islam also were genocidal in character. Apart from European-centered genocide, the history of colonial conquest is another unremitting veil of tears. The plight of the remains of the indigenous peoples of the Americas continues to this day as they fight for cultural and material survival in some contexts and for their right to physically exist in others.69 In South Africa, the Khoi San peoples barely survive today, but in the 17th and 18th centuries they were legislatively labeled “vermin,” thus legally sanctioning their extermination. At the turn of the century, Germany sought to extinguish the Herero peoples of Namibia as a reprisal for having the gall to rebel against Herrenvolk colonial rule.70 The Turkish genocide against the Armenians during World War i still provokes an intense demand for an acknowledgment of responsibility and a strenuous denial by the Turkish elites that the extermination happened.71 The Nazi genocide against the Jews is the paradigm of the genocide process at its most effective. It was a systematic, operational practice of various forms of anti-Semitism, of which genocide as represented in the Holocaust was and remains the most lethal result. There is much that is distinctive about the Holocaust experience.72 It was a crisis of survival for the Jewish people, regardless of citizenship or national affiliation. This crisis is also a universal problem as the post-war and post-cold war experience abundantly demonstrates. Taking a long view of history, “never 68

For a religious justification of genocide, one need look no further than the Bible itself. See, e.g., Deuteronomy 2:31–35; Deuteronomy 3:6; Deuteronomy 7:1–2; Joseph 10:2–40; and 1 Samuel. 15:3. 69 Two examples are Guatemala and Peru. See Chalk & Jonahsson, at 176–80. 70 See id., at 231. 71 See Arlene Levinson, For This Century’s Homicide Regimes, Genocide is a Snap, The Gainesville Sun, Sept. 4, 1995, at 1G and 4G; see also Christopher J. Walker, Armenia: The Survival of a Nation 217 (1980). 72 Prior to the Holocaust, Germany’s demonstrated scientific, industrial and administrative expertise was popularly regarded as evidence of an enlightened, highly developed culture. In reality, however, such expertise merely facilitated Hitler’s implementation of the Final Solution in that Nazi’s Germany’s remarkable bureaucratic efficiency in effect provided an air of respectability to mass killing. See Chalk & Jonahsson, at 324. According to Chalk and Jonahsson, [N]o people in history had ever been attacked by such an array of scientific, industrial and administrative weapons in a program specifically designed to insure its complete and immediate biological destruction. Id., at 325.

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again” is a warning to the Jewish people and to any other human aggregate, necessary to show that they too can be victims and candidates for extinction. The post war experience with genocide has underlined the notion that “never again” is aspirational, not empirical nor prescriptive. The genocide in India generated exasperation and concern, and little in the way of accountability. The 1948 genocide against the Indians in Natal by the Zulu Impis of Chief Buthelezi’s forebears was reduced in terms of raw numbers, not by the action of the South African government, but by the presence of a British warship and British marines in Durban.73 One may add the genocide in Indonesia against the Communist Chinese and the East Timor peoples, the genocide in Cambodia, the genocide in Nigeria against the Ibo, the genocide in Rwanda-Burundi against the Hutu-Tutsi, and the genocide against the Croatians and Muslim Bosnians in the Republics of Croatia and Bosnia-Herzegovina.74 This broad overview of the history of sociological genocide is different from the formal history of genocide, as defined by the Genocide Convention. To complete the picture, it may be important to square sociological and legal reality. B The Statistical Reality Between 1900 and 1987, states, quasi-states, and stateless groups killed some 170,000,000 people.75 These killings not only included what legally would be labeled genocide, but also included massacres, extra juridical executions, and the like.76 73

See Chalk & Jonahsson, at 223–29. The history of Zulu genocidal policy can be traced to King Shaka, who ruled the Zulus in South Africa from 1818 until 1828. According to the account of one Englishman forced to accompany Shaka’s Impis (warriors): [Shaka] commanded them not to leave even a child, but exterminate the whole tribe. We remonstrated against the barbarity of destroying women and children, who were not capable and could do no injury. Id., at 227. 74 See id., at 381–84; 408–11; 402–07; for an in-depth analysis of Nigerian genocide, see generally ola Balogun, The Tragic Years: Nigeria in Crisis, 1966–1970 (1973). 75 See R.J. Rummel, The Holocaust in Comparative and Historical Perspective, Conference on The ‘Other’ as Threat-Demonization and Antisemitism, at the Hebrew University of Jerusalem, at 8–9 (June 12–15, 1995). 76 See id. at 9. See also Rudolph Rummel, Power, Genocide and Mass Murder, 31 J. of Peace Res. 1, 3 (1994) especially Table i. 20th Century Democide, Table I.2 at 4. a Includes genocide, politicide, and mass murder; excludes war dead. These are most probable mid-estimates in low to high ranges. Figures may not sum due to rounding. b The percent of a population killed in democide per year of the regime c Guerilla period d Average

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According to Professor R.J. Rummel, case studies and quantitative analysis showed that ethnicity, race, religion, economic development, level of education, and cultural differences do not account for this killing.77 The statistical profile was indeed a staggering one. Rummel’s research indicated that ­“democide,” which was inclusive of legal genocide, was best explained, first, by the degree to which a regime was empowered along a democratic or totalitarian dimension and, second, by the extent to which the regime was characteristically involved in war or rebellion.78 Rummel’s work was path breaking. However, the precise way he formulated his statistical and analytical insight was not altogether adequate. This can be illustrated by drawing attention to the ­extraordinarily large number of ethnic conflicts in the world. The ethnically homogenous nation state is a very rare thing. In this world, twelve states are ethnically homogeneous.79 A compelling and unsettling statistical conclusion is reached when considering claims made that states be ethnically homogeneous.80 77 78 79

80

e The rate is the average of that for three successive periods. f The world annual rate is calculated for the 1944 global population. R.J. Rummel, Death by Government (1994); Ethnic Conflict and International Security, Michael E. Brown, ed. (1993). See id., at 25. Ethnic compositions of others vary. In 25 states, one ethnic group comprises 90% of the population; in another 25, one group comprises about 75% of the people; in 31 states one group is about 50%; and in 39 states no single group accounts for more than half of the population. Winston Nagan, Towards Unpacking the War in Former Yugoslavia: An International Lawyer’s Perspective, Cosp News Journal, Vol. 10, No. 2, at 3–4. See Ethnic groups in the United States, 1990 Census data. Claimed identity

Millions of people

Whites, German ancestry

57.9

Whites, Irish ancestry

38.7

Whites, English ancestry

32.6

Blacks

30.0

Asians and Pacific Islanders

07.3

American Indians, Eskimos, and Hispanics (any ‘race’)

01.9

Hispanics (any ‘race’)

22.3

Others

58.0

Total population

248.7

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There are limitations to the scope of Rummel’s work. The most important is that his work seems to collapse the structural conditions of conflict in which mass murder is an outcome into the particular circumstances that occasion mass murder. In doing this, Rummel obscures a central issue: the ubiquity of choice making in mass murder or the business of preventing or deterring it. A central factor in genocide and mass killings is decision making and responsibility. Rummel is correct by targeting totalitarian regimes as potentially the most lethal with regard to mass killings. However, inside totalitarian states are finite decision-makers who prescribe, apply, and enforce decisions about mass murder, and genocide. These decision makers will invariably be involved in every phase and function of decision relating to the targeting and disposition of victims. The democracy/totalitarian distinction made by Rummel is perhaps an excessively abstract way to talk about governance and decision-making. Adding the decision making gloss to Rummel’s analysis provides a sharper basis for deepening one’s understanding of the magnitude of genocide and mass murder and the practical issue of how to provide rational sanctions and ascribe responsibility. An important gloss on the Rummel model of conflict, mass murder, and the democratic/totalitarian formula is that it be made more realistic by deepening one’s understanding of the context of conflict in world order where there are diverse public orders that operate continuously between the totalitarian and democratic axes. These political orders are frequently differentiated by cultures, holding to different levels of stratification, through which groups within them are identified and by the identification of critical elites whose personalities may be predisposed to democratic or totalitarian behaviors. One must deepen one’s understanding of the community process at every level within which there are conflicts about governance. One must similarly deepen one’s understanding of the processes of effective power and the nature of elites, whose conduct may be benign or lethal. Combining these results show that democracies do not make war on each other and strongly suggests that democracy is a general method of non-violence.81 81

Indeed, democratic regimes do not make war on each other, while warfare between totalitarian regimes, such as the Soviet Union and Nazi Germany, are the most deadly of all. See Rummel, at 18. See also High-Intensity Conflicts Table: Estimated Number of Deaths in 1997, in World Conflict Map  1997. Pioom Newsletter, Vol. 8, No. 1 (Winter 1997). Cf. ­Rummel, at 3, which is reproduced as follows: High-Intensity Conflicts—Estimated Number of Deaths in 1997: 1. Congo-Z. (adfl) >50,000 2. Afghanistan (Taliban) >10,000 3. Algeria (gia) >10,000

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Congo-B (Cobras) >10,000 Rwanda (Hutu, Tutsi) >10,000 Sudan (spla) >10,000 Sri Lanka (ltte) >4,000 Turkey (pkk) >4,000 Colombia (farc) >2,000 Albania (Armed Gangs) >2000 India-Pakistan (Kashmir) >1,500 Burma (Karen) >1,000 Burundi (Hutu, Tutsi) >1,000 Iraq (kdp, puk) >1,000 India (Assam) >1,000 India (Bihar) >1,000 Tajikistan (War Lords) >1,000 See also High-Intensity Conflicts Table: Estimated Cumulative Number of Deaths, in World Conflict Map 1997. Pioom Newsletter, Vol. 8, No. 1 (Winter 1997). Cf. Rummel, which follows: High-Intensity Conflicts: Estimated Cumulative Number of Deaths Afghanistan (1978-) >1,500,000 Congo - Z. (1990-) 30–100,000 Sudan (1983-) >1,500,000 Sri Lanka (1983-) 48–60,000 Rwanda (1994-) >810,000 India-Pakistan (1989-) 30–50,000 Iraq (1987-) >200,000 Turkey (1983-) 25–30,000 Burundi (1993-) 170–200,000 Congo - B. (1993-) >12,000 Burma (1948-) 130–500,000 India (Assam) (1979-) >5,000 Colombia (1964-) 120–160,000 India (Bihar) (1970-) >3,000 Algeria (1992-) 80–100,000 Albania (1997) >2,000 Tajikistan (1992-) 50–100,000 Any political demand requires that there must be a clear fit as to the identity of the ‘group’—either ethnic or national—encased in the boundaries of the primary political legal institute, the nation-state, presents a claim that provokes the prospect of conflict that may generate all the classic problems of international juridical concern—threats to peace and security, potential for gross human rights violations, challenges to the principles of humanitarianism and the possibility of mass displacement and forced migration of peoples. Looking at the killings, a large proportion of which are so-called ‘ethnic’ or ‘national’ or ‘racial’ or ‘religious’ conflicts, is an important indicator that we need a tighter explanation of inter-group conflict, its cause and its cure.

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The Holocaust: A Prelude to the Outlawing of Genocide

The Holocaust stands out as an event that is distinctive in historical experience and is the epitome of an official public policy mired in human d­ epravity and evil. There are states that have killed more people over time than the Nazis but the Nazis killed more people than anyone else in a short period of time. The critical question is whether there something in history that preserves in ­European culture a powerful symbolic as well as political depreciation and marginalization of the Jewish community as a whole? Much has been ­written on the legacy and the endurance of anti-Semitism.82 It is possible that political conditions may not be as critical to the survival and endurance of the anti-­Semitic myth. The possible explanation is the psycho-social frequency and transmission of the critical symbols that feed the negative sentiment encapsulated in the collective personality of the persons prone to anti-Semitic perspectives. The strength of the symbol certainly reinforced the boundaries of otherness. This strength may be a necessary but not a sufficient condition for a t­ ragedy of the scope of the Holocaust. It remains a critically important question to know why such a large number of Europeans could have internalized the negative values of anti-Semitism and repression. It is possible that the conditions in ­Europe of scarcity and deprivation that generated a conflict prone culture were factors that influenced the way in which European children were acculturated to deprivations. These experiences produced personality types prone to the awareness of otherness and threats posed by the other. European society is distinguished historically by the identification of ethnicity with national identity. These processes were unusually strong in Europe. There are contemporary lingering effects which have been seen in the war of the former Yugoslavia as well as the national question which has endured into the post Soviet era. Still, this is not a complete explanation. Religion could fuel and strengthen this negative symbol by the myths of blood libel and the ascription of multi-generational guilt for the murder of God (the Christian God). Modern science has shown that in situations where there is conflict between ethnic groups what is critical to initiating and sustaining this form of conflict is the power of the symbol that legitimates or ­validates it.83 It is only recently that his Holiness Pope Benedict xvi repudiated the idea of Jewish collective responsibility for the death of Jesus. He explained 82 83

Chanes, J.A. Anti-Semitism: A Reference Handbook, ABC-CLIO (2004). Rupesinghe, K. & Tishkov, V.A. Ethnic Conflicts in the Context of Social Science Theories, in Ethnicity and Power in the Contemporary World, The United Nations University (1996).

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in his latest book that in the Gospel of John, “the Jews” who instigated Christ’s death should not be interpreted as “racist” or as a blanket condemnation of the people of Israel. He also noted that “John himself was ethnically a Jew, as were Jesus and all his followers,” and that “the entire early Christian community was made up of Jews.” The Pope argued from a close scholarly reading that passages speaking of Jesus’ “blood” being upon the Jewish people and their children (Matt. 27:25) must be “read in an entirely new light from the perspective of faith.” He wrote: “The Christian will remember that Jesus’ blood speaks a different language from the blood of Abel (Heb. 12:24): it does not cry out for vengeance and punishment; it brings reconciliation.” “It is not poured out against anyone; it is poured out for many, for all. … Read in the light of faith … these words are not a curse, but rather redemption, salvation.”84 This is an effective repudiation of the idea that Christian morality provided the justification for anti-Semitism. This apology had some two thousand years of incubation before it was publicly expressed. So far we have looked at anti-Semitism largely from a perspective of the victimizer. From the perspective of the victim, there is another quality that conspires to enhance the possibility of victimization. The Jews of the Diaspora were a community without a state. The miracle is that this community could survive, and often thrive in a relatively hostile Diaspora.85 What is clear is the remarkable endurance of anti-Semitism and the equally remarkable ability of the Jewish community to preserve cultural distinctiveness and survive at least until the tragedy of the Holocaust. One must carefully appraise what was distinctive about the Nazi tactics and strategies which lead to their desire for a final solution. Germany after World War i was in a period of social dislocation and deprivation. These conditions of political and social instability created conditions for opportunistic leaders to gravitate to power by the exploitation and demonization of out groups within the body politic. This represented the opportunity to significantly advance the agenda of anti-Semitism. Anti-Semitism was well rooted in Germany. In this sense, they were a perfect scapegoat for Hitler’s mobilization of the crudest and most ruthless elements in the chauvinistic aspect of German social process. Scapegoating the Jews was a partial means to power. However, the Jews had allies and some of those allies were also potential rivals to Hitler. Hitler simply eliminated his obvious possible rivals by murder. This silencing of opponents would ensure that one could effectively control and 84 85

Pope Benedict xvi, Jesus of Nazareth; Holy Week: From The Entrance into Jerusalem to the Resurrection (2011). Ehrlich, M.A. Encyclopedia of the Jewish Diaspora: Origins Experience, And Culture: Volume 1 (2009).

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manipulate the rest of the society. In this, the Nazis were very successful and systematic. They rounded up every political opponent they could find and had them a confined to the concentration camps. For the rest of society, they developed a powerful institution for monitoring the attitudes and weaknesses of all Germans. The most important activity was the role of the confidential informer under the authority of the Gestapo. The Nazi intelligence machine was able to establish a system of confidential informers in every city, street and precinct in Germany. The confidential informer would supply the intelligence about who had anti-patriotic thoughts, who opposed the racial policies, who was friendly to Jewish interests, and who embraced liberal ideological perspectives. This intelligence process was so ubiquitous that it probably represented one of the most complete forms of social control and repression in history. It was an effective means of silencing and intimidating major portions of German population. This intimidation permitted the Nazi elite to have a free hand to dispose of the unpopular ­Jewish minority as they saw fit. With such total control and no restraint in their repression of Jews and others deemed undesirable, the Nazis were free to act out the pathological racial fantasies on a completely helpless community. The technique used by the Nazis for social control using the confidential informer continued to flourish in East Germany where the Stasi86 were able to accumulate a staggering volume of files on virtually every East German.87 There is no clarity about the specific order to launch the final solution. However, circumstantial evidence suggests that it was delivered as a Führerbefehl. This order was an oral order from Hitler having the highest status of law.88 The policies and practices set in motion the creation of death camps and industrialized murder, and clearly required anti–Semitism as a necessary 86

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Betts, Paul, Within Walls: Private Life in the German Democratic Republic (2010); Koehler, John O. Stasi: The Untold Story of the East German Secret Police (1999). Following reunification, Gauck was appointed by the Bonn government as its special representative for safeguarding and maintaining the Stasi archives. “We must at least establish a legal basis for finding the culprits in our files,” Gauck told me. “But it will not be easy. If you stood the millions of files upright in one line, they would stretch for 202 kilometers [about 121 miles]. In those files you can find an unbelievable number of Stasi victims and their tormentors.” Weyrauch, W.O. Gestapo Informants: Facts and Theory of Undercover Oprations, 24 Colum. J. Transnat’l L. 553 (1985–1986); the leading study on the confidential informant in Nazi Germany. Longerich, Peter, The Unwritten Order: Hitler’s Role in the Final Solution (2006). The ­Holocaust differs from other genocides in recent history for one main reason: there is no other example in which a minority was annihilated so systematically on the orders of a head of state and through the apparatus of government. Through the recently discovered documents, the central role that Hitler played in the persecution and murder of the

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condition for the identification of the target victim. However, anti-Semitism was not a sufficient condition for the Holocaust. The Holocaust required a decision system of organized repression and intimidation of unprecedented scale that permitted the institutions facilitating the Holocaust to take effect. The Nazis created a powerful decision apparatus whose objective was mass murder. The critical question is this: if this is an accurate representation of how the Holocaust happened, what lessons can we learn to ensure that it is not repeated? In addition and apart from the uniqueness of Jewish victimization, we have witnessed many episodes of genocide and mass murder during the post-World War period. The Holocaust experience provides us with the tools to better understand what creates the impulse to commit genocide and the decision processes which generate the practical application of this impulse. This understanding generates the challenges of what strategic initiatives may be developed to eliminate the genocidal impulse, and what strategies and tactics must be developed at all levels of social organization to prevent it from happening again. iv

The Intellectual and Policy Challenges of the Lessons

This background provides many scholastic and intellectual challenges. The development of insights into these challenges should also reflect a concern for the social consequences and policy implications of the generation of such knowledge. From this perspective, genocide, including the version represented in the Holocaust, constitutes a problem of global magnitude. One of the most critical legal developments in the global response to genocide has been the Genocide Convention that seeks to outlaw genocide. The problem with the Genocide Convention, in part, is that its identified protected groups leave out a large segment of the human community who experience mass murder in which the symbols of identity, which are a necessary predicate for mass murder, are not accounted for. The central insight of the Genocide Convention is that its definition of the protected class is dependent upon an interior symbol of identity which is a necessary but not sufficient condition of genocide or mass murder. It is for this reason that scholars such as R.J. Rummel proposed the concept of democide to fill the gap left by the Genocide Convention.89

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­ uropean Jews can be proved much more conclusively than was possible just a few years E ago. Rummel, R.J. Statistics of Democide: Genocide and Mass Murder Since 1900, Charlottesville, Virginia: Center for National Security Law, School of Law, University of Virginia 1997; and Transaction Publishers, Rutgers University (January 13, 1999).

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The first line of inquiry must be the ubiquity with which human beings g­ enerate the culturally acknowledged and received symbols of identity. We generally consider this to be a natural process. The I is born into a family, or analogous micro-social unit, and soon the identification of the I broadens to include the we. But how inclusive or exclusive is the we? The expansion of the we is not unlimited and the boundaries invariably demarcate those groups that constitute the non-we, the group of non-self others. This demarcation is an ordinary process that happens in all human communities. We generally do not see this as inherently dangerous or inappropriate. However, the boundaries between the “we” and the “non-we” are a necessary condition for the emergence of symbols in the culture that may depreciate the non-self others. In this sense, the symbology of anti-Semitism is a critical consequence of a community boundary sustained by negative symbols and negative sentiment. Moreover, it may be that anti-Semitism is simply an especially potent form of racial discrimination and prejudice. International law also proscribes racial discrimination.90 Racial discrimination cannot happen without the boundaries of the “non-we,” and the symbols of supporting negative sentiment. However, anti-Semitism and racial prejudice are simply more potent versions of the targeting of the victims with the symbols and practices of negative sentiment. International law has also made apartheid a crime against humanity.91 Apartheid functioned explicitly on the demarcation of human communities according to the symbols of race and ethnicity. It had much in common with anti-Semitism and racial discrimination. What distinguished apartheid was that apart from the symbolic and legislative identification for the ascription of human group identity, it sought to impose, as a consequence of these classifications, a system of indefinite domination and subjugation. Apartheid in theory and practice was one of the most virile and aggressive forms of racism. v

The Relevance of the Psycho-Social Markers of Identity

The foundations that connect the human person to the sense of the “I,” the “we” and correspondingly the “other,” are an important consideration for minimizing the occasion of the pre-disposition to genocide. It is important to 90 91

The International Convention on the Elimination of All Forms of Racial Discrimination (icerd) - entered into force on January 4, 1969. International Convention on the Suppression and Punishment of the Crime of Apartheid, g.a. res. 3068 (xxviii), 28 u.n. gaor Supp. (No. 30) at 75, u.n. Doc. A/9030 (1974), 1015 u.n.t.s. 243, entered into force July 18, 1976.

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consider many of our innocuous practices within family structures that might inadvertently reproduce the personality type whose lingering insecurities from ­childhood, rearing and the family practices pre-dispose the person to the development of a more closed or authoritarian frame of reference for the essential pattern of identity. This consideration suggests that there needs to be a greater degree of community involvement in educating families, and especially mothers, about relatively innocuous patterns of child nurturing and rearing, in the hope that the society will diminish the reproduction of closed personality types and perhaps maximize the reproduction of open, democratically inclined personality types. For example, children have a completely different sense of time from the adult, and imposition of an adult’s sense of time might constitute a deprivation with lasting effects on the development of the child’s personality.92 A Understanding Emotion as a Driver of Human Value In general societies take for granted the importance of emotion and sentiment in the construction of future generations. The idea of affect or positive emotional sentiment may need to be more explicitly recognized as an important cultural and policy preference. Emotion and sentiment permeate all human behavior. Emotion and sentiment may be the driving force about what is right concerning the human prospect and what is wrong with it. Modern scholarship has drawn attention to the importance of positive and negative emotion.93 A provisional overview of positive and negative sentiment is provided. Indeed, genocide is impossible when culture, law, and politics give due deference to the principles of positive sentiment or affect, and the prospect of genocide and atrocity is heightened when the negative symbols of emotionalized hate are dominant. The important insight is that positive sentiment is a critical foundation for the culture of human rights. Negative sentiment is critical for the denial of the cultural of human rights. B The Social Process of Positive Sentiment The tables, infra, outline the structures and the processes of positive sentiment or affect and negative sentiment of hate. C The Social Process of Negative Sentiment The tables, supra, which provide a systematic contextual description of the emotive foundations which may drive genocidal outcomes or which may be a 92 93

Goldstein, J., Freud, A., & Solnit, A.J. Beyond the Best Interests of the Child, Vol. 1 (1979). Moisi, D. The Geo-Politics of Emotion: How Cultures of Fear, Humiliation and Hope are Reshaping the World (2009).

Contextualizing Genocide, Apartheid, Racism, Mass Murder Table 9.1

Formal Myth System

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The social process of positive sentiment (affection): The relevant analytical markers

The formal myth of love and affection may be concealed (or otherwise appear informal), but it is nonetheless a real myth reinforcing the symbology of togetherness of the target of love and affection and those within the “in-group” of the community context. SymbolThe symbol-myth system of solidarity and affection a crucial Myth component of the perspectives of the community or its elite, System or its traditional and opinion leaders. SubjecThese subjectivities or perspectives of positive sentiment are tivities / outcomes of complex behavior patterns, which are characterPerspectives ized by affective sentiments and strong portrayals of the target of affect as appropriate for the displacement of positive inference and meaning in terms of shared affect. Indications of emergent patterns that consolidate the colEmergent Patterns laborative behaviors of the “we” or the “in-group,” vesting that group with the idealization of appropriate community acceptance as positive sentiment and love and the foundation for the licit family form which is also culturally preferred and valued. Propaganda There are further emergent, often graduated, behaviors in the primary group, which consolidate and sustain the image of community solidarity through patterns of collaboratively conditioned behavior conditioned by positive sentiment. These include the communication of discrete signs, symbols, operational codes, myths, narratives, and reified stereotypes, which symbolize the institutionalization of the ideals of love and a positive sense of shared affect in the community. The process of affection also involves the manipulation of Denotasigns, symbols, codes, mythos, narratives and stories between tion and members of the “in-group” and between members of the “in” Isolation or “out-group.” Positive sentiment may be used in a way that also isolates those not included in this universe of affect and solidarity. Alliance and The system of generalized affective behaviors, thus, involves Allegiance distinctive, and often, discrete patters of communication of relevant signs and symbols of the “in-group” loyalty and solidarity, as well as signs and symbols that identify, disparage, or threaten members of the “out-group.”

372 Table 9.1

chapter 9 The social process of positive sentiment (affection): The relevant analytical markers (cont.)

The patterns of communication are sustained or enhanced by collaborative operations in the exercise of public or ­private power. This may mean repression and exploitation for some and the power to exploit positive sentiment for base motives on the other. Thus, solidarity and patriotism may be promoted in such a way that it underlines by implication the vulnerability and validity of victimizing others such as the social pariahs, outcasts, those who are indifferent to the situation of all others. Nurtured Human beings conditioned to generate positive sentiment Predisposi- (affection) as an ordinary aspect of personal identity are obvitions ously desired from a human rights perspective. The predispositions of the personality included to positive sentiment, invariably creates environments in which micro-social relations reflect the normative priority given to the reproduction of positive sentiment or affect. Thus, innocent child rearing and nurturing in which love and affection is practiced generates personality types better suited to reproduce personality types partial to democratic political culture. On the other hand, a person may be raised in a climate of negative sentiment where repression, deprivation and fear wittingly or unwittingly reproduce insecurity and intolerance of others in the self-system. Thus, the practices of negative sentiment in family or affection units may be a dangerous social inheritance. When such personality types mature, they exhibit the partiality to anti-democratic perspectives such as authoritarianism and domination. They reproduce the cycle of negative sentiment. Social Rein- Reproducing the cycle of positive sentiment is critical to the forcement culture of human rights and its sustainability on a global basis. through Thus, the micro-social units (affection units) ostensibly specialPositive ized to positive sentiment or love and affection are critical for a Feedback healthy and normal society that does not institutionalize comMechan­isms pulsive, neurotic or psycho-pathological outcomes. In short, a psycho-political culture of positive sentiment reproduces in effect the social and political foundations of the culture of human rights. Perhaps even more than that, it is giving to those committed to the love of God, the religious redemption of the love ideal through human rights.

Contextualizing Genocide, Apartheid, Racism, Mass Murder Table 9.2

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The social process of negative sentiment (hate): The relevant analytical markers

Formal Myth System

The formal myth of love and affection may be concealed (or otherwise appear informal), but it is nonetheless obscures a real myth reinforcing the symbology of otherness of the target “out-group.” Symbol-Myth A symbol-myth system of prejudice, fear and hate is a cruSystem cial component of the perspectives of the dominant group or its elite and opinion leaders. Subjectivities / These subjectivities or perspectives are outcomes of comPerspectives plex behavior patterns, which are characterized by negative sentiments and negative portrayals of the “other,” such that the symbolic “other” is reinforced as a target for negative inference and meaning. Emergent There are emergent patterns that consolidate the collaboraPatterns tive behaviors of the “we” or the “in-group,” vesting that group with a sense of superiority, or “herrenvolkism,” paternalism, and further, seeking to enhance the value position of that group at the expense of the “out-group.” Propaganda There are further emergent, often graduated, behaviors in the dominant group, which consolidate and sustain the image of the victim group through patterns of conflictconditioned behavior. These include the communication of discrete signs, symbols, operational codes, myths, narratives, and reified stereotypes that such issues as racism, anti-Semitism and more. Denotation and The process of group deprivations also involves the manipIsolation ulation of signs, symbols, codes, myths, narratives and stories between members of the “in-group” and also between members of the “in” and “out-group.” Alliance and The system of generalized group deprivations, thus, Allegiance involves distinctive, and often, discrete pattern of communication of relevant signs and symbols of the “in-group” loyalty and solidarity, as well as signs and symbols that identify, disparage, or threaten members of the “out-group.” The patterns of communication are sustained or enhanced by collaborative operations in the exercise of public or private power that move beyond discrimination, antiSemitism, prejudice or hate to the possibilities of wholesale extinction of cultures and masses of human beings.

374 Table 9.2

chapter 9 The social process of negative sentiment (hate): The relevant analytical markers (cont.)

Nurtured Predispositions

Halting the Cycle of Social Reinforcement by Derailing Negative Feedback Mechanisms

Human beings conditioned to generate negative sentiment as a normal aspect of the predisposition of personality invariably create environments in which micro-social relations reflect the normative priority given to the reproduction of negative sentiment. Thus, innocent child rearing and nurturing practices a­ lthough covered in an ostensible mantle of love may be in fact impact on personality development so that the person that emerges is ill suited to a democratic political culture. On the contrary, the person that emerges is ill suited to a democratic political culture. On the contrary, the person may be raised in a climate in which repression and fear unwittingly reproduce insecurity and intolerance of others. As such personality types mature, they exhibit the partiality to authoritarianism and domination. They reproduce the cycle of negative sentiment. Therefore, the micro-social units ostensibly specialized to positive sentiment or love and affection may actually be specialized to doing the opposite. In short, such psychopathological political culture may be reproducing the ­“Anti-Christ of human rights.” Breaking the cycle of negative sentiment is critical to the culture of human rights and its sustainability on a global basis.

crucial restraint on such events, is a partial response to the genocide problem. The tables are an essential contextual background for understanding some of the great tragedies of world order. From the perspective of contemporary conceptions of world order, the concerns for group rights, discriminations and deprivations labels of identity remain central problems for the maintenance of international peace and security, as well as conditions that inhibit the ­progressive developmental agenda envisioned in the higher purposes and objectives of the Charter system. The problems of cultural dominance are still a major international concern and have once more evolved into even more brutal ­measures of political reaction.

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An Associated Press survey map of mass killings, which are essentially the outcomes of the problems of “otherness,” cultural dominance, and conflict, provided a staggering specter of genocide.94 As far back as 1904 and 1907, G ­ erman colonial conquests of Southwest Africa resulted in the killings of 100,000 Hereros.95 Similarly in 1972, 80,000 people out of the approximately 130,000 people that were killed in Burundi were Hutus.96 In Ethiopia between 1983 and 1984, one million people perished.97 In Iraq during 1915 and 1918, 1.5 million ­Armenians were killed.98 Between 1939 and 1945, the Nazis killed approximately 11 million people which include 6 million victims of the Holocaust.99 In 1992, it is estimated that one million Muslims were killed in Bosnia.100 In 1965 and 1966, between 500,000 and one million people were killed in Indonesia.101 It is estimated that between 60 million and 100 million people died under Communist rule in China, beginning in 1949.102 In Latin America between 1980 and 1984, in the state of Guatemala, at least 100,000 people were killed.103 vi

The Convention on the Prevention and Punishment of the Crime of Genocide104

The Convention on the Prevention and Punishment of the Crime of Genocide, the Genocide Convention, although inspired by humanitarian values, was an 94 95

96 97 98 99 100 101 102 103 104

Levinson, A. For This Century’s Homicide Regimes, Genocide is a Snap, The Gainesville Sun, 1G, 4G (September 24, 1995), especially the map (Mass Killings of the 20th Century). Sarkin-Hughes, J. Colonial Genocide and Reparations Claims in the 21st Century: The ­Socio-Legal Context of Claims Under International Law by the Herero Against Germany for Genocide in Namibia, 1904–1908 (PSI Reports) (2008). Stokes, J. Encyclopedia of the Peoples of Africa and the Middle East: Volume 1, 300 (2009). Webb, P., Von Braun, J. & Yohannes, Y., Famine in Ethiopia: Policy Implications of Coping Failure at National and Household Level, 27 (1992). Ember, M., Ember, C.R. & Skoggard, I. Encyclopedia of Diasporas: Immigrant and Refugee Cultures around the World: Volume 2, 43 (2005). Longerich, P. Holocaust: The Nazi Persecutions and Murder of the Jews, 492 (2010). Burg, S.L. & Shoup, P.S. The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention, 179 (2000). Nilsson, Hoadley, A. Indonesian Literature Vs New Order Orthodoxy: The Aftermath of 1965–1966, 53 (2005). Angle, S.C. & Svensson, M. The Chinese Human Rights Reader: Documents and Commentary, 1900–2000, 361 (2001). Higonnet, E. Quiet Genocide: Guatemala 1981–1983, 61 (2008). Genocide is an aspect of the human rights protection of the right to life in international law. The textual basis of the contemporary law relating to the right to life includes the following:

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1. u dhr. Forty-eight states voted in favor, none against, and eight abstained (including Saudi Arabia, South Africa, Union of Soviet Socialist Republics, and Yugoslavia). 2. The International Covenant on Civil and Political Rights (iccpr). 3. The American Convention on Human Rights (‘American Convention’), Nov. 22, 1969, 1114 u.n.t.s. 123, reprinted in 9 i.l.m. 673 (entered into force, July 18, 1978). 4. The African Charter on Human and Peoples’ Rights (‘Banjul Charter’), June 26, 1981, o.a.u. Doc. CAB/LEG/67/3 Rev. 5, reprinted in 21 i.l.m. 59 (entered into force, October 21, 1986). 5. The European Convention for the Protection of Human Rights and Fundamental Freedoms (‘The European Convention’), Nov. 4, 1950, 213 u.n.t.s. 221 (entered into force, September 3, 1953). The udhr, the iccpr, the American Convention, the Banjul Charter, and the European Convention each specify that no individual shall be ‘arbitrarily’ deprived of his or her life. See The Universal Declaration of Human Rightsthe udhr, supra note 2731, art. 3 (‘Everyone has the right to life, liberty and the security of person’); iccpr, supra note 15, art. 6, para. 1 (‘No one shall be arbitrarily deprived of his life’); the American Convention, supra note 160, art. 4, para. 1 (‘No one shall be arbitrarily deprived of his life’); the Banjul Charter, supra note 160, art. 4 (“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”); and the European Convention, supra note 160, art. 2, para. 1. The European Convention states that “[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Id. The iccpr, the American Convention, and the European Convention each provide that the right to life “shall be protected by law.” See iccpr, supra note 31, art. 6, para. 1; the American Convention, supra note 160, art. 4, para. 1; and the European Convention supra note 160, art. 2, para. 1. Thus, these basic international law instruments indicate that a government may deprive an individual of the right to life only by a process which is “legal” and not arbitrary. The iccpr and the American Convention both establish rules to be applied in death penalty cases, stating that the death penalty may be imposed only for the most serious crimes and that the death penalty can only be imposed if the law, which prescribed the death penalty as punishment for that crime, was in force before the crime was committed. See iccpr, supra note 31, art. 6, para. 2; the American Convention, supra note 160, art. 4, para. 2. Both instruments provide the right to seek pardon or commutation of the sentence for an individual sentenced to death. See iccpr; supra note 31, art. 6, para. 4; the American Convention, supra note 160, art. 4, para. 6. All the main human rights instruments also outline standards for a fair trial, and other standards relating to the due process of law that governments must follow when prosecuting an individual for a crime. If the government has formally imposed the death penalty, but failed to comply with the procedural safeguards prescribed in international law, that government has violated international law and has illegally and arbitrarily deprived a person of his or her life.

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early real human rights treaty.105 It predates the udhr.106 The heart of the Genocide Convention is that it responds to the problem of not only discriminating or dominating others but extinguishing or conspiring to extinguish them.107 In a non-technical sense, the conceptual basis of the definition of genocide must assume certain facts about the nature of social organization on a worldwide basis. First, it assumes the group nature of world society. Second, it assumes that certain enumerated categories of group identities are most intensively identified with the business of mass killings. In this latter context, national, racial, ethnic or religious identities are included. These are important culturally-defined symbols of identity and one does not need a scientific study to indicate that genocide as defined in the Genocide Convention requires action based on some culturally-accepted symbol of race, nationality, ethnicity, and belief system. What is critical about this legal instrument is that it presupposes a social process of worldwide ubiquity in which (1) the distinctions that are made are culturally understood about race, ethnicity, religion, as well as nationalism; (2) these distinctions serve as the basis for providing security or insecurity, entitlements or disentitlements and even life and death; and (3) these distinctions, incorporate the capacity of society to identify and ­allocate the benefits and burdens of organized social order to culturally identifiable symbols of identity. This leads to a troublesome, but important, point. First, distinctions are widespread and endemic to society. Second, how are we to determine how, why, which, and when distinctions enhance or disparage basic humanitarian values? When, for example, is a distinction discrimination that disparages human values? When is discrimination prejudice or domination, and when is domination a conspiracy to destroy a group in whole or in part? These are ­practical questions that strike at the core of law when judges confront the specific prescription and application of anti-discrimination norms, anti-­ dominance norms or the norms that relate to mass killings. 105 Convention on the Prevention and Punishment of the Crime of Genocide, 78 u.n.t.s. 277; 1951 a.t.s. 2; 1949 Can. t.s. 27; 1970 u.k.t.s. 58, Cmnd. 4421, 151 b.f.s.p. 682; S. Exec. Doc. 0 818–8, at 7–12 (1949); reprinted in 3 Weston iii.J.1 (concluded at New York, December 9, 1948; entered into force on January 12, 1951). As of January 1, 1994, 111 states were parties to the Convention; on February 10, 1986, the United States Senate gave its advice and consent to the ratification of the Convention. 106 The udhr, was adopted by the u.n. General Assembly on Dec. 10, 1948, whereas the Genocide Convention was adopted December 9, 1948. See generally the udhr. Cf. The Genocide Convention, 121. 107 See the Genocide Convention, at art. ii and iii.

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A Revisiting Sentiment and Markers of Identity and Otherness It may be useful to focus upon the nature of prejudice, discrimination, group deprivations and genocide. Since these problems depend upon a culturally understood symbol of ascriptive identity, it may be useful to provide some clarity about the nature of group deprivations of which racial prejudice, anti-­ Semitism, cultural dominance and genocide are outcomes. Let us start by analyzing the most obvious label of cultural identification, ethnic affiliation. The term “ethnic” is often defined tautologically. One is, so to speak, a Serb because one is a Serb.108 The Genocide Convention Implementation Act of 1987 (The Proxmire Act) provides a good illustration of the circularity and ambiguity surrounding the legal issue of group definitions.109 108 Groups are the central mechanism for providing individuals with their identity; rather than thinking about individuals “sacrificing” part of their identity when they become part of a group, [we should regard individual identity as possible only in the context of secure group attachments…. The notion of individuals apart from groups … is a product of western thought, not the human experience. Marc H. Ross, The Management of Conflict: Interpretations and Interests in Comparative Perspective (1993). 109 u.s.c. Title 18—Crimes and Criminal Procedure; §§ Section 1091. Genocide (1987). (a) Basic Offense.—Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious groups as such (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cauecause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; or attempts to do so, shall be punished. (b) Punishment for Basic Offense.—The punishment for an offense under subsection (a) is – (1) in the case of an offense under subsection (a)(1), (Footnote 1) where death results, by death or imprisonment for life and a fine of not more than $1,000,000, or both; and (Footnote 1) So in original. (2) a fine of not more than $1,000,000 or imprisonment for not more than twenty years, or both, in any other case. (c) Incitement Offense.—Whoever in a circumstance described in subsection (d) directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both. (d) Required Circumstance for Offenses.—The circumstance referred to in subsections (a) and (c) is that

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For example: 1. 2. 3. 4.

The term ethnic group means a set of individuals whose identity as such is distinctive in terms of common cultural traditions of heritage. The term national group means a set of individuals whose identity as such is distinctive in terms of physical characteristics or biological descent. The term racial group means a set of individuals whose identity as such is distinctive in terms of physical characteristics of biological descent. The term religious group means a set of individuals as such is distinctive in terms of common religious creed, beliefs, doctrines, practices, or rituals.

More scientific efforts suggest membership in an ethnic group exhibits: (1) common cultural traits; (2) a sense of community; (3) a presumed common historical heritage; (4) a “feeling of ethnocentrism”; (5) ascribed group identity; and (6) territorial identification.110 The criteria of culture, community, history, ethnocentric feelings, ascriptive identity and territorial identification are simply too broad to give any precise empirical specification of the ethnic dimension of political behavior, such as behaviors that generate conflict, violence, and war. They are just as circular and opaque as the legal efforts at definition. Group labels are best explained when group identities are contextualized by the community’s processes of effective power as well as its constitutive and public order characteristics. Using ethnicity as an operating symbol of group identity, let us analyze this kind of expression by contextualizing it. A more promising approach to the ethnic factor in social and political processes may be to root our explanations in the psychological processes of individual and group identity.111 From this perspective, ethnicity may be seen as an aspect of identity of politico-cultural salience. The basic elements of identity (1) the offense is committed within the United States; or (2) the alleged offender is a national of the United States (as defined in Section 101 of the Immigration and Nationality Act (8 u.s.c. 1101)). (e) Nonapplicability of Certain Limitations.—Nothwithstanding Section  33282 of this title, in the case of an offense under subsection (a)) (1), an indictment may be found, or information instituted, at any time without limitation. 110 See Pierre van den Berghe, The Ethnic Phenomenon (New York: Elsevier, 1981), 237–250; Brown, supra note 91, at 4–5. 111 Social identity theories are particular good in explaining how minority and majority groups defined themselves as such, and how majority-minority conflict develops through stages. See Henri Tajfel, Human Groups and Social Categories: Studies in Social P ­ sychology

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are not difficult to comprehend. First, we start with the individual self-system, the I. The I is born into a family or primary kinship unit where the sense of the I is broadened to include those figures through whom one’s intimate needs and gratifications are secured. The I gradually internalizes these symbolic parent and sibling figures as part of an ever evolving and expanding we self-system. However, the boundaries of the we are not limitless. The family or kinship unit of primary affiliation may constitute a boundary of the we for the individual self-system in which other similar units are symbolized in the negative as either the “non-we” or more affirmatively as the other.112 How the boundaries of identity are drawn between the I, the we and the other centers on the sense of community, expands to the integration of the nation state and regional alignments. The ultimate challenge for those who believe in a public order that makes human dignity on a global basis its most critical priority is whether the boundaries of I and we can be extended with sufficient coherence and sustainability to support an identification with the solidarity and dignity of humanity as a whole. The United Nations Charter aspires to this kind of identity.113

(1981); see also D.M. Taylor & D.J. McKirnan, Theoretical Contributions: A Five-Stage Model of Intergroup Relation, British J. Soc. Psych. Vol. 23: 291–300 (1984). 112 Expanding interdependence within a divided world arena may not necessarily undermine chauvinistic identities. On the contrary, both direct and reported contacts with alien cultural mores and lifestyles may enhance preoccupation with the self. Over longer time intervals, the preoccupation with the self may lead to a reshaping of personality and culture by the incorporation of traits of the “other.” However, this incorporation does not necessarily lead to identification with all cultures and all peoples. 113 The United Nations Charter incorporates the identification of solidarity and dignity of humanity as a whole in its opening paragraph: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has bought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed forces shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims.” Charter of the United Nations (as amended), 59 Stat. 1031, t.s. No. 993, 3 Bevans 1153 (1945) (signed at San Francisco on June 26,

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Progress has been made in expanding the boundaries of parochial (or chauvinistic) identities to more inclusive levels.114 Yet, in a world of ubiquitous insecurity (political, military, economic, as well as cultural) the reinvention of chauvinism and nativistic dis-identity with humanity as a whole, as well as the denial of our mutual interdependence and interdetermination, lurk around the corner in some parts of the world. The problem of ethnic conflict generates important empirical questions: What is the ethnic identity? What is its relationship to political identity? How are political and or ethnic identities shaped and developed over time? Is there such a thing as an anti-democratic, human rights denying system of identity? The question is critical to those who seek normative guidance in the description, evaluation and predictive prospects for a meaningful resolution of ethnic conflicts are: what system of identity is desirable? What kind of political identity should scholars and activists promote and defend for a defensible world order? The very conception of ethnic remains both undefined and rather amorphous. The phrase ethnic identity is often tautologically defined Ethnic identity is meant to designate national identity, and national identity is ethnic identity. It will remain so unless we are willing to understand it in the context of actual social and power processes. What we label ethnic or national is more generally the culturally transmitted sign or symbol by which the individual reproduces the “I,” the “we,” and at the same time internalizes by this symbolic cultural marker, the “other” as in another. These symbolic pegs or markers might include color, racial pedigree, group affiliations, age, birth status, language, religion, ideology, class status, caste position, and gender differences.115 To begin to understand the social process behind the formation of root identifications, one must account for the conditions that shape personality formation in early childhood.116 Innocuous child rearing and nurturing practices may amount to deprivations from the perspective of the child, but may be viewed as normal from the adult vantage point. Early years are crucial in the individual becoming conscious of the self, i.e., becoming aware that the self is an “I.” A vital part of early childhood development is the emergence of 1945; entered into force, October 24, 1945; latest amendments are at 24 u.s.t. 2225, t.i.a.s. 7739) (emphasis added). 114 The framework of human rights identification is a typifying example. Identifications based on liberal nationalism provide potential for more inclusive identifications. 115 For an analysis of the manipulation of the definitions of ethnicity, see War and Ethnicity: Global Connections and LOCAL VIOLENCE (David Turton, ed.) (1997). 116 See Albert Bandua, Social Foundations of Thought and Action: A Social Cognitive Theory (1986).

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an awareness of individuals other than one’s self (non-self others).117 Some of these “selves” are internalized as a “we” and some as the “other” or as “they.”118 Anxiety, insecurity and allied deprivations influence or condition the individual’s conception of the self as an “I.”119 Early years shape fundamental identification patterns and determine the essential I and contingent “we.”120 Patterns of nurturance and early socialization do not take place in a vacuum.121 Children are born into contexts in which the facts of social diversity are 117 Every function in the child’s cultural development appears twice: first, on the social level between people (interpsychological), and later, on the individual level inside the child (intrapsychological). This development process applies to voluntary attention, to logical memory, and to the formation of concepts. All the higher functions originate as actual relationships between individuals. L.S. Vygotsky, Mind in Society: The Development of High Psychological Processes (Cole, et al., eds.) (Cambridge, ma: Harvard University Press, 1978). Symbolic interactionism emerges from the Chicago School of Sociology in the 1930s and later, particularly from the work of George Herbert Mead. Here central premises of symbolic interactionism are as follows: People understand things by assigning meaning to their experience. Human perception is always mediated by a filter of symbols. Meanings are learned in interaction between people and arise from the exchange of symbols in social groups. All social structures and institutions are created by people interacting with one another. Individual behavior is not strictly determined by prior events, but is voluntary. The mind consists of an internal conversation, which reflects interactions one has had with others. Behavior is enacted, or created in the social group in the course of interaction. One cannot understand human experience by observing overt behavior. People’s understandings—the meanings they assign events—must be ascertained. George H. Mead, Mind, Self and Society from the Standpoint of a Social Behaviorist (Chicago: University of Chicago, 1934). 118 See T.F. Pettigrew, The Ultimate Attribution Error: Extending Allport’s Cognitive Analysis of Prejudice, Personality and Social Psychological Bulletin, 5, 461–476 (1979). 119 These conceptualizations occur across contexts; political opinions, for exampleare “badges of social membership,” declarations of social identity. M. Brewster Smith, Jerome S. bruner, and Robert W. White, Opinions and Personality (1956). 120 It must be pointed out that socialization continues from infancy through the end of every individual’s life span as various facets of society occur across the life course of an individual. Childhood socialization is stressed here, due to its relative strength and salience to the present context. W.R. Looft, Socialization in a Life-Span Perspective: White Elephants, Worms, and Will-O’-The-Wisps, Gerontologist, 13, 488–497 (1973). 121 The average child in the United States sees over 20,000 commercials per year. R.P. Adler, B.Z. Friedlander, G.S. Lesser, L. Meringoff, T.S. Robertson, J.R. Rossiter, and S. Ward, Research on the Effects of Television Advertising on Children: A Review of the Literature and Recommendations for Future Research, report prepared for the National Science Foundation, Research Applications Directorate, Research applied to National Needs (rann)—Division of Advanced Productivity Research and Technology (Washington, d.c.: nsf: u.s. Government Printing Office, 1977).

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ubiquitous. The patterns of social stratification, including a consciousness of social diversity, represent a culture context that is transmitted intergenerationally in varying degrees of symbolic intensity to every personality system.122 The anthropology of social differentiation is much disputed. That it exists is undisputed. That it has been accentuated in contemporary society by the division of labor and specializations that attend it is commonplace. When patterns of social stratification emerge from the social process and when these patterns have a close alignment with the distribution of power and wealth, powerful symbolevents create the conditions under which the “I” defines the self by including within the “we,” groups that are most closely identified with the “class,” “caste,” or “ethnic” position of the kinship (or family) unit of primary affiliation.123 The key factor that lays the foundation for the exclusivist identity lies ultimately in the seemingly innocuous patterns of child rearing and nurturing.124 Central to these social processes is that both positive and negative sentiment is reproduced and transmitted. The ability of the self to identify with an in-group and to identify and exclude an out-group appears to derive from events relating to identification patterns that are accorded a symbolic character and fueled by sentiment.125 Such 122 Take a comparison between Western socialization and Japanese socialization for example. The Western concept of ‘self’ refers essentially to the uniqueness of the individual, or the substance of the person, which has maintained its sameness and continuity over time and across situations, although it is recognized as a product of interaction with other humans. Whereas, the Japanese concept of ‘jibun’ refers to one’s sharing which is something located beyond the boundary of ‘self’ in the Western sense. The amount of one’s sharing varies depending upon dynamics of a situation. ‘Jibun’ does not have a definite consistent boundary. Y. Minoura, Life In-between: The Acquisition of Cultural Identity Among Japanese ­Children Living in the United States (Ph.D. dissertation, anthropology) (Los Angeles: Univ. of California, 1979). 123 The “knowledge-gap hypothesis” states that people of higher socioeconomic status acquire information from the media at a faster rate than do those of lower socioeconomic status, thus increasing the difference between the two groups in the amount of information held on any issue. P.J. Tichenor, G.A. Donahue, and C.N. Olien, Mass Media and ­Differential Growth and Knowledge, Public Opinion Quarterly, 34, 158–170 (1970). 124 See Harry C. Triandis, Individualism and Collectivism (1995). 125 A simplified model of information processing is used here for relevancy and brevity. A more complex model is provided, but is not required for a basic understanding of this discussion. See R.S. Wyer & T.K. Sprul, The Processing of social Stimulus Information: A Conceptual Integration (1980), in Person Memory: The Cognitive Basis of Social Perception, R. Hastie, T.M. Ostrom, E.N. Ebbersen, R.S. Wyer, Jr., D.L. Hamilton, and D.E. Carlston, eds., (1980).

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facts as sex, color, race, group affiliation, age, birth, language, religion, political belief, appearance, class, and intellect are the ubiquitous symbolic pegs that the individual internalizes as part of the “we.”126 The implication of this analysis is that ethnicity is a part of the socio-political processes that vest political importance to symbolic markers that shape patterns of affiliation, loyalty and group identity. The same individual may experience a multitude of group lives of varying levels of intensity,127 and internalize a plurality of “symbolic” markers as that person experiences acculturation and political socialization. The group label is the critical condition of inter-group conflict and genocide and mass murder.128 Critical to the reproduction of mass murder and human rights violations is the marking of the other and the generation of emotional support effectually (negative sentiment) to give operational effect to these dark emotions. In this section of the chapter, the outlines of the Genocide Convention and related decision making initiatives, as well as the legal and political issues that have attended prescription, application, and enforcement in instances of specific concern will be described. However, it will be apparent that the issue of “prevention” is both deeper and more complex than might be expected. To move toward a public order of effective prevention and eradication of genocide, we suggest: (i) a social construction of genocide as a process; (ii) a social construction of the processes of international decision- making, especially their competence; (iii) potential capacity for effective sanctioning strategies of prevention; and (iv) a deeper, more anthropomorphic sense of the dynamics, as well as the structure, of social conflict as a triggering, early -warning intelligence predicate for pre-criminal intervention strategies to more effectively prevent genocide.

126 For an overview, see The Future of Social Psychology: Defining the Relationship Between Sociology and Psychology (Recent Research in Psychology), C.W. Stephan, W.G. Stephan, T.F. Pettigrew, eds., (1991). 127 It has been shown that to the extent that it decreases the salience of categorization on any one dimension, multiple-group categorization decreases bias. Ethnic groups were crossed with a laboratory manipulation of group membership and more intergroup bias was found when memberships along these two dimensions coincided than when they were crossed. W. Doise, Intergroup Relations and Polarization of Individual and Collective Judgments, J. Personality & Soc. Psych. 12, 136–143 (1969). 128 Brown, at 6–12, discusses a three-pronged approach to pinpointing the causes of ethnic conflict (at the systemic level, the domestic level and the perceptual level), much of which is directed by the intensity of acculturation and political socialization experience by these groups.

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Legal reality is reflected at two levels. First, the legal perspective of genocide as codified in the Genocide Convention; and second, the efficacy of legal operations of the prevention and punishment of genocide that follow the formal codification of the universal crime of genocide. As the span of history indicates, the legal prohibition of genocide is a recent phenomenon. The Genocide Convention was not initiated by any discernible governing elite. It was the inspiration of an individual, a depreciated object of traditional international law. Raphael Lemkin not only inspired action as a reaction to the Holocaust, but he even named the malady.129 With important exceptions, the ratification of the Genocide Convention has been an unproblematic exercise. However, the application and enforcement of the Convention has been largely rhetorical and symbolic. There has been strong prescriptive perspective but little in the way of operating practice.130 The term “genocide” was first proposed by Raphaël Lemkin.131 According to Lemkin, the concept of a crime of genocide required a systematic plan to destroy the core or “essential foundations” upon which group life was founded.132 In Lemkin’s words: The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against 129 See Lemkin, at 79. The term “genocide” first appeared in Axis Rule in Occupied Europe by Raphael Lemkin, a Polish-born law professor. See Levinson, at 1G and 4G. Lemkin was Jewish. He lost 49 family members in the Holocaust. See id. He taught at Duke, Yale, and Princeton. Lemkin devoted his life to the criminalization and proscription of genocide. See id. Presently 120 countries have ratified the Genocide Convention. See id. 130 Wall Street Journal, February 24, 1986, at 12: “[L]ike so many of the fine words issued from the UN, these are worse than toothless. The convention actually manages to exempt every contemporary act of genocide…Stalin’s men insisted that ‘political genocide’ be struck off the list of outlawed practices. Under the treaty, the Kremlin can send political dissidents to Siberia without having committed genocide. Likewise, Ethiopia’s Mengistu can starve and relocate Tigreans and Eritreans. Nicaragua’s Ortega can decimate Miskito Indians, Cambodia’s Pol Pot could kill a third of his countrymen, and Uganda’s Amin could butcher his opponents. Even where the victims are of one ethnic or religious group, the tormentors can claim that this is merely political genocide.” 131 See Lemkin, at 79. 132 See id.

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individuals, not in their individual capacity, but as members of the national group.133 In Lemkin’s work, genocide is essentially descriptive of a certain kind of group or national atrocity, which normatively ought to be prohibited. The Charter of Nuremberg defined crimes against humanity as covering many of the circumstances that today would fall under the legal label of genocide.134 In 1946, the u.n. General Assembly passed a resolution affirming that genocide was a crime under international law.135 General Assembly resolutions are not binding, but such a resolution is not without some prescriptive force. This resolution set in motion the process for the drafting of the Genocide ­Convention itself. The Genocide Convention came into force in January 1951. The central contributions of the Genocide Convention are as follows: 1. the establishment of the principle of personal criminal responsibility under international law; 2. international legal protection of groups vulnerable to genocide; 3. the principle of universal jurisdiction for human rights; 4. the principle that there be both an individual and collective responsibility for enforcement and sanction; 5. to the extent that human rights are incorporated into the framework of humanitarian law, genocide extends the principle of humanitarianism as fundamental human rights in peace and war; and 6. establishes in line with Nuremberg a prescriptive and applicative prospect for making fundamental human rights a component of world order in war or peace. The focus of the Genocide Convention on simplified crime, punishment, and universality clearly does not give us an effective notion of deterrence if deterrence is dependent on detection, apprehension, effective and fair prosecution, and punishment in the form of severe sanction in a highly decentralized world order. If deterrence in this sense is a weak sanction, what about the modern sanctioning idea of retribution in distribution? Clearly one cannot have an eye-for-an-eye form of punishment, for this may be tantamount to reproducing the very malady one wishes to eradicate. If the principle of retribution is one that brings proportionality to the nature of the crime, i.e., the punishment is made to “fit” the crime, one begins to see the essential weakness of this widely held moral justification for punishment. The crime of genocide cannot make any punishment fit any rational model of “distribution.”136 133 See id. 134 See Mathew Lippman, The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-Five Years Later, 8 Temp. Int’l. & Comp. L. J. 1, 7–9 (1994). 135 g.a. Res. 96(1), u.n. Doc. A/64/Add 1, at 188–89 (1946). 136 In short, the imposition of the criminal sanction (punishment) sustains the sense of justice in a relatively remote way; perhaps, even only symbolic or ritualistic in its e­ ssential

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Article i of the Genocide Convention makes genocide an international crime whether committed in time of war or peace. The contemporary precepts of human rights build on this principle since human rights standards operate in time of war or peace. Articles ii and iii compose the core of the Genocide Convention, defining the crime of genocide and articulating the “acts” that are punishable as genocide. Article iv focuses upon the issue of responsibility for genocide, stressing the issue of individual responsibility and clearly indicating that governmental officials may be potential defendants. Article V reflects the reality of criminal justice in the international arena through the reality of decentralized competence in a world order still largely organized around sovereign nation states. The Genocide Convention assumes that the primary vehicle for enforcement will be the nation state. Hence, there is an obligation under Article V for states to enact legislation to give efficacy to the Convention. Articles vi and vii clarify the issues of jurisdiction as well as the circumstances of extradition policy. Articles viii and ix permit state parties to have recourse to the u.n. and for the i.c.j. to resolve disputes between parties. A central criticism of this definition is that the term “following acts” implies that the list of acts is exhaustive rather than illustrative.137 This criticism may depend on how restrictively or expansively acts (a) to (e) are interpreted. For example, one could consider that “ethnic cleansing,” defined as forced migration,138 or message. In other words, the criminalizing of genocide in a universal sense strives, through the precision and narrowness of drafting, to secure import universal enough to be acceptable to the largest number of potentially ratifying states. However, the narrow “legalistic” approach to the prevention and punishment of genocide must perforce sacrifice the element of social realism as well as a social construction of the conditions of genocide and the conditions for effectively preventing and punishing it. In other words, the focus on the universality of the crime seems to have had the unintended consequence of emphasizing the aspect of punishment dealing with apprehension and legal accountability. This focus has proved to be notoriously difficult as the absence of genocidal convictions, in general, indicates. Although this is a necessary aspect of the Convention, it seems to have the effect of weakening the most central component of the Convention, viz., how to prevent genocide by generating a comprehensive conception of sanctions (as a process of intervention) at every level of social organization as a necessary component of a prescription whose major purpose is to prevent potential victims from becoming victims of this most odious of crimes. For a comprehensive conception of sanctions, see infra. 137 The Sixth Committee rejected an amendment from China that the enumeration of “acts” not be exhaustive. u.n. gaor 6th Comm. 3rd Sess. 78th mtg, at 142–45, u.n. Doc. A/633 (1948). 138 See Final Report Commission of Experts Established Pursuant to Security Council ­Resolution 780, at 33, u.n. Doc. S/1994/674 (1994). Here, ethnic cleansing is defined as “rendering [of] an area ethnically homogeneous by using force to remove persons of ­given

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mass rape may be construed as being included in the phrase, “serious bodily or mental harm” or “group conditions calculated to bring about … physical destruction … .”139 A second major concern is the phrase “intent to destroy.” Clearly, the forms of genocide involving governmental complicity or the complicity of highly organized “hate” groups are not going to leave an evidence trail like that of the self-righteous and meticulously bureaucratic Nazis. The plan to implement a campaign of genocide, in the usual situation, will be institutionalized in areas of security-sensitive personnel, the least transparent of organized structures of coercion. Given the predisposition to “denial” about the occasion of genocide, the power of the myth of “ethnic conflicts” as inexplicable events of historically-conditioned blood-letting and barbarism shrouded in a veil of convenient anonymity, was a powerful factor in paralyzing appropriate levels of intervention in both the 1991–1995 tragedies of southeastern Europe and the 1994 genocide in Rwanda. A strong intentionality requirement as opposed to a “constructive” intentionality criterion might be critical for a criminal trial, but the burden, in the special circumstances of genocide outcomes, is a very high one.140 Although genocide aims at the destruction of a “group,” it is the individuals who are actually the specific targets of destruction. This fact poses a tricky question for the application of the “intent to destroy” requirement. This requirement, on its face, clearly indicates that the intention to destroy must be a general intention groups from the area.” Id. Cf. Application of the Genocide Convention on the Prevention and Punishment of Genocide (Bosnia & Herzegovina v. Yugo.) (Provisional Measures ii), Sept, Sept. 13, 1993., i.c.j. 325, 431–32 In the separate opinion of Judge Lauterpacht, he declared that the ethnic cleansing/forced migration practices in the former Yugoslavia constituted genocide. Id., at 435–36, 447 (separate opinion by Justice Lauterpacht). The u.n. General Assembly also declared ethnic cleansing to be a form of genocide. g.a. Res. 47/121 UNGAOR E/CN 4/Sub. 2/1985/86. 139 The Genocide Convention on the Prevention and Punishment of the Crime of Genocide, at art. ii. 140 The notion of constructive intent has been recommended in a u.n. study prepared by B. Whitaker, See u.n. Doc. E/CN 4/Sub 2/1985/6 (July 2, 1985). There it is suggested that constructive intent refers to “acts or omissions of such a degree of criminal negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of his conduct.” Id., at 19. In the context of the 1994 genocide in Rwanda, the media messages, preparation for mass killings, numbers of victims and other components of the process of identification of victims created a kind of ‘constructive’ intent to commit genocide. See René Degni-Ségui, Special Rapporteur, Commission on Human Rights created under para. 20 Commission Res. E/CN 4/S - 3/1, at 11–13, u.n. Doc. EC 4/1995/7 (May 25, 1994).

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to destroy the group as a group. This indication seems to imply that the individual targets that constitute the aggregate group are incidental to the intent requirement. This implication may sound quixotic, but it is a view rationalized by the i.l.c. as follows: The prohibited act must be committed against an individual because of his membership in a particular group and as an incremental step in the overall objective of destroying the group. It is the membership of the individual in a particular group rather than the identity of the individual that is the decisive criterion in determining the immediate victims of the crime of genocide. The group itself is the ultimate target or intended victim of this type of massive criminal conduct.141 Ratner and Abrams suggest that this view means mass killings that are allegedly “random” or part of a “random campaign” of violence will not be covered by the definition of genocide. This is not a necessary conclusion. The issue of randomness requires one to have a more contextually-determined process of the various levels and intensities of social conflict before such a conclusion may be objectively reached. Certainly, the intention to destroy the group by destroying its members can only be carefully appraised, not by abstract logical syntactical analysis, as the i.l.c. has apparently done and as Ratner and Abrams have endorsed,142 but by a careful assessment of relevant contextual indicators. This assessment may be done by drawing appropriate inferences from the fact that even the contents of consciousness are empirical and can be ascertained by intensive procedures associated with the psychological and psychiatric sciences, as well as indicators from external components of behavior and conduct. A further criticism relates to the specificity required to give meaning to the term “destroy.” If the conditions of destructive intent can be clearly specified, one may still not appreciate how the terms “destructive” and “intent” can be used. Such usage is not simply to prosecute genocide after it has happened, but also determine what kind of preventive law guidance one can draw from this formulation. The reference to “destruction” implies, but does not quite incorporate, the reference to social conflict occasioned by social conditions of stratification or segmentation based on culturally understood symbols of

141 1996 i.l.c. Report, at 88. 142 Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 34, 36 (1997).

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identity. The definition of genocide in the Genocide Convention, as an instrument of understanding, does not effectively illuminate the social process of genocide. It provides few clues to its meaning, and cannot, by itself, illuminate the conditions of genocide unless it is supplemented by a serious effort to socially construct the processes of genocide itself. Discrimination, prejudice, and dominance based on group labels of identity are intrinsic parts of the social process that may lead to genocidal outcomes. Prevention requires that one both broaden and deepen inquiry into the pre-conditions of genocide. One must understand racial discrimination, the prejudice of anti-Semitism, the cultural dominance of slavery, including caste as well as apartheid-like deprivations, if one is to give prevention a chance to be efficacious. The travaux support this construction because they suggest that it is the potential act to cause the destruction of a group that must determine whether the act is within the definition of genocide. This should be an analysis of key contextual indicators, among other factors, that must guide the interpreter interested in either prevention or punishment.143 Judge Goldstone, the prosecutor for the ad hoc tribunals for the former Yugoslavia and Rwanda, said that because the charge of genocide is the most important of the crimes for which criminal responsibility may be alleged, the charge must focus on the issue of preventing the physical destruction of a target group or population.144 This premise has limited the number of indictments where genocide is a charge. Apart from the problems of enumerated acts in the Convention, the central issue of the relative inclusivity, exclusivity, or indeed the very notion of how to define and identify a group is problematic. The term, national, in sociological terms, drawn from the European context, means “ethnic group.” The term is used with reference to the phrase, nation-state, but clearly in practice does not mean or require a national or ethnic “fit.” The majority of states with over 1,000,000 inhabitants are pluralistic in terms of national or ethnic identity. If the term, nation, is collapsed into the term, nationality, it carries a meaning of group affiliation normally associated with a sovereign body, politically styled in international law as a “nation-state.” Thus, the question would arise as to whether the intent to destroy in whole or in part a nation-state and its inhabitants would qualify as a named “nation” for the purpose of the reach of the Convention. The term, ethnic, has a similar level of ambiguity when an effort is made to isolate the key indicators of “ethnical” as the term is used in the 143 Nehemiah Robinson, The Genocide Convention: A Commentary, 63–64 (1960), argues that it is possible to specify in advance all conditions in the abstract. Only the context of each case can serve as an adequate guide to decision. 144 See Ratner & Abrams, at 30–31.

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Convention. The term is often vaguely defined with reference to culture, tradition, and shared historical experience, which could include religious tradition, language, or artistic experience. The term is often also used as a synonym for “race” or “racial.” When one analyzes the meaning of the term, racial, one may well agree with an early unesco study which regarded the term as indefinable. Racial classification in the United States sought to ground itself on degrees of pre-existing biological pedigree. In apartheid South Africa, the now extinct Population Registration Act defined races in part with reference to habit and appearance. A white person was white in appearance and habitually accepted as white. Using race as a label to ascribe the disabilities of prejudice, discrimination or domination was often seen as a thoroughly arbitrary indicator of identity. Using race as an indicator for a protected group may simply be arbitrary if the term, race, cannot be objectively assayed for the purpose of the assumption of the protection of the law. Finally, it should be remembered that the term, ethnic, derives from the Greek word, ethnos, which translated means “people.” Again, if one has difficulty in an a priori classification of the groups to be protected, one may be in the insidious position of arbitrary exclusion. The idea put forward by Robinson regarding acts constituting genocide, viz., that they be contingent, and in part, dependent, on the context for precise indicators of group destruction, can be applied to the identification of protected groups. What is again needed to give meaning to the prevention objective of the Genocide Convention is a socially constructed conception of group identity. Such a framework may not cover all groups that should be covered, but it would provide an analytical tool of dexterity and precision to interpretatively broaden, when required by social reality, the class of protected groups. As a practical matter, the level of under-inclusiveness of the protected “groups” was in part dictated by ideological considerations having little to do with the essentially humanitarian purpose of the Genocide Convention. The exclusion of political, professional and economic classes (capital and labour) or groups is clearly indefensible. In fact, it may be that two of the most important groups (at least, in time of political turmoil or conflict)—political and economic classes or groups—may be the most susceptible to extermination or destruction. A final point regarding the definition of protected groups is that it cannot be assumed that all ethnic, national, racial or religious groups are encased in ethnically impermeable boundaries. For the purpose of the Hutu directed genocide campaign in Rwanda, a Tutsi,the purpose of extermination,was often a moderate Hutu, a Hutu married to a Tutsi, the children of such a union, a Hutu democrat, and more. Clearly, the conduct of those who planned and/or executed these mass murders is still within the reach of the Genocide Convention

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and gives greater cogency to the idea of socially constructing group identity for purposes of both prevention and punishment. B Genocide in the International Court of Justice The Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Reservations to the Genocide Convention) was an advisory opinion of the International Court of Justice (icj) rendered in May 1951.145 This case was the first real statement of juridical perspective on the nature of the Genocide Convention. In fact, the problem presented to the icj was one that went to the foundational policy questions about how law should respond on an international basis to the prevention and punishment of genocide.146 The response of the icj represented a strongly divided court. Seven justices joined in the majority opinion, and five justices joined in the minority opinion.147 The central legal question was what effect certain reservations would have upon a state’s obligation under the Genocide Convention, assuming that the state ratified it with reservations.148 The majority opinion of the icj took the position that so long as the reservation was consistent or compatible with the object and purpose of the Genocide Convention, a state would be able to become a party.149 This position provided a flexible standard rather than a strict construction of the basis for compatibility or non-compatibility with the Genocide Convention.150 The policy ­behind 145 See generally Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 i.c.j. 15 (May 28). (Reservations to the Genocide Convention), i.c.j. Reports 15 (1951). 146 See id., at 16. 147 See id., at 29–30. 148 See id., at 16. 149 See id, at 24, 29. 150 In the Reservations to the Genocide Convention case, the majority stated: It follows that it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation. Such a rule of conduct which must guide every State in the appraisal which it must make, individually and from its own standpoint, on the admissibility of any reservation. // Any other view would lead either to the acceptance of reservations which frustrate the purposes which the General Assembly and the contracting parties had in mind, or to recognition that the parties to the Convention have the power of excluding from it the author of a reservation, even a minor one, which may be quite compatible with those purposes. // It has nevertheless been argued that any State entitled to become a party to the Genocide Convention may do so while making any reservation it chooses by virtue of its sovereignty. The Court cannot share this view. It is obvious that so extreme an ­application

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the majority’s opinion seems to be transparent enough. The Genocide Convention was a special convention151 and its prescriptive force was meant to be universal.152 In effect, the prevention and the punishment of genocide is an obligation erga omnes, and because of the nature of this instrument and the malady it seeks to control and prohibit, a relaxed view of the standard of international interpretation is virtually mandated by the context. The policy behind this context is one that seeks to secure the most universal level of accession to the treaty so long as the object and the purpose of the treaty was defensible, reservations notwithstanding. This policy means that if states are able to append reservations, declarations, or understandings to the treaty, there will be an incentive to become parties to it since they can give the treaty their own specific credence, so long as that credence is consistent or compatible with the object and purpose of the treaty. Such a judicial policy would obviously have the effect of encouraging the adoption of the treaty, thus, securing an expeditious level of universal or nearuniversal acceptance. The subtext of this majority view is reflected in a legal policy that favors the prescriptive force inherent in the Genocide Convention as a critical legal symbol sending a message that the proscription of the crime of genocide lies most effectively in preventing it. A universal adoption of the Genocide Convention would send a powerful prescriptive signal that gives the policy of prevention universal credence. The view of the majority opinion may be fruitfully compared to the view of the minority. The minority opinion favored a more legalistic, restrictive view of Reservations to the Genocide Convention.153 The minority saw the ­important of the idea of State sovereignty could lead to a complete disregard of the object and purpose of the Convention. Id., at 24. 151 See id., at 23 (“The solution of these problems must be found in the special characteristics of the Genocide Convention.”). 152 On the issue of the universality of the Genocide Convention, the majority in the ­Reservations to the Genocide Convention stated that A second consequence [of the conception that the United Nations, in adopting the ­Genocide Convention, intended to condemn and punish genocide] is the universal ­character both of the condemnation of genocide and of the co- operation required “in order to liberate mankind from such an odious scourge” (Preamble to the Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope. It was in fact approved on ­December 9th, 1948, by a resolution which was unanimously adopted by fifty-six States.” Id. at 23. 153 See id. at 42–43.

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legal policy as a search to ensure a stringent level of technical compliance to a technically concrete international obligation.154 From this point of view, the Genocide Convention was an instrument vested with an international, criminal character. If punishment is a major purpose of the instrument, then a plethora of multifarious exceptions to the Genocide Convention by the ratifying parties will have the effect of undermining the clarity of the content of the legal obligation for which criminal punishment is envisioned. The minority justified its position as follows: We believe that the integrity of the terms of the Genocide Convention are of greater importance than mere universality in its acceptance. While it is undoubtedly true that the representatives of the governments, in drafting and adopting the Genocide Convention, wished to see as many States become parties to it as possible, it was certainly not their intention to achieve universality at any price. There is no evidence to show that they desired to secure wide acceptance of the Genocide Convention even at the expense of the integrity or uniformity of its terms, irrespective of the wishes of those States that have accepted all the obligations under it.155 It also added; It is an undeniable fact that the tendency of all international activities in recent times has been towards the promotion of the common welfare of the international community with a corresponding restriction of the sovereign power of individual States. So, when a common effort is made to promote a great humanitarian object, as in the case of the Genocide Convention, every interested State naturally expects every other interested State not to seek any individual advantage of convenience, but to carry out the measures resolved upon by common accord. Hence, each party must be given the right to judge the acceptability of a reservation and to decide whether or not to exclude the reserving State from the ­Convention, and we are not aware of any case in which this right has been abused. It is therefore not universality at any price that forms the first consideration. It is rather the acceptance of common obligations keeping step with like-minded States—in order to attain a high objective for all humanity that is of paramount importance. Such being the case, the conclusion is irresistible that it is necessary to apply to the G ­ enocide 154 See generally id. (Joint dissenting opinion). 155 Id. at 46 (dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read, Hsu Mo).

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Convention with even greater exactitude than ever the existing rule that requires the consent of all parties to any reservation to a multilateral convention. In the interests of the international community, it would be better to lose as a party to the Convention a State which insists in the face of objections on a modification of the terms of the Convention, than to permit it to become a party against the wishes of a State or States which have irrevocably and unconditionally accepted all the obligations of the Convention.156 The minority’s “greater exactitude” standard is an important revelation into its thinking about the juridical nature of the criminal obligation engendered by the Genocide Convention. Although the operative language is couched in the form that the international system must be explicit and unambiguous about obligations imposed on State parties, the subtext seems to be that the imposition of an international criminal law obligation of universal import must meet an even greater standard of linguistic exactitude if the object is criminal law punishment. The minority view differs from the majority view in the ­respective emphases given to the principle of prevention that should meet the standard of consistency with the object and purpose of the instrument and the principle of punishment that must meet exacting standards of precision for the imposition of internationally sanctioned criminal responsibility. This emphasis is an important and vital discourse about the nature of the Genocide Convention. It is obvious that the majority view of universalization under a relaxed standard is one that stresses the prescriptive force of prevention and underplays the prescriptive force of punishment. The minority opinion takes the reverse position. History will recall that the United States’ belated ratification came hedged with reservations, declarations, and understandings that came treacherously close to undermining the object and purpose of the Genocide Convention. The United States’ belated ratification was probably more a matter of symbolic commitment to prescriptive universality and prevention than a serious commitment to punishment. It is possible that the majority of the icj in the Reservations to the Genocide Convention had a sense that State parties would be more juridically partial to the Genocide Convention if it were a symbol that stressed the crime prevention more than punishment. Perhaps this was borne of the icj’s sense of realism rather than abstract humanitarian idealism. That realism may simply mean that it is cheaper in terms of human suffering to prevent genocide from happening than to attempt to punish it after the fact. 156 Id. at 46–47 (dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read, Hsu Mo).

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In the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, a request was made for an indication of interim measures concerning the probability of genocide occurring in the former Yugoslavia, more specifically in the states of Bosnia and ­Herzegovina.157 The icj noted that under Article i of the Genocide Convention the contracting parties to it had confirmed that “genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent to and punish.”158 The icj held that Yugoslavia and Bosnia-Herzegovina “are under a clear obligation to do all in their power to prevent the commission of any such acts in the future.”159 The icj, pending a final decision, gave the following provisional measures: first, that the government of Yugoslavia should immediately honor its undertakings under the Genocide Convention and “take all measures within its power to prevent the commission of the crime of genocide”160 and, second, that the government of Yugoslavia ensure that military, paramilitary, or irregular forces directed or supported by it, as well as other organizations and persons subject to its ­“control, direction, and influence do not commit any acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, or of complicity in genocide … .”161 In the Provisional Measures ii Case, the icj reaffirmed the essence of the interim measures order given in the first decision.162 An important discussion ensued with respect to the exact character of “binding provisional ­measures” before the icj. In a persuasive separate opinion, Judge C ­ hristopher G. ­Weeramantry concluded that if an interim order was viewed as a less than binding obligation, it “would weaken the regime of international law in the very circumstance in which its restraining influence is most needed.”163 ­Weeramantry concluded: For the reasons set out, the provisional measures ordered by the Court on 8 April 1993 imposed a binding legal obligation on the Respondent. Noncompliance with that Order endangers the very subject of the dispute before the Court and can cause irreparable harm to the Applicant. This 157 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), 1993 i.c.j. 3, 3–4 (April 8). 158 Id. at 22. 159 Id. 160 Id., at 24. 161 Id. 162 See Application to the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), 1993 i.c.j. 325, 349 (September 13). 163 Id. at 389 (Separate opinion of Judge Weeramantry).

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irreparable harm is not in regard to rights and duties such as are often the subject of litigation, for we are here dealing with matters under the Genocide Convention, touching the very existence of a people. An interpretation that imposes anything short of a binding legal obligation upon the Respondent is out of tune with the letter and spirit of the Charter and the Statute.164 The way the icj responded to the problems of genocide has been in the area of grounding the preventive obligation component of the Genocide Convention. The international community has considered the prospect of an international criminal court which would have jurisdiction over genocide. That court, the icj is now an institutional reality. The icj’s role will be to punish international criminal defendants. This includes detection, apprehension, prosecution, and punishment. These are powers that sovereign states grudgingly concede to the international community, and hence, the delays in establishing a permanent international criminal court. On the other hand, the problems of genocide and gross humanitarian atrocity, especially in the former Yugoslavia and Rwanda, virtually compelled the U.N. Security Council to prescribe the ad hoc tribunals for those nations. In fact, the central issue remains how to prevent genocide and gross violations of human rights and humanitarianism from actually happening. This issue is the wisdom bequeathed us in the jurisprudence of the icj. vii

Genocide and Mass Killings in Legal and Social Theory

A The Relevance of Many Fields of Study to the Issue of Genocide The theoretical problem of genocide is very basic and poses superficially ­simple questions: what do we mean by genocide from a contextually sensitive, policy-oriented perspective? And, is the dominant, legal meaning given to the mass extinction of human beings adequate for policy purposes? The legal meaning of genocide is a conventional, disciplinary, legal meaning. This meaning derives from the legal instrument, the Genocide Convention.165 The term, 164 Id. 165 The Genocide Convention, at art. ii. The Convention’s definition of genocide is as follows: [A]ny of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group such as (a) killing members of the group; (b) conspiring serious bodily injury or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

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genocide, is a neologism. The inventor of this term, Raphael Lemkin, promoted the idea that certain kinds of group killings or species killings were sufficiently horrific and therefore should be universally suppressed and punished. Is the Genocide Convention’s definition inclusive enough? Does it enhance the understanding of what genocide is, what conspires to make it happen and how might it be cured? Does the legal meaning of genocide have a basis rooted in the actual social processes of genocide? Is the conception of genocide sufficiently socially constructed to meet the needs of law and social science? This question brings us to a second problem, namely, the vigorous non-legal conversation about the meaning and effects of genocide as an historic and social process outcome of human interaction on a global basis. Since World War ii there has been a vigorous non-legal literature about genocide that cuts across the disciplinary lines involving history, sociology, anthropology, political science, human rights, psychology, and psychoanalysis. These disciplines have sought to clarify the meaning of genocide by contributing insights from their own perspectives. The meaning of genocide that emerges from this conversation is not necessarily clearer than the attempt at legal definition. However, it does suggest that the genocide problem is both deeper and broader than the formulation that permeates the legal conversation. How do these multi-disciplinary insights improve our understanding of genocide as a policy problem of prescription and application and in terms of sanctions for the prescription and application of genocide proscribing in practice? The problems that we address focus on whether there are intellectual procedures which may integrate the various perspectives of science into a framework for inquiry that sharpens our understanding of the genocide problem and permits us to develop strategies of intervention based on more finely honed intelligence about genocide. Such intellectual procedures should shape levels of decision-focused interventions that permit us to: 1. use the intelligence function necessary for gathering, processing, and distributing the data necessary for rational interventions to prevent genocide and mass murder; 2. invoke and provisionally characterize the genocide problem and demand appropriate strategies to contain and eliminate genocide;166 3. prescribe more

(d) imposing measures to prevent births within the group; (e) forcibly transferring children of the group to another group. 166 The invocation decision function is very critical to the study of genocide and to the practical processes of intervening to prevent it. Invocation essentially is an opportunity presented to all members of the world community to invoke as a threshold matter whatever

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explicit standards for normative guidance about the proscription of genocide on a universal basis;167 4. apply standards to specific facts, situations and particular perpetrators of the crime of genocide; 5. promote the strategies to prevent genocide; 6. secure the termination of decision-making interventions when the suppression and punishment of genocide have been secured; and168 7. appraise the efficacy of decisional intervention that seeks to suppress and punish acts of genocide. From a contextually informed perspective, the threshold issue in genocide discourse is insufficiently directed toward the process of decision making and does not take into account the empirical and normative implications of different policy decision functions in the suppression and punishment of the crime of genocide. To move beyond the boundaries of the threshold intellectual problem of various disciplines and how these insights might be integrated into a coherent intellectual framework for understanding, suppressing, and punishing genocide requires an explicit understanding of the importance of certain components of policy-making. These components include the following matters of contextual salience: 1. an evolving globally comprehensive map of genocide as an outcome of the global social and power process; 2. a specific commitment to understanding the problem of genocide and the specific problems concerning the who, what, where, when, and how of genocide process as well as the problems of the prescription and application of sanctioning policies; and 3. amenability to multiple methods for theory, inquiry, intervention and evaluation of the interrelated processes of genocide and its eradication.169 level of decision making processes to intervene before genocide happens. Its invocation after the fact is problematic. 167 Prescription in this context is the projection of universal authoritative rules, principles, and standards incorporating the policy of prohibiting genocide and universal expectations of control and authority to support the prescription. The most important function of prescription in the genocide context is to explicitly clarify the normative standards that prohibit and seek to criminalize on a global basis the use of genocide as an instrument of power. 168 On the anatomy and functional dynamism of the decision policy process in general, see Harold Lasswell & Myres McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (1992). 169 These three background features underline the importance of context and contextual mapping, problem articulation, problem solving and multiple methods and analysis for inquiry and intervention. This analysis leads us to the specific intellectual framework through which rational inquiry and responsible intervention might be secured to prevent, suppress and punish genocide. These interventions include the following intellectual cross/interdisciplinary procedures: (1) Clarification of normative understanding about genocide; (2) Description of trends in both perspectives and operations about

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A second concern is not as much a problem of either empirical understanding or normative clarification of procedures for understanding genocide as a question for inquiry and analysis. This is the problem of the actual practical ubiquity of genocide as an outcome of the larger world community and power process, namely, that mass extinction of human aggregates occurs with alarming frequency. Here, there are two sub-problems. First, there are direct and indirect practices that probably meet the legal definition of genocide. Second, there are mass killings and extinctions of human groups that occur, which are not covered by the Genocide Convention. This is a basic matter of definitional adequacy. B Multiple Conceptions of Genocide: A Critique Doubtlessly influenced by the paradigm of modern science and its demand for precision in the formation of concepts for research and inquiry, an effort has been made to “name” the malady. Indeed, the specific tragedy of the Holocaust gave the utmost urgency to this enterprise, in terms of scientific understanding, prescription, application, and enforcement. The threshold question is contextualizing the problem of genocide as an outcome of global community processes. This challenge leads to several intellectual tasks crucial to the study. First, what are the appropriate global goals, values and objectives to guide a solution oriented policy process? Second, what are the scientific conditions that promote or restrain genocide? Third, what are the historic factors that shape the historic trend of genocide and its prevention? The fourth intellectual challenge is the engagement of the predicted or anticipated future trends in the occurrence of genocide or its prevention. There is urgency about the prediction genocide; (3) Conditioning factors influencing trends toward or away from genocidal outcomes; (4) Projection or retreat from genocidal outcomes; and (5) Alternative prospects for securing a genocide free public order, or alternative techniques for preventing and/or punishing genocide. The intellectual procedures outlined here, which are in effect problem oriented, goal-guided, context-sensitive, multi-disciplinary, and decision focused are abstracted from the framework of policy thinking, also sometimes styled “configurative thinking,” in Lasswell & McDougal, Vol. ii, at 725–1118. Although we have labeled these tasks as ­“procedures,” they are in effect complementary methods and procedures for the integration of multiple forms of thinking for policy purposes. Thus, goal thinking, trend thinking, scientific or conditions thinking, predictive thinking, and alternative thinking are intrinsic components of a broader framework of analysis styled “configurative thinking.” What we are recommending is that configurative thinking, which is in effect thinking that is both holistic and problem- specific, is a much needed addendum to the focus and insights that multiple disciplines generate about genocide’s conditions, causes, and proscription.

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or warning systems of an enhanced or diminished capacity within the global power and constitutive processes determining when, where, and who the next round of victims will be. Finally, the fifth intellectual task concerns the creation of a more desirable genocide-free human prospect. The task of constructing an alternative future visualizes a world that effectively and continuously controls the impulse to genocide and mass murder. A world that reduces in real terms the raw number of victims or potential victims. Naming the malady has been a very successful intellectual contribution to understanding the problem. Genocide was and remains a powerful symbol of a vile process. What has been more troubling is the scope and character of the effort to define what genocide is and what it is not. The legal definition of genocide is more a product of the political process rather than exacting legal draftsmanship. The United States accepted the Genocide Convention as defined with an emphasis on ethnicity and race, notwithstanding the fact that racial discrimination and segregation were still a significant part of the American social process.170 On the other hand, the Russians were very happy to accept indicators such as race and ethnicity, but they would not permit the inclusion of the extinction of social, political, and/or economic classes within the reach of legal genocide.171 Thus the legal definition of genocide does not account for a good deal of historical genocide, and scholars who seek to take the historical trend into account simply use a more flexible designation of group killings and assume this is included in the term. The legal definition of genocide, confined to an exhaustive list of categories, confronts the practical problem that, empirically, in both social and psychological terms, the definition does not adequately include large classes of mass murder victims who may be identified by other culturally understood labels like political identification, economic identification, or perhaps a skill or professional identification. It is suggested that the categories themselves should be given a more generous and broad interpretation so as to achieve their major purpose of prevention and/or punishment for mass murder or conspiracy to commit mass murder. Others have suggested that perhaps the classes of victims unaccounted for in legal genocide should be subject to extended prescriptive standards of politicide172 or, more generally, domicide.173 The principle point is that the legal conception of genocide simply does not measure up to 170 171 172 173

See Congressional Records, Hearings on Genocide Convention. Id. Defined as those killed because of their ostensible political identity. Defined as mass killings of people who belong to groups identified by any appropriate label such as citizen or refugee.

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the problem of the form of group deprivations that involves the conspiracy or fact of group extinction. There seems to be a fair degree of confusion about what constitutes genocide for the purposes of history, psychology, sociology, political science, and law. These disciplinary problems of understanding have profound practical consequences for the degree to which the human right to be free from group extinction is secured. The distinguished genocide scholar, the late Leo Kuper, wrote the opening chapter of George Andreopoulos’ anthology titled, Genocide.174 His discussion covered: 1. the legal definition of genocide; 2. war crimes and genocide; 3. “Uses and Abuses” of the United Nations; 4. theory and practice of human rights; and 5. Domestic Jurisdiction and prevention.175 It is obvious that law, social science, and policy are implicated in this exercise, yet the exposition is curiously unintegrated. Taken separately one seemsto stumble into multiple theoretical universes without a clear guide to their causal connections or their normative interrelations. The Kuper presentation seems anecdotal rather than one that aspires to theoretical coherence. There is no clear map and no rational way to bridge the thought component of law, the component of science and the choice component of policy, so that the reader clearly understands the genocide problem in realistic context. Additionally this approach does not permit the reader to systematically assay the intellectual framework that might aid in clarifying the different components of world order and human rights conditioned goals. Systematically understanding the trends in the operations and perspectives of genocide and its control is done in a topical manner. This technique makes it difficult to understand both the conditioning variables that enhance genocide and those seeking to regulate and minimize its socio-political ubiquity. The realistic systematic appraisal of where we are regarding genocide is as crucial as the predictive task of what we might realistically aspire to in terms of control and regulation. Finally, the design of a genocide inquiry system for policy purposes would be incomplete were we not to insist on imaginative alternatives associated with early warning interventions as well as sanctioning devices that may reduce the occasion of genocide and enhance a more benign vista of inter-group tolerance on a universal basis. This is not to depreciate the work that Professor Kuper has done in this area. But this chapter suggests that when historians or social scientists stumble into law and the policy process, formidable ­methodological

174 See George Andreopoulos, Genocide (1994), Chapter 1 by Leo Kuper. 175 See id.

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problems await them. Access to procedures that more systematically integrate science into decision making processes, and intellectual tools and procedures that rationally elucidate the diverse components of choice, policy and social process must be employed in a systematic and disciplined manner. The policy sciences have a distinctive contribution to make. Frank Chalk’s impressive essay, Redefining Genocide,176 suffers from a roughly similar drawback. It is short on the systematics of a social and power process background to genocide. The conception of law as an instrument of community intervention seems to focus more on the techniques of logical syntactical derivation than the emphasis on decision making that is authoritative and controlling in a decentralized world order context. Moreover the research definition given by Chalk incorporates both too much and too little. According to Chalk, “[g]enocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator.”177 This definition is more consistent with social reality than law, and it contains major drawbacks. First the reference to one-sided mass killings seems to assume that if the reason is retaliation, there is no genocide. Obviously this is not what is intended, but the formulation is unclear. The ambiguity lies in the inability to understand that a systemic precondition for genocide is the existence of groups and the power relationships within and between them. These behaviors are power conditioned and reflect the relationships of domination and subordination. This ambiguity requires a more systematic designation of two crucial procedures: first, a procedure to map the social processes of interactions in which groups are critical,, and second, a procedure to map the central condition of the processes of domination, subjugation, and mass killings through the processes of effective power. If these tasks are done both comprehensively178 and selectively with specific components of the community and power processes, we will have approached the problem of characterizing and prescribing genocide in a way that makes more sense in scientific terms. 176 Frank Chalk, Redefining Genocide, in Andreopoulos. 177 Chalk & Jonahsson, at 23. 178 Two options are through World Community or Social Process or World Process of Effective Power. For an overview of the conception of a global community process, see Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The World Community: A Planetary Social Process, U.C. Davis L. Rev. 21, (1988). See also Lasswell and McDougal, 185, Vol. i, at 141 et seq.; Vol. ii, Appendix 4, at 1439–88 (outline originally prepared by Mary Ellen Caldwell, Harold Lasswell, and Myres McDougal for use in the Law, Science and Policy Seminar in the Fall of 1962).

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The second aspect of the Chalk definition that is problematic is the notion of attribution to “the state or other authority.”179 The definition of the state is fraught with complexity and ambiguity. For this reason policy scientists have used such terms as “territorially organized body politic.” The term state like the term “sovereign,” obscures more than it illuminates. The functional approach to confusion here is to focus on the different kinds of choice making processes and ensure that such ideas as state and sovereign can be adequately and accurately mapped. The reference to state and other authority is meaningless without some reference to the global constitutive process.180 Third, there is a reference in Chalks’ definition to the intentionality criterion, e.g., “intends to destroy a group.”181 This reference has been a most troublesome component of the definition of genocide and the effort to proscribe it. In the best of legal and scientific worlds, there will be controversy about this because we can only infer intention. We cannot put a mini-camera recorder into a person’s brain to directly know whether what is expressed or done is indeed a person’s authentic intention. However, we can be clearer about psychological predispositions and environmental conditions as explicit variables in understanding the occasion within which decision making functions are exercised to promote or execute policies of mass killing. The concept of group definition is also problematic.182 It is unclear why ascriptive identity is the sole criterion of identifying a victim group. Our own sense is that this de-emphasizes the central problem of killing and emphasizes the exacting criterion of proving ascriptive identity. A far more realistic and flexible approach is required. After all, a Jew or Tutsi does not carry that group label simply because a Nazi or a Hutu extremist bestows it. The better approach is to look at identity or group labels of identity through a social process lens in which relevant signs and symbols of identity are part of a process where those in positions of dominance solidify their patterns of loyalty. It is also important to determine solidarity by symbols and operations that cement the idea of the “we” or the “us” and identifying the other and the “them.” The inquiring lens of many different disciplinary insights is necessary to make scientific sense of this socio-political outcome. All this presupposes a better understanding of the social power process context of genocide, as well

179 Chalk & Jonahsson, at 23. 180 This a process in continuous flux from conflicting demands and accommodations generated by the world social and power processes. 181 Chalk & Jonahsson, at 23. 182 See id.

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as the context of authoritative and controlling decisional interventions designed to minimize or prevent its occurrence. In the next section, we create an alternative approach to the theory of genocide. We start by stressing the relevance of contextually mapping the social processes of conflict. C The Relevance of Mapping the Social Process of Conflict The map of the planetary social process has been most effectively developed in the literature of law, science, and policy.183 The participants of that global community process include individuals as individuals and as parts of groups who participate both as members and elites in the processes that constitute the planetary social process. All values are demanded in the global planetary process and expectations cover all value demands. Participants use such strategies they deem expedient or licit in achieving their demands. They operate in both temporal and spatial situations and produce important outcomes for world order.184 The two ubiquitous outcomes of the planetary social process are the claims relating to conflict and collaboration.185 These claims may be more generally located in the context of the global process of effective power. Both groups and individuals are instruments of power, defined in a broad contextual perspective. Most often individuals are empowered by their mobilization, control and regulation of group processes. The dominant characteristic of power in the world community is the mobilization of groups, as groups are instruments of power. The processes of effective power generate outcomes that reflect both groups as instruments in conflict oriented situations, as well as in modes of collaborative behavior. Groups in conflict conditioned situations may be more predisposed to using violent strategies of social control or realize claims for social hegemony.186 The composition of groups whether within states or across state lines is an important indicator of who the operative participants are in group conditioned power processes. Usually in contexts where ethnicity, religion, language, status and class position are important indicators of individual 183 184 185 186

See McDougal, Reisman, & Willard. See generally, Myres McDougal, et al., Studies in World Order (1960). See id. For an overview of the social psychological perspective of the in group/out group bias in intergroup relations, see Walter G. Stephan, Intergroup Relations, in The Handbook of Social Psychology 599–658, Gardner Lindzey and Elliot Aronson, eds., 3d ed., (1985). See also Marc Howard Ross, A Cross-Cultural Theory of Political Conflict and Violence, 7 Political Psychology, No. 3, 427–63 (1986), (discussing psychocultural and structural roots of internal and external conflict and violence).

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affiliations, the point of tension, conflict, violence and even “extermination” might incorporate relevant signs and symbols transmitted between groups, within groups, and across group lines.187 These signs and symbols convey meaning in obvious or discrete terms like scapegoating. Out groups are often victims of communication patterns that diminish or devalue them.188 The general orientation of groups in social process will sometimes indicate pressures on patterns of identification. To the extent there are pressures toward an assumed homogeneity, the process and dynamics of identification may enhance the conflict prone character of the social and power process while the operative elites hold a degree of dissonance in recognizing and welcoming diversity.189 There are circumstances where the dominant cultural pattern of self­identification may so exaggerate the relations of dominance and subordination that a cultural change in the direction of equalitarian values becomes psychologically distressing to members of the dominant group. This may contribute to the psychological insecurity of this group. To the extent that the dominant group’s perception of the other is supported by a strong ideological predicate justifying the power relations between groups, this will serve to further entrench difference and provide another conflict prone condition.190 187 These group lines can have spatial, psychological, and temporary attributes. 188 One class of explanation offered for the in group-out group bias focuses on cognitive factors. Willem Doise, L’articulation Psychosociologique et les Relations entre Groups (1976) proposed that differentiation at the representational (cognitive), evaluative, or behavioral level leads to differentiation along the other dimensions. Thus, categorization into competitive groups activates an anticipatory justification process that results in devaluing one’s antagonists. 189 In contrast to the theories that emphasize cognitive explanations for in-group-out-group bias, other theorists argue a social identification explanation. The motivational crux of this approach is the proposition that people with an insecure sense of social identityvirtually everyone, according to Tajfel, (La Categorisation Sociale, cited in Differentiation between social groups: Studies in the Social Psychology of Intergroup Relations (H. Tafjel, ed., Academic Press 1978)) will desire to make favorable social comparisons between the in-group and the out-group. This process is instigated by categorization into groups, where the individual identifies with one of the groups. This categorization makes the individual’s social identity salient and leads to evaluations and behavior couched in terms of relations between groups rather than individuals. 190 Fritz Heider, The Psychology of Interpersonal Relations (1958). Heider suggested that there are five distinct bases for attributing moral responsibility: The five levels are: association, in which people are responsible for any action that is connected with them; commission, in which people are responsible for anything they cause; foreseeability, in which people are responsible for any result of their actions that they might have foreseen;

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Finally, the tendency of culture to value authority and be intolerant of dissent, mutes the corrective balance of the opposition to excesses of the dominant group and its functionaries.191 It bears repetition that we are discussing the process of group deprivation. The concept of deprivation, as used here, is generalized to include racial discrimination, anti-Semitism, prejudice, apartheid, cultural dominance, genocide, and elements of mass murder. This process entails the markers in The Social Process of Negative Sentiment (Hate): 1. a formal systemic myth or a concealed, informal, but nonetheless, real myth reinforcing the symbology of otherness of the target “out-group”; 2. a symbol-myth system of prejudice, fear, and hate is a crucial component of the perspectives of the dominant group or its elite and opinion leaders; 3. that these subjectivities or perspectives are outcomes of complex behavior patterns, which are characterized by negative sentiments and negative portrayals of the “other,” such that the symbolic “­other” is reinforced as a target for negative inference and meaning; 4. that there are emergent patterns that consolidate the collaborative behaviors of the “we” or the “in-group,” vesting that group with a sense of superiority, or “­ herrenvolkism,” paternalism, and further, seeking to enhance the value position of that group at the expense of the “out-group”; 5. that there are further emergent, often graduated, behaviors in the dominant group, which consolidate and sustain the image of the victim group through patterns of conflict-conditioned behavior (including the communication of discrete signs, symbols, operational codes, myths, narratives, and reified stereotypes that touch such issues as intentionality, in which people are responsible only for the consequences of their actions that they intended to produce; and justification, in which people are not seen as responsible even for consequences they intended to produce. The relationship between goodness and happiness, between wickedness and punishment is so strong, that given one of these conditions, the other is frequently assumed. Misfortune, sickness, accident are often taken as signs of badness and guilt. Id. This argument has received empirical support from research examining people’s need to believe in a just world. Lerner & Simmons, Observer’s Reactions to the “Innocent Victim”: Compassion or Rejection, 4 J. of Personality & Social Psych. 203–10 (1966). For a more comprehensive analysis of the impact of motivation on the attribution process, see Michael Ross & Garth J.O. Fletcher, Attribution and Social Perception, in Lindzey & Aronson, Vol ii, at 103–15. 191 Early psychological research has shown that movies, television, and written communications designed to reduce prejudice indicates that these techniques can be successful. Williams, The Reduction of Intergroup Tensions: A Survey of Research on Problems of Ethnic, Racial, and Religious Group Relations, Social Science Research Council (1947). Where a culture proscribes such communications, amelioration of “conflict-prone” conditions is much less likely to occur spontaneously.

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r­ acialism, anti-Semitism, and more); 6. that the process of group deprivations also involves the manipulation of signs, symbols, codes, myths, narratives, and stories between members of the “in-group” and also between members of the “in” and “out-group”; and 7. that the system of generalized group deprivations, thus, involves distinctive, and often, discrete pattern of communication of relevant signs and symbols of “in-group” loyalty and solidarity, as well as signs and symbols that identify, disparage, or threaten members of the “out-group.” The patterns of communication are sustained or enhanced by collaborative operations in the exercise of public or private power that move beyond discrimination, anti-Semitism, prejudice, or hate to the possibilities of wholesale extinction of cultures and masses of human beings. The framework that underlines the process and conditions of inter-group conflict is generally consistent with the literature about conflict, mass murder, and genocide.192 However, the tendency is to emphasize the structural or systemic conditions of inter-group conflicts. Thus, in the societies that are conflict prone or conflict oriented, group identities like class, caste, culture, race, ethnicity, religion, language or any other symbol of identification of relevance is a condition of inter-group tension and potential conflict. Therefore, 192 See generally, Jessie Bernard, American Community Behavior (1949). Bernard may have been the first social scientist to incorporate genocide into a coherent analysis by arguing that competition, conflict, organization, disorganization, and control processes were prevalent in both the international and local level, and by incorporating genocide as an ultimate weapon for conflict resolution. See also Pieter N. Drost, The Crime of State: Genocide (1959), (who rejected the idea that genocide was limited to religious, racial, national, and ethnic groups and proposed that genocide be redefined as “deliberate destruction of physical life of individual human beings by reason of their membership of any collectivity as such” Id., at 25; Vahakn N. Dadrian, A Typology of Genocide, 5 International Review of Modern Sociology 201–12 (1975) who proposed that [G]enocide is the successful attempt by a dominant group vested with formal authority and/or with preponderant access to the overall resources of power, to reduce by coercion or lethal violence the number of a minority group whose ultimate extermination is held desirable and useful and whose respective vulnerability is a major factor contributing to the decision for genocide. See generally, Helen Fein, Scenarios of Genocide: Models of Genocide and Critical Responses, in Toward the Understanding and Prevention of Genocide, at 3. Israel W. Charny, ed., (1984) who used a four part typology to characterize genocide, including one category called ‘ideological’ genocide, which is genocide against groups portrayed as enemies by the State’s hegemonic myth or by the State’s need to destroy victims seen as the embodiment of evil; see also Kuper, chs. 3, 5, Chalk & Jonahsson, especially The Definition of Genocide (23–27); Some Preconditions for Genocide (27–28); and A Typology of Genocide (29–32)).

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the critical condition of group identity genocide is distinguishing the “us” from the “them.”193 These patterns of social division or stratification are the pre-conditions of conflict. Since groups are instruments of social and political power, managing conflict between mega groups, such as alliances of states, big groups, such as states’ actors, and smaller groups, such as alliances and forms within states, represents an ongoing concern for policy makers concerned with the kinds of lethal conflicts that are destructive to the human prospect or that disparage the dignity of our species. The contributions of historians and scientists well appreciate the dangers of systemic conflict conditioned tendencies in social processes.194 An important variable to be added is the focus of inquiry into the conditions of genocide. It may be presented in the form of a critical question: Why do conflict prone or conflict oriented social processes become conflict lethal forms of social organization? For example, why did the conflict in Slovenia dissolve in a relatively benign way and remain an essentially conflict prone social process. Why did the conflict in Czechoslovakia become a benign dissolution of association whereas the conflicts in the Republics of Croatia and BosniaHerzegovina became lethal and genocidal?195 This chapter suggests there is another important element that must be added to this framework of inquiry in order to be more effective in understanding, predicting and preventing conflicts of a lethal character like genocide. Being more “incident” sensitive is key. The relevant context must be assayed in terms of the precipitating conditions 193 See Chalk & Jonahsson, at 18: It is new states or new regimes attempting to impose conformity to a new ideology that are particularly likely to practice genocide. When tensions between the traditional society and the new regime escalate, it is the plural character of a society that is most likely to provide the social cleavages that define the perpetrator and victim groups. 194 See generally, Muzafer Sherif, et al. The Robbers’ Cave Experiment: Intergroup Conflict and Cooperation (1988). 195 In the context of Czechoslovakia, the critical opinion leaders and power brokers saw little self-interest in provoking an ethnic conflict in order to retain the unity of the State. The framework of differentiating between cultural and ethnically distinct Czechs and Slovaks was present. The capacity for social conflict was also very imminent. However, the critical players, including the intellectual leadership, refrained from the invocation of incitement to violence based on group labels of identity. The exact opposite is the case with the breakup of the former Yugoslavia. The entire countdown to the dissolution of the former Yugoslavia illustrates that the critical players, including the intellectual elite, were willing to justify and use indiscriminant violence targeting out-groups to secure division of a socalled “Greater Serbia.”

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that may strengthen the systemic and psychological predispositions to lethal conflict. Second, the variable of decision making must be factored in. The timing and form of an intervention in decision-making may also be seen as a tactic and strategy in achieving certain political demands.196 The critical decision-making participants who make the strategic and tactical decisions to “intervene” in the political process, by using group labels like “race,” “ethnicity,” and “religion” to acquire or enhance power, must be identified.197 What this addendum to the social process context of inter-group conflict represents is, effectually, the dynamics of polarization.198 It represents the impact of demand as well as the interventions of choice making. This demand effectually provides a “dynamic” element of focus for inquiry into the causes and consequences of inter-group conflict of a “lethal” character. It opens inquiry into the efficacy and justification of forms of intervention to prevent or minimize polarization. The invocation of the symbols of ethnic chauvinism, race hatred, languagebased and religious-based differences often work in the sense of disparaging the dignity of the victim or target group of other At the back of this “success” lies the important political condition of endemic or widespread insecurity.199 196 For a detailed and radical explanation of the reasons why, and the conditions under which the nation -states resort to such violent strategies to do away with ethnoculturalethno cultural minorities, see generally State Violence and Ethnicity, Pierre Van den B ­ erghe, ed., (1990). 197 Albert Hirschman’s theoretical model can be employed to explain how minorities may respond to state policies aimed at them. See generally Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (1970). 198 According to Volkan, it is this psychological process that has resulted in the rise of the tension in the relations between the Romanians and Hungarians in Romania after the overthrow of the Ceausescu regime. The Romanians, instead of engaging themselves in the painful and complicated work of mourning and adaptation toward the drastic changes after Ceausescu’s death, found it easier to target their “psychic energies” and all their negative feelings to the “Hungarian threat.” Volkan, Vamik, Totem and Taboo in Romania: A Psychopolitical Diagnosis, in Mind and Human Interaction, Vol. 6 66–83 (1995). 199 The Jews of the Pale, from the time Russia conquered the eastern part of Poland up until the 1870’s, were regarded as a foreign, dirty and dangerous element that should be prevented from spreading throughout the empire. The Jews could not travel beyond the formerly Polish provinces;. they were not allowed to engage in certain occupations, to lease land, to manage certain businesses, to employ Christian workers, to attend universities, to locally govern themselves etc. They were forbidden even to wear their traditional clothing, and later when the government started to instigate or organize pogroms, the Jews were forbidden to even defend themselves. See Richard E. Rubenstein, Comrade Valentine 5–6 (1994). During the reign of Alexander ii, the government adopted a strategy to

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This is systemic of personal insecurity. However, the precise connection between personal insecurity and the ability to follow orders requiring extermination, torture, genocide, etc., leaves questions unresolved about why normal people can follow orders,200 commit abnormal acts, and proceed to compartmentalize their psychological lives201 by continuing to be loving husbands or doting fathers. Some have even adopted and loved the children of people they have murdered or tortured.202 modernize Russia. That strategy, among other things, included a partial emancipation of the Jewish community. Thus, the government’s approach toward this ethnic group changed significantly. Now the Jews were encouraged, often forced to assimilate, to “fuse” with the Russian population. Most of the restrictions mentioned above were lifted, and some opportunities for the Jewish population to join the mainstream of the society were created. See id. at 7–8. The assassination of Alexander ii, however, led to a radical change of the status of the Jews. Initially, they were held responsible of the murder, and the government encouraged a wave of pogroms. Later, the extreme nationalist, Alexander iii, who succeeded Alexander ii, gradually curtailed their rights and began treating them as non-assimilable again. Jews started to be expelled from big cities, from schools and universities. They were barred from certain professions, and many of them were forced to return to the Pale. See id., at 13–14. The status of the Jews would change for yet another time with the Russian Revolutions (March-November 1917), after which they would be regarded as assimilable again. 200 Stanley Milgram conducted a controversial series of experiments in order to examine the extent to which normal people obey authority. The participants believed that they were participating in experiments concerned with learning. The procedure involved subjects administering a series of electric shocks to other participants, these others actually being were associates of Milgram. The main dependent variable of interest was the extent to which participants obeyed the experimenter’s instructions to deliver the electric shocks. Despite the apparent discomfort displayed by those supposedly receiving shocks, participants followed instructions to a high degree. Around this time, the (early 1960’s), research was being conducted into the authoritarian traits of the Germans in an attempt to explain how the atrocities of World War ii could have taken place. Milgram’s study demonstrated that these traits were not confined to Germans and were not confined to certain types of situations, e.g., war. Stanley Milgram, The Behavioral Study of Obedience, 67 Journal of Abnormal and Social Psychology, 371 (1963). 201 Julian Rotter was one of the first psychologists to make the situation, expectations, and value of rewards the cornerstones of a personality theory. Rotter argued that many individuals describe the cause of their behaviors as being caused by external forces, that there was an “external locus of control” over what they were doing. J. Rotter, Locus of Control Scale, Psychology Today, 42 (1971). 202 E.g., A Brazilian victim was surprised to find that the men who tortured him wore their hair long, went to the same night spots he had known, and even would occasionally come to his cell to confide their troubles with women. He realized that they had been trained

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The problem that has been set out is both politically complex and conceptually difficult. No single discipline can come to grips with this complexity without some ability to bring the insights of allied disciplines to the focus of inquiry.203 The lawyer aspect of policy oriented thinking can contribute to this inquiry. It can help map more precisely the dynamics of the processes of political demand onto the processes of effective, perhaps even authoritative decision making. The broad outlines of the map permit a specific focus on cases like Rwanda, the former Yugoslavia, or even South Africa, by using

to hate him: ‘You are the son of a whore!’ a man would shout, while his face clenched with hatred. Then someone would call, ‘Dr. Paulo, telephone!’ As he crossed the room and picked up the receiver, his face would open up again, and he would be smiling and smoothing his hair and murmuring endearments.’ Here we can see how the face of the torturer changes when a loved one intrudes into his world. Ronald D. Crelinsten & Alex P. Schmid, The Politics of Pain: Torturers and their Masters, 66 (1993). 203 Albert Bandura (1973) describes several ways that we, as aggressors, avoid blaming ourselves. Among these strategies, we “emphasize the goodness of our cause. Our violence is often thought of as necessary to stop an evil force.” We also say, “‘I’m just following orders.’ This is said by soldiers. Hitler’s SS Troops said it.” We say, too, “‘I just went along with the crowd.’ Individual persons in a rioting crowd or a lynch mob feel little r­esponsibility.” We also “degrade[e] the victims. Jews were seen as inferior and despicable in Hitler’s ­Germany. The victim is portrayed as evil, stupid, animalistic, or greedy, and deserving to die.” Moreover, we “blam[e] the victim. This is a situation where the victim—the raped, robbed, insulted person-is blamed for the incident, e.g. ‘she was asking for it dressed like that.’ Example: In My-Lai, Vietnam, American soldiers thought the villagers had cooperated with the enemy; children in the village sometimes betrayed or were violent towards our soldiers; ‘C’ company had just lost 20% of its men in a minefield outside the village. All Vietnamese were feared, hated, called ‘gooks,’ and were hard to tell from enemy soldiers. One day, Americans herded 400 villagers—mostly women, children, and babies-into a ditch and shot them. It seemed to some of the soldiers as though the villagers deserved to be shot. Similar events have happened many, many times throughout human history.” We also “becom[e] accustomed to violence. In families, a raised voice becomes a verbal attack which escalates to a raised hand which leads to a shove, then a slap, and finally increasingly severe beatings. Likewise, soldiers are gradually trained to kill: first they see war movies and are told why they must fight, then there are many training exercises where killing is simulated, and finally they hear horror stories about the enemy. The more mutilated bodies one sees, the easier it is to kill. As one soldier said, ‘If you see their villages bombed and shelled every night, pretty soon the people just don’t seem worth very much.’” Moreover, we “deny”[] the harm done by our aggression. ‘They are probably covered by insurance.’ ‘I just slapped her around a little.’” A. Bandura, Aggression: A Social Learning Analysis (1973).

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the ­disciplined guidelines of contextually based inquiry policy scientists have come to identity with through the phase analysis. Social Stratification and Conflict as the Predicate of Group Deprivations The previous section of this chapter sought to construct social process in general, with an eye to two outcomes of human behavior, the tendency of conflict and collaboration, and the division of society on the basis of relatively discrete group identifications. The notion of the group is important because, at whatever degree of institutionalization and specialization, a group is ultimately an instrument of power. The map permits a trace of the effective power community process, identifying the participants, specialized in power relations and their perspectives of identity, demand and expectation, their bases of power and the strategies they deploy in the particular arenas of power. The outcomes and effects that may be empirically discerned have been indicated.204 The outcomes of the community power process will indicate whether the prospect and actuality of conflict, especially violent conflict, is high or low, just as it would indicate whether the prospect of collaboration is high or low. Additionally, such a map will indicate the nature of the constitutive and public order of the community social process. This is important for the Rummel thesis since the constitutive and public order outcomes may indicate a wider, continuous variety of politico-legal order than those where power is “constitutionalized,” both in form and in operation, as compared to those that are largely informal and relatively disorganized.205 Constitutionalism leads to outcomes where power is widely shared and is the monopoly of the few. Constitutive processes, instead of generating and sustaining a “living” rule of law based framework of governing transparency, responsibility, and accounting, become the exact opposite of the political elite positions in which an “above the law” group holds a monopoly on power, truth, and accountability. The outcome is the constitutive process of a totalitarian character. Rummel’s thesis indicates that the combination of totalitarian and conflict best accounts for murder by government in the

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204 See Lasswell & McDougal, at 141-et seq. on the global community process. For further observation of sanctioning procedures involving community social process on a global scale, see M. McDougal & F. Feliano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 261–383. 205 That is also the conclusion of the un Subcommission on the Prevention of Discrimination and Protection of Minorities, which proposed, in 1991, that minority rights could best be safeguarded within a democratic framework based on the rule of law. Anita Inder Singh, Democracy and Ethnic Diversity: A New International Priority? 52 The World Today 20–22 (1996).

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twentieth century.206 This does not attempt to undermine Rummel’s thesis, but to strengthen it by contextualizing its pivotal features and providing more specific concern for denying its inevitability even in totalitarian order. With this background, the terms “ethnic” and “conflict” will be examined separately. Structural Determinism in Social Conflict and the Variables of Agency, Responsibility, and Choice The nature of social interaction will be characterized by patterns of collaboration and conflict. Group deprivations may be located in patterns of social interaction that are conflict oriented. A society that exhibits evidence of racial prejudice, cultural dominance or deprivations leading to genocide or mass murder is a society that is characterized by a relatively high level of conflict. Since group deprivations are often part of a conflict conditioned social process, some attention should be given to the problems of inter-group conflict of which the struggle for racial equality is one and ethnic conflict is another. There are possibly two areas where the term “conflict” in reference to social organization becomes inflated, generating more ambiguity than illumination. These are in areas of so-called conflict resolution, which has now become an academic industry, and with ethnic conflict which is rapidly becoming a subsidiary industry. In both instances the term conflict has negative connotations. First, human beings as a species are more alike than different. This proposition connects the similarity of our common humanity with the inherent prospects of both collaboration and conflict. The second point concerns the ubiquity in social organization of patterns of both collaboration and conflict. Following this analysis, it is important to be cautious about distinguishing human interaction as either good or bad. Some forms of conflict, such as economic competition, may be very good. Other forms of conflict may simply be a necessary part of interpersonal growth and maturity. Many conflicts are played out in harmless rituals, practices or social conventions, like athletic events.207 However, other conflicts, such as the Holocaust, may prove to be

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206 Rummel, at 30–33. 207 The idea of “catharsis” is a popular notion in our society, but there is no consensus in ­scientific research as to the ultimately beneficial, negative, or even neutral effects of such ritualistic conflict. Aristotle originally used the term “catharsis” in his Poetics to refer to the purging of violent passions. Freud then co-opted the term to refer to the p ­ urging of hostile and aggressive feelings after the affective expression of such feelings. Later ­theorists used the term to refer to the reduction of aggressive behavior following the behavioral act of aggression. This type ritualistic conflict may indeed reduce an individual’s overall state of physical arousal for a number of reasons, but the perception that this

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unmitigated disasters for the moral experience of humanity. Those who talk of the inevitability of ethnic or group conflict cannot adequately account for those vast periods of human collaboration across group territorial and cultural lines throughout history. Those who appreciate the ubiquity of the collaborative components of world order fail to explain why at any given time, in any given place, collaboration gives way to particular forms of conflict. This collaboration produces severe deprivations of humanitarian and human rights standards and genocide, and to use Rummel’s term: “democide.”208 This point is where law may be of value to the social scientist interested in these questions. The way law intervenes in social process is not to proscribe all conflict, but only particular forms of conflict or collaboration. Thus, categories of crime, both national and international, are proscribed. Certain forms of conflict are deemed illicit and may be proscribed either through the invocation of private law remedies or through the invocation of the public power of criminal justice. When conflict assumes a particular form, community intervention may kick in. Thus, social dislike of group members across group lines may be accepted as tolerable, but targeting those others as candidates for discrimination, apartheid or genocide creates a form of conflict that is controlled, regulated and proscribed by law.209 The issue is not conflict as such, but rather the particular form the conflict assumes. In international law, the forms of conflict that come readily to mind are aggression, breach of the peace, and gross violations of human rights. This kind of juridical political emphasis permits other questions to be asked about the who, what, where, when, why and how of these terms. In short, the focus is on the central judicial idea of responsibility. This assumption sheds light on the most critical element in the social and political process we label “ethnic violence”: responsibility for decision making.210 The greatest vice the composite label “ethnic conflict” generates is the lazy assumption that there is a veil of ignorance about who orders and who carries ritual conflict is acceptable, or even “good,” may lead to an overall desensitization to conflict in a more global sense. 208 See Rummel. 209 See cerd; the Genocide Convention; the Apartheid Convention. 210 Discharging oneself from personal responsibility for negative behavior is a mechanism by which individuals protect their conception of themselves. Abhorrent behavior, then, can be said to be a result of the situation and not a matter of personal control. J. Sabini & Maury Silver, Dispositional vs. Situational Interpretations of Milgram’s Obedience Experiments: The Fundamental Attribution Error, 13 Journal for the Theory of Social Behaviour 147–154 (1983).

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out the atrocities that accompany so-called “ethnic violence.”211 When law in the form of a realistic jurisprudence becomes an interdisciplinary ally of an informed social science perspective, questions of decision making, responsibility and accountability will additionally indicate an important level of clarity about the mystery of ethnic conflict or ethnic violence. This theory requires inquiry into the chain of decision making responsibility for ethnic violence. F Context, Incidents, and Human Agency General systemic variables do not imply a static social process. Contextually relevant incidents and a contextually located decision process permit the evolution or even precipitous development of a stronger potential for violence that disparages human rights. South Africa is an excellent example of this process. The dispensation in the South African Constitution prior to 1960 was the subject of significant changes promoting higher levels of political instability,212 culminating in a new whites only constitution in 1961.213 This event triggered incidents of sustained protests from the black majority and their allies that culminated in a key contextual incident, the massacre at Sharpeville.214

211 The case of Lieutenant William Calley stemming from the massacre of civilians in My Lai in March 16, 1968 during the Vietnam War illustrates this point. The public rarely hears the whole story as to who ordered the assault, and when they do, that person becomes the scapegoat. Calley is remembered as the one who ordered the unprovoked killing of villagers. He may have never picked up a gun, and because he was perceived as the one who was in authority, he is responsible for the actions of his obedient soldiers. When people know this information, they adjust their attribution, and focus their blame on the authority figure. The Calley case may be an exception in that this type of information, of who specifically did what, is not often available. 212 See Van Wyk, et.al., at 132–36. See also Tom Lodge, Black Politics in South Africa Since 1945 (1983); Mokgethi Motlhabi, The Theory and Practice of Black Resistance to Apartheid: A Social-Ethical Analysis (1984); Paul Maylam, A History of the African People of South Africa: from the Early Iron Age to the 1970s (1986); Margaret Ballinger, From Union to Apartheid: A Trek in Isolatiion (1969) for studies in protest politics in South Africa. 213 Rep. S. Afr. Const. (Constitution Act, 1961). 214 The Sharpeville Massacre occurred March 21, 1960, and was “an important step on the road to death squads.” Jacques Pauw, In the Heart of the Whore: The Story of Apartheid’s Death Squads 99 (1992). The police opened fire on a crowd of 5,000 people who were peacefully protesting against the Pass Laws (i.e., the Abolition of Passes and Coordination of Documents Act (1952)). See id. The incident resulted in the fatal shooting of 69 people and the wounding of 180 people. See id. Nearly all the victims were shot in the back. See id., citing Brian Lapping, Apartheid: A History (1987).

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After Sharpeville, the dominant Afrikaner elite moved to suppress civil and political rights by creating the architecture of a modern police state.215 This suppression came in the form of legislation such as the 90-day detention law, the 180-day detention law and the Terrorism Act, which provided for indefinite detention, strengthened security forces and devalued the remnants of a modest civil society.216 The political value of scapegoating opponents,217 together with the skilled exploitation of white insecurity as expressed in “Die Swart Gevaar” or the “Black Danger,” led to the formulation of a near pristine construction of a national security state with a top to bottom “security ­management system.”218 The operations of this system included assassination, torture, mass murder, and orchestration of black on black violence as essential elements of social control.219 A great deal is known about the inner workings of the mysterious processes of violence run amuck. Almond Nofomela, a security police operative and member of an assassination squad, murdered a white farmer and was sentenced to death.220 The security forces promised him that a reprieve would come at the last minute.221 Nofomela felt he might be left to fate, so he told an attorney with the non-governmental organization Lawyers for Human Rights what he knew about the death squads in which he had participated.222 The clues from Nofomela’s revelations led the African National Congress to help Captain Dirk Coetzee, another security operative, leave South Africa. Captain Coetzee later gave a most chilling view about being “inside the belly of the beast.”223 Not all questions and concerns were resolved, but enough credible 215 In the aftermath of the Sharpeville incident, South Africa’s Prime Minister, Hendrik ­Verwoerd, “reacted with repression.” See id. Verwoerd introduced more repressive laws and also appointed a new Minister of Justice, John Vorster, who strengthened security laws and “gave the police increased freedom to ignore civil liberties.” Id. 216 Section  17 of the General Law Amendment Act 37 of 1963 (90 days detention without trial); Section 215bis of the Criminal Procedure Act 56 of 1955 as inserted by s 7 of the Criminal Procedure Amendment Act 96 of 1965 (180 days detention); and Section 6 of Act 83 of 1967 (the Terrorism Act: indefinite detention without trial, in solitary confinement, for the purpose of interrogation; habeas corpus is discarded; the detainee is refused the right to see his or her attorney, medical advisor, or anyone other than an official of the State). 217 Here the Communist label worked as effectively as the label native or kaffer or coolie. 218 See generally Pauw. 219 See id. 220 See id., at 22. 221 See id. 222 See id. 223 See id., at 22–29.

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evidence was published showing a chain of decision making and responsibility for grave human rights violations through diverse forms of violence, including mass murder.224 The genocide in the former Yugoslavia is another contemporary example of mass killing. It has been widely accepted that war is rooted in a form of group hatred and buried in historical memory.225 As a distinguished international lawyer said, “These people have been killing themselves for centuries.” When history is used to explain the production and reproduction of conflict, it must selectively remember the negative symbols of group based hatreds and develop a powerful collective amnesia about positive, cooperative behaviors of inter-group relations. History, in this sense, can serve a political objective: the promotion of harmony or of conflict. The real issue is acquiring a sharper appreciation of the way in which historical memory penetrates the channels of effective political communication. In Lasswellian terms, the issues are who invokes what symbols, communicates what message, through what channel, to what target audience, with what result, and with what effect.226 The conflict in the former Yugoslavia is certainly a conflict that is more complex than the ethnic conflict label it has been given.227 At the same time, this chapter argues that the conflict in the former Yugoslavia is a political conflict more amenable to being meaningfully unpacked than is commonly assumed. Emphasis on the form of conflict is invoked to stress issues of responsibility and accountability in an effort to make more transparent the nature of ethnic conflicts. This, in turn, means examining the chain of decision m ­ aking 224 See id., at 29–30. The murders of various individuals by the apartheid death squads was described by Dirk Coetzee in personal interviews (November 1989), and also later related before the Harms Commission of Inquiry into Certain Alleged Murders, Pretoria (1990), and in the case Neethling v. Du Preez and Others, Rand Supreme court, Johannesburg (1990). 225 The relatively small geographic area of Serbia/Yugoslavia has had, in this century alone, more than its share of political and human rights infamy. From the seeds of World War i, to the fundamental structural and political problems under President Josip Tito, to the heavy-handedness of Slobodan Milosevic after Tito’s death, this area has been an overripe source of problems for human rights scholars and world leaders alike to analyze and react to. 226 H.D. Lasswell, N. Leites, et al, Language of Politics: Studies in Quantitative Semantics (1965). 227 See, e.g., Donald Horowitz, Ethnic Groups in Conflict 99 (1985), at 99. See also Cherif Bassiouni & Peter Manikas, The Law of the International Criminal Tribunal for the ­Former Yugoslavia, (1996), at 1–63, 441–79, discussing the complexities of the conflict, especially at Ch. i (Background of the Conflict in the Former Yugoslavia), and Ch. vii (Characterization of the Conflict).

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r­esponsibilities for ethnic violence and uncovering the who, what, where, when and why of the conflict under scrutiny. In another study, the systemic background of the conflict in former ­Yugoslavia was traced to the disclosure of the infamous Serbian Memorandum (hereinafter “sanu Memorandum”) in 1986.228 The sanu Memorandum was an odd continuation of strident Serbian nationalism and Marxist-Leninist ­progressivism.229 It sent shockwaves through the Communist establishment of the former Yugoslavia.230 The revelations of this product of the Serbian ­Academy postulated the demolition of the 1974 Constitutional dispensation.231 Envisioned in the sanu Memorandum was a more centralized ­Yugoslavia ­under Serbian/Leninist hegemony or a “greater Serbia” occupying as much of ­Yugoslavia as possible.232 The sanu Memorandum essentially formed ­Milosevic’s platform and was an important strut in his purging of the Serbian Community Party as part of his rise to power.233 Other incidents like the mass demonstrations in Belgrade in 1991,234 the Kosovo speech235 and ­scapegoating 228 See generally Serbian Academy of Arts and Sciences: Memorandum 1986 (hereinafter ‘sanu Memorandum’), in Greater Serbia: From Ideology to Aggression (CroationInformation Centre, 1992). 229 See id.; see also Aleksandar Pavkovic, The Serb National Idea 1986–92, in Slavonic and East European Review, Vol. 72, No. 3, 446 (July 1994). 230 Pavkovic, at 445. 231 See sanu Memorandum; Bassiouni & Manikas, at 20. 232 See sanu Memorandum; Pavkovic, at 446. 233 Misha Glenny, The Fall of Yugoslavia: The Third Balkan War 33, rev. ed., (1994) (The sanu Memorandum “prepared the ideological ground for Milosevic by focusing public opinion yet more tightly on the Kosovo issue”); Pavkovic, at 446–47. 234 For a description of the 1993 mass demonstrations in Belgrade, see The Police on Belgrade Streets: The June 1, 1993 Demonstrations, Spotlight Report No. 5, July 1993, in Spotlight on Human Rights Violations in Times of Armed Conflict 31–41 (The Humanitarian Law Center 1995). See also Glenny, at 50–55. 235 See id. at 34–35. The “Kosovo Speech” refers to a speech given by Serbian President, Slobodan Milosevic on June 28, 1989, in the Serbian settlement of Kosovo Polje (i.e., The Field of Blackbirds). The speech, a display of Serbian nationalism, was given in an area populated largely by Albanians and was seen as a warning to Slovenes, Croats, Moslems, Albanians, and Macedonians. The Kosovo heroism does not allow us to forget that at one time, [we] were brave and dignified and one of the few who went into battle undefeated. Six centuries later [after the Battle of Kosovo Polje], again we are in battles and quarrels. They are not armed battles, though such things should not be excluded yet. Excerpt from Slobodan Milosevic’s ‘Kosovo Speech,’ in otn explores Kosovo: Milosevic sweeps to power, at . The result of the

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Muslims in that autonomous province,236 contributed to the countdown to war. However, the sanu Memorandum incident is critical. To put this insight into more practical terms for the ascription of responsibility and accountability, the following questions need to be addressed. Who ordered the use of force against certain of the Republics of the former Yugoslavia? Who ordered and implemented the terror tactics against both armed opposition and civilians? Who ordered the ethnic cleansing, i.e., genocide, and the rape, murder, ­massacre, enforced pregnancy, torture and castration to implement it? Who ordered attacks on civilians? Who planned and implemented the policies of intentional displacement of people? Who planned and implemented the policy to destroy the cultural heritage of certain of the Republics? The problems of genocidal behaviors in both Burundi and Rwanda have been benchmarks in the failure of decolonization and independence ­processes.237 The original inhabitants of Rwanda were the Twa, a Pygmy people engaged in hunting and pottery making. Exactly when the Hutu arrived in Rwanda is not known, but they were established when the Tutsi appeared beginning in the 14th century. The pastoral Tutsi established dominance over the Hutu agriculturist by their superior military skills and by a series of land and cattle contracts. By the beginning of the 20th century Rwanda was a unified state with a centralized military structure. The Germans claimed Rwanda as a part of German East Africa from 1890 but their presence was minimal. In 1916, during World War i, the Belgians occupied Rwanda without opposition. In 1923, the League of Nations created ­Ruanda-Urundi as a Belgian mandate. The Belgians ruled through the Tutsi kings and retained the traditional feudal structure, thus allowing the Tutsi to hold on to their dominant position in the society. The Belgians sought to establish a more democratic society, and this led to the rise of the Hutu lower classes. In 1959, civil war erupted between the Tutsi and the Hutu causing a mass exodus of Tutsis to neighboring Burundi and Uganda. In 1961, Rwanda was declared a republic and became independent from Belgium under the leadership of new Hutu leaders. Kosovo speech was increased Serbian nationalism, and a revival of the nationalisms of the smaller Yugoslavian republics. 236 See Kosovo Albanians i: Repression and Discrimination, Spotlight Report No. 6, August 1993, in Spotlight on Human Rights Violations in Times of Conflict, at 42–55; Kosovo ­Albanians ii, Spotlight Report No. 16, February 1995, in Spotlight on: Human Rights in Serbia and Montenegro 15–71, The Humanitarian Law Center, (1996). 237 From: Facts on Rwanda Alliance for a Global Community (1994), a project of InterAction, 1717 Massachusetts Ave., nw, Washington, d.c. 20036.

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Large numbers of Tutsi were forced to leave the country after independence. A raid launched from Burundi by Tutsi exiles in 1963 brought severe reprisals against Tutsi within Rwanda. A military coup took place in 1973 leading to the establishment of a government lead by Juvénal Habyarimana, a member of the Hutu tribe, who was to serve as the nation’s leader until 1993. A new constitution in 1978 paved the way for normalization of government. Elections held in 1981 brought Rwanda its first elected legislature since the military coup of 1973 with Habyarimana being elected president. The Revolutionary Movement for National Development was the sole political party until 1991. Tutsi exiles based in Uganda mounted an unsuccessful invasion of Rwanda in 1990 and another invasion in 1993. In August 1993, the Arusha Accords were agreed upon by the Rwandan government and the Tutsi-led Rwandan Patriotic Front. This agreement ended the 1993 invasion, provided for multi-party elections, the withdrawal of French troops and allowed the Tutsis to station a garrison in Kigali. The accords were gradually being implemented when, on April 6, 1994, Habyarimana and the president of neighboring Burundi were killed in an unexplained plane crash. Habyarimana’s death touched off a wave of violence. Government trained Hutu militias began mass attacks on Tutsis and on moderate Hutus. Then the Rwandan Patriotic Front (rpf) began a new offensive. After two months of fighting, the rpf captured Kigali and swore in a provisional government. ­Simultaneously, the remnants of the old Hutu-led government and its army were driven out of the country, taking refuge in Zaire and Tanzania. Nothing in the prior history of Rwanda compares to the events triggered by the apparent shooting down of President Habyarimana’s plane as it approached the Kigali airport on April 6, 1994.238 Reports from Amnesty International, African Rights, Africa Watch, and others detail the use of this incident as the beginning of a planned genocidal campaign to exterminate the Tutsis and all other opposition groups, including loosely-styled moderate Hutsi.239 For the purpose of mass killing an other, or a Tutsi, was anyone identified as an opponent or potential opponent. The organization of security forces, 238 See Final Report of the Commission of Experts pursuant to Security Council Resolution 935 (1994), S/1994/1405, Dec. 9, 1994, at 13–14. See also Facts on Rwanda Alliance for a Global Community (1994), a project of InterAction, 1717 Massachusetts Ave., nw, Washington, d.c. 20036. 239 See Carla J. Ferstman, Domestic Trials for Genocide and Crimes Against Humanity: The ­Example of Rwanda, 9 African J. Int’l & Comp. Law (radic) 857, 858–59 (1997); ­Rwanda, Amnesty International Report, at 249–52 (1995). See also generally Rwanda: Death, ­Despair, and Defiance, African Rights (September 1994).

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paramilitary youth gangs, armed forces and the media were all part of an organized plan of genocide. “It was a political strategy adopted by a clique of powerful people at the centre of the government of Rwanda. Their plan was to hold on to the power at all cost.”240 The preparatory work of genocide was centered on Hutu ideology and the infamous document entitled the “Hutu Ten Commandments.”241 This document contains ten principles of inter-ethnic hate.242 For example, a traitor is “any Muhutu … who marries a Tutsi woman[,] befriends a Tutsi woman[, or] employs a Tutsi woman as a secretary or concubine.”243 A Hutu’s “only aim is the supremacy of his ethnic group.”244 It is also indicated that “the Rwandanese Armed Forces should be exclusively Hutu.”245 Estimates range from 500,000 to 1,000,000 persons were murdered in this orgy of killing.246 When Pope John Paul ii mentioned the ancient roots of ethnic killings in Rwanda, that government correctly responded that the genocide was a planned political conspiracy.247 240 See Rwanda: Death, Despair, and Defiance, African Rights (September 1994). 241 In late 1992, Hassan Ngeze, a Hutu journalist, published the manifesto, “The Hutu Ten Commandments” in the monthly journal, Kangura. Commandment number two says: “Every Muhutu should know that our Hutu daughters are more suitable and conscientious in their role as woman, wife and mother of the family.” Another commandment gives favors to Batutsi in business (obtaining import licenses, bank loans, construction sites, public markets). Commandment 8 commands the Hutu to “stop having mercy on the Tutsi.” See Hutu Ten Commandments, in Kangura, No. 6 (December 10, 1990). 242 See id. 243 Id. 244 Id. 245 Id. 246 Around May 1994, at least 200,000 people, and possibly as many as 500,000 people, were estimated to have been killed in the Rwandan genocide crisis. By the end of June 1994, estimates were as high as 1,000,000 people killed. See The United States and Rwanda 1993– 1996, at 61 (citing Report of the United Nations High Commissioner for Human Rights on his mission to Rwanda of 11–12 May 1994, E/CN.4/S-3/3, 19 May 1994). 247 See Rwandan Government Says Pope Misunderstood Rwandan Genocide, Agence France Presse (International News Section) (September 23, 1995), which stated: The Rwandan foreign ministry … criticised Pope John Paul ii’s remarks on ethnic conflict in Rwanda and Burundi ....The pope … blamed ethnic conflict for loss of lives … The foreign ministry said last year’s genocide was ‘not a result of any ethnic conflict among the Rwandese people, but it was rather a culmination of an organized political campaign by the former government leaders aimed at eliminating a portion of the Rwandese people. See also Rwanda Criticizes Pope’s Comments on Last Year’s Genocide, The Associated Press, International News Section (September 23, 1995).

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The theory of group deprivations is complex, but not incomprehensible. This chapter suggests that the critical issue of group deprivations be socially constructed using a disciplined and systematic method for contextualizing the phenomenon. This chapter suggests that group deprivations or specific kinds of group deprivations such as racism, apartheid, or genocide, must account for the element of human agency. In this regard, contextualizing the concept of agency in a disciplined and systematic way is required. The relevance of the agency construct is underscored by the continued normative and empirical relevance of the Nuremberg process where the Tribunal insisted the abstraction of the state be made sufficiently transparent in order to expose and hold responsible the human agents who conspired and implemented the policies and practices that led to the Holocaust. The focus on human agency centers upon the human intervention decision. A careful study of agency and its decision making must be contextually understood both from the perspectives of the potential victimizer, victim and third party intervener. The incident, as it relates to violence or coercion, ties in with the agency, which triggers the action. These elements are clearly discernible in the approach taken in Nuremberg. Actions are not committed by abstractions; finite agents of decision commit them. The question is whether a methodology can be developed to systematically delineate the interrelationships between agency, action and social consequence. Here, the contribution of Professor McDougal is a useful addendum to this perspective. This chapter has examined inter- or intra-group coercion and violence. To give some clarity to the use of the incidents aspect of this analysis, it may be useful to direct inquiry into the processes of coercion and decision, thus emphasizing interrelated factors that unpack the processes of coercion and violence. For example, stated in chronological order, this chapter inquires into the following:248 1. who creates the violence provoking incident(s); 2. what events constitute the invocation of coercion or scapegoating; 3. what type and intensity of coercion, such as violence, industrial killing, pogroms, and death camps, is to be implemented with what result; 4. what expectations, such as the lack of capacity of self-defense for survival, are created in both the victim and victimizer group; 5. whether rejection of normative restraints, such as the rejection of “proportionality” and the demand for absolute extinction of the enemy, exist; 6. whether the desire for establishing responsibility is marked by efforts to deny the incident happened, like the limited willingness to accept community intervention on part of the victimizer; and 7. what is the best method of juridical, administrative, diplomatic, economic or military intervention. 248 See McDougal & Feliciano, at 60–67.

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This focus on the realism of perspective requires a clearer understanding of the occasion of group deprivations. The occasion of genocide is a crucial predictive element in any sanctioning regime aimed at preventing or eradicating genocide. The occasions of genocide and, all group deprivations may be more easily comprehended if their temporal characteristics are more adequately understood. This chapter suggests the Schmid, Jongman, and Gupta model of the “Five Stages of Conflict” as an especially useful conceptual guide to predicting the occasion of group deprivations.249 Essentially, the five stages of conflict and their signals are as follows:250 1.

2.

The Peaceful Situation. This situation implies a stable pattern of social organization and a regime whose authority is rooted in its own people. The general characteristic of such a regime is a high degree of political security, and the protection of out-groups is secured by the legal system. The specific signals that typify such a regime are usually the existence of a working democracy, peaceful regime transition, an independent judiciary and a strong legal profession. Freedom of the press is secure. Political dissidence and irredentists have no mass following. Changes in either the political situation or the economic situation do not signal any aspect of abrupt deterioration. Increased Political Tension. In the situation of increased political tension, intensified levels of systemic frustration begin to appear, generating accented social cleavages, often of a sectarian character. The specific

249 See Alex P. Schmid, Berto Jongman and Dipak K. Gupta, The Risk of Political and Humanitarian Crisis, Pioom Newsletter (1994). Professor Schmid and his colleagues developed an important heuristic framework for understanding the structure of conflict and the overt signals that characterize each stage of conflict. Although the model is a general model designed to illuminate the graduated intensities of dangerous conflict prone situations, the model is especially useful for those who wish to take the prevention of domicide and genocide seriously. This model is a preventive mechanism of early warning intelligence. A good deal more is implicated in rational sanctioning interventions, apart from early warning preventive strategies. This model includes some notion of retribution, which could be punishment by specific, judicial, or other legal procedures to establish accounting and responsibility, or retributive transparency, which is primarily the work of truth and reconciliation commissions. Here confessions lead to the award of amnesty, which is accompanied by the sanction of social stigmatization, and public shame. Rehabilitation of both victims and victimizers and socio-political “reconstruction” reflect vast and complex “new” orderings that lead to ideas of good governance, democratization, and operational human rights legal and political culture. 250 See id.

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signals of this kind of situation include both old and new political parties exploiting issues of political polarization or sectarianism. Elections are usually heavily challenged. The courts are considered politically compromised. Press freedoms are under pressure. Protests in non-violent ways and even violence “against property and national symbols” become apparent. Political protests by students, labor interests groups and sectarian groups become more frequent. Increased levels of unemployment and economic stagnation are further signals of increased political tension. The Serious Dispute Stage. The general characteristic involves a weakening of political authority of the national government and a greater acceptance of sectarian politics. Specific signals include the increased tendency of inflammatory communication by elites and counter-elites. Elections are often characterized by fraud and violence. The courts and legal profession become politicized by the State. Press freedoms are challenged by radicals and by governmental pressure. Sporadic incidents of violence often target individual politicians, ideologues or members of disfavored ethnic groups. Terrorism and vigilantism appear on the political scene. Usually, the economy is under pressure from unemployment and inflation. Lower Intensity Conflict. The general characteristics of a lower intensity situation are that hostilities are now overt. There is armed conflict between variously situated groups. Patterns of insurgency, reaction, and repression become evident. The specific signals of this outcome reflect a concentration of power among contending forces. Rule by civil authority is threatened by the ascendance of the military and politics. The rule of law is undermined, as is the freedom of the press, often through the use of emergency powers. Full states of emergency herald the ascendance of security forces and often the systematic abuse of human rights. In economic terms, a situation of lower intensity conflict is an unattractive investment for the prudent investor. Capital leaves and disinvestment happens. The High Intensity Conflict. The general characteristic of high intensity conflict is open war between the contenders for power. The specific signals are the breakdown of government and the demise of civil society. Multiple contenders lay claim to sovereignty. The rule of law is a critical casualty. The press and the media become instruments of propaganda. The high intensity conflict situation also witnesses the ascendance of military rule or the permanent state of emergency. In effect, the political culture becomes a garrison state. The political economy of a garrison state is dominated by being unproductive, and the black market flourishes.

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This summary of the findings of Schmid, Jongman, and Gupta is extremely useful because it stresses, within the context of a phase analysis, the salience of accounting for the temporal factor in the context of social conflict where intervention is contemplated. The temporal factor gives early warning indicators about the scope, nature, and intensity of inter-group conflict such that concerns for genocide and mass murder might be assayed in a timelier manner to determine the circumstances and the strategies of intervention. Moreover, the early stages of warning signals may be extremely valuable in helping parties avert catastrophe when these warning signals are understood in terms of their potential for Holocaust-type outcomes. The way to approach these issues is to develop more systematically, a contextual background to the processes of effective power, and to locate more easily in space and time the critical points of decision that shaped the form, whether it be genocide, democide, or other forms of mass murder, a particular conflict has taken. This section sought to show a deeper understanding of the process of intergroup conflict from a perspective of policy sensitive methods and techniques. The stress on the issue of mapping and the insistence on the value of the phase analysis, permits an understanding of the problems in planetary, situation or region specific contexts. This section demonstrates a disciplined procedure of relating the whole to the part and vice versa. This aspect of the incidents and decision focused methodology may be mapped to provide deterrence or preventative strategies of intervention by a closer examination of the stages of conflict and their signals. This generalized map of group, ethnic and racial conflict now leads to a closer examination of the principles of intervention to prevent genocide and mass murder. viii

The Processes of International Decision Relating to Sanctioning Policies for Interventions to Group Deprivations

The social process generates power outcomes. These outcomes reflect stages of conflict of graduated intensity. Some of these conflicts, often of high intensity, are fashionably labeled ethnic conflicts. More broadly, they represent patterns of conflict that are the outcome of social stratification or segmentation that reinforces “otherness.” These conflicts secure culturally understood markers of otherness and ascribe an identity distinguishing the we from the them. Constituted authority may either fail or conspire not only to reinforce the processes of identification and otherness, but also further intensify expectations of insecurity, conflict and violence. On the other hand, constituted authority at the international level seeks to secure for itself, a capacity to intervene and

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­sanction circumstances of internal or external conflict as an obligation erga omnes. The decision and policy processes need to be assayed here with a greater level of precision and comprehensiveness. The rational context of a preventive intervention strategy is to determine, as clearly as possible, who the victims or potential victims may be, who the potential or actual perpetrators may be, and who the critical agencies of decision may be for effectively deploying interventions. This section needs to isolate the key institutions of international, continental and national decision making. Thus, an inventory is needed in every case or situation where inter-group conflict might lead to genocide and mass murder, and of all decision structures specialized to processes of “negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means ….”251 In effect, the inventory of possible agencies of intervention must range from the most formal global and international to the most informal and local institutions that can be employed to intervene in the genocide/mass murder process. For example, in the United States, the role of non-government organizations (ngo) specializing in monitoring and, on occasion, in litigating against “hate” groups is a vital early indicator of incipient and potentially real indications of a genocidal animus. At the other end of the spectrum, the nato backed interventions in the conflict in the former Yugoslavia were an important factor in both terminating hostilities and moving the parties to the Dayton Accord process.252 The generation of ad hoc institutions of adjudication and the interventions of peacekeeping or/and peace enforcing units, although not invariably successful, have established a practice that gives some substance to the idea of a preventive obligation or expectation in the international community. Perhaps the movement toward a permanent international criminal court will give even more coherence to the deterrence component of the sanctioning process. A The Perspectives of Intervention: Matters of Identity Those who intervene must themselves have embraced a pattern of identity that does not disidentify with the victim. In order to avoid the specter of interveners taking advantage of the victims, their training and outlook must e­ mbrace 251 This is drawn from Article 33 of the u.n. Charter. These are processes indicated in Chapter 6 and indicative of a Security Council role in calling on parties to avail themselves of such means of dispute resolution. United Nations, art. 34 (2). 252 The Dayton Accords peace agreement was reached on Nov. 21, 1995, by the presidents of Bosnia, Croatia, and Serbia, ending the war in Bosnia and outlining a General Framework Agreement for Peace.

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a more inclusive sense of human dignity. Should the intervener fall short on this matter, the effectiveness, appropriateness or the legitimacy of intervention will be called into question. Doubtlessly, allegations made about the u.n, taking advantage of captured Bosnian Muslim women will be recalled. It has been claimed Canadian troops were compromised in Somalia. It was suggested u.n. peacekeeping mandates created irreconcilable conflicts between the passivity of peacekeeping and the obligation to prevent genocide or mass murder. Finally, the creation of the tribunal for the former Yugoslavia generated a concern that perhaps race was a defining element in the tardy commitment to the Rwandan tribunal. B The Objectives of Intervention The objectives of the interveners will vary and should be focused on appropriate sanctioning goals to restore and secure minimum order, and employ sanctioning policies that gravitate toward a more optimal, transparent rule of law governed culture that improves upon its human rights performance. The appropriate sanctioning objectives will depend on the nature of the context within which interventions will occur as well as the nature and quality of the interventions required. A rational, sanctioning policy for interventions will have seven interrelated phases or sequences. These are listed as follows: 1.

2.

3.

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Prevention. The purpose of intervention is to preempt the occasion of either genocide or mass murder by a strategy of prevention. This phase may take a variety of decision making forms from coercive to persuasive interventions such as economic sanctions, military intervention, good offices, conciliation, negotiation and a horde of other diplomatic strategies. Suspension. This phase assures that when acts of genocide and mass murder are happening, an urgent task of intervention will be secured for its suspension. Thus, the interim order of the icj in the Bosnia G ­ enocide case is a representative illustration of a call to suspension. Economic coercion or even unitary intervention may transcend peacekeeping as a strategy of suspending genocide. Deterrence. This sequence is the primary objective of genocide sanctioning policy. It assumes that the investigation, detection, apprehension, conviction, and punishment of the genocide offender will serve as a deterrent, social surgery in the case of the actual offender, to the other would-be genocide perpetrators. Restoration. Since genocide and mass murder assume intense levels of conflict, they also assume violations of basic public order expectations.

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The rational sanctioning objective of restoration is to stabilize the situation and to restore some level of public order. Correction. This is defined as the sanctioning policy of correcting the conduct or behaviors that condition genocide and mass murder require a measure of peace, a semblance of contained tension and a generation of public and private motives. These motives should be designed to humanize and empathetically identify with the presumed otherness of both victim targets and perpetrator actors, more than to breach the so -called impermeability of some levels of group identity like race, e­thnicity, ­language, religion, and political ideological affinity. In effect, correcting is the stratagem of moving a social order from conflict, to contained tension, to active collaboration. Rehabilitation. In order to strengthen the basis for trust and reconciliation between victim and victimizer, the victim’s individual, as well as society’s collective sense of justice must be secured. Thus, legislation like the Torture Victims Protection Act helps in rehabilitating the ­victim.253 The Alien Tort Claims Act,254 which has been interpreted to provide a claim upon which relief can be granted in the form of compensatory justice in a domestic court, is a further instance of how the sense of justice and ­compensation may be tied to the idea of rehabilitation. In the case of genocide or mass murder, after the fact accounting and justice may  not  help those who have been killed. However, those who survive should have a right to rehabilitation and either public or private compensation. Reconstruction. Professor H.M. Reisman suggests the process of reconstruction “involves identifying social situations that generate or provide fertile ground for violations of public order, and introducing resources and institutions that can obviate such situations.”255 If we accept the Rummel thesis that totalitarian and authoritarian societies are most frequently identified with policies and practices of genocide and mass murder, then reconstruction in favor of a democratic rule of law-­governed system of public order with regular elections, public transparency and vigorous and secure civil societies, may hold a key to reconstructive ­efforts to suppress or prevent genocide.

253 The Torture Victim Protection Act of 1991, h.r. 2092, 102nd Cong. (1992). 254 The Alien Tort Statute (also called the Alien Tort Claims Act), 28 u.s.c. (2010). 255 W.M. Reisman, Institutions and Practices for Restoring and Maintaining Public Order, Duke J. Comp. & Int’l L. 175 (1995).

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The Perspectives of Expectation Relating to Interventions to Prevent and Deter Group Deprivation The general expectations to sustain intervention involve international law in its greatest significance. These expectations find institutional expression in the International Bill of Rights, as well as the covenants that relate to group identity, such as the legal instruments on genocide, race, minorities, indigenous rights, religious, gender and other forms of deprivation. They also find expression in efforts to broaden the bases of humanitarian law, outlaw aggression, secure rights to peace and mechanisms for the peaceful resolution of disputes. In practical terms, these also include institutional modalities and practices, which may be seen as institutional bases of power to vindicate the public order of the international community.

C

D Bases of Power The central base of power of all human rights lies in the perspectives of all members of the international community. Authority for an anti-genocide/ mass murder process lies in the people themselves, the ultimate consumers of human rights. More specifically, there are many important agencies and parties that secure the public order and directly or indirectly prevent mass murder and genocide outcomes such as: (1) [H]uman rights law, the law of state responsibility, and the developing law of liability without fault; (2) international criminal tribunals; (3) universalization of the jurisdiction of national courts for certain delicts, called International crimes; (4) non-recognition or the general refusal to recognize and to allow violators the beneficial consequences of actions deemed unlawful; (5) incentives in the form of foreign aid or other rewards; (6) commissions of inquiry or truth commissions; (7) compensation commissions; and (8) amnesties.256 To these practices, the institutionalization of peacekeeping operations through the u.n. may be added, as well as other institutions of international decision making. These practices of securing world public order depend on a resource base to fund them. They also depend on the seriousness with which states seek to prevent intervention in their internal affairs and the strength of international concern. If democracy reduces the risk and occasion of genocide, does this not suggest that respect for the authority base of the people is 256 Id., at 177.

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a vital g­ enocide preventing stratagem? The role and resources of ngos in the context of the former Yugoslavia were other important bases of intervention to prevent genocide. Situations within Which Genocide and Mass Murder Occur and Which Enhance or Constrain Prevention The situations of genocide are geographic since they invariably happen under the body politic called the nation state. For all the modern developments of international law and the expansions of both international jurisdictional concern and universal jurisdiction buttressed by obligations erga omnes, there is still immense difficulty in organizing and sustaining international interventions. The temporal or time factor in genocide makes the need for early intervention crucial when the signals and the intelligence discover it.257 The temporal factor is tied to the sequences of conflict as it gravitates from low to high intensity. The institutional component of responding to genocide is weak since the u.n. depends upon states with diverse interests to commit resources, peacekeepers, troops or support the development of international tribunals for policing and trying perpetrators. Responses to the crisis of genocide and mass murder underline the lack of decisive methods of dealing with genocide around the world. The strategies include intervention of a diplomatic nature, efforts to secure a more inclusive ideological profile of human rights, the prospects of early warning, economic coercion, military interventions, peace monitoring or enforcing initiatives. Since genocide happens on the ground, it is critical that strategies be developed in specific contexts to moderate and/or manage the prospect of intense intergroup conflict, particularly where the conflict contains elements that may lead to genocidal outcomes. These strategies would include crafting of fundamental or constitutional law and securing laws that promote nondiscrimination and affirmative prescriptive initiatives to promote and sustain good multi-group relations. A constitutional order providing for a vigorous civil society might provide incentives for a ngo to play an important role in socializing people to the ­principles and practices of human rights. Such ngos could already be committed to promoting anti-discrimination norms like those found in the ­context of South Africa in its famous institute of race relations. These entities are ­important for alerting others to the prospect of imminent conflict and often maintain connections and techniques of intervention that facilitate the diffusing intergroup conflict. Still other mechanisms could include the work of

E

257 In Rwanda 800,000 people were liquidated in 60 days.

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transparent truth and reconciliation commissions as well as judicial commissions of inquiry and many other methods useful in exposing incipient conspiracies and tendencies to implement intergroup hate, prejudice, discrimination, domination and genocide. The outcomes of prevention ought to lead to a basic framework of peace. Moving from peace or minimum order to reconstruction is more problematic because resources, patience and the short political will of democracies sometimes do not sustain international obligations outside of crisis. Some structure providing empirical indicators for intervention before catastrophic killings take place is critical. The Genocide Convention gives a clue by suggesting that conspiracy to commit genocide is prohibited as well. This section suggests we go beyond the ambiguity of conspiracy and examine the phase sequences of social conflict and invoke strategies in societies where there are strong patterns of differentiation in ensuring the culture of tolerance and good inter-group relations are dominant, constitutive, and public order expectations. It has been said that good race relations do not simply happen, they require effort. Intervening at the peaceful situation stage is the most effective form of preventing mass extinction of human beings. Different levels of conflict will require different, more determined strategies of intervention if prevention i­tself is a major purpose of the public and constitutional order.258 258 When we consider the question of rational sanctioning policies as a global response to the ubiquity of genocide and mass murder, one particular sanctioning goal is preeminent, namely, the most effective strategy for preventing genocide is to intervene before it happens. Such intervention would occur at least in technical juridical terms at the “conspiracy to commit genocide stage.” If we accept the broader level of analysis which holds that group deprivations are already effectually prohibited in international law, then the timing of intervention could occur if we conceptualize racial prejudice, cultural prejudice, anti-Semitism, and other forms of conspicuous group deprivation as indicators triggering the need for intervention. Intervention can occur at many levels of social organization. States may have domestic watch dog groups or domestic commissions whose purpose is to monitor and give more practical effect to human rights. There are traditional, judicial and bureaucratic remedies as well as legislative initiatives that can be invoked to moderate the trained towards prejudice dominance and possibly genocide. These levels of intervention should be seen as complimentary initiatives to those that could be taken on a regional, continental and or international context. The central point is that international jurisdiction based on matters of international concern are clearly defined constitutionally sanctioned processes for intervening in matters which would otherwise be within the domestic jurisdiction of a state. The point where prejudice or cultural dominance may be presumed to be a threat to international peace and security may sanction much stronger interventions which fall within the jurisdiction inter alia of the Security Council, since such extreme levels of deprivation often represent a breach of peace and international

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ix Conclusion This chapter has focused on both a description of the social processes of group deprivations, requiring a keen appreciation of the etiology and dynamics of social conflict, as well as a realistic appreciation of the processes of community sanctions. The sanctioning component of intervention must be a realistic part of understanding the conditions, consequences, typology and gravity of group deprivations. The fuller study of sanction inspired interventions as part of a theory of group deprivations must aspire to be comprehensive because group deprivations are global in scope, and because their impacts are felt in specific contexts. This study presents an explicit challenge on how to construct and appropriately prescribe and apply a regime of effective sanctions for diminishing or preventing the processes of group deprivations from actually occurring. This inquiry suggests an agenda that is problem specific in regard to the gravity and the types of group deprivations. This inquiry should also include a clearer specification of the objectives the problem compromises, such as the deprivation of human respect, the trends in decision, conditions influencing those trends, the prediction of outcomes regarding those without intervention and the invention of creative ways to intervene with licit sanctioning goals to improve the prospect of equal respect and dignity. The strategy of intervention has been assayed so the concepts of prevention and punishment are seen within the larger and more coherent framework of rational, sanctioning interventions. Although the impulse to punish looms large in international criminal sensibility, the fundamental fact is that punishment is an inadequate response to genocide. The only adequate response to genocide is capsulated in the words “never again.” In other words, every available theoretical, practical, political, scientific, and juridical tool must be used for timely interventions in conflicts most likely to lead to genocide. Even more important, these tools stress the responsibility for social justice and dignity on the universal basis as the foundation of human solidarity and the clear antidote to hate and prejudice. Initiatives like affirmative action are modest components of a genuine commitment to social justice and human rights and are crucial elements in the framework of intervention to ameliorate racial conflict, group conflict, and deprivations based on group identity. There is great wisdom in the ringing words of the udhr: “[i]t is essential, if man is not to be

security. To the extent that group deprivations are the harbinger of social conflict with international ramifications the work of Professor Schmidt and his collaborators is a very useful addendum to what we have suggested.

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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 …”259 It should be clear today that genocide is not a tragedy to be confined specifically to the Holocaust. “Never again” is a phrase that should be of universal relevance to Jews and non-Jews alike. What is abundantly clear from this study is the process of group deprivations is also a process of conflict. The process of group equity and justice is a process of human collaboration. In both instances sanctioning interventions are necessary. In the case of group deprivations and conflict, intervention must occur not simply to prevent conflict, but to ameliorate or cure the conditions that nurture it. This means active social intervention to eradicate racial discrimination and prejudice, anti-Semitism, and apartheid-like practices. It is also abundantly clear that good race, ethnic, or inter-group relations do not simply happen. These relations require effort and political will. They further require a commitment to social justice and to the idea that human progress is tied to the development of all human potential for which, ultimately, the basic respect of human dignity represents solidarity over division, conflict, chaos, and tragedy. What this chapter has sought to establish is that human rights deprivations are generated by human decision making and agency and decisions, in these terms, is conditioned by negative sentiment. 259 The udhr, at Preamble.

chapter 10

Contextualizing Torture Man has the capacity to push aside from his mind unpleasant problems. sean macbride1

In extreme situations when human lives and dignity are at stake, neutrality is a sin. It helps the killers not the victims. elie wiesel2

Chapter 10 deals with a specific form of deprivation, torture. It explores the nature and context of torture as well as the description of torture under international and regional legal prohibitions. The chapter relates the process by which one of the authors (formerly the Chair of Amnesty International, usa) advanced the cause of the adoption of the Torture Convention3 in the United States. Thus, the chapter combines rigorous scholarship with the insights of practical advocacy. It provides a framework to understand the Torture Convention and its efficacy. The chapter further describes the strategies used to secure the ratification of the Torture Convention in the u.s. Senate. It also contains information on the position in the United States on the use of torture, by any other name, in the aftermath of the events of September 11, 2001 (hereafter 9/11/2001). The chapter concludes with a description and appraisal of the O ­ ptional Protocol to the Convention,4 which was not supported by the George W. Bush administration (hereafter Bush administration). This part of the chapter is demonstrative of the importance of activism in getting the opcat adopted. It connects the problems of this Protocol with the problems the Bush and Barack Obama Administrations have and have had with the treatment of detainees. 1 Sean MacBride, The Mass Media’s Role in the Search for Disarmament 3 (1980) (paper presented at the United Nations Educational, Scientific and Cultural Organization, World Congress on Disarmament Education, Unesco House, Paris, June 9–13, 1980). 2 Remarks on Presenting the Congressional Gold Medal to Elie Wiesel and on Signing the Jewish Heritage Week Proclamation (statement by Elie Wiesel, a survivor of the Holocaust and a Nobel Prize winner), http://www.pbs.org/eliewiesel/resources/reagan.html. 3 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) g.a. Res. 46, gaor, 39th Sess. (December 10, 1984). 4 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the opcat) g.a. Res. A/RES/57/199, u.n. gaor 57th Sess. (December 18, 2002). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_012

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Chapter 7 developed the problem of human rights deprivations by insisting upon a realistic and adequate contextualizing of the problem. The importance of sentiment was stressed as a motive and driving force in human decision making behavior with special emphasis on the social process that generated negative sentiment. Understanding the social processes to which political personalities are predisposed by negative sentiment, provides a realistic background to understanding human rights problems and developing strategies to moderate such sentiment. The deprivations emphasized in previous chapters include slavery, racism, apartheid, genocide and mass murder. This chapter takes a harder look at torture as an important human rights violation driven by personalities who displace negativity on public objects, and rationalize such behavior as being in the public interest. i

General Introduction to the International Regime that Seeks to Outlaw Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment

One of the central achievements of modern international law has been the development of legal instruments and supporting expectations that torture is universally prohibited and unlawful. Moreover, a prohibition of torture in international law carries a preferred status: it is an obligation erga omnes with ius cogens status. Thus, officially there are instruments which prohibit torture from a universal global perspective. However, the law on the books and the actual operational code of practice in the real world are not necessarily congruent. States may agree to be bound by the obligation to outlaw torture and practice torture while denying that they do so. This fact does not diminish the importance of the formal international law myth that torture is outlawed as a matter of conventional international law. To secure the adoption of these important legal instruments was itself a significant struggle and a milestone achievement for human rights activism and the improvement of human consciousness. It was also a significant victory for human rights activism and advocacy. The Torture Convention did not emerge as a beneficent gift from state sovereigns, state officials or state security operatives. Rather it was driven by international civil society and in particular, international non-governmental organizations such as Amnesty International, Human Rights Watch and many others. Amnesty International triggered an interest in the torture problem as a global epidemic of human rights atrocities and negative sentiment. It was to Amnesty and its allies that initiatives came to create conferences from which action papers and draft instruments emerged. These instruments developed

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the discourse and understanding of the problem to the point where it could be effectively promoted to sympathetic sovereign states to be introduced into the u.n. for further action. In the United States, the ratification of human rights treaties represented a continuing political logjam at the time the Torture Convention was opened for adoption by states parties. Ratification of human rights treaties must pass an arduous test confronting an ideologically driven constituency dedicated to the principle that the human rights treaties must not become part of the positive law of the United States. The fact that the u.s. Senate actually gave its advice and consent by an overwhelming vote of 99-1 is not indicative of the demise of this driven constituency. On the contrary, it may be attributed to the successful cooperation of civil society and enlightened officials inside the government. Moreover, central to the ratification strategy was the mobilization of political pressure by the human rights advocates. The adoption of the international instruments and processes does not mean that the prohibition of torture ensures that the behavior of states change overnight. The social process of generally negative sentiment is tenacious. The force of law is simply not this powerful. Much more needs to be done to make human behavior conform to human rights law. Regardless, the fight continues to rid the world of torture on a universal basis. ii

The Nature and Scope of the Problem

We present a comprehensive review of world torture as well as the efforts to eradicate it through both official and unofficial intervention, with special emphasis on strategies of activism and legal intervention. The complexity of strategies of action that constitute a vast number of initiatives emerging from the international community are underscored. Defining torture in terms of legal history and contemporary practice is explored. This study facilitates a more discriminating analysis of the characteristics of torture and its impact on governance, social control, and principles of basic respect and human dignity. Strategies for universally proscribing torture in international law are identified and analyzed. Important provisions of the Torture Convention and United Nations sponsored mechanisms created for the eradication of torture are reviewed and evaluated. A discussion of the fundamentals of United States policy and the impact of domestic concerns on Congress’ attempts to ratify international treaties includes an insight into the politics of ratification and humanistic advocacy. This insight permits contextualizing the u.s. position on torture in terms of the relatively decentralized character of the international

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legal system. This part also emphasizes the importance of selected regional and municipal law initiatives to facilitate the objective of ending tortureand. Selected cases are used to illustrate comparative experiences. This part ends with a broad review of the strategies of action required to secure the universal abolition of torture. The importance of civil society initiatives that complement litigation, legislation, administrative action, and United Nations initiatives in working toward a regime of complete abolition is stressed. A number of strategic initiatives available in the attempt to effectively abolish torture are discussed. There remains a near-universal consensus in the international community that torture and other forms of cruel, inhuman or degrading treatment cannot be reconciled with a global order committed to basic human dignity. Torture attacks the essential physical and psychological integrity of a human being. Therefore, it is not surprising that torture is prohibited by international, regional, and national law. However, the practice of statecraft proves that there exists an operational code that accepts and advertently or inadvertently, supports the torturer.5 State practices may go further and seek to immunize the torturer from any sense of responsibility for torture-conditioned conduct.6 The u.s. experience with so called enhanced interrogation, and its efforts to redefine torture and redefine its universal obligations in terms of rigid territorialism and equally inappropriate territorial spaces where there is no rule of law but legal vacuum, is an indication of an operational code that apparently engages in and uses torture. The distinction between the deeply held ideals of human dignity is contrasted with the operational code that compromises those ideals in serious ways. Further, the arguments for so called extra-legal acts not coming under the laws of states increases the erosion of the fundamental right of the tortured not to be so treated.

5 See, e.g., Alex peter Schmid et al., Political Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases, Theories and Literature 58–59 (1988); T.R. Gurr, The Political Origins of State Violence and Terror: A Theoretical Analysis, reprinted in M. Stohl & George A. Lopez, Government Violence and Repression: An Agenda for Research (M. Stohl & George A. Lopez eds., 1986); M. Stohl & George A. Lopez, The State as Terrorist: The Dynamics of Governmental Violence and Repression (1984); David Claridge, Know Thine Enemy: Understanding State Terrorism, p.i.o.o.m. Newsletter (Winter 1999/2000). For the leading study on the politics of torture, see Alex P. Schmid, The Politics of Pain: Torturers and Their Masters (1985). 6 See generally Wayne C. Booth, Individuals and the Mystery of the Social Self; or Does Amnesty Have a Leg to Stand On?, reprinted in Freedom and Interpretation: The Oxford Amnesty Lectures 1992 at 69–101 (Barbara Johnson ed., 1993) (presenting a penetrating and insightful analysis of individual identity, social identity, universal obligation, and the issue of torture).

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The empirical evidence that supports this charge indicates that the international community is far from reaching its goal of complete eradication of torture.7 Amnesty International’s 2008 State of the World’s Human Rights report shows that sixty years after the Universal Declaration of Human Rights8 was adopted, people are still tortured or ill-treated in at least 81 countries, face unfair trials in at least 54 countries and are not allowed to speak freely in at least 77 countries. Under Article 5: 1948 Promise: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 2008 Reality: Amnesty International documented cases of torture and other cruel, inhuman or degrading treatment in more than 81 countries in 2007.9 These statistics are quite shocking considering that torture and ill-treatment are most often committed by governmental officials, who knew or should have known that the law prohibited their acts. Even more disquieting is the knowledge that the practice of torture is often among the least transparent aspects of governmental policy and practice. Amnesty International’s numbers may simply reflect the tip of the iceberg.10 In order to attack the problem of torture, it is important that the issue become a higher priority within the international community. It is no longer a matter of developing international instruments of universal prescriptive force. 7 8 9 10



See, e.g., Nigel S. Rodley, The Treatment of Prisoners under International Law (1987); Amnesty International, Torture in the Eighties (1984); Schmid. Universal Declaration of Human Rights, g.a. Res. 217A (iii), u.n. Doc. A/810, December 10, 1948. (hereinafter udhr). State of the World’s Human Rights, Facts and Figures (2008). See generally un Committee Against Torture Must Condemn Increasing Institutionalized Cruelty In usa, Amnesty International Public Document, ai Index amr 51/68/2000 News Service Nr. 84, http://www.web.amnesty.org/ai.nsf/index/AMR510682000 (establishing that [s]ince the United States ratified the Convention Against Torture, in October 1994, its increasingly punitive approach towards offenders has continued to lead to practices which facilitate torture or other forms of ill-treatment prohibited under international law … The spiraling prison and jail population … and the resulting pressures on incarceration facilities have contributed to widespread ill-treatment of men, women and children in custody. Police brutality is rife in many areas, and it is disproportionately directed at racial and ethnic minorities. This suggests that even such countries as the United States (a country with a relatively clean record as to gross human rights violations) are still confronted by the problem of torture.).

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The international community must give the existing laws proscribing torture full procedural efficacy. The international community needs to develop effective strategies to give practical, operational effect to an obligation erga omnes11 to eliminate torture from the operations and practices of governance at all levels.12 The relationship between torture and governance is complicated. In addition to inflicting individual suffering, the practice of torture undermines the very foundations and principles of the current world order. Torture is completely antithetical to the notion of good governance and the democratic ideal.13 The minimum criteria for achieving good governance include the elements of accountability, transparency, responsibility, and the consent of the governed.14 The standards that guide the practices of official tor­ ture, however, involve an obfuscation of accountability, a strenuous cloak of secrecy to prevent any level of transparency, a denial of any sense of responsibility and a complete disregard for the will of the people. The practice of torture undermines the very foundations and principles of the current world order. As torture is not officially sanctioned by law, it is also conduct that seeks operationally, to trump law or to be, in other words, extra-legal. Torture challenges the very idea of law itself. Furthermore, the practice of torture often triggers enhanced levels of deprivation, such as disappearances, extra-judicial killings and genocide. Because these forms of deprivation immeasurably enhance the stakes involved in social conflict and increase the difficulty of implementing

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See generally Case Concerning Barcelona Traction, Light & Power Co. (Belgium v. Spain), 1972 i.c.j. 3, 32 (establishing that sufficient legal basis exists to reach the conclusion that all crimes against humanity function erga omnes, the International Court of Justice recognized, “[t]he prohibition in international law of acts, such as those alleged in this case, is an obligation erga omnes which all states have a legal interest in ensuring is implemented”). See M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 489 (1992) (stating that torture is an act violating international law and represents an infringement of a ius cogens norm, which is defined as a norm whose importance rises to a level that is acknowledged to be superior to and overriding of any other legal principle). Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46, 46 (1992) (quoting the former u.s. Secretary of State, James A. Baker iii, who said, “legitimacy in 1991 flows not from the barrel of a gun but from the will of the people”). udhr, at 71 (stipulating that it is “[t]he will of the people [that] shall be the basis of the authority of government”).

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strategies of peaceful conflict resolution, the practice of torture attacks the idea of peace itself.15 Apart from the prospect of numerous deprivations directed at victims, torture has broader consequences for world order. It attacks the authority and legitimacy of the state, provokes or intensifies social conflict, undermines the idea of peace and challenges the idea of the rule of law itself. iii

Defining Torture in Global Terms

A Inherent Characteristics of Torture The central characteristic of the legal concept of torture is that it is an intrinsic part of the narrative of official behavior. The practice of torture is a powerful institutional expression of state craft, power and social control. The official use of torture, even if denied in theory but used in practice, functionally means that the state, i.e., an organ of human association, uses these powers as critical components of security to intimidate or even eliminate its enemies or non-enemies. When torture becomes routine practice in governance,16 the state does not represent the moral order of the community, but instead is the repository of authorized (but morally repugnant) violence and impermissible coercion.17 This is expressed by achieving power through brute force. When 15

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See Philip Alston, Peace as a Human Right, 11 Bull. Peace Proposals J. 126, 319–30 (1981), reprinted in Richard Pierre Claude & Burns H. Weston, Human Rights in the World Community: Issues and Action 198–207 (1992). See Facts and Figures about Amnesty International and Its Work for Human Rights, http://www.web.amnesty.org/web/aboutai.nsf (noting that other practices used by the state to intimidate or sometimes even eliminate its enemies or non-enemies are the following: (1) extrajudicial executions (in 1998 carried out in 47 countries around the world); (2) disappearances (in 1998 people disappeared or remained disappeared from previous years in 37 countries); (3) imprisonment of prisoners of conscience (confirmed or possible prisoners in conscience were in 1998 held in 78 countries); (4) unfair trial (political prisoners received unfair trails in 1998 in 35 countries); (5) detention without charge or trial (in 1998 people were arbitrarily arrested and detained or in detention without charge or trial in 66 countries); (6) imposition of death penalty (executions were carried out in 36 countries in 1998 while prisoners were under death sentence in at least 77 countries)). See F.H. Bradley, Some Remarks on Punishment, Int’l J. of Ethics, Apr. 1894, reprinted in Collected Essays (1958), cited in H. Lauterpacht, An International Bill of Rights of Man (1945) (noting that the philosophical justification for state absolutism is often tied to the idealistic school of old philosophers, [t]he rights of the individual are not worth serious criticism …. The welfare of the community is the end and is the ultimate standard. And over its members the right of

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power is maintained by practices of torture and ill treatment, the claim to state legitimacy is illusory, or weakened. States seek to validate their use of violence and coercion by appeals to its authority. Even naked power has its limitations in the scheme of social control. The state elite constantly search for moral and ideological justifications for their current and continued existence. The use of torture by the state indicates insecurity in the processes of governance. States invariably appeal to some moral or normative standard in order to validate recourse to this form of violence and weaken the identification of the state with naked power or brute force. The state tries to elevate the morality of its use of violence by appeals to notions of self-defense, the protection of its security at all levels including national security, the morality of the survival of the state as a romantic or moral artifact, or the morality implicit in the construction of a state as a higher order framework of human association.18 B Historical Approaches toward Practices of Torture The law did not always define and prohibit torture. Historic and comparative perspectives on the nature of social control disclose ubiquitous evidence of the willingness of those who exercise formal, effective control over others to use torture as an instrument of official social control. It is tempting to suggest that the torturer holds a psychological predisposition for the use of torture, possibly rooted in private motives and pathologies.19 However, what distinguishes torture is that cultural, religious, or ideological perspectives of the operative power elite often covertly sanction it. Thus validated, torture is at least tacitly accepted as in the interest of the community where it is used. The predisposition to torture requires that for its efficacy, it be displaced on public enemies with a religious, cultural, or ideological mechanism of overt or tacit validation of an alleged community interest, usually public order, security or law and order. In the history of the common law, torture was an institutionalized part of legal procedure. The procedural methods by which oaths and proofs could be established were invariably linked to the judicial infliction of pain for the establishment of a legal truth. Possibly the most notorious procedure was the

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the moral organism is absolute. Its duty and its right is to dispose of these members as seems to it best. Its right and its duty is, in brief, to be a Providence to itself.). See id. Publication (May 1999) (exploring the close relation that exists between torture and sadism), at http://www.corpus-delicti.com/sadistic_behavior.html.

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trial by ordeal.20 Where the torturer exhibited a certain masochistic21 impulse that could influence operational behavior, the torturer rationalized the infliction of pain and suffering as a form of moral cleansing or a moral purgative. It is a tribute to human progress, moral sensibility, and juridical enlightenment that the judiciary, which often shamelessly professed its commitment to the ideals of justice and the rule of law, could reform its procedural methods to conform to ideas of practical reason and operational moral sensibility. However, before the legal profession itself is excoriated for historical hypocrisy, it must also be remembered that the torturer used religious rectitude in the defense of their ideals and institutions. The tortured’s death was acceptable with his recantation so that his soul was saved in some sort of mysterious fashion. Religion and law generated a complex moral paradox. Torture was often deemed indispensable for the discovery of truth. The pain and suffering experienced in the practice of torture, was seen as providing the socially redeeming benefits of moral and spiritual cleansing.22 C Two Forms of Torture There are two discernible forms of torture. The first refers to the infliction of extreme pain, either physical, psychological or both, by a victimizer who dominates and controls. The pain may have either physical or psychological elements or a combination of both. This context might involve an insurgency group or a terrorist group with discernible lines of command and control. The concept of international torture should be revised to include a component of this problem. The second form of torture concerns the more restrictive legal definition that includes official state sanction and/or participation. Examples of this version involve police or official security practices invoked for obtaining a confession, or perhaps as a distinctive form of state sponsored terrorism and repression.23 In this latter signification, the torture of a victim with

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See John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancient Regime 3–72 (1977) (providing a comprehensive discussion about Roman-canon statutory system of proofs, including the description of methods used for ‘judicial torture’ defined as, “the use of physical coercion by officers of the state in order to gather evidence for judicial proceedings”). See Stedman’s Medical Dictionary, Lawyer’s Edition 837, 5th unabr. ed., (1982) (defining masochism as a “[p]assive algolagnia, a form of perversion in which sexual pleasure is heightened in the person who is beaten and maltreated; the opposite of sadism”). Ch. 1 (2006). The Torture Convention, at 197. (specifically excluding from the definition of torture “pain or suffering arising only from, inherent in or incidental to lawful sanctions”).

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official sanction sends a social message of intimidation and a message about the scope, character, and strategies of official social control. This section concerns itself with this narrower concept of torture. The 1984 Torture Convention narrowly defines torture within the confines of the second form. The Torture Convention defines torture as any act that intentionally inflicts severe mental or physical pain on a victim for obtaining information, a confession or for punishing the victim for conduct or suspected conduct. Torture may occur when the infliction of pain and suffering is motivated by any form of officially sanctioned discrimination. Another facet of the Torture Convention’s definition of torture is that pain or suffering is administered at the instigation, consent or acquiescence of a public official or another person acting in an official capacity.24 Therefore, the Torture Convention does not necessarily prosecute acts that fall under the first version of torture, namely those that are not inflicted with state sanction.25 D Torture in International and Regional Law Within the second definition of torture, systematic or widespread torture belongs to a special group of crimes recognized by international law as crimes against humanity.26 The category further includes the practice of systematic or widespread murder, forced disappearances, deportation, forcible transfers, arbitrary detention and persecutions on political or other grounds. A number of international conventions or instruments recognize these crimes as crimes against humanity.27 24 25

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Id. See Schmid, at 25–26 (defining torture to include killings, summary executions, killing in presumptive armed conflicts, fatal torture, killing by abuse of power in a legal process, killing by death squad, genocide, detained-disappeared and torture). Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, August 8, 1945, 59 Stat. 1544, 82 u.n.t.s. 279 (hereinafter Nuremberg Charter). See, e.g., id.; s.c. Res. 808, u.n. scor, 48th Sess., u.n. Doc. S/RES/808 (1993); s.c. Res. 955, u.n. scor, 49th Sess., u.n. Doc. S/RES/955 (1994); cf. Report of the Secretary General pursuant to paragraph 2 of Security Council resolution 808, u.n. Doc. S/25704 (1993) (arguing that crimes against humanity do not draw their legality only from international law treaties or other written international instruments, but are also established under international customary law, [T]he application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are

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The effort to eradicate torture occurs at many levels of international, regional, and national decision making and often involves both public and civil society initiatives, working in complementary roles.28 In addition to the prohibition of torture in contemporary international law and practice, the capacity to provide a sanctioning response to torture has been extended to the institutions of private law. In certain regional jurisdictions, torture is viewed not only as a criminal wrong,29 but also as a civil wrong with a tortious character.30 This latter area represents an important change in the capacity to control and punish torture through the institutions of civil society. The problem of global torture has led to multiple initiatives driven by international and regional institutions dealing with human rights law. The most notable initiative is the emergence of a private law dimension that greatly empowers private enforcement against public actors who are implicated in the practice of torture. This development embodies the extension of sanctions against torture from the public to the private sphere.

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b­ eyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not rise). See generally Facts and Figures About Amnesty International and Its Work for Human Rights, at http://www.web.amnesty.org/web/aboutai.nsf (stipulating [T]oday an ever-growing human rights constituency is gathering the facts on abuses by governments, taking action to stop them and strengthening the forces necessary to prevent future violations. More than 1000 domestic and regional organizations are working to protect basic human rights). See, e.g., Regina v. Bartle, Ex Parte Pinochet, 37 i.l.m. 1302 (h.l. 1998); Regina v. Bartle, Ex Parte Pinochet, 38 i.l.m. 581 (h.l. 1999); see also Prosecutor v. Kunarac, et al., Amended Complaint of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Case No.: IT-96-23-PT (2000). See Alien Tort Claims Act, 28 u.s.c. § 1350 (2000); Torture Victim Protection Act of 1991, Pub. L. No. 102–256, 106 Stat. 73 (1992) (codified at 28 u.s.c. § 1350 (1994)) (allowing actions to be brought against an individual who, under actual or apparent authority or under color of law of any foreign nation, had subjected another individual to either torture or extrajudicial killing); see also Construction and Application of Alien Tort Statute (28 u.s.c.a. § 1350) Providing for Federal Jurisdiction Over Alien’s Action for Tort Committed in Violation of Law of Nations or Treaty of the United States, 116 a.l.r. Fed. 387 (1993); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (providing the paradigmatic use of 28 u.s.c. § 1350 involving Joelito Filartiga, a 17-year-old boy, who was tortured by Paraguayan authorities and died under torture, and holding that, “the law of nations clearly prohibits official torture”).

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From Universal Prohibition to Universal Eradication of Torture: Developments of Transnational Law Strategies

A Initial Development of Relevant International Law Modern human rights law has evolved in response to the atrocities committed during World War ii and the effort to provide a moral as well as judicial reckoning and understanding of the legacy of that conflict. The creation of the u.n. Charter in 194531 represented an effort to prescribe obligations on states. These revolutionary obligations related to aggression, peace and security and fundamental human rights that implicitly recognized that the idea of state and sovereignty are not unlimited. Further developments, especially the creation of the udhr,32 created rights for the individual that might be exercised against a sovereign state, another milestone achievement. The 1949 Geneva Conventions33 and related protocols further extended developments in humanitarian law. Furthermore, the growth of regional human rights law reflects a strong and compelling desire on the part of the international community to ground the perspectives and operations envisioned in the udhr in actual practice. Additionally, modern constitution making has drawn normative inspiration from the udhr. Many human rights provisions have found expression in postwar constitutions.34 B Universal Prohibition of Torture One of the most fundamental aspects of human rights law is the universal proscription of torture. Article 5 of the udhr holds that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”35 This sentiment is similarly expressed in Article 7 of the International Covenant 31

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u.n. Charter, 1 u.n.t.s. xvi, 1976 y.b.u.n. 1043, 1945 Can. t.s. 7, 1945 s.a.t.s. 6, 1946 u.k.t.s. 67, Cmd. 7015, 145 b.f.s.p. 805, u.s.t.s. 993, 59 Stat. 1031 (concluded at San Francisco, June 26, 1945, entered into force, October 24, 1945). See udhr, art. 19. See Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, opened for signature Aug. 12, 1949, 6 u.s.t. 3114, 75 u.n.t.s. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature Aug. 12, 1949, 6 u.s.t. 3217, 75 u.n.t.s. 85; Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 u.s.t. 3316, 75 u.n.t.s. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 u.s.t. 3516, 75 u.n.t.s. 287. See, e.g., Uganda Const., reprinted in 18 Constitutions of the Countries of the World (Gisbert H. Franz ed., 1997). See Universal Declaration of Human Rights, supra note 13, art. 5.

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on Political and Civil Rights,36 Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,37 Article 5 of the ­African Charter on Human and Peoples’ Rights,38 Article 5 of the American Convention on Human Rights,39 and Article 99 of the 1949 Geneva Convention dealing with the protection of the prisoners of war.40 Notwithstanding rhetorical agreements on the prohibition of torture and related practices, there remains a strong desire within state governance to have recourse to the use of violence. Despite the clear consensus in favor of outlawing torture, the perennial problem facing the international community is the weakness of these prescriptions in practice. The desire of the international community to enforce compliance with human rights expectations through centralized, bureaucratic United Nations agencies has limited efficacy in seeking to control and eliminate torture on a worldwide basis. Indeed, one of the important developments relevant to the elimination of torture emerged in 1961 with the creation of an international nongovernmental and society based organization, Amnesty International.41 36

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See International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, g.a. Res. 2200A (xxi), u.n. gaor, 21st Sess., Supp. No. 16, u.n. Doc. A/6316 (1966), 999 u.n.t.s. 171, art. 7 (stipulating that “[i]n particular, no one shall be subjected without his free consent to medical or scientific experimentation”) [hereinafter International Covenant on Civil and Political Rights]. See European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Apr. 11, 1950, 213 u.n.t.s. 222, art. 3 (prohibiting torture by stating that, “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”) [hereinafter European Convention for the Protection of Human Rights and Fundamental Freedoms]. See African Charter on Human and Peoples’ Rights, opened for signature June 27, 1981, o.a.u. Doc. CAB/LEG/67/3 rev. 5, 21 i.l.m. 58, art. 5 (1982) (extending the protection to the maximum when it sets out that “[a]ll forms of exploitation and degradation of man, particularly … torture, cruel, inhuman or degrading punishment and treatment shall be prohibited”) [hereinafter African Charter on Human and People’s Rights]. See American Convention on Human Rights, Nov. 22, 1969, 1144 u.n.t.s. 123, art. 5(2) (stipulating in Article 5(2) that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person”) [hereinafter American Convention on Human Rights]. See Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 u.s.t. 3316, 75 u.n.t.s. 135 (stating that, “[n]o moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused”). See Facts and Figures About Amnesty International and Its Work for Human Rights, at http://www.web.amnesty.org/web/aboutai.nsf (last visited on Dec. 2, 2000) (providing a comprehensive description of the origins and ongoing work of Amnesty International).

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Amnesty International’s focus on individual participation on behalf of individual victims was an important innovation in the development of human rights law generally and, more particularly, in the development of a grassroots based global initiative to support and complement the work of the United Nations.42 Amnesty International’s early monitoring of torture on a worldwide basis provided interest, articulation, pressure, and support for governmental initiatives, especially in Sweden and Denmark, that enabled the adoption of the Declaration on Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhumane or Degrading Punishment by the General Assembly in 197543 and later, in 1984, the Torture Convention.44 The Torture Convention itself is supplemented by several other u.n. General Assembly initiatives promulgated in part as a result of pressure from global civil society.45 These developments included the drafting of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment,46 the Code of Conduct for Law Enforcement Officials,47 and the Principles of Medical Ethics.48 In 1985, the u.n. Commission on Human Rights established the office of the Special Rapporteur on Torture. The treaty making process and the enforcement mechanisms created by the United Nations are an extremely important part of the efforts to eradicate torture.

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Id. See Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, g.a. Res. 34/52, u.n. gaor, 39th Sess., Supp. No. 34, u.n. Doc. A/10034 (1975) (declaring that certain “exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment”) [hereinafter Declaration Against Torture]. See Torture Convention, at 197. See g.a. Res. 3218, u.n. gaor, 29th Sess., Supp. No. 31, at 82, u.n. Doc. A/9631 (1974) (exemplifying the enactment of a resolution resulting from sustained pressure by national and international non-governmental organizations). See Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, g.a. Res. 43/173, u.n. gaor, 43d Sess., Supp. No. 49, u.n. Doc. A/43/49 (1988). Code of Conduct for Law Enforcement Officials, g.a. Res. 34/169, u.n. gaor, 34th Sess., Supp. No. 46, at 185, u.n. Doc. A/34/46 (1979). Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, g.a. Res. 37/194, u.n. gaor, 37th Sess., Supp. No. 51, at 210, u.n. Doc. A/37/51 (1982).

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Despite its far reaching progress in giving efficacy to the prescriptive force of international laws that seek to eradicate torture, the United Nations faces certain inescapable institutional limitations. These limitations have led to international organizations mobilizing their resources to aid the international campaign against torture. In the mid-1990s, for example, Amnesty International held an international conference to refocus international concern on torture, lobbied for action against torture at the u.n. World Conference on Racism, and launched a campaign to eradicate torture to complement the efforts of the United Nations.49 This mobilization illustrates the need for humanistic advocacy in international civil society in addition to the more formal institutions of global governance in the campaign to eradicate torture. C The Torture Convention: An Outline The most important u.n. treaty for controlling, regulating, and prohibiting torture and related practices is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.50 The drafting of the Torture Convention was commenced by the u.n. Commission on Human Rights in 1978, and the document was adopted by the General Assembly in 1984.51 In its final form, the Torture Convention was based substantially, but not exclusively, on the Declaration Against Torture. The Torture Convention stipulates explicitly in Article 2 that countries are obliged to “take effective legislative, administrative, judicial and other measures to prevent acts of torture.” This particular provision formally established the specific legal obligation of the state to prevent torture. No government had previously asserted such an extensive list of reservations, declarations, and understandings as that proposed by the u.s. State Department’s letter of December 19, 1989. Among the more disquieting reservations were the proposed declaration that the provisions of Article 1 through 16 of the Torture Convention would not be self-executing; the proposed federal-­state reservation seeking to limit the implementation of the Torture Convention “to the extent that the Federal Government exercises legislative 49 50

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Amnesty International, http://www.stoptorture.org (describing the campaign against torture that was launched in October 2000 in more than 60 countries). For a detailed overview of the Torture Convention, see Convention Against Torture, 1990: Hearings before the u.s. Senate Foreign Relations Comm., 101-2d Cong. (1990) (statement of Winston P. Nagan, Board Chairman, Amnesty International usa). For the underlying mandate for the drafting of the Torture Convention, see g.a. Res. 32/62, u.n. gaor, 32d Sess., Supp. No. 45, u.n. Doc. A/32/355 (1977).

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and judicial jurisdiction over the matters covered therein;” and the proposed understanding of the definition of torture in Article 1. The United States also expressed concern regarding Article 2’s wide jurisdictional reach strengthening the capacity of state action to prohibit torture. Furthermore, Article 7(1) of the Torture Convention imposes upon every state that is a party to it, a solemn duty to extradite anyone found in its jurisdiction who is alleged to have committed torture or to “submit the case to its competent authorities for the purpose of prosecution.” The practical weakness of this approach is that states may be reluctant to prosecute nationals of another state, especially government officials, because of the fear of reciprocal actions against their own citizens, hence the u.s. reservations. As important as the United Nations’ appeals to state responsibility may be, practice has shown that a great deal more needs to be done to constrain the behavior of state officials bent on committing acts of torture. For example, one of the most interesting methods of seeking to police and prevent torture is the “urgent action” technique developed by Amnesty International.52 Urgent action is launched on behalf of prisoners and others who are in immediate danger of serious human rights violations, such as torture or extra-judicial execution. The Urgent Action Network is made up of more than 80,000 volunteers in more than 85 countries. First, the Amnesty International Secretariat in London issues the urgent action to the national sections, who then distribute it to the members of the Urgent Action network in the relevant country or territory. The members are asked to send appeals by the fastest means possible to the people, organizations, and institutions indicated. The number of appeals has varied in each case. Cases have generated between three and 5,000 appeals. Urgent action is a tool of enforcement that is not limited by the constraints of diplomatic protocol, nor does it require political action from bureaucrats within the United Nations who may be torn between their obligations to seek states’ financial and political support and their desires to expose the states’ wrongdoings. The urgent action method of intervention identifies the victim, the range of potential victimizers in the chain of command, the venue where torture occurs and the nature of the torture practice under scrutiny. The urgent action technique is especially effective due to its methods of electronic distribution and global, cross-cultural mobilization of opinion. The technique also identifies officials in the chain of responsibility, bringing transparency to otherwise anonymous processes.

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Facts and Figures About Amnesty International and Its Work for Human Rights, at http:// www.web.amnesty.org/web/aboutai.nsf.

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Further Articles highlight the importance of state compliance in the effective application of the Torture Convention. Article 2 limits the processes that provide for the easy justification of torture through variously formulated national security imperatives.53 Article 2 specifically holds that torture cannot be validated by the claim to exceptional circumstances as in, for example, “war or a threat of war, internal political instability or any other public emergency.”54 Article 2 follows the principle of the Nuremberg Charter that an order from a superior officer or public authority cannot serve as a legal defense.55 Article 4 of the Torture Convention makes clear that the crime of torture is of a “grave nature.”56 States must therefore regard it as within the category of crimes for which the defendant may be extradited under Article 8. Articles 5 through 7 of the Torture Convention incorporate the well-established principle of state conditioned universal jurisdiction: the state is obliged to either institute criminal proceedings against the torturer or to extradite the person to another state to stand trial there. The principles of jurisdiction based on nationality or territoriality do not constrain these precepts. The Torture Convention’s emphasis on preventing torture is important. The effects of torture cannot be easily undone. The victim will continue to experience psychological and physiological trauma. Medical help is important, but and it is no panacea. Once torture is committed, the law’s sanctioning policy of punishment which implies that it is proportionate to the crime is very problematic in cases of torture, mass murder and genocide. Therefore, an extremely important strategy of global torture law enforcement is to emphasize the prevention of torture. Article 10 of the Torture Convention requires states to educate their “law enforcement personnel, civil or military, medical personnel, public officials, and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, ­detention or imprisonment” about the prohibition against torture.57 ­Resolution 1999/32 of the u.n. Commission on Human Rights bolstered this mandate, calling upon the United Nations High Commissioner for Human Rights to provide, at the request of governments, advisory services to these governments.58 These a­ dvisors would guide states with respect to their obligations to ensure 53 54 55 56 57 58

Torture Convention, art. 2. Id. Nuremberg Charter. Torture Convention, art. 4. Id., art 10. u.n.c.h.r. Res. 32, u.n. escor, 56th Sess., 55th Mtg., u.n. Doc. E/CN.4/RES/1999/32 (1999).

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­education and training of law enforcement and other personnel, as well as technical assistance in the development, production, and distribution of teaching materials. Amnesty International adopted a Twelve-Point Program for the Prevention of Torture in October 1983 that recognized the same obligation. The ninth point of this Twelve-Point Program stipulated: “It should be made clear during the training of all officials involved in the custody, interrogation or treatment of prisoners that torture is a criminal act. They should be instructed that they are obliged to disobey any order to torture.”59 Education is a long-term goal, and the effective prevention of torture must be grafted onto the core expectations of law enforcement in the field, where officials directly interrogate those in their custody. Toward that end, Article 11 of the Torture Convention requires states to “keep under systematic review interrogation rules, instructions, methods and practices, as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment.”60 Article 11 professionalizes the practices of interrogation and mandates the creation of a record of actual practices, thereby enhancing not only education, but transparency and accountability as well. Article 12 of the Torture Convention requires the parties to this Convention to “promptly and impartially” investigate allegations of torture.61 ­Moreover, the state must investigate the prospect of torture practices within its jurisdiction if “there [are] reasonable grounds to believe that an act of torture has been committed.”62 In this case, the Twelve-Point Program of Amnesty International might represent even a broader obligation by requiring that “[g]overnments should ensure that all [i.e., not only those with reasonable ground for investigation] complaints and reports of torture are impartially and effectively investigated.”63 Furthermore, Amnesty would insist that “[t]he methods of findings of such investigations … be made public.”64 Another important aspect of the Convention Against Torture relates to the security and safety of those who are willing to come forward and complain, or those who might serve as credible witnesses to establish that torture has 59

60 61 62 63 64

Amnesty International, Twelve-Point Program for the Prevention of Torture, Recommendations for the protection and promotion of human rights http://www.web.amnesty.org/ web/aboutai.nsf (hereinafter Twelve-Point Program). Torture Convention, art. 11. Id., art. 12. Id. Twelve-Point Program for the Prevention of Torture. Id.

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happened. Article 13 imposes upon a state party the obligation to ensure that any individual who alleges they have been subjected to torture has the right to complain to state authorities.65 The obvious impulse of official reaction to complainants and witnesses is to harass them, intimidate them, or in other ways threaten them with ill -treatment. In order to secure a viable rule of law as the basis for the prohibition of torture, a central procedural value is acknowledged. If the individual cannot complain, then there is nothing to prevent and nothing to punish. Additionally, the sheer difficulty of protecting witnesses and complainants from officials charged with responsibility for the torture based victimization strikes at the heart of the entire process of law enforcement under the rule of law. Because torture strikes at the core legitimacy of the state, the reader will appreciate the reluctance of states to establish enhanced methods for protection of victims of torture and the witnesses. It may be that Article 13, and the capacity to give it sum and substance, provides the testing ground for the effectiveness of the Torture Convention itself. Articles 12 and 13 may seem to call for a fox to investigate the chicken coop. However, these provisions assume that states are complex structures and that governance is often a matter of the exercise of multiple, concurrent, and sequential powers; one branch of a state can police another branch of the state and hold it accountable for breaking the rules. This insight compels the appraisers of the Torture Convention to examine a state not as an undivided homogeneous entity, but as a cluster of co-extensive and competing interests. Due to this decentralized and divided structure, political parties and advocacy groups may be able to structure enough pressure to compel officials to act, even when the officials would otherwise be reluctant to do so. Article 13 also must be read in the light of Article 15, which extends the legal protection of fundamental procedural values. Specifically, Article 15 states that evidence extracted by torture cannot be used in proceedings against the victim of torture or anyone implicated by the victim, with the exception of the torturer himself.66 States have historically relied on tainted evidence to establish legal versions of the ‘truth’ in order to justify the punishment of their enemies. Surprisingly, this tainted and coerced evidence is still ubiquitous in the procedures of many states. To the extent that tainted evidence is admissible, it 65 66

Torture Convention, art. 13. Torture Convention, art. 15. (Article 15 of the Torture Convention does not allow a statement extracted under torture to be used “against a person accused of torture as evidence that the statement was made.”) Similarly, the sixth point of the Twelve-Point Program stipulates that “[g]overnments should ensure that confessions or other evidence obtained under torture may never be invoked in legal proceedings.” Twelve-Point Program.

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­ ndermines the capacity for law enforcement and provides disincentives for u governmental officials to engage in proper investigative work. To the extent that judges admit tainted evidence, they create a crisis of confidence in the legal system itself because the legal truths generated are not credible predicates for the administration of justice. The erosion of the due process values in Articles 13 and 15 of the Torture Convention represents the most serious assault on the foundation of the rule of law. For example, the well developed South African legal system, with its independent judiciary, nevertheless had judges routinely admitting evidence based on abusive police practices or torture.67 Similarly, Russia’s notorious ‘show-trials,’ which began in 1936 under the rule of Stalin, represented some of the high points in the use of torture and confessions in legal proceedings.68 Article 14 of the Torture Convention addresses the question of reparations. It advocates an “enforceable right to fair and adequate compensation.”69 The term ‘compensation’ is defined as “the means for as full a rehabilitation as possible.” While it is true that compensation for torture may have some intrinsically therapeutic effects as well as cover the costs of medical and psychological interventions where they exist, compensation cannot address the most significant consequence of torture for the victims, which is the assault on the essence of the victims’ identity, respect, and dignity. The process of torture often involves isolating the victim, removing the victim’s clothing, assaulting the victim’s sexual organs, depriving the victim of sleep, inflicting psychological and physical pain that usually ensures the loss of bowel and kidney movements and, in the case of women, rape with an indefinite time frame. The horrors of torture are such that, in spite of rehabilitation efforts, the victim will never be the same. This does not mean that seeking to rehabilitate torture victims is not mandated by the deepest sense of humane identification. In addition to those aspects of the Torture Convention that address matters of cruel, inhuman, or degrading treatment or punishment, the Convention establishes institutions and procedures to effect implementation of its goals. It establishes a Committee Against Torture in Article 1770 and outlines 67

68 69 70

See, e.g., National Association of Democratic Lawyers, The Role of Lawyers and the Legal System in the Gross Human Rights Violations of Apartheid (1998) (submission to the South African Truth and Reconciliation Commission). Alfred Erich Senn, Readings in Russian Political and Diplomatic History, Volume ii—The Soviet Period 160–61 (1966). Torture Convention, art. 14. Id., art. 17.

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its functioning in Article 18.71 The Committee Against Torture is empowered to examine reports from state parties to the Convention and to inquire into allegations of systematic practices of torture (Articles 19 and 20).72 The Committee Against Torture is also empowered to accept complaints from states alleging a particular state’s non-compliance with the Convention (Article 21).73 However, this power might only be exercised with the explicit consent of the state alleged to be in non-compliance. Under Article 22, the Committee Against Torture may receive complaints from individuals against the state and is to report annually to state parties and to the u.n. General Assembly.74 v

The u.n. Sponsored Mechanisms Dedicated to the Eradication of Torture

Three of the most important u.n. sponsored mechanisms dedicated to the eradication of torture are: (1) the Committee Against Torture, which was established pursuant to Article 17 of the Convention Against Torture; (2) the u.n. Special Rapporteur on Torture, created pursuant to the u.n. Commission on Human Rights’ Resolution 1985/33; and (3) the u.n. Voluntary Fund for Victims of Torture, created pursuant to u.n. General Assembly Resolution 36/151 of December 16, 1981.75 Related initiatives of importance emerged from the First u.n. Congress on the Prevention of Crime and the Treatment of Offenders that, in 1955, among other things, adopted the Standard Minimal Rules for the Treatment of Prisoners.76 71 72 73 74 75

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Id., art. 18. Id., arts. 19 & 20. Id., art. 21. Id., art. 22. See, e.g., United Nations High Commissioner for Human Rights, Committee Against Torture, Monitoring the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment http://www2.ohchr.org/english/bodies/cat/; United Nations High Commissioner for Human Rights, Fact Sheet No. 17, The Committee Against Torture, http://http://www.ohchr.org/Documents/Publications/FactSheet17en.pdf; United Nations High Commissioner for Human Rights, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at http://www2.ohchr.org/ english/issues/torture/rapporteur/. u.n. Standard Minimum Rules for the Treatment of Prisoners, approved July 31, 1957, e.s.c. Res. 663(c), u.n. escor, 24th Sess., Supp. No. 1, at 11, u.n. Doc. E/3048 (1957), amended May 13, 1977, e.s.c. Res. 2076, u.n. escor, 62d Sess., Supp. No. 1, at 35, u.n. Doc. E/5988 (1977).

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A The Committee against Torture The major function of the Committee Against Torture is to monitor the implementation of the Torture Convention. This body, consisting of ten experts who are nationals of the state parties, is elected through a secret ballot. The Committee conducts its task through the procedures in Articles 19, 20, and 21 of the Torture Convention. According to Article 19, the parties to the Torture Convention submit to the Committee, by way of the u.n. Secretary General, reports on the measures they have taken under the Torture Convention. These reports are then subject to the Committee’s revision and comments, and information from them can be included in the Committee’s annual report.77 Furthermore, if a state’s report or other source discloses information which contains well founded allegations that a state party systematically practices torture, the Committee has the power under Article 20 to invite that state party to examine the allegation and to provide explanations regarding the allegation.78 The investigation may include a visit to the institutions allegedly practicing torture.79 The Committee communicates the outcomes of the investigation to the state party concerned, along with the comments and suggestions of the Committee Against Torture. However, the competence conferred upon the Committee by

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The representatives of the states concerned are invited “to attend the meeting when their reports are considered.” Representatives are allowed and expected to answer any additional questions which may be put to them by the Committee and to “clarify, if needed, certain aspects of the reports already submitted.” After such clarification, the Committee (according to Article 19, para. 3) may make general comments on the report as well as indicate whether it appears to it that some obligations of the state concerned have not been discharged. These comments are then transmitted to the state concerned which may reply to them. United Nations High Commissioner for Human Rights, Fact Sheet No. 17, The Committee Against Torture, http://www.unhchr.ch/html/menu6/2/fs17.htm (2000). The procedure set out in Article 20 of the Torture Convention is confidential and pursues the cooperation of the state. The only exception to the confidentiality rule is if, after all the proceedings regarding an investigation under Article 20 have been completed, the Committee decides to include a summary account of the results into its annual report. In this case the work of the Committee is made public. Otherwise, all the work and documents relating to its functions under Article 20 are confidential. United Nations High Commissioner for Human Rights, Fact Sheet No. 17, The Committee Against Torture, http://www.unhchr.ch/html/menu6/2/fs17.htm (2000). This is an exception to the standard procedure that involves either inviting representatives of the concerned state to participate in the examination and submit observations, or requesting additional information from those representatives and others. The Committee also may designate a confidential inquiry, with which representatives of the state concerned are invited to cooperate.

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Article 20 is optional; the state party may, at the time of ratifying or acceding to the Torture Convention, declare that it does not recognize this competence.80 The Committee usually holds two regular sessions each year but a special session may be convened at the request of a majority of its members or of a state party to the Torture Convention.81 All proceedings of the Committee are confidential and the Committee invites the concerned state party to cooperate with the Committee at all stages of the proceedings. Also, in order to be able to include a summary account of the investigation findings in its annual report, the Committee is required to consult the state party concerned. The expenses incurred in connection with all of the Committee’s activities are borne by the state parties to the Torture Convention.82 The Committee itself adopts its procedural rules. Article 22 of the Convention Against Torture gives individuals83 the right to complain directly to the Committee Against Torture. The accused state party must recognize the competence of the Committee to consider complaints filed by the individuals, and as of January 1, 2000, only 40 out of 119 states have made such a declaration.84 Another limitation on the filing of individual complaints 80 81 82

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Id. In this case, the Committee Against Torture may not exercise the powers conferred upon it by Article 20 for so long as the state concerned maintains its reservation. Sessions of the Committee Against Torture, United Nations High Commissioner for Human Rights, http://www.unhchr.ch/html/menu2/6/cat/cats.htm. United Nations High Commissioner for Human Rights, Fact Sheet No. 4, Methods of Combating Torture, http://www.unhchr.ch.html/menu6/2/fs4.htm (2000). Although the state parties share these expenses in proportion to their contribution to the budget of the United Nations, no single state’s share may cover more than 25% of the Committee’s expenses. See Sessions of the Committee Against Torture supra note 81. (Private individuals claiming to be victims of a violation of the Torture Convention by a state that has accepted the competence of the Committee under Article 22, as well as their relatives or representatives, are entitled to submit communications to the Committee.). Press Release, United Nations Committee Against Torture, Panel Scheduled to Consider Reports from Poland, Portugal, China, Paraguay, Armenia, El Salvador, the United States, the Netherlands and Slovenia (Apr. 28, 2000), http://www.unhchr.ch/huricane/huricane .nsf/newsroom. Although 119 states have ratified or acceded to the Convention, only the following 40 states have recognized the competence of the Committee under Articles 21 and 22: Algeria, Argentina, Australia, Austria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Greece, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Russian Federation, Senegal, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uruguay, Venezuela and Yugoslavia. In addition, the United Kingdom and the United States have recognized the competence of the C ­ ommittee under

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is that, according to the Committee’s rules of procedure, a communication cannot be admitted if it is anonymous.85 This is mitigated, however, by the rule that all individual complaints are examined by the Committee in closed meetings. Once the Committee Against Torture decides that a communication is admissible, it informs the author of the communication, transmits its decision to the concerned state and then proceeds to consider the merits. The state that has allegedly violated the Convention is then under the obligation to submit to the Committee explanations or statements clarifying the case and describing any remedial measures taken. Individual communication about the fact or imminence of torture presumably creates an emergency situation in which immediate action is required. Because the Committee Against Torture does not operate as a standing committee with a structure of executive directors and staff who can respond to complaints and reports continuously, it may be that the Committee’s methods in individual cases create only the illusion that it has the capacity to act under pressure. The six month deadline for a state’s response to the individual’s communication represents a further weakness of the Committee’s procedure. This delay creates the opportunity for the disappearance or extra-judicial execution of a victim, who might have the capacity to talk and expose what has happened. Dead torture victims tell no tales. While the structures created by the United Nations provide symbolic importance, an important element of legitimacy, as well as a degree of efficacy to the campaign against torture, institutional imperfections indicate that the United Nations’ structures do not exhaust the possible methods of providing global accountability for torture. The lack of institutional clout of the Committee Against Torture is a result of budgetary and political constraints, and other factors that limit the effort to eradicate torture. These limitations are reflected in the following: (1) the enforcement mechanism which relies heavily on official state cooperation is highly problematic; (2) budgets are limited and the figures indicated for torture rehabilitation work are almost derisory; and (3) the Committee’s capacity to deal with individual complaints for over a decade has not altered the ubiquity of torture worldwide, indicating that the individual complaint mechanism is little more than a symbolic gesture.86

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Article 21 only (competence of the Committee over the claims filed by states but not over those filed by individuals). See Sessions of the Committee Against Torture. Cf. Statistical Survey of Individual Complaints Dealt with by the Committee Against Torture under the Procedure Governed by Article Twenty-Two of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

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The most important aspect of torture, apart from victimizing the victim, is that it is an exercise of power and, from a legal point of view, an exercise of official power. Because torture is so ubiquitous, especially in states that are often undemocratic and unwilling to honor the rule of law, the state itself will have difficulty discussing or negotiating the systematic use of torture by its operatives without having to engage in a discourse about its own bases of authority and legitimacy. The critical question is whether the methods used by the Committee Against Torture correspond to social realities or whether they blindly accept the word of the accused state. Estimates indicate that the Committee’s methods are simply not effective in counteracting the problems of power and authority generated by those who routinely practice torture. The Committee’s critical weakness is the futility generated by the combination of its structures and procedures. Its structure comprises a group of experts thoroughly vetted by state parties themselves, presenting a conflict of interest for those whose impartiality is most vital to the process. While the bureaucratic culture required by the Committee’s links with the United Nations brings with it such assets as professionalism, broad discretion, and widespread respect, this bureaucracy also has disadvantages. For example, overbearing state dominance threatens the Committee’s capacity for practical implementation of a higher level of independent-minded action. The problem of confidentiality presents another procedural difficulty for the Committee. Confidential diplomatic dialogue between bureaucrats and the accused state’s authorities simply may not address the urgency of the problem from the victim’s point of view or the practical problem that the more culpable the state party, the more that state will want to obstruct any investigation.87 This list of impediments is by no means exhaustive, but it does demonstrate

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http://www.unhchr.ch/html/menu2/8/stat3.htm. Since 1987, the United Nations Committee has received 154 individual complaints from the 41 signatory countries. Thirtythree cases were deemed inadmissible, 40 have been discontinued, and one suspended. This leaves three admitted cases and 39 in pre-admissible stage. In contrast, Amnesty International initiated 425 new actions and pursued further appeal for 272 existing actions for the Urgent Action Network, which extends over 94 countries and territories. Of the 425 new actions, 131 were issued on behalf of victims of torture or related practices. The Committee’s treatment of the confidentiality factor may be contrasted with the urgent action technique developed by Amnesty International to which we have earlier referred. Unconstrained by institutional limitations of an international bureaucracy sustained largely by states, Human Rights International Nongovernmental Organizations (ingos) are often able to generate international public accountability. Therefore, this freedom renders ingos more impartial and perhaps better positioned to respond to accusations of torture.

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that, despite the symbolic importance of the Committee Against Torture, serious structural and procedural limitations compromise its efficacy. B The Special Rapporteur on Torture The u.n. Special Rapporteur was established to complement the Committee Against Torture. The u.n. Commission on Human Rights appointed a Special Rapporteur to seek credible information on torture and respond without delay. While the Committee examines specific allegations of torture, the Rapporteur monitors torture in general.88 The Rapporteur may ask the government of an individual state party to provide information on its legislative and administrative measures to prevent torture, and to remedy any weaknesses. Furthermore, the Special Rapporteur can examine questions of torture in states that are parties to the Convention, all u.n. member states and even all states with u.n. observer status. Finally, the Rapporteur may bring accusations of torture to the attention of the government concerned, consult with government representatives and make on-site consultative visits.89 Like those of the Committee Against Torture, the formation and proposed functions of the u.n. Special Rapporteur were an optimistic gesture to combat torture, but the Rapporteur also shares the Committee’s inefficacy. In addition to the burden of a staggering workload, lack of funding poses a major problem for the Special Rapporteur. The United States has increased funding, but the Special Rapporteur still receives only marginal financial support.90 Other states should follow suit to empower the Rapporteur in eradicating torture. C The u.n. Voluntary Fund for the Victims of Torture In 1981, the United Nations established another well intentioned yet ineffective measure to combat torture: the Voluntary Fund for Victims of Torture. While critics argue that establishing the Fund implies a passive acceptance of torture, the complete eradication of torture continues to be one of the priorities of the u.n. The Fund, administered by the u.n. Secretary General based on the advice of the Board of Trustees, was created to channel humanitarian, legal 88

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Civil and Political Rights, Including Question of: Torture and Detention: Report of Special Rapporteur, Sir Nigel S. Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1998/38, u.n. Commission on Human Rights, 55th Sess., Provisional Agenda Item 11(a), u.n. Doc. E/CN.4/1999/61 (1999). Id. See Torture Victims Relief Act of 1998 § 4–6, 22 u.s.c. § 2152 (1998); Torture Victims Relief Authorization Act of 1999 § 2–4, Pub. L. No. 106–87, 113 Stat. 1301 (1999).

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and financial aid to persons who have been tortured and their families.91 The formation of this mechanism reflects both a genuine commitment to remedy past occurrences of torture and an honest admission that the United Nations cannot yet meet its goal of preventing all future instances of torture. The Fund’s main problem is that it depends entirely on voluntary contributions from governments,92 private organizations, institutions and individuals, rather than on regular financing through the United Nations’ budget.93 The subsidies the Fund does receive are used to finance rehabilitation projects to provide victims and their families with medical treatment, physiotherapy, psychiatric and psychological care. Funds support projects focused on training specialists, usually from the medical profession, in special techniques needed to treat the victims of torture. The Voluntary Fund parallels the other u.n. mechanisms: if properly implemented, it could make real progress toward the goal of ending torture but, in its current state, it has very little practical effect. vi

European Case Law

A series of cases before the European Court of Human Rights provides a survey of the Court’s application of its provision against torture. In 1967, the governments of Denmark, Norway, Sweden, and the Netherlands brought before the European Commission of Human Rights94 allegations that the Greek government had committed acts that amounted to significant violations of Article 3 of the European Convention, the “Greek Case.”95 Article 3 provides that “[n] o one shall be subjected to torture or inhuman or degrading treatment or punishment.”96 An essential feature of Article 3 is that it is non-derogable:

91 92 93

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u.n.c.h.r. Res. 32, u.n. escor, 56th Sess., 55th Mtg., u.n. Doc. E/CN.4/RES/1999/32 (1999). See Torture Victim Relief Act of 1998 § 4–6, 22 u.s.c. § 2152 (2000); Torture Victim Relief Authorization Act of 1999 § 2–4, Pub. L. No. 106–87, § 4, 113 Stat. 1301 (1999). Within its first five years of operation (between 1983 and 1988) the Fund accepted 131 subsidies totaling $3.6 million. u.n. High Commissioner for Human Rights, Fact Sheet No. 4, http://www.unhchr.ch/html/menu6/2/fs4.htm. The European Commission of Human Rights (the Commission) is an investigative body which refers cases to the European Court of Human Rights, a regional court whose decisions are binding on its member states. Both are governed by the European Convention. See Report of the European Commission of Human Rights on the “Greek Case,” 1969 y.b. Eur. Conv. On h.r. 1, 5 (1969) [hereinafter Report on Greek Case]. The European Convention, art. 3.

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in no circumstance can torture or cruel and inhuman treatment be excused or tolerated for any reason. Based on hearings and investigations by the Sub-Commission, the Court97 concluded that Greek security officials had inflicted torture and ill-treatment on several individuals in their custody, particularly through the application of “falanga” or severe beating of all parts of the body. The Commission found that the purpose of the torture had been “the extraction of information including confessions concerning the political activities and associations of the victims and other persons considered to be subversive.”98 The Greek government had directly and indirectly prevented the Commission from completing its investigation of several cases.99 Upon these findings and based on the Greek government’s denunciation of both the report and the European Convention of Human Rights, the Commission forced Greece out of the Council of Europe for human rights violations, isolating Greece from the international community.100 In 1976, the Commission ruled on allegations of torture and other forms of inhuman treatment in the conflict in Northern Ireland.101 The British authorities had developed practices of detention and interrogation which included: (1) forcing detainees or prisoners to stand for long hours; (2) placing black hoods over their heads; (3) holding detainees or prisoners prior to interrogation in a room with a continuing, loud, hissing noise; (4) depriving them of sleep; and (5) depriving them of food and drink.102 The Commission found that this constituted not only inhuman and degrading treatment but actual torture within the meaning of Article 3. According to the Commission, the combined application of methods which prevent the use of the senses, especially the eyes and the ears, directly affects the personality, physically and mentally. The will to resist or to give in cannot, under such conditions, be formed with any degree of independence. Those most firmly resistant might give in at an early stage when subjected to this sophisticated method to break down or even eliminate the will.103 97 98 99 100 101 102 103

See Resolution dh (70)1 of the Committee of Ministers of the Council of Europe, 1969 y.b. Eur. Conv. on h.r. (Eur. Comm’n of h.r.) 511, at 3. See id. See id. See id. See Ireland v. United Kingdom, 1976 y.b. Eur. Conv. on h.r. (Eur. Comm’n on h.r.) 512. See id. Id. § 2.

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After the Commission filed its report, the Irish government referred the case to the European Court of Human Rights.104 The Court, however, did not accept the Commission’s qualification of Article 3 violations in the instant case. Rather, the Court distinguished between torture on one hand and inhuman or degrading treatment on the other, noting that torture constitutes an “aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”105 The Court ruled that the use of the five techniques breached Article 3 because these practices constituted cruel, inhuman and degrading treatment. It refused, however, to characterize them as torture.106 The Court applied the “aggravated and deliberate” distinction in later cases.107 In Tyrer v. United Kingdom, a fifteen-year-old British student assaulted a schoolmate and was sentenced to three strokes of a birch rod. This punishment entailed removing his trousers and underwear and then bending him over a table in order for the strokes to be administered. According to the Court, this form of corporal punishment was a direct violation of Article 3.108 In Soering v. United Kingdom,109 the Court considered whether a convicted murderer subjected to extradition might experience torture upon extradition to the United States. The Court did not suggest that the death penalty itself might violate Article 3, but distinguished between the death penalty and death row.110 The Court concluded that the death row phenomenon was a breach of Article 3, but did not express any opinion as to whether putting someone on death row was torture.111

104 105 106 107 108 109

Ireland v. United Kingdom, 25 Eur. Ct. h.r. (ser. A) at 5 (1978). Id., at 67 (emphasis added). Id. Tyrer v. United Kingdom, 26 Eur. Ct. h.r. (ser. A) (1978). Id., at 17. Soering v. United Kingdom, 11 Eur. Ct. h.r. (ser. A) (1988) reprinted in 11 Eur. h.r. Rep. 439 (1989). 110 Protocol No. 6 was adopted to amend the Convention, abolishing the death penalty in the Contracting States. However, the United Kingdom was not a party to the Protocol No. 6 at the time the Soering case was decided, and thus the risk of subjection to the death penalty itself was not the determining factor in this case. See id. at 448, 460. 111 The European Convention recognized that the u.s. has a well developed judicial system where fundamental rights are protected. A narrow majority (6-5) of the Commission therefore concluded that extraditing Mr. Soering to the u.s. would not constitute treatment contrary to Article Three of the Convention. The Court, however, decided unanimously that it would. Id. at 425–61, 463–64, 478.

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In 1996, the Court found torture per se for the first time in the case of Aksoy v. Turkey.112 Mr. Aksoy was arrested and held in custody by Turkish security forces. Upon his release, he was admitted to a hospital and diagnosed with bilateral radial paralysis, or paralysis of both arms caused by damage to nerves in the upper arms. The Turkish public prosecutor had decided that “there were no grounds to institute criminal proceedings against [Mr. Aksoy].” The Turkish authorities have not been made accountable in criminal or civil proceedings for the alleged ill-treatment of Mr. Aksoy.113 The Court considered that Aksoy’s treatment was “serious and cruel” and clearly could be described as torture within the meaning of the European Convention and constituted a violation of Article 3. Turkey also sought to invoke its notice of derogation from Article 5, based on “State of Public Emergency.” The court however did not consider that the exigencies of the situation justified Turkey’s violation of Article 3. Aksoy also alleged that Turkey’s failure to investigate the claim of torture violated Article 6(1) of the European Convention. The Court found that the heart of the complaint concerned the lack of investigation and therefore it was more appropriate to consider this complaint in relation to Article 13 of the European Convention. In that respect, the Court ruled that where an applicant has an arguable claim to have been tortured by agents of the State, the notion of an `effective remedy’ entails, in addition to payment of compensation where appropriate, a thorough and effective investigation capable of leading to identification and punishment of those responsible. Mr. Aksoy alleged that he had been subjected to extremely serious forms of ill-treatment. This included being locked up with two other detainees in a cell measuring approximately 1.5×3 meters, with only one bed, and only two meals a day. Interrogated about whether he knew a man called Metin, his torturers stated, “If you don’t know him now, you will know him under torture.” On the second day, he was stripped naked, his hands were tied behind his back, and he was strung up by his arms in a so-called Palestinian hanging. While he was hanging, electrodes were connected to his genitals, and water was thrown over him, causing electrocution. He was blindfolded for the duration of this ordeal (about thirty-five minutes). During the next two days, he was r­ epeatedly ­beaten

112 Aksoy v. Turkey, (21987/93) [1996] echr 68 (18 December 19966) / Eur. Ct. h.r. 2260 (1996). 113 Id., at 2266–67.

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while being suspended. This continued for four days. The Turkish authorities denied these allegations. Both the Commission and the Court accepted Mr. Aksoy’s version of the facts. The Commission noted that: “there was no evidence that [Mr. Aksoy] had suffered any disability prior to his arrest, nor any evidence of any untoward incident [since] his release from police custody.” While the bilateral radial paralysis could have been caused in other ways, it was consistent with the form of torture known as Palestinian hanging; and, most importantly, the Turkish authorities offered no alternative explanation for Mr. Aksoy’s injuries. Governmental officials claimed that “it was inconceivable that [Mr. Aksoy] could have been ill-treated,” but the Commission found this argument unconvincing. The officials’ outright rejection of the allegation without any further consideration or investigation damaged their credibility. The Commission sent a delegation which had heard the earlier evidence in Turkey on two separate occasions,114 and the delegation concluded that Mr. Aksoy had been tortured.115 The Court accepted the facts as established by the Commission, and articulated an important shift in the burden of proof in torture cases:116 [W]here an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention.117 Finally, the Court’s opinion in the Aksoy case underscored the importance of Article 3 and offered guidelines for evaluating potential violations: Article 3 … enshrines one of the fundamental values of democratic society. … the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention … [it] makes no provision for exceptions and 114 See id., at 2272. 115 Id., at 2271. Between the filing and acceptance of the application, Mr. Aksoy was shot and killed. According to his representatives (his father pursued the case after Mr. Aksoy’s death), Mr. Aksoy had been threatened with death and pressed to withdraw his application to the European Convention. The Turkish authorities, on the other hand, maintained that Mr. Aksoy’s death was connected to an internal dispute among pkk factions and charged another pkk member with Askoy’s murder. 116 See id., at 2278. 117 Id.

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no derogation … even in the event of a public emergency threatening the life of the nation …. In order to determine whether any particular form of ill- treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment … [This is] to attach only to deliberate inhuman treatment causing very serious and cruel suffering.118 In Selmouni v. France,119 the European Court of Human Rights found that the French police had beaten, sodomized, and threatened Mr. Selmouni while he was in their custody. The Court rejected the French government’s argument that Mr. Selmouni was jurisdictionally ineligible because he did not exhaust domestic remedies.120 It noted that the medical certificates and reports sufficiently convinced the Commission of the credibility of the applicant’s allegations concerning the large number of blows he received, as well as their intensity.121 The Court, therefore, declared Mr. Selmouni’s application admissible and found violations of Article 6, Section 1, as well as Article 3.122 The Court then applied the guiding principles established in the Tomasi v. France123 and the Ribitsch v. Austria124 cases.125 Through these examples, the Court noted that torture is “deliberate inhuman treatment causing very serious and cruel suffering;”126 a condition distinguishable from inhuman and degrading treatment. The Court noted that the distinction between torture and inhuman and degrading treatment also was reflected in the Torture Convention127 and decided to apply the guiding principle and the severity 118 119 120 121 122 123 124 125

Id., at 2279. Selmouni v. France, 1109 Eur. Ct. h.r. (1999). See The European Convention, Protocol No. 11, art. 35, § 1. See id. See Selmouni v. France, 1109 Eur. Ct. h.r. (1999), Annex. 241 Eur. Ct. h.r. (ser. A) (1992). 336 Eur. Ct. h.r. (ser. A) (1995). The guiding principle is described by the Court as follows: [W]here an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention. Selmouni v. France, 1109 Eur. Ct. h.r. (1999), 87. 126 Id. 63. 127 The Court noted that “[t]he United Nations Convention against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment … also makes such a distinction, as can be seen from Articles 1 and 16.” Id. 97.

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requirement to the instant case. They acknowledged that the acts of violence and other types of abuse, namely psychological and sexual abuse, experienced by Mr. Selmouni were of such intensity that they could cause substantial pain,128 and also could be classified as “heinous and humiliating for anyone, irrespective of their condition.”129 Considering that all parts of Mr. Selmouni’s body were abused, the abuse was repeated and sustained for a number of days, facts substantiated by medical reports, the Court’s final determination was that the physical and mental violence, considered as a whole, committed against the applicant’s person caused ‘severe’ pain and suffering and was particularly serious and cruel. Such conduct must be regarded as acts of torture for the purposes of Article 3 of the Convention130 However, the European Court of Human Rights refrained from committing to a particular set of criteria for the severity requirement, creating a list of acts which would always be considered as torture or characterizing the evidence necessary to prove either. Thus, the outcome of an individual case remains unpredictable.131 vii

The Israeli Supreme Court Judgment: The Legality of Interrogation

The history of conflict between Israel and the Palestinians has included wars, high intensity internal conflicts and terrorism. The Israeli government issued “directives regulating interrogation methods”132 that authorize its General Security Service (gss) to engage in torture when interrogating individuals suspected of endangering security. In 1999, an Israeli Supreme Court condemned these practices: 128 129 130 131

See id. 102. Id. 103. Id. 105. Compare the outcome of Selmouni v. France with a more recent case, Mahmut Kaya v. Turkey, 1416 Eur. Ct. h.r. (2000). 132 Judgment Concerning the Legality of the General Security Service’s Interrogation Methods, Supreme Court of Israel, 38 i.l.m. 1471 (1999). The methods of interrogation used by the gss included physical practices such as shaking the suspect—a method that could cause brain damage, spinal cord injury, loss of consciousness, loss of control over excretory functions, etc.

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Terrorist acts and the general disruption of order are [the gss’] means of choice … They carry out terrorist attacks in which scores are murdered in public areas, public transportation, city squares and centers, theaters and coffee shops … They act out of cruelty and without mercy.133 The Court continued: On the one hand, it is our duty to ensure that human dignity be protected; that it is not harmed at the hands of those who abuse it, and to do all that we can to restrain police investigators from fulfilling the object of their interrogation through prohibited and criminal means; on the other hand, it is [also] our duty to fight the increasingly growing crime rate which destroys the positive aspects of our country, and to prevent the disruption of public peace to the caprices of violent criminals that were beaten by police investigators.134 This declaration raises the issue of whether any moral and juridical motives can justify torture. The Court considered the permissibility of interrogations which elicit confessions and the disclosure of evidence which might prevent a substantial tragedy. Still, the Court made “no exceptions to the prohibitions against torture and found no room for balancing.”135 The Israeli Supreme Court stated that interrogation methods must be “inherently accessory to the very essence of an interrogation and … both fair and reasonable.”136 If the interrogators exceed their authority, they bear criminal responsibility for their actions. Thus, though the Israeli Court made an important advance in giving the prohibition of torture near absolute standing under Israeli law, it remains to be seen whether the necessity defense minimizes the absolute character of this prohibition.137 We suspect that this decision may have influenced the United States executive plethora of memorandum limiting what counts as torture as a defense to subsequent legal action.138

133 134 135 136 137 138

See id., at 1472. Id., at 1481. Id., at 1482. Id., at 1488. nt of the Republic of S. Afr., cct 17/96. Part D for the optional protocol.

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Extradition of a Former Head of State under the Convention that Outlaws Torture: Standards of Construction in the Interpretation of Municipal and International Law

The interpretation of international treaties is assumed to be governed by international standards of treaty interpretation, such as the provisions in the Vienna Convention on the Law of Treaties. Many regard the provisions in the Vienna Convention as, in general, reflective of customary international law. It is further possible that these standards are meant to guide international decision makers operating after the fashion of dualist theory on the international legal plane. However, municipal courts are faced with situations in which treaties require judicial prescription and application. In general, domestic courts appear to consider the issues as really involving the internal standards used for the interpretation of statutes. However, statutory interpretation is itself complex. Some statutory regimes require strict interpretation. Other statutory regimes often are seen as remedial and liberal construction is generally mandated. The tradition of the common law involving statutory crimes has been to strictly construe such statutes on the theory that the liberty of the citizen should not be compromised by implication. This issue can become more complex when a criminal law statute must be construed to give effect to a treaty obligation, which obligation also must be construed to become congruent with ordinary statutory law. This is a complex question because using different standards for the construction of the operative language of the intersection between a treaty and a statute may point to different results. In general, international interpretation does not make a distinction between interpreting a treaty which may impose criminal liability and one that does not. Moreover, one may discern several interrelated and sometimes complementary theories of international interpretation to give meaning to a treaty which meaning may conflict with what municipal courts do in general regarding the interpretation of statutory mandates. Briefly, in the practice of international law at least three possible approaches may be discerned to the interpretation. The first is the focus on the text and its plain and ordinary meaning. A second, broader version is the ordinary meaning given to words in the light of their context, object and purpose of the instrument in which they are found. A third and possibly still broader approach is the teleological or ultimate purpose approach. Strict legalists are critical of this approach because they maintain that judges will be excessively creative in imagining ultimate purposes, and thus discharge their role as judges in ways

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that are institutionally inappropriate. In the next section, an important case is discussed involving a former head of state. The question before the court was that it had to rule on whether it was appropriate to extradite General Pinochet to a third state to face criminal charges. It was a case that involved the complex interplay of interpretation of a human rights treaty and the internal statutory law of a state. A The Pinochet Case—Torture and Extradition The Pinochet case clarifies an important legal development regarding the indictment of a former head of state, in the context of serious human rights violations. The Pinochet case is also a milestone in the development of human rights law in the domestic courts of the state. The case holds extraordinary implications for defining the meaning of official torture, the limitations implicated in concepts such as sovereign immunity and act of state, the level of collaboration between states in enforcing the law and the scope and reach of the jurisdictional principles designed to give efficacy to the prohibition of torture. The case has been widely discussed in academic scholarly journals. It may be that the procedural and doctrinal issues have already been exhausted in commentary. It is submitted that the opinions of the law lords raise important technical issues of the construction and interpretation of both municipal and international law. It is further submitted that these issues may be of critical importance to the future of human rights law in context of domestic litigation. This section therefore seeks to explore these issues in greater depth. In 1970, Salvador Allende Gossens led a coalition of left wing socialists to electoral victory in Chile. The election marked the first example of a Marxist oriented government democratically elected into office in the American sphere. Not surprisingly, the Allende’s government sought to prescribe and implement a socialist-oriented social and economic policy for Chile. This had large scale repercussions involving both domestic and foreign efforts to provide a measure of economic instability and crisis for the regime. On September 11, 1973, a military junta led by General Augusto Pinochet organized a coup d’état with the acquiescence, if not support, of the United States. Pinochet remained in power as President for sixteen years.139 During this period, the junta 139 Several documents provide description of events and evaluation of situation in Chile in the 1970s and 1980s. Among them, Informe de la Comision Nacional de Verdad y Reconciliacion (also known as Informe Rettig) is exceptional for its thoroughness and objectivity. See Report of the Chilean National Commission on Truth and Reconciliation, translated by Philip E. Berryman (1993) [hereinafter Rettig Report]. In 1992, the Truth and Reconciliation Commission in Chile was replaced by the Reparation and Reconciliation

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implemented a strategy of eliminating and repressing, with the utmost force, Chileans identified with left wing, socialist values. The patterns of state repression involved widespread use of torture. Human rights organizations documented with great precision who the torture victims were, where they were tortured, how they were tortured and who the torturers were.140 The torture involved unspeakable horrors perpetrated against men and women. Along with torture came the business of mass murder, disappearances and a regime that built a reputation for itself as one of the worst human rights violators in the hemisphere.141 General Pinochet organized amnesty for himself before giving up power, as a means to insulate himself from responsibility and accountability for what had taken place during his presidency.142 In his role as a Chilean Corporation. The Corporation had been set up under the administration of the then President Patricio Aylwin. In 1996, the Corporation presented President Aylwin with its final report. The report recognized 123 disappearances and 776 extrajudicial executions or death under torture during the military junta’s government, in addition to those previously recognized by its predecessor, the Truth and Reconciliation Commission. Combined, the number of cases was a staggering. 3,197 cases officially recognized by the Chilean state; 1,102 were cases of disappearances and 2,095 were cases of extrajudicial executions or death under torture. 140 In 1975, the u.n. Ad-Hoc Working Group on Chile was established by the u.n. Commission on Human Rights Resolution 8 of February 27, 1975. It was this Working Group on Chile and the Inter-American Commission on Human Rights of the Organization of American States which extensively documented the widespread violations of human rights in Chile. In 1976, the u.n. Ad-Hoc Working Group on Chile concluded that cases of torture committed by the military junta should be prosecuted by the international community as crimes against humanity. See u.n. Doc. A/31/253 (October 8, 1976). 141 It was established that one particular governmental agency, the intelligence service, dina (Directorate of National Intelligence), played a central role in the implementation of the policy of systematic and widespread human rights violations in Chile. Furthermore, a connection existed between the General Pinochet and dina. During the period under consideration, i.e., from 1973 to 1977, dina reported directly to General Pinochet through its Director, General Contreras. In February, 1998, the former head of dina testified in front of the Chilean Supreme Court and indicated that General Pinochet was in command of the operations of dina. Moreover, General Pinochet was also the head of the armed forces, which position played an important role in implementation of the governmental policy. 142 In Chile, several mechanisms were invented guaranteeing impunity to various human rights perpetrators. These mechanisms blocked effective judicial investigations. In 1978, the military government of General Pinochet decreed an amnesty designed to shield those responsible for human rights violations committed between September 11, 1973 and March 10, 1978 from prosecution, amounting to self-amnesty. See Decree aw No. 2191 (April 18, 1978), published in Diario Official, No. 30,042 (April 19, 1978) (Chile). Also, the

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Senator, he visited the United Kingdom to obtain expert medical treatment and while there, a Spanish judge, Baltasar Garzon, issued an arrest warrant and requested that Britain extradite him to Spain to face criminal charges.143 This constitutes the background of the important litigation involving the question of whether the crimes for which General Pinochet is an alleged perpetrator, are ones for which he could be extradited under the law of the United Kingdom and international law. B First Decision of the House of Lords (Pinochet i) The House of Lords’ decision in the Ex parte Pinochet case, issued on November 25, 1998144 held that General Pinochet could be extradited to Spain based on international warrants issued by a Spanish judge and that he could be sent to Spain to stand trial in Spain for the crimes of torture, hostage taking and murder. That decision was based upon the request for extradition of General Pinochet by the judge who issued an international warrant alleging that General Pinochet had breached Spanish law relating to torture, genocide and terrorism.145 In short, the request for extradition averred that: ­ onstitution of Chile of 1980 included a scheme of establishing a system of senators for C life who, as parliamentarians, would have complete immunity under Chilean law. General Pinochet was assured of his position as senator for life on retiring from armed forces. See Constitucion Politica de la Republica de Chile (1980). 143 On October 16, 1998, while General Pinochet was arrested based on a Spanish provisional arrest warrant alleging that he was responsible for the murder of Spanish citizens in Chile when he was the head of state. On October 22, 1998, he was served with a second Spanish provisional arrest warrant alleging that he was responsible for systematic acts of murder, torture, disappearance, illegal detention and forcible transfers both in Chile and other countries. Then, on October 28, 1998, the High Court of Justice granted General Pinochet immunity from prosecution, denying Spain’s request. See United Kingdom High Court of Justice, Queen’s Bench Division, In re Augusto Pinochet Ugarte [October 28, 1998] 38 i.l.m. 68 (q.b. 1998). In response, lawyers from Spain, Amnesty International and other human rights groups appealed the decision to a five-member panel of Law Lords. These Law Lords ruled 3-2 against General Pinochet. See United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302 (h.l. 1998). Subsequently, the u.k. Home Secretary, Jack Straw, allowed the case to proceed through the House of Lords. See 38 i.l.m. 489 (h.l. 1999). 144 See United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302 (1998). 145 See Opinion of Lord Slynn of Hadley; United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302, 1305 (1998).

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[t]hese offences have presumably been committed, by Augusto Pinochet Ugarte, along with others in accordance with the plan previously established and designed for the systematic elimination of the political opponents, specific segments of the sections of the Chilean national groups, ethnic and religious groups, in order to remove any ideological dispute and purify the Chilean way of life through the disappearance and death of the most prominent leaders and other elements which defended Socialist, Communist (Marxist) positions, or who simply disagreed.146 The National Court Criminal Division of Spain held, by an order of November 5, 1998, that Spain was competent under international law and therefore had jurisdiction to try a defendant in the position of General Pinochet for crimes of torture, genocide and terrorism regardless of whether the victim was of Spanish origin or not.147 According to the court: Spain is competent to judge the events by virtue of the principle of universal prosecution for certain crimes—a category of international law— established by our internal legislation. It also has a legitimate interest in the exercise of such jurisdiction because more than 50 nationals were killed or disappeared in Chile, victims of the repression reported in the proceedings.148 The central issue certified to the House of Lords was as follows: [a] point of law of general public importance is involved in the Court’s decision, namely the proper interpretation and the scope of the immunity enjoyed by a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed when he was a head of state.149 Three Law Lords, Lord Nicholls, Lord Steyn and Lord Hoffmann, ruled to allow the appeal, concluding in part that “General Pinochet is not entitled to an immunity of any kind.”150 According to Lord Nicholls, 146 147 148 149 150

Id. See id. Id. Id., at 1304. Opinion of Lord Steyn; United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302, 1338 (1998).

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[a]cts of torture and hostage taking, outlawed as they are by international law, cannot be attributed to the state to the exclusion of personal liability. Torture is defined in the [T]orture [C]onvention … and in the United Kingdom legislation151 … as a crime committed by public officials and persons acting in a public capacity…. It is not consistent with the existence of these crimes that former officials, however senior, should be immune from prosecution outside their own jurisdictions. The two international conventions made clear that these crimes were to be punishable by courts of individual states. The [T]orture [C]onvention, in Article 5 and 7 expressly provided that states are permitted to establish jurisdiction where the victim is one of their nationals, and that states are obliged to prosecute or extradite alleged offenders.152 Law Lord Donald Nicholls held that the United Kingdom had in fact legislated a component of extraterritorial jurisdiction over inter alia the crime of torture.153 The critical issue addressed by Lord Nicholls was the question of the scope of immunity that might be available to a former head of state. In referring to the immunity conferred in Section 1 of the State Immunity Act of 1978,154 Lord Nicholls quotes the principle that the foreign state is “immune from the jurisdiction of the courts of the United Kingdom.”155 Similar to other legislative pronouncements on the issue of sovereign immunity, the State Immunity Act of 1978 also comes loaded with important exceptions. A great deal of controversy has revolved around construing the principle and its exceptions in a coherent manner. Judges often forget that the legislative codification of the principle of sovereign immunity, at least in capitalist societies, was driven by the principle that the concept of sovereign immunity should be limited.156 This codification reflected, in part, the diversification of the role of the modern state involving itself in many activities, including commercial activities, excessively expanding the scope of its sovereign identity. The development of totalitarian or 151 Section 134 of the Criminal Justice Act 1984. 152 Opinion of Lord Steyn. 153 Opinion of Lord Nicholls; United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others; Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302, 1334 (1998). 154 The State Immunity Act, 17 i.l.m. 1123 (1978) (hereinafter the State Immunity Act of 1978). 155 See id., at 1331. 156 Referred to as restrictive immunity.

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a­ uthoritarian forms of rule with claims to sovereignty over all matters related to civil society and commercial enterprise tend to provide a distorted view of the role of the state in many dimensions of international communication and collaboration. It becomes an important element of international law disputation as to whether the concept of sovereign immunity should be limited or unlimited. Since the principle of sovereign immunity was prescribed in state legislation with qualifications and exceptions, a central question for judicial determination would ultimately devolve upon the interpretive principle of how broadly or narrowly the principle of sovereign immunity and its exceptions had to be construed. Unfortunately, international law precedents in both the United Kingdom and the United States have tended to gravitate toward a creeping absolutism in the construction of the principle of sovereign immunity and its appropriate limitation and scope. Lord Nicholls cites three cases which support a broad construction of the general principle of sovereign immunity, and concludes that these cases are not relevant to the Pinochet situation because they all concern civil actions against the state.157 He is, of course, correct in making this distinction. However, he might have challenged the critical principles of interpretation which inform these cases in the light of the relevant statutes which were being construed and interpreted to limit the accountability of a state in a domestic litigation context. Lord Nicholls squarely contrasts the State Immunity Act of 1978, which would seek to limit the sphere of international concern over 157 While addressing the issue of state immunity, Lord Nicholls stated: In cases which fall within Section  1 but not within any of the exceptions, the immunity has been held by the Court of Appeal to be absolute and not subject to further exception on the ground that the conduct in question is contrary to international law: see Al-Adsani v. Government of Kuwait (1996) 107 i.l.r. 536, where the court upheld the government’s plea of state immunity in proceedings where the plaintiff alleged torture by government officials. A similar conclusion was reached by the United States Supreme Court on the interpretation of the Foreign Sovereign Immunities Act 1976 in Argentine republic v. Amerada Hess Shipping Corporation (1989) 109 S. Ct. 683. This decision was followed by the Court of Appeals for the Ninth Circuit, perhaps with a shade of reluctance, in Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992), also a case based upon allegations of torture by government officials. These decisions are not relevant in the present case, which does not concern civil proceedings against state. So I shall say no more about them. Opinion of Lord Nicholls; United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302, 1331 (1998).

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­ atters arguably within the domestic jurisdiction of a state, with the idea that m ­international law clearly places limits on the functions of a head of state.158 According to Lord Nicholls: international law recognizes … that the functions of the head of state may include activities which are wrongful, even illegal, by the law of his own state or by the laws of other states. But international law has made plain that certain kind of conduct, including torture and hostage taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to anyone else; the contrary conclusion would make a mockery of international law.159 The opinion of Lord Johan Steyn draws particular attention to the opinion of the Lord Chief Justice in the Court of Appeals.160 This opinion is important because two Law Lords have effectually embraced the broader construction of sovereign immunity than the majority of the Law Lords in this opinion. The critical question, involving a matter of fact and law, was whether facts about torture would be regarded as official acts. If the head of state’s acts were official acts, General Pinochet would be entitled to immunity with respect to at least some crimes implicated in those facts. But then the critical question is “Where does one draw the line?”161 Lord Steyn’s review of the opinion of the Lord Chief Justice focuses on his conclusion that even in respect to acts of torture the former head of state immunity would prevail. As Lord Steyn concludes, it is inherent in this … conclusion that there is no or virtually no line to be drawn. It follows that when Hitler ordered the ‘final solution’ his act must be regarded as an official act deriving from the exercise of his functions as head of state. That is where the reasoning of the Divisional Court inexorably leads. Counsel for General Pinochet submitted that this conclusion is the inescapable result of the statutory wording.162 158 See Opinion of Lord Nicholls; United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302, 1333 (1998). 159 Id. 160 See Opinion of Lord Steyn; United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [November 25, 1998] 37 i.l.m. 1302, 1335 (1998). 161 Id., at 1337. 162 Id.

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This 3-2 decision of the House of Lords, although generating points of agreement, also generated points of deep disagreement as to principle and as to the relevant theory of interpretation of the relevant provisions of the law. In a nutshell, the disagreements involve three Law Lords who favored a limited form of immunity for a former head of state, consistent with the inroads made on state sovereignty in the Nuremberg tradition. Nuremberg tribunal held that sovereignty could not shield state officials for certain kinds of conduct deemed criminal in international law.163 The crime of torture would clearly fall within this category of limited immunity. The other Law Lords provided a kind of double read on the issue of state sovereignty, very much in keeping with those who proclaim a very strong Lotus position in international law. It should be noted that the Lotus Case164 was decided prior to Nuremberg. These Law Lords may be loosely characterized as the pro-immunity Law Lords. Apart from a use of interpretation, there are also questions of the political consequences of subjecting a former head of state to extradition proceedings. Technically, it is within the competence of the Secretary of State to extradite a defendant to another sovereign state. However, the construction of international law and the relevant principles of sovereign immunity on one hand, and international concern and responsibility on the other, require some form of development of international law through the domestic courts of the international community. The Torture Convention works on the principle established in Articles 55 and 56 of the u.n. Charter. Namely, that states acting individually and collectively will collaborate in order to enhance the purposes of the United Nations which includes human rights. The principle of enforcement implicit in the idea of “prosecute or extradite” works on an assumption that the enforcement of international law is still very decentralized and that states, acting through their foreign ministries, executive organs, bureaucratic agencies and domestic courts, must apply and prescribe both national and international law often in the same litigation. One must therefore be cautious about a policy that withdraws the legal process from the development of international 163 When the sovereign immunity still followed the absolutistic approach, the immunity extended not only to the nation, but to the ruler as well, basically because at that time the nation and the ruler were viewed as one and the same. Later, however, the state immunity and head of state immunity became two distinct concepts. See Jerrold L. Mallory, Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169, 170–71 (1986). In 1945, the Nuremberg Charter, supra note 26, formally codified the principle that everyone, including a head of state, is individually responsible for, among others, crimes against humanity. See Nuremberg Charter, supra note 26, art. 6. 164 The Case of the S.S. Lotus (France v. Turkey) Permanent Court of International Justice (1927), p.c.i.j. Ser. A, No.10, 2 Hudson, World Ct. Rep. 20.

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law through the most important legal fora in the international system, the domestic courts. C Second Decision of House of Lords (Pinochet ii) The decision of the House of Lords in Pinochet I was set aside because of a concern that Lord Leonard Hoffmann was involved in a personal manner with Amnesty International and therefore the appearance of a conflict of interest could be seen as possibly compromising the integrity of the decision. The House of Lords then set aside its former ruling and a new committee was impaneled to rehear the case.165 Britain’s highest court then upheld the appeal.166 The three opinions of the Law Lords that merit most careful consideration are those of Lord Nicolas Browne-Wilkinson and Lord Robert Goff of Chieveley, who dissented on the important issue of immunity, and Lord Peter Millett, who also had reservations with regard to some aspects of the judgment of Lord Browne-Wilkinson. The central problem in Lord Browne-Wilkinson’s opinion167 covers the ­issue of extradition law and the issue of sovereign immunity and the scope of universal jurisdiction over the crime of torture. The issue of torture under the (u.k.) Extradition Act of 1989 carries forward the principle “double criminality.” The implied assumption of the double criminality rule is that crimes are proscribed by the sovereigns, and for one sovereign to extradite an accused defendant to another sovereign to prosecute that defendant under that sovereign’s law, the crime for which extradition is sought must be also recognized as a crime in the state from which the extradition is sought. The practical problem with the (u.k.) Extradition Act of 1989 thus construed is that it does not specifically account for crimes of a specifically international character in a substantive sense. What is interesting about the double criminality rule is that the procedure of 165 It was discovered that Lord Hoffmann was involved with Amnesty International Charity Limited, a company controlled by Amnesty International, and did not disclose his involvement prior to the hearing. See United Kingdom House of Lords: In re Pinochet, 38 i.l.m. 430 (1999). 166 On April 15, 1999, the u.k. Home Secretary, Jack Straw, decided that he would allow the extradition process to continue. General Pinochet was subsequently rearrested on new charges and his lawyers challenged Mr. Straw’s decision. A new decision (on appeal from the Divisional Court of the Queen’s Bench Division) was then passed on extradition. See United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [March 24, 1999] 38 i.l.m. 581 (1999). 167 Opinion of Lord Browne-Wilkinson, United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [March 24, 1999] 38 i.l.m. 581, 582–95 (1999).

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cooperation must rest upon a shared perspective of what constitutes a crime; and this shared perspective ultimately must partake of the notion of an inclusive form of criminality between two states for which extradition cooperation is requested. The idea of crimes of universal import both from a substantive and procedural point of view, finds its roots in the post World War ii growth of crimes that purport to be universally proscribed. It is possible that the double criminality rule is a rule that assumes those forms of crime, characteristic of most developed criminal justice expectations, are normally prescribed and applied as an incident of the sovereign’s police powers. It therefore seems that the concept of double criminality is a non-sequitur if the crime is of universal ­import. By “universal” we mean that substantively the crime is universally proscribed. If this is the case, an extradition treaty put into statutory form, can be ­construed in one of two ways. It could be construed as indicating that since double criminality is not universal criminality, the matter cannot be covered by the (u.k.) Extradition Act of 1989. It could also be argued that the Act must be rationally construed to advance the purposes of a substantive, universal criminal law prescription. In doing so, the Act has an obligation to provide as much procedural universality to rationally enhance the objectives of the universal criminal law standard. Lord Browne-Wilkinson, however, views the issue of criminality as one that must be created under English law in the first place.168 Thus, any claim to extradition must ultimately be a function of English law.169 This is a profoundly important theoretical issue because, in part, the jurisprudence of the international law of torture reflects a substantive versus procedural argument. It can be said, that torture has long been prohibited and made criminal under international law, from a substantive point of view. The procedure for applying and enforcing the prohibition is much more problematic. Because there was no international juridical institution for prosecuting crimes of torture and juridically assessing the issue of guilt or innocence of potential defendants, the enforcement of international law was per force a matter presumed to be allocated to the more decentralized form of legal accounting found in the domestic institutions and the fora of individual states. In other words, the prescription was international, and the application was a responsibility of individual states. It has long been recognized that municipal courts are one of the most important institutions for the direct prescription and application of general international law. In part, this development is a reflection of the decentralized 168 See id., at 586–89. 169 See id.

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character of a great deal of international decision making in the world. Moreover, the principles of civil law, reflected in the rules of private international law, demonstrate that domestic fora routinely make and apply law for multistate problems involving more than one state, in which facts and issues have relevant connecting ties with those concerned states. The Torture Convention provides an interpretive gloss on the practical implications of what is discussed above. This Convention could be construed as creating a universal crime of torture with a universal approach to the question of jurisdiction. It could also be seen as a codification of preexisting expectations and a sharper delineation of the procedural obligation to cooperate in the eradication of torture on a universal basis. If the Torture Convention is the only starting point of the issue of criminal basis of torture under English law, then no prior obligation exists with regard to the prohibition of torture prior to the adoption of the Torture Convention in the United Kingdom. If the Convention is seen, in part, as codifying important aspects of what is considered to constitute an international crime, then the Torture Convention is only one aspect of the larger question of the substantive and procedural aspects of torture as a crime under international law. The text of the (u.k.) Extradition Act of 1989 should be read in light of the entire process of the evolving law and practice relating to the prohibition of torture on a universal basis and a literal reading of the (u.k.) Extradition Act of 1989 and the Torture Convention makes them virtually irreconcilable. The (u.k.) Extradition Act of 1989 does not mention torture as a crime., but it is hardly likely that the Act would contain a specific catalogue of every conceivable existent or prospective crime. This is precisely an issue of juridical interpretation, for example, judges make law in a molecular rather than a legislative manner. The Court of Appeals had held that according to Sections 2(1)(a) and (3)(c) it could refer a request for extradition to be operative on the request date or on the conduct date.170 Although the (u.k.) Extradition Act of 1989 generates some degree of ambiguity about the critical date for which the double criminality rule must be complied with, it should be kept in mind that the conceptual basis of the double criminality rule is different from the conceptual basis of a crime of a universal character. Lord Browne-Wilkinson collapsed the issue of universality into the issue of sovereign immunity and domestic jurisdiction when he held that General Pinochet’s conduct must have been criminal under the laws of the United Kingdom when it was allegedly done.171 If the logic of this decision is correct, the assumptions must be that the law of Nuremberg is 170 See id., at 586. 171 See id., at 588.

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not British law, and that this ruling overturns the Nuremberg precedent and such law having a universal criminal character. The construction and interpretation of the (u.k.) Extradition Act of 1989 should be considered as it relates to the issue of torture as a universal crime and be interpreted in the light of Articles 55 and 56 of the u.n. Charter. ­According to Article 55, it is the obligation of the United Nations to promote … “universal respect for, and observance of, human rights and fundamental freedoms …” and Article 56 specifically stipulates that “all members pledge themselves to take joint and separate action in cooperation with the organization for the achievement of the purposes set forth in Article 55.” The prohibition of torture is a matter that the United Nations is obliged to promote. The United Kingdom, as a member of the United Nations, has pledged, inter alia, “to take separate action … for the achievement of the above specific purposes.” It would therefore seem that the United Kingdom’s courts, when vested with a juridically cognizable problem, should provide appropriate levels of construction and interpretation of United Kingdom law so as to respect its obligation under the u.n. Charter. Although the u.n. General Assembly’s resolutions are technically not law in the narrow sense, when they elucidate specific provisions of the u.n. Charter they can provide normative guidance for the construction and interpretation of national law implicating international obligations. In the u.n. General Assembly Resolution that adopted the u.n. Principles of International Co-operation in the Detention, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity,172 the following principles are of direct relevance to the construction given by Lord Browne-Wilkinson: 3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take domestic and international measures necessary for that purpose. 4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes and, if they are found guilty, in punishing them. 5. Persons against whom there is evidence that they have committed war crimes and crimes against humanity shall be subject to trial and, if found guilty, to punishment, as a general rule in the countries in which they committed those crimes. In that connection, States shall co-operate on questions of extraditing such persons. 172 Resolution 3074 (xxviii) of 3 December 1973.

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6. States shall co-operate with each other in the collection of information and evidence which would help to bring to trial the persons indicated in paragraph 5 above and shall exchange such information. … 8. States shall not take any legislative or other measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest extradition and punishment of persons guilty of war crimes and crimes against humanity. The obligation specifically to cooperate and bring to justice those charged with crimes against humanity is supported by Article 15(2) of the ccpr and Article 7(2) of the European Convention. Both conventions establish the principle that persons accused of committing crimes against humanity can be prosecuted in domestic courts under international law. Even if a state has not incorporated specific international crimes into the structure of its domestic criminal law, that state will still have an international obligation to cooperate procedurally, as fully as it can, to enhance the rule of law in this context. The u.n. Committee Against Torture has indicated that irrespective of whether or not a state has specifically ratified the Torture Convention, there exists “a general rule of international law which should oblige all states to take effective measures to prevent torture and to punish acts of torture.”173 Lord Browne-Wilkinson’s construction and interpretation of the (u.k.) Extradition Act of 1989, relating to the principles of double criminality and the conduct date, served to radically diminish the scope of the presumed universality of the prohibition of torture. The statute, it is submitted, is read in an astigmatic manner and, gives an inadequate conceptual explanation of the scope and essential character of torture as a universally prohibited crime under international law. It may be worth a jurisprudential reminder that procedural law exists for the purpose of giving effect reasonably to the principles of substantive law. The style of interpretation used to construe the meaning and reach of the (u.k.) Extradition Act’s impact upon the crime of torture has also influenced his Lordship’s analysis of the issue of immunity.174 It should be noted, in the first instance, that the issue of immunity is procedural rather than 173 Recalling the Nuremberg principles and the udhr, the u.n. Committee Against Torture expressed this opinion in decision of November 23, 1989, Communications Nos. 1/1988, 2/1988 and 3/1998, Argentina, decisions of November 1989, 7.2. 174 See Opinion of Lord Browne-Wilkinson, United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet (March 24, 1999) 38 i.l.m. 581, 591–95 (1999).

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substantive and therefore, when confronted with the ius cogens international crime such as torture, it would seem that the procedural tail should not wag the substantive dog. Even more importantly, the major purpose of the Torture Convention is narrow with respect to the class of potential torture defendants. Torture can only be committed “by a public official or other person acting in an official capacity.” General Pinochet was a public official par excellence. In effect, he was the public official of Chile. This principle, on its face, is in direct conflict with the general principle of sovereign immunity which is claimed ratione personae. In effect, what his Lordship has held is that General Pinochet enjoys sovereign immunity (as a head of state), i.e., ratione materiae, for his actions which took place during the period within which he was a head of state, but and enjoys no sovereign immunity for acts done when he ceased to be a head of state. In other words, the single charge (charge 30) saved the international community from precluding General Pinochet from accountability under the rule of law. The construction of the principles of sovereign immunity are also flawed. They principles are flawed because they rest upon a complete misconception of the contemporary principle of the limited nature of sovereign immunity as well as an appropriate understanding of an individual’s accountability under international law of crimes committed in violation of ius cogens principle. The most important aspect of the principle of sovereign immunity lies in the development of the idea of a limited or restricted recourse to sovereign ­immunity.175 The restricted conception of sovereign immunity accepts the 175 u.s. Supreme Court Justice William Rehnquist in First Nat’l City Bank v. Banco Nacional de Cuba, 406 u.s. 759 (2d Cir. 1973), provided the key to the restrictive theory of both sovereign immunity and the act of state doctrine. He noted that the conceptual basis of both sovereign immunity doctrine and the act of state doctrine are essentially the same. According to the Justice Rehnquist, “both the act of state and sovereign immunity doctrines are judicially created to effectuate general notions of comity among nations and among the respective branches of the Federal Government.” It follows therefore, that the limitations that apply to the sovereign immunity doctrine will also apply to the act of state doctrine. Thus, for example, if the executive branch indicated that there was no reason to proceed with the case, the judiciary would be free to decide the case according to law. According to Justice Rehnquist, [t]he only reason for not deciding the case by use of otherwise applicable legal principles would be the fear that legal interpretation by the judiciary of the act of a foreign sovereign with its own territory might frustrate the conduct of this country’s foreign relations. But the branch of the government responsible for the conduct of those foreign relations has advised us that such a consequence need not be feared in this case. The judiciary is therefore free to decide the case without the limitations that would otherwise be imposed upon it by the judicially created act of state doctrine.

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principle that a forum state may permit its courts to adjudicate the conduct of a foreign state in its domestic tribunals. This conception is the principle of iure gestionis.176 It recognizes that the state may be involved in ordinary matters of legal importance and that in doing so, the state cannot use the symbol of sovereignty to avoid its legal responsibilities in international law. It also recognizes that while the modern state performs classical functions of state, called iure imperii,177 there are other matters in which states are involved that ought not to be shielded. Even the act of state doctrine has been reinterpreted to reflect the notion that some forms of state conduct are not axiomatically to be given immunity. These represent the weaker version of the limitations upon sovereign immunity. A stronger argument comes from the Nuremberg experience itself, in which the principle of following orders of the state was held not to immunize officials’ accountability. The International Military Tribunal held that at the back of the abstractions “state” and “sovereignty,” there are finite agents of decision making who must be held responsible when their conduct violates the most elementary standards of legality and decency. Nothing could be clearer in international law than the continuously affirmed principle that, in a narrow class of cases involving the most fundamental ideas of humanitarianism, there is an obligation to make governmental officials accountable

Having collapsed the act of state doctrine into the doctrine of sovereign immunity, the act of state doctrine would now come with the limited version of the doctrine of sovereign immunity itself. This line of reasoning was emphatically endorsed by the u.s. Supreme Court in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 u.s. 682 (1976). Citing to the case of Mexico v. Hoffman, 324 u.s. 30 (1945), the Court denied immunity with regard to a commercial ship belonging to the Mexican government. The Court pointed out that the United States had “adopted and adhered to a policy declining to extend sovereign immunity to the commercial dealings of foreign governments.” The Court noted that this policy was predicated upon the recognition that the limited approach to sovereign immunity had been “accepted by a large and increasing number of foreign states in the international community.” The Court concluded that the restrictive theory of sovereign immunity had been accepted as “the prevailing law of this country.” The court thus extended the limited theory of sovereign immunity unequivocally to the act of state doctrine as well. Although the concept of sovereign immunity here refers to a commercial exception, there is no reason in law that the concept of ‘commercial’ should not be construed to mean either private or refer to conduct outside of what public law and morality sanctions, and what is specifically and unequivocally prohibited by international law. 176 In his book Principles of Public International Law, Ian Brownlie defines iure gestionis as acts of commercial nature. See Ian Brownlie, Principles of Public International Law, 4th edition, 327 (1990). 177 See id.

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for k­ nowingly committing acts in violation of known law. The construing of the (u.k.) State Immunity Act of 1978 as well as the Vienna Convention on Diplomatic Relations178 must be done in light of both the restrictive theory of sovereign immunity and a deeper and more internationalist appreciation of obligations erga omnes, which are inherent in a realistic construction of the entire international effort to proscribe torture, including the laws codified in the Torture Convention itself. There is a serious question concerning the interpretive import of both Articles 2 and 4 of the Torture Convention when read in the light of the State Immunity Act of 1978. Can the latter Act be read as trumping a ius cogens, erga omnes obligation under international law? Can the Act be read as trumping the non-derogability principle of Article 2? Can the Act be read as trumping the clear import of the abrogation of the superior order defense? Must the State Immunity Act of 1978 be construed to make torture a “non” grave crime (Article 4)? The relevant international law standard of interpretation when statutes, conventions, treaties or other sources of law are incomplete, ambiguous or contradictory is the standard of reasonable construction and interpretation.179 Clearly, the (u.k.) Extradition Act of 1989, the Vienna Convention on Diplomatic Relations, the State Immunity Act of 1978 and the Torture Convention must be given the most reasonable interpretation that reconciles the major purposes or objectives of these sources of law. The questions raised require some recourse to both the plain language of these instruments and a supplementation of the meanings the relevant terms and concepts hold in the light of the most reasonably construed purposes these laws are meant to secure. The opinion of Lord Browne-Wilkinson indicates the limitations of trying to

178 Vienna Convention on Diplomatic Relations; done at Vienna, April 18, 1961; entered into force, April 24, 1964; 23 u.s.t. 3227, t.i.a.s. No. 7502, 500 u.n.t.s. 95 (hereinafter the Vienna Convention). 179 The standard of reasonable construction and implementation was formulated by Professor H.A. Smith as follows: The law of nations which is neither enacted nor interpreted by any visible authority universally recognized, professes to be the application of reason to international conduct. From this it follows that any claim which is admittedly reasonable may fairly be presumed to be in accord with law, and the burden of proving that it is contrary to the law should lie in the state which opposes the claim. Winston P. Nagan, Nuclear Arsenals, International Lawyers, and the Challenge of the Millennium, 24 Yale J. Int’l L. 485, 502 (1999) (citing Myres S. McDougal & Norbert A. Schlei, The Hydrogen Test in Perspective: Lawful Measures for Security, 64 Yale l.j. 648, 660 (1955) (quoting H.A. Smith, the Law and Custom of the Sea 20 1950)).

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give as much literal meaning to each statute and treaty without regard to the fact that the problem requires that the State Immunity Act of 1978, the (u.k.) Extradition Act of 1989, the Vienna Convention on Diplomatic Relations, the Diplomatic Privileges Act of 1964 and the Torture Convention must be read in the light of the principle of complementarity. That is to say, they must be construed in terms of their rational conceptual basis and a reasonable approach to specific application. The plain fact is that none of these legal instruments were drafted at the same time, by the same drafters, or took into account the specific legal import of each instrument in relation to the other. This is precisely the challenge for both principles of advocacy as well as standards of interpretation, which may differ in cases of purely local importance, and may be quite different when international law prescriptions are involved. Here the international standards of implementation which are indicated in the Vienna Convention on the Law of Treaties represent an authoritative codification.180 It may be noted that even the narrow basis of Lord Browne-Wilkinson’s decision was challenged by Lord Goff.181 Lord Goff took the position that since the Torture Convention does not say anything about the issue of immunity of officials, it does not cover officials who may be subject to prosecution or extradition within a state, even if that state is a party to the Torture Convention.182 180 The rules of interpretation of treaties are set out in Section 3 of the Vienna Convention on the Law of Treaties, supra note 183, arts. 31–32. The general rule of interpretation stipulates: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context for the purpose of the interpretation of a treaty shall compromise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accept by other parties as an instrument related to the treaty. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. A special meaning shall be given to a term if it is established that the parties is intended. Id., art. 31. 181 Opinion of Lord Goff of Chieveley, United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [March 24, 1999] 38 i.l.m. 581, 595–609 (1999). 182 See id. at 600–08.

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It is hard to accept that if an obligation erga omnes trumps sovereignty, it does not also require the trumping of sovereign immunity. Under Lord Goff’s reading, the term ‘officials’ in the definition of torture in the Torture Convention must mean absolutely nothing. The fact of the matter is if state officials are a part of the very definition of torture, it is hard to imagine how those officials may at the same time claim immunity from prosecution as officials. Lord Goff says, that it would be dangerous to imply an abrogation of immunity to the Torture Convention. Surely the governmental officials who negotiated governmental responsibility, knew or should have known that they were negotiating a concept of legal accountability for officials. In fact, when one of the authors was a party to the team negotiating the reservations, declarations and understandings of the United States ratification process relating to the Convention of Torture, among the issues that emerged was the scope of the definition of the crime of torture and the procedural protections of potential defendants. These issues were so stridently put forward by members of the u.s. Department of Justice, that the author queried these officials about the stridency of their concerns for defendants’ rights. He was reminded that in this context the defendants were governmental officials and that they had as much interest in defending themselves as ordinary criminals. The decision of the House of Lords may be viewed from the perspective of a glass being either half full or half empty. From the point of view of the principle established under international law, the holding that General Pinochet could be extradited to Spain for a criminal act of torture is important. It sends a compelling message that torturers who travel abroad may be at risk. Second, the principle is equally established that a former head of state is simply not above the law, even if laws in the torturer’s own national jurisdiction seek to protect the torturer from being prosecuted in the international arena. The point that a head of state, after leaving office, may be subject to prosecution under international law for an international crime is certainly a milestone in the jurisprudence of international criminal law regarding universally proscribed crimes. Finally, the general point had now clearly been established that a governmental official accused of crimes such as torture can be subjected to prosecution in any part of the world. These are important milestones in giving efficacy to the effort to eradicate torture.183 However, the scope and role 183 It may be that the decision of the House of Lords in Pinochet ii, however narrowly formulated, has provided an important level of legal influence on General Pinochet’s status in Chile itself. A Chilean Court of Appeals by stripped General Pinochet of his immunity under Chilean law. Having removed this obstacle to making the General answerable at law, it became possible that the General could have faced charges of being involved in the

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of the law relating to sovereign immunity (which apparently is construed as continuing to have efficacy while the head of state is in power) is much more problematic from the standpoint of both the theory and the practice of international law. The interpretive limitations imposed by the learned Law Lords on the scope of the crime of torture as juxtaposed against the law of extradition and immunity does a disservice to international law and undermines the human rights foundations of international legal order. ix

Torture and United States Policy Prior to 9/11/2001; Particular Emphasis on the Politics and Other Strategies of Developing the Law against Torture

The Congressional Joint Resolution Regarding Opposition of the United States to the Practice of Torture by Foreign Governments The United States began its formal domestic effort to eradicate torture when Congress adopted the Joint Resolution Regarding Opposition of the United States to the Practice of Torture by Foreign Governments in 1984.184 The Joint Resolution affirmed A

a continuing policy of the United States government to oppose the ­practice of torture by foreign governments through public and private kidnaping, murder and torture of thousands during the seventeen years of his d­ ictatorship. According to the New York Times, under Chilean law, while a legislator is protected by immunity, judges may remove that immunity if there is evidence that a crime may have been committed. See Clifford Krauss, Chile Strips Pinochet of Immunity, Lifting One Barrier to Trial, n.y. Times, May 25, 2000, at A1 and A4. The broader principle is that human rights groups are now becoming, according to the Wall Street Journal, “hyperactive.” Vast numbers of the world’s dictators are located all over the planet. It has become apparent to human rights groups that, if these dictators are targeted for legal action, a strong message of deterrence might be sent to those dictators currently in power and willing to use human rights violations to remain in power. This has also resulted in changes in the way in which human rights intelligence work is done. The shift focuses on the gathering and organization of evidence that is usable in courts of law, establishing the physical location of dictators in order to more carefully assess the jurisdictional questions of legal accounting. See Marc Champion, Pinochet Is Freed, But No Ex-Dictator Should Feel Safe, Wall St. J., at A1 and A12 (March 3, 2000). 184 Joint Resolution Regarding the Implementation of the Public Policy of the United States Government in Opposition to the Practice of Torture by any Foreign Government, h.r.j. Res. 605, 98th Cong., 98 Stat. 1721 (1984) (codified in 22 u.s.c. § 2656 (2000)). Hereinafter the Joint Resolution.

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d­ iplomacy … [and to oppose] acts of torture wherever they occur, without regard to ideological or regional considerations …185 Furthermore, the Joint Resolution decreed that the United States government must work with both governments and non-governmental organizations (ngos) to combat the practice of torture worldwide.186 Section  2(a) of the Joint Resolution urged the executive branch to engage more fully in this enterprise through, (1) asking the Permanent Representative of the United States to the United Nations to continue to raise the issue of torture in that forum, (2) asking the President to be actively involved in the prescription of the Torture Convention, and (3) asking the u.s. Secretary of State to issue formal instructions to the chief of every u.s. mission abroad. This last provision is the most important and most assertive aspect of this section of the Joint Resolution, for it demands that the Secretary of State indicate exactly what u.s. policy is with respect to torture and gives instructions for the chiefs of mission to examine the allegations of torture in that state. Finally, this section instructs the Secretary of State to … express concern in individual cases of torture brought to the attention of a United States diplomatic mission including, whenever feasible, sending United States observers to trials when there is reason to believe that torture has been used against the accused.187 These far reaching requests that the executive branch investigate, publicize, intervene and observe allegations of torture within a foreign sovereign state send a political signal that such conduct is well within the bounds of diplomatic responsibility and the mandate of international law. These issues became more problematic under the George W. Bush administration. As progressive as the ultimate goals of the Joint Resolution may be, the document itself is prescriptively weak. The language of the Joint Resolution is formulated in terms of requests so the President need not feel bound by the Joint Resolution. Furthermore, the most drastic measure suggested is the expression of concern, hardly an aggressive leap toward the goal of eradicating torture. Like the United Nations measures, the Joint Resolution serves mostly as a symbol. It promotes principles by giving them weight and prestige in the executive branch to enable full u.s. support to diplomats who intervene. In 185 Id. 186 See id. 187 Id. § 2(b)(4).

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this indirect capacity, the Joint Resolution is an effective tool in working to end torture worldwide, particularly if the United States can persuade other countries to follow suit. x

Political Activism and the Politics of Treaty Ratification

A Introduction When the Bush administration sent an official letter of transmittal to the Senate Foreign Relations Committee, it did so under the cloud of past experience. Only one major human rights treaty had succeeded receiving the advice and consent of the Senate. That was the Genocide Convention. President Ronald Reagan used considerable effort to limit the veto power of the right wing in the Senate. Moreover, the Genocide Convention was gutted to get it through the Senate. It was widely acknowledged that when it came to human rights treaties, the Senate produced an embarrassing log jam. Optimists in the human rights community viewed the Genocide Convention as a key to the log jam since ratification, or non-ratification, has been indelibly linked to the Genocide Convention. The Genocide Convention, after some thirty-seven years of frustration, was finally given the advice and consent of the United States Senate.188 What is a matter of debate may be the substantive worth of United States ratification of the Genocide Convention 40 years after it opened for signature and adoption. What is not debatable is the psychological relief that the Genocide ‘monkey’ is off the back of the Department of State, the United States Government, and the human rights community. The Genocide Convention, but for its unfortunate history, should have been a “motherhood and apple pie” convention, i.e., one that should have evoked little substantive concern, and even less juridical apprehension. What strategic lessons were learned for the politics of successful ratification? The lesson may be a dismal one. The Genocide Convention was approved with many reservations, declarations and understandings which implied the u.s. was willing to see the Convention as a symbolic issue needing u.s. support. Leading democratic figures have expressed dismay at the willingness of the human rights community to pass it at almost any price.189 They viewed the sovereignty limitation on the Genocide Convention as an unprincipled 188 420 n.2 (1987). 189 These comments result from discussions the author has had with either senators or their aides, as well as administration representatives.

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­concession to the minority in the u.s. Senate. Moderate Senate Republicans felt decidedly uneasy about that and other limitations in the package of reservations, declarations, and understandings.190 As a representative of Amnesty International, Winston P. Nagan was involved in the political effort to secure ratification of the Torture Convention. In some ways, the narrow scope of the Torture Convention and its moral import would make it politically unproblematic. No elected politician was ever going to admit that he was for torture. As Senator Jessie Helms’ counsel indicated to Professor Nagan, the Senator indeed disapproved of torture. In the Senate Hearings on the Convention, u.s. Senator Helms emerged as the senatorial leader who was opposed to it. He described the Convention as a “skunk in a bag.”191 This seemed to imply that the u.s. Senate was seized of a cute pet, until the pet released its odor after ratification.192 The lessons gleaned from the historical experience of the ratification process of the Torture Convention and later the Civil and Political Rights Convention are important indicators of the importance of carefully structured political advocacy in getting the Senate to give its advice and consent to a human rights treaty. Human rights treaties are both politically and juridically complex. Regardless of any ideological antipathy to human rights law, the political and legal complexity of these instruments is a matter of importance to the individual senator who is asked to vote on a matter which is sufficiently complicated that its future implications remain uncertain. Ratification is a unique and complex form of lawmaking in the United States. The fact that it took the u.s. Senate nearly forty years to approve the Genocide Convention is an indication that complexity is not the only stumbling block to ratification. At times, ideology may trump everything. The issue of hostility driven by deep ideological isolationists emerge clearly in the light of the underlying deep seeded legal and political concerns that accompanied and, indeed, frustrated the Genocide Convention. Hostility to the Genocide Convention and concerns about the nature, scope, and character of the udhr itself generated a confluence of interest between powerful right wing ­elements 190 These comments result from discussions the author had with either senators or their aides, as well as administration representatives. 191 This statement was part of the opening remarks Senator Helms made at the outset of the hearings before the Senate Foreign Relations Committee on January 30, 1990. 192 For the conservative, right-wing objections to the human rights covenants, see Natalie H. Kaufman & David Whiteman, Opposition to Human Rights Treaties in the United States Senate: The Legacy (The Bricker Amendment), 10 Hum. Rts. Q. 309–37 (1988).

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in the United States Senate. These influences were concerned about the emergence of internationalism, the spread of world communism, the military ­capability of the ‘Russian Empire,’ and an all pervasive fear that internationalist values were code phrases for racial and gender equality. These pervasive concerns allied to security doctrines purporting to manage the prospect of a nuclear holocaust furthered a climate that nurtured a widespread insecurity about the place of American values in a larger and hostile world arena and whether American values could survive the assault of internationalism, humanism, and Soviet imperialism. These fears were compounded by interest groups in the American Bar Association (aba) which began to see human rights instruments as a threat to American legal culture and the foundational principles of federalism and constitutionalism.193 This group envisioned that a commitment to human rights principles in law would permit racial integration and erode the sovereignty of states whose political and legal process had a near monopoly on race and gender relations policy.194

193 Id. The following provisions of the u.s. Constitution are relevant to the ratification process: Article 1, Section 10 Clause 3: No State shall, without the Consent of Congress,… enter into any Agreement or Compact with another State or with a foreign Power …. Article ii, Section 2 Clause 2: He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, …. Article ii, Section 3 Clause 1: … [H]e shall receive Ambassadors and other public Ministers; … Article vi, Clause 2: This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 194 The literature on the domestic constitutional law aspects of the Genocide Convention is vast. See generally J.M. Raymond, Genocide: An Unconstitutional Human Rights Convention, 12 Santa Clara Law. 294–318 (1972); A.J. Goldberg & R.N. Gardner, Time to Act on the Genocide Convention, 58 a.b.a.j. 14145 (1972); see also Senate Committee on Foreign Relations, International Convention on the Prevention and Punishment of the Crime of Genocide, S. Rep. No. 92–96, 92d Cong., 1st Sess. 1-18B (1971).

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B The American Bar Association and the Politics of Precision Apart from the substantive concerns about the Constitution, federalism, states’ rights and race and gender relations, the aba introduced a curious dimension to the politics of the ratification process.195 It is difficult to find an apt label to describe this phenomenon, but the phrase ‘politics of precision’ as an aspect of the juridical ideology of legalism would be appropriate. The politics of precision meant that ‘legalism’ would become a core political ally of the Senatorial group opposed to ratification. Moreover, the aba, as an institution, became a key player in shaping the paradigm of the advice and consent process. The character of that process makes legalism influence, if not dominate, how the Senate evaluates any human rights treaty submitted for its advice and consent. Because human rights instruments are juridically complex, the level of detail that can be generated about every conceivable meaning of every word, phrase, paragraph or punctuation mark could be endless. Moreover, all legal instruments, i.e., statutes, constitutions, case law and treaties involve, from a legal perspective, complex and controversial standards of construction and interpretation. These issues are frequently so basic that the most innocuous issue of legal construction and interpretation can provoke serious concerns about the nature and scope of the judicial role. For example, does a broad view of interpretation mean a broad view of the judicial role, trenching on legislative, administrative, or executive competence? Does a narrow view of interpretation undermine the judicial role and its appropriate concern for justice under law? When the aba joined the “Bricker Crowd” in the 1950s,196 it altered the human rights agenda of the United States. First, it gave u.s. Senator John W. Bricker a powerful patriotic crutch upon which to hang his isolationist sense of patriotism. Second, from a functional point of view, the aba set itself up as the juridical guardian of the purity of the United States Constitution and legal culture against the alien liberalism of modern international law. Third, the aba’s judgments hyper-legalized the discourse of ratification and of h ­ uman 195 On the role of the aba, see J.R. Schmidhauser & L.L. Berg, The American Bar Association and the Human Rights Conventions: The Political Significance of Private Professional Associations, 38 Social Research 362–410 (1968). The present policy of the aba is supportive of the ratification of the principal covenants. 196 There is a vast collection of literature on the Bricker Amendment. See Sohnand Buergenthal, International Protection of Human Rights 948, 964 (1973). Winston P. Nagan, The Politics of Ratification: The Potential for United States Adoption and Enforcement of The Convention Against Torture, The Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, 20 Ga. J. Int’l & Comp. L. 315 (1990).

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rights in the United States. The discourse became legal and constitutional rather than political and grassroots in focus. Fourth, this level of juridical complexity meant that the public sense of human rights instruments is virtually non-existent. A further implication of the aba’s influence on the process is that the skepticism of the human rights treaties, as nurtured by the politics of ratification, has meant that almost all of these prospective treaties are now viewed as non-self-executing. What is curious about this outcome is that in effect a nonself-executing clause will leave the processes of construction and interpretation to a legislative rather than juridical arena of action. This outcome could be viewed as a dysfunctional allocation of the respective spheres of lawmaking competence and may explain why ratification has become a ­multi-generational process for the United States. A clearer sense of the respective spheres of lawmaking, and a greater respect for judicial conservatism would be a more sensitive approach to the log jam problem. The conflicts over the status of human rights instruments encompassed a wide array of contentious matters, some of which bear directly upon the politics of ratification. The most important of these considerations was the recognized need, in a cold war context buttressed by the deployment of thermonuclear weapons, that a strong national executive was indispensable to the security of the United States. The thought, therefore, that some senators could threaten the executive’s key role in foreign relations by using human rights issues as a means to constrain the power of the presidency became a serious matter for the Dwight Eisenhower administration. C The Ghost of Bricker in the 1990s The politics of ratification in the 1990s confronted the legacy of u.s. Senator Bricker,197 and it is important to understand what that legacy is, and why it is 197 The theoretical import of the position of Senators Bricker, Samuel Ervin, Strom Thurmond, Jessee Helms is important for understanding the nature of a complex problem, the interrelations between national and international law. The implication of their view was that the sovereignty of the u.s. is compromised by acceding to the covenants. Professor McDougal summarizes the key tenets of this view, normally associated with the theory of dualism in international law, as follows: The dualist or pluralist theories, still perhaps the most popular of all theories, while not explicitly denying that international law is law and commonly conceding a wide scope to inclusive decision, exhibit as their most distinctive characteristic, an attempt to rigidify the fluid processes of world power interactions into two absolutely distinct and separate systems or public orders, the one of international law and the other of national law. Each system is, thus, alleged to have its own distinguishable subjects,

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important to t he 2000s.198 Senator Bricker was an implacable enemy of the human rights instruments. In 1951, he stated that the purpose, “in offering [this] distinguishable structures and processes of authority, and distinguishable substantive content. The subjects of international law are said to be states only (with occasional reluctant, contingent admission of international governmental organizations), while those of national law embrace individuals and the whole host of private associations. The sources of international law are found only in the customary behavior of states and in agreements between them, while the sources of national law are located in the state’s structure of centralized and specialized institutions. The substantive content of international law is said to be rules regulating relations between states, while that of national law is that of rules regulating the interrelations of individuals and private associations. Concise expression of this point of view is offered by the late, most authoritative Professor Lassa Oppenheim: “Neither can International Law per se create or invalidate Municipal Law, nor can Municipal Law per se create or invalidate International Law. International Law and Municipal Law are in fact two totally and essentially different bodies of law which have nothing in common except that they are both branches—but separate branches—of the tree of law. Of course, it is possible for the Municipal Law of an individual State by custom or by statute to adopt rules of International Law as part of the law of the land, and then the respective rules of International Law become ipso facto rules of Municipal Law.” See Myres S. McDougal, The Impact of International Law Upon National Law: A Policy Oriented Perspective, 4 S. Dax. L. Rev. 25, 27–31 (1959). Bricker and his successors held a view of dualism that is so extreme as to amount to a parody of this theory. 198 Several administrations supported ratification. A key right wing concern voiced regarding the Genocide Convention and broadly applicable to the Torture Convention is the states-rights or 10th Amendment issue. Senator Thurmond has argued that matters of basic criminal law are principally matters of “state domestic jurisdiction.” He continues as follows: The use of the treaty making power in this area is inappropriate. In effect, the Convention (Genocide) would continue the policy made possible by the Supreme Court in its decision in Missouri v. Holland … in which the Court held that State powers could be transferred to the Federal Government through the treaty making process as a de facto method of amending the Constitution. (Cited in Boyle, at 90). The Genocide Convention: Hearings on Ex.O. 81-1 Before the Senate Committee on Foreign Relations, 97th Cong., 1st Sess. (1981). The Supreme Court has affirmed the Missouri v. Holland, 252 u.s. 416 (1920) principle in Reid v. Covert, 354 u.s. 1 (1957). Reid dealt with the competence to try the dependants of United States servicemen abroad on the basis of an executive agreement between the United States, the United Kingdom and Japan. The agreement did not guarantee a jury trial or other protections of the bill of rights. The Court noted that Missouri in fact supported the principle that the United States can validly make treaties, the people of the States have delegated their power to the National Government and the Tenth Amendment is no barrier.

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resolution is to bury the so-called covenant on human rights so deep that no one holding high office will ever dare to attempt its resurrection.”199 A recent study of the politics and perspectives that have historically influenced the Senate’s advice and consent regarding the human rights covenants concluded as follows: … the proponents of the Bricker amendment were primarily concerned with human rights treaties … contemporary arguments against passage of human rights treaties have not changed substantially from arguments presented in the 1950s, and that the legacy of these earlier deliberations is still apparent in the attitude of those considering these treaties now.200 The treaty power read literally is broad, but has not been juridically interpreted to undermine the constitution itself. The relevant article reads as follows: All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.201 In theory, the literal import of this section might be construed as permitting a rewrite of the constitution, in effect an amendment inspired by a ­power-hungry executive branch and a concurrence of a pliant two-thirds of the Senate. In reality, our constitutive process and the jurisprudence implied in it would never permit such farfetched extravagance.202 Indeed, the executive is under a constitutional obligation to defend and honor the constitution and laws of the United States. Nonetheless, the language of Article vi (2) proved a convenient

199 200 201 202

See Boyle, at 91. It is perhaps ironic that the conservative states rights and sovereignty of the u.s. objections to the international human rights instruments have been most effectively refuted by the most conservative of chief justices of the Supreme Court, William H. Rehnquist. During the hearing on the Genocide Convention, Rehnquist, then Assistant Attorney General, effectively refuted the right wing constitutional attacks on ratification. He concluded that the Genocide Convention was entirely constitutional. Id.; see The Genocide Convention: Hearings on Ex. O. 81-1 before the Senate Committee on Foreign Relations, 91st Cong., 2d Sess. at 12–14, 147–61 (1970). Kaufman & Whiteman, at 309; 97 Cong. Rec. S8263 (statement of Sen. Bricker). Kaufman & Whiteman, at 309. Id. Reid v. Covert, 354 u.s. 1 (1960).

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cross upon which to politically crucify the Genocide Convention and to frustrate the ratification of all the important human rights covenants. Bricker put these concerns bluntly: The American people want to make certain that no treaty or executive agreement will be effective to deny or abridge their fundamental rights. Also, they do not want their basic human rights to be supervised or controlled by international agencies over which they have no control. The control of these dangerous international agencies in Bricker’s view seemed to be in the hands of world communism. Thus, he continued: Iron Curtain countries would no doubt welcome a new RooseveltLitvinov agreement to make their confiscatory decrees effective in the United States … [R]eactionary one-worlders [are] trying to vest legislative powers in non-elected officials of the un and its satellite bodies with a socialist-communist majority. The key provision (Section 1) in the 1953 version of the Bricker Amendment was this: “A provision of a treaty which denies or abridges any right enumerated in this constitution shall not be of any force and effect.” The basic idea was not to vest a treaty or an executive agreement with a power broader than ordinary federal legislation. Bricker relied on an old case, De Geofroy v. Riggs which suggests that a treaty could not authorize what the constitution forbids. However, Bricker felt that Missouri v. Holland, had perhaps misstated the law or left it unclear. In Missouri, it was stated that: Acts of Congress are the supreme law of the land only when made in pursuance of the constitution, while treaties are declared to be so when made under the authority of the United States. It is an open question whether the authority of the United States means more than the formal acts prescribed to make the convention. The contemporary framing of this issue is whether human rights treaties gut the sovereignty of the United States. This issue was not as central to Bricker and his supporters as the impact of human rights on federalist issues, i.e., states’ rights. Section 1 of the Bricker Amendment is still an issue today. It reads as follows:

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No treaty shall authorize or permit any foreign power or any international organization to supervise, control or adjudicate rights of citizens of the United States which the United States enumerated in this constitution or any other matter essentially with the domestic jurisdiction of the United States. In Missouri, Justice Holmes formulated the issue as to whether the federal treaty and legislation was somehow “forbidden by some invisible radiation from the general terms of the tenth amendment.” He answered this negatively, creating a federal wedge in the armor of states’ rights. Section 2 of the Bricker Amendment sought to, in effect, overrule Missouri v. Holland in this respect. In Bricker’s own words, “It reverses the doctrine of Missouri v. Holland which holds that a treaty may empower Congress to legislate in areas prohibited by the Tenth Amendment in the absence of a treaty.” In the 1950s a key concern of conservative senators, especially those from the south, was the ­apprehension that race -relations would become a federal issue at the expense of states’ rights, and the states’ right to continue the practices of racial discrimination. The Genocide Convention dealt with racism, the most virulent form of it. President Truman’s executive order to integrate the armed forces gave a clue about future American values at the national level. The human rights treaties and declarations were an indicator of the importance Americans might give to internationalist values they or at least the New Dealers, in part, had crafted. Another part of the Bricker legacy was the principle that human rights treaties not be self-executing. Section  3 reads as follows: “A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by Congress.”203 Bricker had correctly foreseen that complex juridical instruments, like human rights treaties, present on going challenges to both prescription and application of the human rights standards they encompass. If ratification did succeed, a second ratification battle would take place in the legislative arena of the United States Congress. Although the human rights community sees the non-self-executing principle as a further impediment to the law and culture of human rights, making human rights treaties depend on legislative implementation is consistent with international practice generally. Additionally, human rights has a much more promising future if it has the backing of congressional legislative support, because it makes clear the obligations of enforcement and its judicial prescription and application. Human rights were done better with congressional backing. The clear mandate of Congress gives the judges a 203 Id.

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clearer foundation for the prescription, application and enforcement of human rights norms as a protective instrument of law. The final part of the Bricker Amendment was a reduction, inter alia, of the power of the presidency to conclude executive agreements. The communistcoddling Litvinov assignment was the “fiend.” In a larger sense, Bricker was attacking the scope of the executive’s competence in foreign affairs.204 There are four issues from a political point of view, although these issues are usually discussed as purely legal matters. The first is the issue of the precision of the language used in the principal human rights instruments. This issue becomes especially acute when universal responsibility is envisioned as a major purpose of the instrument. In any event both the ccpr and the International Covenant on Economic, Social and Cultural Rights (“cescr”)205 contain language whose meaning by ordinary processes of construction and interpretation are complex. This ties in indirectly with the business of non-self-executing versus self-executing treaties. However, the politics of precision can be used in a negative and not very constructive manner. This will be illustrated by reference to the Department of Justice’s concerns vis-á-vis the Torture Convention. Members of the Department of Justice have consistently attacked the definition of torture.206 Despite the fact that there is a workable understanding about the meaning of, for example, psychological torture, a lack of ­clarity 204 The two key cases dealing with the validity of the Litvinov assignment are United States v. Belmont, 301 u.s. 324 (1937) and United States v. Pink, 315 u.s. 203 (1942). Bricker put his views on the Litvinov assignment as follows: So far I have discussed the need for Section 1 of the joint resolution. Section 4 places the same limitation on Executive agreements. The need for such limitation arises from the fact that the Supreme Court has held that Executive agreements, even those not approved by Congress, become the supreme law of the land. In United States v. Pink (315 u.s. 203 (1942)), the Court said: “A treaty is a ‘law of the land’ under the supremacy clause … of the Constitution. Such international compacts and agreements as the Litvinov assignment have a similar dignity (p. 230).” The Pink case involved the distribution of assets of the New York branch of a Russian insurance company. In 1918 Russia nationalized the business of insurance, but the State of New York refused to give the decree any extraterritorial effect. No one questioned New York’s power to make that decision. In 1925, Pink, the New York superintendent of insurance, took possession of the insurance company’s assets. Claims of domestic creditors were paid in full. The New York Court of Appeals directed payment of the balance to foreign creditors. 205 International Covenant on Economic, Social and Cultural Rights, g.a. Res. 2200A, 21 u.n. gaor Supp. (No. 16) at 49, u.n. Doc. A/6316 (1966) (entered into force Jan. 3, 1976). 206 See Panel on u.s. Ratification of the Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment, Chicago, Illinois, Apr. 8, 1989 (remarks by James S. Reynolds). Compare the response of Professor Joan Fitzpatrick.

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remains.207 In the testimony, mention of torture was explicitly made with the added flourish of possible constitutional infirmity based on due process, “void for vagueness” analysis. Some individuals have noted that it is surprising and perhaps gratifying when prosecutors, who spend their professional lives broadening the scope of what constitutes criminal conduct, become so defendant oriented. Perhaps prosecutors do this only when it comes to c­ riminalizing ­official misconduct. When one first heard this line of argument, one thought he was hearing an aclu official rather than a Department of Justice functionary. A distinguished criminal law professor, Professor Francis A. Allen, who heard this episode, disabused us of this aclu fantasy. “These guys,” he said, “are simply hypocritical. As a description of the law, the Department is completely off base.” Indeed, a key cause for concern among criminal law scholars is how far the courts have gone in upholding vague statutes imposing criminal responsibility. Examples of notoriously vague federal criminal statutes, including the Sherman Act as the concept of restraint of trade, can be so broad that you can drive a jumbo jet through it. Holmes suggested in this context that the defendant would find out what the law is after he was convicted. The interpretation of “‘fraud’” in the mail fraud statutes is extremely broad when you include in the definition of fraud, non-tangible rights whose scope is undefined. The rico statute does not define the term “‘association,’” which has similarly been broadly construed. These examples represent a segment of the criminal law that the Department of Justice has not been reluctant to use, and whose constitutionality has been sustained to the dismay of, at least, some civil libertarians. If there is a caution, it is that the imposition of criminal responsibility on the basis of vague, indefinable standards, defeats the principle of legality, a cornerstone of human rights. The Torture Convention’s definition of torture, while broad, is not a license for unlimited discretion. Interpretation of similar language in other contexts has been, if anything, restrained and the principle of reasonableness that constrains all prescription and application in international law serves as a further guide and limitation on unreasonable interpretation. Amnesty International has intervened over the years on behalf of thousands of torture victims and in very few cases the definition and description of torture has been at all problematic. The other Bricker concerns have been repeated by u.s. Senator Helms in the context of the Torture Convention. A dominating theme of concern to 207 The lawyer who “negotiated” the definitional issue with the Department of Justice was Nigel Rodley. His discussion of this issue is most insightful. See Nigel Rodley, The Treatment of Prisoners—International Law 7344 (1987).

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r­ight-wing senators like Senator Helms is that the Torture Convention will ­undermine the foundations of the federal system, indeed some even fear ratification with a federal-state proviso. The first practical principle is that u.s. federalism is a process tied to its constitutive process. As Professors Myres ­McDougal and Karl Llewellyn have indicated, the constitution is not a mummified relic surrounded by a stock of reified ideas. The constitution is an ­institution, a living dynamic institution. Our concepts of federalism, intrinsic to the constitutive process, are not correspondingly an amalgam of reified principles. A foundational principle behind constitutional/federalist ideas has much to do with limiting power. The control and the regulation of power sought to promote a healthy distribution rather than excessive concentration in any particular branch of the government. Concentrated power leads to its abuse. In dealing with principles that seek to control one of the most egregious uses of governmental power such as the use of torture, it would seem that controls on what a state can do to its own citizens or its responsibility for containing such abuse to secure the well being of all is eminently compatible with the fundamental principle behind the federalist idea. An illustration of the abuse of the federalist ideal was the idea that the systematic brutalization and repression of black Americans was shielded by federalism. Federalism interpreted in this way is a corruption of the fundamental ideal, because the invocation of federalism to promote racism and some forms of sexism is an abuse of power and a violation of the rights of the individual. Federalism that seeks to insulate the torturer from accountability is a corruption of a critically important legal and political principle. Put bluntly, no state wants or should want the license to torture. The federalist concerns, first put forward by Senator Bricker, carried forward with a patina of erudition by former Senator Sam Ervin and volubly proclaimed by Senator Jessie Helms, not only mis-describes the actual practice of federalism in the present, but seemingly never has accepted the principle that federalism is not an excuse for racism or the gross abuse of civil and political rights that the U.S. constitutive federal process honors. Dred Scott v. Sanford208 and Plessy v. Ferguson209 have no contemporary binding authority. Another issue is whether the Torture Convention and other human rights instruments must be self-executing. Amnesty International took the position that this reservation was not necessary. The dynamics of the process is that this element is permanent. The Amnesty International position was therefore

208 Dred Scott v. Sanford, 60 u.s. (19 How.) 393 (1857). 209 Plessy v. Ferguson, 163 u.s. 537 (1896).

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to record that it was unnecessary, but not to stand or fall on it from a practical point of view.210 The final point is that some conservative senators have a deep concern that the Torture Convention and the other human rights conventions are incompatible with American sovereignty in the world arena. The sovereignty issue is 210 It is worthy of notice that the jurisprudence of constitutional interpretation in the Bricker view was somewhat odd when evaluated against the actual practice of constitutional adjudication. Bricker adopted the analysis of the aba that, in effect, the Supreme Court could not be trusted to not amend the constitution via the path of treaty-making and the supremacy clause. Therefore, that constitutional competence and duty must be vested in the legislature. In effect then, the Senate would be a kind of surrogate supreme court serving as a final interpreter of the constitutional status and congruence of any human rights treaty. That, at least, has been the legacy. In the quotation that follows, Bricker in fact tells us that the supremacy of the constitution must be established by the legislature in the area of treaty ratification: The American Bar Association sees in the Genocide Convention a grave threat to freedom of speech, press, and the rights of persons accused of crimes. Proponents of the treaty deny that such dangers exist. Neither interpretation of the treaty is ­unreasonable. The Supreme Court has the final word, but it is constitutionally incapable of rendering an advisory opinion. No doubt the Senate could remove any danger to American rights by a series of reservations to the treaty. However, the International Court of Justice has held that substantial reservations to the Genocide Convention will nullify the effect of ratification. The Senate will never be able to vote intelligently on the Genocide Convention until such time as the supremacy of the Constitution over treaties is firmly established, and that, of course, is the purpose of this amendment. The Senate is confronted by no such dilemma in the legislative process. It has complete freedom of action in framing language for the protection of constitutional rights. If a law does deny or abridge some constitutional right, the Supreme Court will strike it down. Never in our history, however, has the Supreme Court held any provision of any treaty unconstitutional. The reason is that article vi, paragraph 2, provides that laws of the United States “shall be the supreme Law of the Land” only if made “in Pursuance” of the Constitution. Treaties, on the other hand, become the supreme law of the land merely by virtue of being made “under the authority of the United States,” which is an entirely different thing. // The world court considered the permissibility and acceptance of reservations to the Genocide Convention in an advisory opinion. See Reservations to the Convention on Genocide, 1951 i.c.j. 15. // More recently the “Liberty Lobby” in testimony before the Foreign Relations Committee in 1981 expressed the view that the Supreme Court might not be bound by its own ruling in Reid v. Covert. They argued: “… at different times in history different rulings have been made on this issue-and nothing prevents the Supreme Court from making a new ruling in the future that would again make treaties the supreme law of the land.” Hearing Before the [Senate] Committee on Foreign Relations on the Genocide Convention, 97th Cong., 1st Sess., Dec. 3, 1981, at 85 (1982).

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essentially a concern that the United States not subject itself to international law to the extent that international law is inconsistent with the principles of American political sovereignty.211 This means international law should not trump the United States Constitution. This concern is put in the “garb” of an alien international law riding roughshod over the civil and political rights of Americans and thereby being incompatible with the u.s. Bill of Rights. Such a heavy emphasis on the supposed incompatibility of the Bill of Rights with the International Bill of Rights is not justified. No one will object to the constructions given to freedom and equality in our legal culture when those constructions give a higher standard of human rights protections than those indicated in a particular human rights instrument. Prescriptions that expand or enhance concerns for human and civil rights are the essence of the global Bill of Rights, and cannot be viewed as an attack on the civil rights of Americans. The whole argument is curious. It confuses the principles of collectivism implied in the sovereignty idea, and the protection of individual rights which derogate from the collectivist idea. The right wing ideology cannot have it both ways. Another concern about the sovereignty idea is that ‘sovereignty’ has a vast number of meanings for a wide range of international actors, including nation states.212 When the system allocates rights to the states’, i.e., freedom of the oceans, space, air space, territory, etc., it expands the concept of sovereignty. When the system imposes obligations sovereignty, by assuming those obligations, ‘contracts.’ The legal complementarity of rights and duties is ­unavoidable 211 One of the basic concerns of the right-wing opposition to the ratification of the human rights covenants was the assumption that, read literally, the supremacy clause as applied to treaty law would permit the erosion of American sovereignty by the executive entering into treaty obligations (with the advice and consent of the Senate) inconsistent with the Constitution itself. When Bricker himself testified before Congress he quoted the position expressed by then Secretary of State John Foster Dulles as follows: The treaty-making power is an extraordinary power, liable to abuse. Treaties make international law and also they make domestic law. Under our Constitution, treaties become the supreme law of the land. They are, indeed, more supreme than ordinary laws, for congressional laws are invalid if they do not conform to the Constitution, whereas treaty law can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the States and give them to the Federal Government or to some international body; and they can cut across the rights given the people by the constitutional Bill of Rights. See also Kaufman & Whiteman. 212 Winston P. Nagan & Craig Hamman, The Rise of Outsourcing in Modern Warfare: Sovereign Power, Private Military Actors, and the Constitutive Process, 60 Me. L. Rev. 444–48 (2008).

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both for states and individuals. Are some senators really saying the United States has sovereign rights, but no sovereign obligations? This assertion of an unlimited unilateral sovereignty essentially denies the concept of legal obligation as applied to a state. It attacks the foundations of American democracy based on the rule of law. To reject these latter principles is to attack the most hallowed principles upon which our culture and nation have been established and evolved. In addition to these traditional ultra-conservative concerns, the covenants present distinctive political and ideological problems for the right wing. Some of the obvious concerns that would trigger right wing objections to the covenants follow. In the ccpr, Article 6 seeks to limit the use of capital punishment with a view to its ultimate abolition. This occurs at a time when capital punishment figures prominently on the right wing and conservative agenda of both state and national politics. With state politicians outraged at the mere mention of the death penalty, the Senate will have a difficult time supporting Article 6, let alone the optional protocol. Article 20, on the other hand, will have liberals fuming about limitations on First Amendment rights. Articles 23 and 26 will come close to the enactment of the era, and Articles 23and 24 will re-invigorate Tenth Amendment concerns.213 The cescr has a number of high visibility issues of a controversial nature in domestic politics. Article 3 may be the equivalent of the era. Article 10 violates states’ rights issues of family regulation and the provisions of Article 10(2) maternity leave and Articles 11 and 12 dealing with living standards are more like New Deal concerns than supply side, market economics priorities. The provisions of Article 12 seem to imply a much greater collective responsibility for health care, with corresponding fears about socialized health care, a permanent nightmare of the American right wing.214 Whether the cescr’s principle “rights” are formulated as social goals rather than legal or juridical expectations would seem to be beside the point from the perspective of the core of right-wing senators who will see in these instruments a sickly humanism, a creeping socialism, or a reinvention of the ultimate catastrophe of the right wing, a new, New Deal.215 213 Id. 214 Id. cescr. 215 Apart from the problems Bricker saw in the Litvinov assignment, Bricker saw the growth of the treaty-making initiatives of the i.l.o. as reflecting, in effect, “the increasing impact of Marx” and he sarcastically described the “modest ambition of this international labor organization … to become the economic overseer of all humanity.” Bricker listed the

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D The Constituencies for Ratification In examining the prospects for ratification for the global Bill of Rights, the central question is what process does ratification entail. Ratification is, in fact, a lawyer’s deal. The vast literature written about ratification tracks some of the most convoluted and technically opaque questions of constitutional law, foreign relations law, and basic principles of federalism.216 In effect, the political objections of Senator Bricker became effectually pre-empted by the baggage of legal arguments of the aba establishment and its adversaries. What is distinctive about the process involved in ratification is that the critical decision points are not legal but political. The judge and the jury is the United States Senate, not the Supreme Court. A curious situation exists of sophisticated legal arguments are being presented to a forum whose knowledge of the structure and process of legal argument cannot begin to compare to a court of law. Unlike a legal forum, however, the u.s. Senate is not going to be the most competent body to adjudicate these fine legal points, although some members of the u.s. Senate are distinguished lawyers and could do so with enviable competence. The basic problem of ratification is that though it is technically presented as a legal problem, it is directed to a forum that is essentially and formally a political forum. Unless the issues are presented to that body as a political rather than legal choice, there is a major problem about asking senators to make choices that they may not fully understand, with implications for governance that are perhaps only dimly perceived. Indeed, it may well be suggested that ratification is an exceptional, possibly unique form of lawmaking different from the way in which the Senate usually operates. Ratification relating to human rights covenants is an especially rare experience for the Senate. The extreme legalistic nature of ratification, the lack of experience in law and the lack of general exposure to ratification of complex juridical-political documents like the multilateral human rights covenants, the Covenant on Civil and Political Rights or the Covenant on Social, Cultural and Economic Rights, compound the decisional challenge or problem for the Senate. matters he thought not to be the concern of the i.l.o.: social security, minimum wages, compulsory health insurance, and labor-management relations. He acknowledged that these issues do not conflict with the Constitution including the Tenth Amendment. He, in effect, saw them as a kind of international version of the New Deal and did not believe this to be the legitimate concern of any international organization. Hearings on s.j. Res. 1 and s.j. Res. 43 Before the Subcommittee of the Senate Judiciary Committee, 83d Cong., 1st Sess. (1953). 216 Kaufman & Whiteman.

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The problem is that it is more realistic and useful to look at ratification as a political issue, involving a complex political process in which important choices have to be made that will impact on expectations about u.s. policy, both domestic and international. Law and legal argument have an important role to play in understanding what ratification of the human rights covenants means for u.s. law and policy, but that is only one aspect of the matter. The same basic arguments opposing ratification have been around for a very long time, the most important of which have sealed the fate of the Genocide Convention for over thirty-seven years. For now, the focus on the politics of the process in a strategic sense, unencumbered by the weight of legal doctrine and constitutional nightmares, will be presented. The first important question to ask is, does ratification have a constituency? The constituency that had the most to say about ratification was the lawyers, and the enlightened elements of the foreign policy establishment, not ­constituencies that generate grass roots mobilization. Perhaps the most apt description was that we had an impressive array of “generals” and no “troops.” A second constituency was the human rights constituency. To a large extent, most human rights groups located in Washington, d.c. and New York are shell operations. They were not as membership intensive as the American Civil Liberties Union or Amnesty International. The human rights community was not organized to bring a grass roots focus to the issue of ratification, because the nature of these groups was directed at influencing policy through direct appeals, skillful argument, the manipulation of the media, and influencing public opinion through publications and general outreach. The business of grass roots mobilization of votes was not part of the action program of many organizations in the human rights community. The human rights community was more accurately a community of lobbyists than an organization that focuses on grass roots action. The third constituency was the u.s. government. During Senator Bricker’s time, the government was made a hostage of the Senate and ignored the human rights ratification agenda. With the exception of the administration of Jimmy Carter (1977–1981), ratification has not been a high priority. Non-­ratification remains a source of embarrassment to the Department of State and its diplomatic corps, but the political capital that must be invested in ratification is high and the payoff marginal in terms of perceived efficacy in u.s. foreign policy. The concerns of the Department of State are made more complex by the interest the Department of Justice evidences in the ratification. This interest may be episodic, e.g., a particular Attorney General is a bureaucratic imperialist, or structural, i.e., the State Department’s relative impotence on this issue

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has opened a wedge for the Department of Justice to demand and play a lead role in the process. The fourth constituency was one that brought distinction to the process of ratification. This constituency was Amnesty International usa, a grass roots human rights organization of some 450,000 members in the United States. It is an interesting story of the internal politics of Amnesty International as to how it made a commitment to launch a long term campaign to secure ratification of the principal human rights covenants. Interesting in light of the fact that Amnesty International, an activist organization, participated in the ratification process where traditional activism is not usually seen. At the very least, this is not the kind of activism that is characteristic of what an ordinary Amnesty International member usually does. Only a handful of specialists really understand what ratification is, let alone why it is important. The campaign was in many ways an initiative from the top rather than the grass roots. The decision of the Amnesty International usa Board of Directors to make u.s. ratification a major long term goal was a decision of some consequence for the organization. The simple political explanation for this campaign focus may simply be that ratification is a lawyer’s arrangement. There are strong, powerful lawyers on the aiusa Board. A united group of lawyers is an irresistible force. As a colleague at the University of Florida College of Law has written; “one cannot ignore the personality of lawyers as power players in any institutional contexts.” The lawyer and law professor elements on the Board proved to be the driving force. The lawyers had settled on a name for the working group. It was called the “Rat Pack.” The first key campaign meeting was held in California on January 13, 1989. The objectives, strategies, and tactics were developed there. The purpose of the campaign was to secure ratification of the ccpr, the cescr, the American Convention on Human Rights, the Torture Convention, the Racial Discrimination Convention and the Convention that outlaws discrimination against women. A key part of the campaign was to determine all relevant actors who might directly or indirectly aid the goal of ratification. The players were in the administration, Senate, House, other civil society organizations and grass roots members of Amnesty. While the overall purpose of the campaign was ratification, a number of sub-objectives were identified as important to the ratification process. These included the idea that the senators might have to be educated about both ratification and human rights instruments. There was recognition that the Amnesty International membership needed to be educated and activated about ratification. There was the necessity to build coalitions with groups that shared

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common interests in ratification, e.g., civil rights groups and the Race Convention, women’s groups and the Women’s Convention. International as well as domestic pressure had to be activated. Finally, it was necessary to technically and politically limit the excessive and unreasonable use of reservations, declarations, and understandings that might undercut the value of these human rights instruments. The meetings carefully reviewed the tactical ways to implement these subobjectives, i.e., education of senators, limits on reservations, activate and educate Amnesty International membership, public education and focus on key actors, coalitions and special interest target sections, e.g., the Race Convention and the civil rights community, the Women’s Convention and women’s groups. The elaborate plans were in some degree short-circuited by the Reagan Administration’s transmittal of the Torture Convention to the Senate for its ­advice and consent for ratification. The letter of transmittal was accompanied by a package of reservations, declarations, and understandings that were viewed with consternation and that were unprecedented. The package was so extensive that it generated numerous theories about the administration’s strategy of ratification. Did the package simply rewrite the Convention? If it did, why did the administration do it? One might have conceivably seen the package might have been seen as symbolically saying a qualified yes to the effort to proscribe torture, and at the same time indicate to the important home constituencies that the Convention did not mean very much. This would be quite a hypocritical commitment to a process the administration itself had a strong hand in negotiating. Given the poor United States record on ratification, ratification under these circumstances would hardly be credible and worse, would send exactly the wrong message to the relevant target audience. Fundamentally, it has to be conceded that human rights instruments, like all comprehensive documents of governance, are juridically complex. If Senators Bricker, Ervin and Helms had incarnated retroactively to the founding days of the Republic, they would have found so many possible “possibilities” in the u.s. Constitution that a multi-generational constitutional convention would have been a historical certainty. Still, it has to be asked whether the u.s. government should have joined in an approach to the ratification process that looks very much like the form and substance of objections to ratification characteristic of the politics of Senator Bricker in the 1950s. There is a difference. All these objections, traditionally at least, make the case for no ratification. The administration had accommodated or succumbed to most of these traditional right wing concerns, and still emerged with a position in support of ratification.

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There is a possible explanation. If one strips a convention such as the Torture Convention of most of the meaningful substance that it has, and still proclaims support for it, one will have satisfied the nativistic jingoism associated with the far right’s distrust of human rights, and indicated that at last the United States has joined the rest of progressive humanity when it comes to giving international weight, legitimacy, and authority to the protection of the individual in the world arena. Having put on record Amnesty International’s concerns about the package as presented, Amnesty International waited for the results of the election and what promise for ratification a new administration might bring. The new Bush administration brought a new internal review of the Reagan package. In early communications with relevant Bush officials, it seemed clear to Amnesty International that the Legal Adviser of the Department of State was not n ­ ecessarily on the same wavelength as the Human Rights Bureau of the Department of State. As events turned out, it seemed that the Bureau of Human Rights lost out to the Legal Adviser’s Office on what the package would include, which meant that the package was destined for Senate action in unamended form, essentially the Reagan and Schultz transmittal. A relatively fortuitous meeting between an Amnesty International staff officer and a member of the Bush Administration consisted of an exchange of some fairly mild, but deletable expletives, which evidently resulted in promoting a reconsideration of the package. Perhaps it was less the expletives than the sense that perhaps Amnesty International and its allies might have been neutral on the ratification of the Torture Convention or perhaps even oppose it in the form that the package was presented. There was concern that Amnesty International and its human rights allies might be able to get enough bipartisan support for the convention to put through an alternative package. What was clear was that the Bush administration was willing to talk. As it turned out, the key concerns to Amnesty International were ones from the Department of Justice. Inside the administration, the picture was becoming clearer. There was another player, the Department of Justice, and it was with them that Amnesty International held the next phase of discussions. According to senatorial sources, the Department of Justice would be more directly involved in the treaty making process and the ratification of human rights treaties in the future. All such instruments would be subjected to strict review from the Department of Justice. How the precise lines of competence and influence would be drawn between the Legal Advisor to the Department of State and the head of the Department of Justice would be important to the future course of ratification. The added review by the Department of Justice would add more front-end detail, and would embroil the covenants in added

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levels of complexity. Good, skillful lawyering would enable the human rights community to limit the negative aspects of this factor. There was a positive side to this possible eventuality, i.e., that disposing of all the bogus arguments of the 1950s vintage with the double imprimatur of both the Department of State and Department of Justice would help the ratification process and not impede it. The next phase of the political process was the negotiations with the Department of Justice as the principal negotiating actor for the Bush administration. Amnesty International brought in the legal advisor of Amnesty ­International from London, Nigel Rodley. Because the nature and quality of concerns, especially relating to the definition of torture, were highly technical in nature, a lawyer schooled in the linguistic, analytical tradition of British legal culture would be a good match for the Department of Justice’s technicians. Moreover, the legal advisor from London had written the key, authoritative book on the treatment of prisoners in international law.217 The choice of Nigel Rodley from London was a good one, since he was an experienced negotiator, a technician’s technician when it came to the law, and never lost his composure no matter what the circumstances. Amnesty International was pleased that the negotiating team with Rodley managed to persuade the Department of Justice to be flexible and retreat on points that were unacceptable to the human rights community. What resulted was not an ideal package, but a workable package to be presented to the Senate Foreign Relations Committee which had to go through the mark-up process. Although the request that the Torture Convention be viewed as an urgent priority by the Senate, and although there was strong bipartisan support for itsratification, it was difficult to find a driving force within the Senate willing to invest the time and political capital in the ratification issue. One of the keys to the movement in the committee on the Torture Convention was the stimulus provided by constituent letters. Amnesty International knew that Senator Clairborne Pell of Rhode Island strongly supported the Torture Convention, though his committee was a busy one. Time in Washington, d.c. is political capital, especially committee time. The committee itself had a super-abundance of heavy hitters, both Republican and Democratic. Even more importantly, the ranking minority member of the Committee was a feisty, determined right wing senator from North Carolina, Jesse Helms. Every committee meeting was a theatrical and political opportunity for Senator Helms. In the Torture Convention context, his admirers were not to be 217 Rodley.

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disappointed. When one views the strong support for the Torture Convention in general and it is juxtaposed against these obstacles, the question becomes obvious. Why would the chair of the committee desire to push ratification of the Torture Convention? The answer is simply politics. The timely letters from the Rhode Island human rights activists were enough to reinforce the already existing innate commitment to push ratification of the convention. The key question was, what kind of political constituency did ratification have? Has ratification in the past been promoted through the modality of special interest politics without the backing of grass roots mobilization? Senators take seriously the concerns and interests of their constituents. Perhaps there was some earthy wisdom in the tactics and strategies of the Amnesty International group, who felt their push for ratification was distinctive based on an aggressive approach to building coalitions and mobilizing their own membership at the grass roots level. E The Torture Convention Hearing Two hours were scheduled for the hearing. The Departments of State and Justice had a lion’s share of the limelight, or it may be fairer to say Senator Helms kept them in the spotlight. Not many Democrats came. Not many Republicans came. Senator Pell could not stay for the whole proceeding, and Senator Helms himself covered the question and answer part as it related to non-governmental groups. Apart from a few minor questions from others, Senator Helms showed the most interest in the Torture Convention. He was somewhat merciful to the Department of Justice, but was rough on the Legal Adviser of the Department of State, Judge Abraham Sofaer’s task was not an easy one. The aiusa218 chairman was disappointed that Senator Helms had to leave the room for aiusa’s testimony, and was assured that the Senator had read the written version of it. Before discussing the dominating themes at the hearing, the question must be asked: why did the Democrats and the moderate Republicans stay away? It may simply be that influential senators had busy agendas. Why should they appear for a “motherhood and apple pie” issue that will sail through after the preliminaries and they will simply vote. After all, the votes were there. It must be remembered, however, that so uncontroversial an issue as the Genocide Convention took some thirty-seven years before it received the Senate’s advice and consent. One influential senator’s aide commented that the support for ratification was solid, and that most moderate senators knew in advance what the tone of the hearing would be. It seemed that Senator Helms preferred to have long and 218 Amnesty International usa.

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drawn out hearings on the Torture Convention. He referred to it as a “skunk in a bag” in his introductory statement. Perhaps the strategy of the rest of the committee members who did not come was to deprive the Senator of a senatorial audience, and limit to discussion, since the central Helms’ issues were as old as the Genocide Convention itself. This seemed to say “let the senator from North Carolina have his say,” and let’s get to the business of voting for this Convention. This was confirmed by the signals emerging from the minority wing of the Senate, that indeed there was a “workable” package, and that the mark-up phase would not prove to be highly problematic. While this strategy may be successful in the case of a relatively “uncontroversial” convention like the Torture Convention, it is not necessarily a model that necessarily works for the other human rights treaties. The optimistic prognosis on ratification must first stand with a concerned and determined constituency. Second, it has to have the support of the United States government. Third, the process must have the support of leadership in the Senate from both sides of the political spectrum. Fourth, there is no dearth of clones of Bricker who are willing to block ratification, and there seemed to be no senator strong enough to make this his or her issue as a foil to senators like Helms. Fifth, there was a genuine fear of taking on the senator from North Carolina. This was, in part, because his style ostensibly runs counter to the collegial standards of senatorial courtesy. Several Republicans indicated through their aides that they supported ratification, and the administration’s package, but none so far were willing to tangle with the distinguished senator from North Carolina. However, the experience of Amnesty International with a grassroots emphasis is important. Mobilizing civil rights groups, women’s groups, church and civic organizations would be strong enough to neutralize the extreme right wing in the Senate and to confirm a moderate but important human rights agenda for the American people, i.e., the legislation of the global Bill of Rights. The Senate Foreign Relations Committee voted to submit the Bush administration’s package on the Torture Convention to the Senate. The floor debate was scheduled for October 3, 1990. The success of the progress of the Torture Convention in the Senate was followed by the Senate acting on both the Civil and Political Rights and the Racial Discrimination Conventions. The United States ratified the Torture Convention, but the task took a very long time. The United States’ long delay to ratify this Convention is indicative of its general unwillingness to subscribe to the treaty-based regime of international human rights.219 Although the United States may have been a lead 219 For an overview of the political impediments to u.s. ratification of the human rights treaties, with particular reference to the campaign to ratify the Torture Convention, see Winston P. Nagan, The Politics of Ratification: The Potential for United States Adoption and

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player in the development of the International Bill of Rights, right-wing interests in the u.s. Senate view any international instruments of human rights law with considerable suspicion. F Torture and National Security after 9/11 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was concluded in New York in 1984 and went into force in 1987. The u.s. signed the Convention in 1988 when President Reagan was in power. The United States ratified the Convention on November 20, 1994, but declared that nothing in the Convention would require or authorize legislation or other action by the United States that is prohibited by the United States Constitution as it has been interpreted by the United States. This Convention became the first mainstream human rights document for which the u.s. Senate gave advice and consent. The Convention was preceded by the adoption of the Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment by the General Assembly in 1975, which guaranteed the protection of all persons against torture and related treatment or practices. The Preamble of the Convention states explicitly the formal roots upon which it is based in the international human rights system. It is based on Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights. Both instruments hold that “no one shall be subjected to torture or to cruel and inhuman or degrading treatment or punishment.” Central to the animating principles in the Preamble is a reference to the importance of the global struggle against torture and related deprivations throughout the world. This principle explicitly affirms the theme of dynamic humanism and the struggle for human rights. The struggle against torture is a struggle for human rights. It therefore recognizes that in the negative sentiment of state and state-like practices, torture is used as an instrument of social control, power and dominance. Thus, the struggle against torture is in part a struggle concerning the issues of human rights and good governance in their widest meaning and application. The efficacy and ubiquity of strategies to prevent torture depend in part upon the transparency of the victim and the non-transparency of the non-­ victimizer. Consequently, the non-transparency of the victimizer undermines the ascription of responsibility. It compromises governmental accountability and, in a more general sense, undermines the bonds of nationalism, loyalty and patriotism. A government that represses those under its domination and Enforcement of the Convention Against Torture, the Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, 20 Ga. Int’l & Comp. L. 311, 311 (1990).

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control by extreme forms of cruelty and sadism may also be fueled by ideological or religious fanaticism, which undermines the foundations of authority and loosens the bonds of civic identification and loyalty. The Torture Convention targets state responsibility and obligation. It therefore does not reach the informal associational sectors of global society that have access to human and territorial resources, administrative and decisionmaking coherence and who use coercion and violence for private or improper ends. Thus, the definition does not focus on movements of national liberation, terrorist operations, criminal cartels and other organized components of global civil society whose objectives are criminal and/or anarchic. This ostensibly limits the reach and efficacy of the Convention. For example, the Mafia or a terrorist group may torture a victim within their custody and control. Such conduct may not necessarily fall within the legal regulation in the Convention. To this extent, the Convention has limitations on the scope of its universal reach. Although these groups are organized and have lethal capacities to marshal force using the techniques of torture, they still may be out of the reach of the ostensible jurisdiction of the Convention, and it must be recognized that we live in a system of state sovereigns. The states are still the cornerstone of the international system. In terms of real power and competence, the states have an extensive near-monopoly on the instruments of violence and potential repression. The Convention is a milestone in that it seeks to limit the sovereignty of the state in the international environment. The limitation on the states is the use of its sovereign power to torture or otherwise cruelly degrade or punish individuals as a function of ostensible state sovereignty. More importantly, the Convention implicitly establishes a critical constitutional principle in the international system: to engage in practices in violation of the Convention is an abuse of sovereignty. Thus, we have an important contribution to constraining the unlimited and unrestrained power of the sovereign. The Convention affirms the principle that state absolutism cannot be sustained as a justification for repression in the forms prohibited in the Convention. The Torture Convention was ratified subject to important aspects of national legislation and pre-existing law. The precise operational scope of the Convention is given a high-level of complexity by the implication that there are pre-existing meanings and standards which are included in the Convention by selective incorporation. The Torture Convention clearly establishes the principle that torture is universally prohibited. u.s. case law acknowledges that this principle is vested with the quality ius cogens, thus the prohibition of torture is prescriptively a pre-emptory norm of international law. Torture in the context

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of federal jurisdiction and civil litigation has been determined to be an international wrong in violation of the law of nations. The prescriptive norm was given enhanced juridical efficacy through the vehicle of international law, and was given application and enforcement in civil contexts prior to the adoption of the Treaty. The Convention was inspired by the activism of a reputable international non-governmental organization, Amnesty International. The Amnesty International mandate of activism requires the organization to oppose all forms of torture universally. Amnesty International activists realized that human rights law itself needed to be strengthened by a special instrument which could create an unambiguous and binding legal obligation on states to prohibit torture, to punish torturers and provide justice and rehabilitation for torture victims. The prohibition of torture is a good case study of society’s strategic methods of interest articulation, public advocacy, strategic mobilization of intellectual and skilled resources as well as the forethought to enhance governmental initiatives toward the creation of a specific legal regime that seeks to prohibit torture and related deprivations. Amnesty International and other International Non-Governmental Organizations (ingos) generated meetings and conferences from which the importance of the prohibition of torture as a global problem could be recognized and the intellectual and skilled resources of these groups could be used to clarify the scope of the problem and to consider the appropriate action and intervention that might form the conceptual basis of an important international law-making instrument. The outcome of these deliberations was the willingness of several governments to bring the issue before the United Nations for further institutional study and deliberation. This led to the decision of the u.n. General Assembly Declaration on the Protection of All Persons From Being Subjected to Torture. The broad outline for the conceptual and normative basis of a legally binding instrument was expressed in this Declaration. While the Declaration contained components that were overlapping, the understanding of its major purposes appeared to be appropriate and thus the Declaration was overwhelmingly affirmed in the General Assembly. A General Assembly Resolution even in the form of a Declaration is not technically binding as a matter of law. However, Declarations may accelerate the process by which inchoate norms become crystallized and establish expectations akin to a notion of international soft law. A state which in good faith seriously and publicly commits itself to a General Assembly Resolution in the form of a Declaration in particular may be expected to act consistently with the Declaration. Such Declarations may accelerate the process by which ­specific principles establish the opinio juris sive necessitatis, which creates binding

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o­ bligations in the international system under customary international law. The Declaration was a critical instrument in the reasoning behind the judgment in Filarteiga v. Pena–Irala. The Second Circuit Court of Appeals determined that the Declaration, read in the light of other human rights instruments and practices, established the idea that torture is a universally-recognized wrong in international law. It recognized that as a wrong it was an international tort and could be sued upon as a basis of civil liability in the u.s. courts. The Declaration was followed by a 1977 General Assembly request for the drafting of a Convention to outlaw torture. In October of 1984, a Joint Resolution of Congress supported the adoption of the Draft Convention that had been produced in the u.n. system. The intent of Congress was remarkable. The Joint Resolution stated in the first “Whereas Clause” that “torture is absolutely prohibited by international legal standards.” It also recognized that the work of the Human Rights Commission in developing the Draft Convention which was “intended to reduce the practice of torture and lead to its eventual abolition.” These statements of lofty principle contained a remarkably innovative stipulation for the conduct of diplomacy and u.s. foreign policy. The President of the United States under the Joint Resolution is requested “(1) to instruct the Permanent Representative of the United States to the United Nations to continue to raise the issue of torture practiced by governments; ….” This is an indication of Congressional antipathy to torture and the McCain Detainee Amendment continues this tradition. This Resolution also requests that Congress fully support the United States government’s role “in the formulation of international standards and effective implementing mechanisms, particularly … against torture.” Thus, the McCain Detainee Amendment is not an initiative that is novel or surprising in its concern that the u.s. government acts and demonstrates that it acts against torture. The Convention was negotiated by the Ronald Reagan Administration. Former Secretary of State George Schultz sent the Letter of Transmittal concerning the Convention to the President officially on May 10, 1988 and on May 20, President Reagan submitted the Letter of Transmittal to the Senate. The Senate was charged with jurisdiction over the future of the Convention. In July 1989, Professor Winston P. Nagan was elected Chairman of the Board of Amnesty International, and the question arose as to the status of the Torture Convention. There was a new administration, and President George h.w. Bush was interested in having the advice and consent of the u.s. Senate given to the Convention. The question of the activism and interest representation required to move the treaty from the executive to the Senate, through the Senate and the practical involvement of the Congress and the Courts is a distinctive narrative about the politics, consequences, and the political climate of ratification in u.s. law and

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practice. This matter is discussed supra. The immediate outcomes for u.s. law and practice that emerged from the advice and consent of the Senate in the process of ratifying the Treaty follow. The Torture Convention as adopted with attendant reservations, understandings and declarations obviously referenced pre-existing u.s. law that would overlap with the specific international proscription of torture in the Treaty itself. Some forms of common law crimes overlap with torture and under state or federal law would be subject to jurisdiction that could be sequential or concurrent under either law. Common law crimes such as assault and murder could be tantamount to torture and could be common law crimes under state law. Similarly, analogous common law crimes under federal criminal law which might include assault, maiming, murder, manslaughter and rape are also criminal offenses defined by both federal and state law. As earlier indicated, the Fifth, Eighth, and Fourteenth Amendments certainly as a matter of constitutional law cover some of the categories that fall under the definition of proscribed conduct under the treaty. Both federal and state law would cover the defendant whose conduct was committed within u.s. jurisdiction. From an international law point of view, this would certainly touch on the general principles of international jurisdiction to prescribe, apply and enforce u.s. criminal law to the fullest extent permitted by international law and practice. One of the most important statutes meant to give extra-territorial effect to the Torture Treaty is the statute criminalizing torture outside of the United States. Section 2340(a) does place limits on the reach of u.s. jurisdiction over prohibited conduct occurring outside of the United States. Either the offender must be a u.s. national, or if not a national, must be present in the United States. This provision was ineptly drafted. It does not codify the clear major purpose of the Treaty, i.e., to universally proscribe torture regardless of nationality or territorial considerations. The specific limitation that may or may not be implicit in the statute is that the prescription is universal but the application and enforcement in a decentralized system of authority is largely left to the jurisdictional competence of the state parties to the Treaty. Those parties may apply and enforce their criminal laws subject to their ability to acquire jurisdiction over the person of the defendant in terms that do not violate other fundamental due process rights. A minimal standard would be a lack of jurisdiction if the apprehension of the defendant from outside the jurisdiction shocked the conscience enough to trigger due process concerns or broader human rights concerns under conventional international law. A further important legislative product inspired by the Convention was the Torture Victim Protection Act. Article 14 of the Torture Convention did not mandate private sector remedies. However, u.s. case law provided a modern

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authoritative gloss on 28 u.s.c. Section 1350 in the case of Filartiga v. ­Pena-Irala. The federal court determined that torture was a tort in violation of the law of nations, thus creating the civil claim of liability based on the internationallyjustifiable principle that torture is a wrong that is definable and universally prohibited and which may be subject to the ordinary remedies of damages in the course of normal litigation in the federal courts. The statute confirmed u.s. practice as mandated by u.s. law rather than the permissive foundation implicit in Article 14. The statute affirmed the congressional consensus that our courts and administration are required to maximize our resources in the continuing mandate to eliminate torture on a global basis. These matters are discussed infra. G The Torture Victim Protection Act of 1991 The holding in a case decided under the Alien Tort Claims Act220 spurred Congress to pass the Torture Victim Protection Act of 1991.221 This legislation was aimed at mitigating the effects of torture. Under the Act, a torturer acting under actual or apparent authority or color of law may be liable in a civil action for damages to the victim. Several limitations restrict the eligibility of claims under this Act including the claimant must exhaust all domestic remedies in the original state before invoking the Act and claims are subject to a ten year statute of limitations.222 The Act uses the definition of torture established by the Torture Convention, a definition that addresses physical and mental suffering. The latter includes the actual infliction, or even threatened infliction, of severe pain, suffering, or mind-altering procedures. Alternatively, other procedures calculated to disrupt the senses or the personality, threats of imminent death, and threats to do any of these actions to someone else are also included in this definition.223 Courts have interpreted the Torture Victim Protection Act to expand rather than limit the Alien Tort Claim Act.224 Furthermore, courts have ruled that claims under these two acts are not barred by the Foreign Sovereign ­Immunities Act.225

220 Alien Tort Claims Act, 28 u.s.c. § 1350 (2000). 221 Torture Victim Protection Act of 1991, Pub. L. No. 102–256, 106 Stat. 73 codified at 28 u.s.c. § 1350 (2000). This Act also establishes civil liability for an extra-judicial killing. See id. 222 See id. 223 See id. 224 See Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1191 (s.d.n.y. 1996). 225 See id. at 1198.

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In addition to the 1991 Act, the Torture Victim Relief Act of 1998226 and Torture Victim Relief Reauthorization Act of 1999227 have appropriated more funding to further the campaign against torture and facilitate the rehabilitation of the victims. Though it does not necessarily counteract u.s. reluctance to join international legislation against torture, domestic legislation does demonstrate u.s. efforts to provide legal remedies for torture victims. Torture in the aftermath of 9/11/2001 is discussed, infra. Executive Order No. 13,107: The Implementation of Human Rights Treaties One example of an initiative from the executive branch came on December 10, 1998. In commemoration of the 50th anniversary of the adoption of the udhr, President William J. Clinton issued an Executive Order228 on the implementation of human rights treaties.229 The Executive Order reiterates the commitment of the “policy and practice of the Government of the United States … to the protection and promotion of human rights and fundamental freedoms,”230 and the bilateral protection of human rights and through international as well as regional organizations. A concrete facet of this commitment requires that the head of each agency appoint a contact officer for the overall coordination and implementation of this Executive Order.231 Unfortunately, the Executive Order assigned an ambiguous role to the courts for its enforcement. Ironically, it appeared to exempt the u.s. government from the very accountability it seeks to impose on other governments: in Sub-section 6(a) “[n]othing in this order shall create any right or benefit, substantive or procedural, enforceable by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.”232

H

226 Torture Victim Relief Act of 1998, 22 u.s.c. § 2152 (2000). 227 Torture Victim Relief Authorization Act of 1999, Pub. L. No. 106–87, 113 Stat. 1301 (22 u.s.c. § 2151) (1999). 228 Exec. Order No. 13,107, 63 Fed. Reg. 68,991 (Dec. 15, 1998), reprinted in 38 i.l.m. 493 (1999) [hereinafter Executive Order]. 229 The preamble of the Executive Order names three human rights treaties in particular: the ccpr, the Torture Convention, the International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 u.n.t.s. 195, reprinted in 5 i.l.m. 352 (1966). However, it also recognizes that the Executive Order shall apply to “other relevant treaties concerned with protection and promotion of human rights to which the United States is now or may become a party in the future.” Executive Order, at 68,991. 230 Executive Order, supra note 293, § 1(a). 231 Id. § 2(a). 232 Id. § 6(a).

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The Executive Order created the Interagency Working Group on Human Rights Treaties,233 that links the Department of State, the Department of Justice, the Department of Defense, the Joint Chiefs of Staff, and such “other agencies as the chair deems appropriate” under a chair who is the Assistant to the President for National Security Affairs.234 This suggested a realistic recognition of the fact that grave human rights violations, particularly those that implicate torture practices, are matters that often come vested with security sensitive implications. The scope of the terms ‘national security affairs,’ ‘Department of Defense,’ ‘Joint Chiefs of Staff,’ and ‘other agencies’ are ambiguous, for they may or may not include the intelligence agencies of the Department of State, the Department of Defense, or the Central Intelligence Agency. This question is significant for the implementation of the Executive Order because bringing grave human rights violations to light often requires cooperation from intelligence agencies. This implementation creates a dual role for intelligence agencies and a potential conflict of interest. The intelligence operatives must supply data about particular governmental entities while they themselves are involved in gross human rights violations. Still, intelligence operatives probably know more about the status of human rights violations in other countries than general diplomatic bureaucrats do. The future of the paradigm of conflict between national security interests and human rights interests, presents another element of the intelligence agency ambiguity in the Executive Order. “National security interests” are often a synonym for the survival interest of the state, and these interests are often used to justify transgressions of human rights violations deemed vital to the survival of the state. In the current climate concerning global terrorism, the balance has been struck by the executive in terms of elevating national security claims above human, civil, or political rights. States often make exaggerated claims about threats to their survival in order to justify efforts to destroy their supposed enemies. Therefore, the culture of national security tends to have an uneasy co-existence with the culture of human rights. However, the systematic use of torture is a condition that de-legitimizes the state and exacerbates its national security problems. Whether the arsenal of intelligence capabilities will be an asset or a liability in the effort to eradicate torture is still uncertain.

233 Id. § 4. 234 Id. § 4(b).

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Torture within the United States

Ironically, while the u.s. claims to promote human rights throughout the world, it has been the subject of torture allegations at home.235 This calls into question the United States’ view of its human rights treaty obligations, particularly given the u.s. ratification of the Torture Convention. In May 2000, Amnesty International submitted a brief to the United Nations Committee Against Torture, stating that the United States is simply not doing enough to secure compliance with the mandate of the Torture Convention and noting the lack of effective oversight entities to monitor prison conditions and police departments.236 Amnesty International further pointed out that u.s. reservations, declarations and understandings have weakened the u.s. commitment to the full scope of the Torture Convention. Perhaps the most important omission in u.s. policy is that torture is not a distinct crime under federal law. The events of 9/11/2001 have had a significant effect on the issue of torture in the United States, as seen infra. A Litigation Strategies to Eradicate Torture As important as the u.n. mechanisms are for facilitating the process of eradicating torture on a global basis, the courts play an equally important role in defending the rule of law. In the age of globalism, law offers a more aggressive role for domestic courts in making and applying international law. Where u.n. mechanisms have been symbolic in establishing the principles of international law against torture, the legal system, through domestic and regional courts, ad hoc tribunals, and the International Criminal Court, ensures that

235 See Amnesty International, United States of America Rights for All, at http://www .­rightsforallusa.org/info/report/index.htm. In this report, Amnesty International outlines several human rights concerns regarding police practices throughout the United States. This extensive list includes, beatings, excessive force, unjustified shootings by police officers, physical and mental abuse of prisoners and detainees by prison guards, including use of electro-shock equipment and cruel use of restraints, sexual abuse of female prisoners by male guards, prisoners held in cruel conditions in isolation units, ill-treatment of children in custody, failure to protect prisoners from abuses by staff or other inmates, inadequate medical or mental health care, overcrowded and dangerous conditions, racist treatment of ethnic or racial minorities by police or prison guards, ill-treatment of asylum seekers held in detention, cruel conditions on death row and in the application of the death penalty. 236 See id.

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these principles must be applied firmly and consistently. This section reviews selected decisions of diverse courts in the campaign to eradicate torture. The two greatest advances in United States case law approaches to the claims of torture victims have been evidentiary. The two facets of this change are the admissibility of confessions in criminal cases, and the assertions that, in civil cases, universal jurisdiction must apply. United States case law represents development in both criminal and civil torture law. The area most relevant to torture concerns questions of police interrogation methods and the legal boundaries of generating evidence and confessions. The general evidentiary rule, founded in English common law, required that statements be voluntary in order to be admissible. The courts would not accept statements “obtained by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.”237 In 1936, this principle gained a due process constitutional imprimatur in Brown v. Mississippi.238 Fifteen years later, Williams v. United States239 established the illegality of brutal tactics by police to coerce confessions from a defendant. The totality of the circumstances test for determining whether confessions are voluntary provides unclear criteria for finding the line between permissible and impermissible conduct. To determine such distinctions, u.s. courts should look to the Torture Convention for supplemental prescriptive guidance in defining minimum standards. Three cases reveal the development of torture in United States civil law. Filartiga v. Pena-Irala240 is the leading case in expanding the role of domestic courts in the application of human rights law in general and the law relating to the prohibition of torture in particular. This case emerged prior to the United States’ ratification of the Torture Convention. Filartiga determined that, based on the Alien Tort Claims Act,241 torture constitutes a civil wrong simply because it violates customary international law. It expanded the scope of the legal remedies to include private litigants as plaintiffs, providing an important vehicle through which a torturer could be subject to legal proceedings.

237 Judges’ Rules And Administrative Directions to the Police, Home Office Circular No. 31/1964, Princ. (e), quoted in Amnesty International, Torture in the Eighties 51 (1984). The Judges’ Rules are in the form of advice to police officers on what will and will not be allowed as evidence in a trial. 238 297 u.s. 278 (1936). 239 341 u.s. 97 (1951). 240 630 F.2d 876 (2d Cir. 1980). 241 Alien Tort Claims Act, 28 u.s.c. § 1350 (2000).

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In Kadic v. Karadzic,242 a u.s. appellate court held that mass rape, coerced prostitution, and other forms of physical violence directed at Croatian women by the Bosnian Serb military constituted torture as defined in the Torture Convention.243 One important aspect of this case was that the level of “state action” required for “official” torture entailed not actual authority but merely the “semblance of official authority.”244 Finally in Ortiz v. Gramajo,245 the District Court of Massachusetts held that the kidnapping, beating, and rape of a nun constituted torture.246 In order to qualify as an official act, the torture need not occur while the defendant has direct custody over the victim; rather it needs only the “consent or acquiescence of a public official.”247 The case law in the aftermath of 9/11/2001 is still evolving. xii

u.s. Policy and Practice Relating to Torture in the War on Terror

In the aftermath of 9/11/2001, the u.s. had to confront the implications of terrorism that previously had been largely felt in other parts of the world. The 9/11/2001 attack on the territory of the u.s. was of a magnitude that had not been experienced since the December 7, 1941 attack on Pearl Harbor. The 9/11/2001 attack was a massive breach of u.s. security expectations. The attack not only demolished the Twin Towers with enormous loss of life and tragedy but also targeted the Pentagon itself. That attack involved a significant loss of life as the plane rammed into the Pentagon building. The attackers also sought to hijack a plane and crash into the Capitol Building or the White House itself. The scope and coordination of this attack meant that the terrorist organizers were serious operators’ intent on attacking the American heartland and causing as much destruction as possible. The difference between the attack on Pearl Harbor and the 9/11/2001 attack is that in 1941, the nation was attacked by another state, the Japanese Empire. Thus, a state of war could be declared against another state. In 2001, the aggressor was not a state but a non-territorial 242 243 244 245 246

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). See id., at 244. Id. Ortiz v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). See id. at 178. This case did not use the Alien Tort Claims Act as the two previous cases did, but instead applied the Torture Victim Protection Act. Nonetheless, that definition is identical to the one provided in the Torture Convention. 247 Id. at. 178, n.15.

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actor, not functioning within the rules or expectations of any articulate normative or juridical system. The immediate crisis facing the administration after 9/11/2001 was whether other attacks were planned or imminent and, if so, how to adequately defend and protect the security of the American people against these possible threats. The nature of the attack and the adversary raised questions about the adequacy and/or value of traditional rules of international law. In particular, how effective might those rules be in the context of asymmetrical threats from terrorist groups? The crisis conditions at the time raised multiple concerns about whether the conventional law of self-defense, the conventional ius in bello, as well as the efficacy of fundamental rights in either u.s. constitutional law or international human rights law might be compromised. It is possible that directives and practices issued at this time were driven by extreme exigency and not effectively thought through or developed. In fact, there were open public disagreements concerning the treatment of those taken into custody as suspected terrorist operatives in or near the arenas of conflict. Thus, the question arose whether these detainees were covered by the Geneva Conventions248 or whether they were unlawful combatants, and, if they were unlawful combatants, whether they were relegated to a legal vacuum of no rules of law, including international law. A significant question arose about the specific issue of acquiring intelligence from alleged terrorist operatives and the appropriate methods used to obtain that intelligence. Implicit in these questions were a multitude of assumptions implying that perhaps some law did apply, or that international law rules on fundamental human rights were jurisdictionally limited by the manipulation of territorial jurisdiction. What is clear from the record is that robust interrogation techniques were authorized.249 Those robust techniques raised the question of whether pre-existing international or u.s. laws might actually regulate those techniques, and whether those techniques as used in practice violated

248 See Memorandum for William J. Haynes ii, General Counsel, Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (“We conclude that these treaties do not protect members of al Qaeda organization, which as non-state actor cannot be a party to an the international agreements governing war.”); see also Geneva Conventions relative to the Treatment of Prisoners of War, 75 u.n.t.s. 135, arts. 14, 15, 17, 21, 25, 87, 130 (1950) (prohibiting acts of torture and abuse against prisoners of war). 249 Statement of Sen. Carl Levin on Senate Armed Services Committee Report of Its Inquiry into the Treatment of Detainees in u.s. Custody, http://levin.senate.gov/newsroom/ release.cfm?id=305734.

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legal norms governing the problems of torture, inhumane or degrading treatment or punishment in the interrogation process.250 On February 7, 2002 President George W. Bush made a decision to deny captured terrorists prisoner of war status (pow).251 This was a controversial decision and it is still contested. The u.s. is a great power and the conduct of its war on terrorism reflects an evaluation of the rules of war and humanitarianism that was vigorously promoted and adopted as an international obligation for itself. Moreover, if the u.s. could dispense this aspect of international law it was sending a message that they could similarly dispense with the international law restraints. In dispensing with the edifice of humanitarian law the u.s. was encouraging the recruitment of terrorist operatives by its enemies. There are four Geneva Conventions which defined the limits of war making. The third Geneva Convention was the one most important to the post 9/11/2001 world because it deals with the treatment of pows. The fourth Geneva Convention concerned the protection of civilians in theaters of war. Soldiers who are captured are entitled to pow status. If the pow status is in doubt, the capture is obliged to establish a competent tribunal to determine the status. The Geneva Conventions prohibit but do not define torture. In effect the Geneva Conventions seek to strike a balance between state interests and the interests of individuals. Humanitarian law has been described as a bulwark of human security in a context of conflict. The Bush administration declared that these terrorists were ‘illegal enemy combatants.’ This declaration meant that those captured in the war against terrorism were not covered by the protections of the Geneva Conventions. The Bush administration also had a policy of seeking to keep illegal enemy combatants out of the territorial jurisdiction of the u.s., holding them in Kandahar, Bagram and Guantanamo Bay. The administration created a legal vacuum for such prisoners. The rejection of the Geneva Conventions was a product of White House’s counsel Alberto Gonzales. According to Gonzales “the war against terrorism is a new kind of war… in my judgment this new paradigm renders obsolete Geneva strict limitations on the question of enemy prisoners and renders quaint some of its provisions.” 250 See Ruth Wedgwood & R. James Woolsey, Law and Torture, Wall St. J., A10, (June 28, 2004) (stating that In the wake of the Abu Ghraib scandal…. Interrogation methods for combatants and detainees must be framed in light of the applicable law, even in the war against al Qaeda, and a president needs to know where the red lines are.… there is no room for unbounded power over any human power.). 251 Rashid, A., Descent into Chaos: Pakistan, Afghanistan and the Threat to Global Security, 293 (2009).

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­Gonzales ­maintained that Afghanistan was a failed state and the Geneva Conventions did not apply to a failed state. The Gonzales’ position was challenged by the State Department which argued that such a position enhanced risks to capture u.s. troops, tarnished the u.s. image and opened the pathway for the accusation that u.s. leadership could be accused of war crimes. The Judge Advocate Generals Corps (jag) also protested. They stressed that the Uniform Code of Military Justice had criminalized the abuse of pows. They also underlined the fact that the u.s.’s global deployments would create risks for u.s. soldiers. ­Gonzales, supported by President Bush and Vice President Richard Cheney. Secretary of State Donald Rumsfeld and others, followed up by developing standards for enhanced interrogation techniques. The acquisition of intelligence via enhanced interrogation became a major priority of the administration in the war against terrorism. These practices led to exposures and concerns that enhanced interrogation invariably crosses the line and becomes torture, a practice prohibited under u.s. and international law. The most sensitive of practices was the Central Intelligence Agency (cia) practice of rendering captures to states quite willing to torture them for information. These detainees were called ‘ghost detainees’ and fell completely into a legal vacuum in which they were interrogated without restraint. The aftermath of 9/11/2001 and the interrogation of suspects resulted in the enactment of legislation designed to prohibit the inhumane treatment of prisoners apprehended because of alleged terrorist involvement. These prisoners included alleged terrorists, operatives and detainees who may have aided and abetted in terrorism. They were lodged in a special facility in Guantanamo Bay, Cuba. This legislation, the Detainee Treatment Act of 2005 (the McCain Detainee Amendment)252 stipulated that a person under the control of the Department of Defense may be interrogated only within the standards authorized by the Army Field Manual (afm) on Intelligence Interrogation in which Section 8155 prohibits cruel, inhuman or degrading treatment or punishment of persons under the control of the u.s. government.253 The objective of this section is not to interfere with or confuse the law established in the afm, which is meant to codify the humanitarian principles reflected in treaty and custom. Section  8155 extends the cruel, inhuman principles to any individual in the custody or physical control of the government of the United States. The language is not prefaced with the term “torture and other” forms of inhumane and 252 H.R. 2863, 109th Cong., 1st session, (October 5, 2005), Sections 8154–55, The Department of Defense Appropriations Act of 2006 (hereinafter the Detainee Treatment Act). 253 Id. § 8155.

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related treatment or punishment. These terms, which are inherently vague and expansive, are to be given proper interpretation in terms of the Fifth, Eighth, and Fourteenth Amendments. The meaning behind those Amendments is included in the u.s. reservations, declarations, and understandings (ruds) to the Torture Convention The McCain Amendment appears to incorporate the prohibition of torture by the reference to the ruds which were appended to the Torture Convention as a condition of its ultimate ratification. The McCain Amendment has been seen as affirming the fundamental policy concerning the prohibition of torture and related forms of deprivation as a critical cornerstone of u.s. policy. Amnesty International has expressed concern about certain additional elements in the McCain Amendment which restrict access to the courts and therefore limit fundamental rights in terms of appropriate judicial supervision.254 Amnesty International has suggested that the McCain Amendment may enhance the very evil it was meant to constrain or prohibit.255 On September 11, 2001, the United States was subject to a major, coordinated attack by lethal terrorist operatives. The u.s. is still coming to grips with all of its implications. Among the most important of these implications was the status of the war on terror. This war is clearly unconventional and innumerable issues have emerged about the permissible limits that, under international and municipal law, are appropriate in effectively protecting the American people from the dangers of terrorist attacks. It is unclear who in the White House inspired the memorandum written by Jay S. Bybee, an Assistant Attorney General, to the Counsel for the President, Alberto Gonzales.256 In this memorandum, Bybee directly addressed the question of the standards of conduct for interrogation under 18 u.s.c. Sections 2340 and 2340(a). The purpose of the Bybee memo was to construe the reach of the Torture Convention so that it would only cover the narrowest possible circumstances, thus providing great latitude for more robust methods of interrogation to acquire intelligence from those in the custody of u.s. agencies. According to Bybee, the definition of torture is satisfied “only when the infliction of pain is associated with serious physical injury, so severe that death, organ failure, permanent damage resulting in a loss of significant ­bodily

254 Id. 255 Id. 256 Memorandum from James Bybee, Assistant Attorney General, to Alberto Gonzales, Counsel for President. Re: Standards of Conduct for Interrogation Under 18 u.s.c. §§ ­2340–2340(a) (Aug. 1, 2002).

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­function, would likely result.”257 From a technical perspective, the Bybee memorandum undermined the object and purpose of the Torture Convention which had been signed and ratified by the United States as an international obligation. On December 30, 2004, James B. Comey, Deputy Attorney General, received a second memorandum from Daniel Levin, Acting Assistant Attorney General. In this memorandum, it is stated “we decided to withdraw the August 2002 memorandum” and stipulates that it “supersedes the August 2002 memorandum in its entirety.”258 Subsequent policy left open significant questions because of the creation of facilities for indefinite detention of alleged terrorist operatives. Considerable controversy had been raised about the concept of robust but humane intelligence interrogations and precisely what was or was not permissible. There was the further assumption by Attorney General Alberto Gonzales, unsustainable in law, that Article 16 of the Torture Convention had no application beyond the territorial limits of the u.s. because the Eighth Amendment had been limited territorially in its prescriptive and applicative reach.259 This assertion of territorialism was an expression of ignorance at the highest level, of the basic jurisdictional rules of international law, much of which is codified in the Restatement of Foreign Relations Law.260 The reinvention of 19th century territorialism had the effect of reconstructing an international law in which there would be vast areas of space constituting a legal vacuum. It was clearly an unpromising and crude way to undermine the long standing commitment of the U.S to the expansion of the rule of law and congressional commitment to developing a legal regime to promote the outlawing of torture on a global basis. A revolt occurred in the Republican Party, led by Senators John McCain and Lindsey Graham. The resulting bill, the McCain Amendment Barring Cruel and Inhuman Treatment Abroad (the 2nd McCain Amendment), stipulated “no individual in the custody or under the physical control of the United States government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment.”261 Although there were criticisms relating to the scope of the 2nd McCain amendment, as a statement of principle, it reaffirmed the u.s. commitment to its own 257 Id. at 1. 258 Memorandum from Daniel Levin, acting Assistant Attorney to James Comey, Assistant General. Re: Legal Standards Applicable Under 18 u.s.c. §§ 2340–2340A (Dec. 30, 2004). 259 See supra note 22, art. 16. 260 Restatement of Law, The foreign Relations Law of the United States (1987). 261 See Detainee Treatment Act, supra note 312.

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values and ideals as a nation that not only prosecutes torturers but works to end torture as a stain on civilization. Unfortunately, the 2nd McCain Amendment did not end questions about precisely what is permissible for intelligence agencies such as the cia. For example, a method of torture used by the cia was the method of waterboarding. Waterboarding has long been held to fall within a universally understood interpretation of prohibited conduct as torture. The U.S. Army banned waterboarding or sensory deprivation on uncooperative prisoners in 2006. The cia had admitted to using this technique on suspected terrorists in 2003. In 2006, it also prohibited waterboarding. Congress enacted legislation that sought to limit cia interrogation techniques to those explicitly indicated in the afm. When the bill came before President Bush on March 8, 2008, he vetoed it.262 Waterboarding and other enhanced interrogation techniques, which might be prohibited by the Torture Convention and, by implication, the McCain amendment, are now permissible even though these techniques of interrogation are rejected by the u.s. Army and the cia. The Bush administration has used the waterboarding technique against several Al-Qaeda detainees including Khalid Shaikh Mohammed.263 Since waterboarding is widely conceded, even in administrative circles, as falling within the definition of prohibited practices under the Torture Convention, the question has arisen as to why President Bush vetoed the legislation. If these techniques have been admittedly used and the agencies themselves have discontinued their use, why did the President exercise the veto? It is possible that notwithstanding the administration’s conceded antipathy towards waterboarding and related techniques of interrogation and the fact that they are no longer used, the veto was aimlessly gratuitous. The President was close to the end of his term. Professionally-trained interrogators indicated that they could function effectively within the strict letter of domestic law and international obligationsThe President was close to the end of his term. There were two responses to the expanded executive power. The first was ideological in that President Bush believed he had the widest possible power in the War on Terrorism, and refused to concede one inch of that power. This does not seem convincing on its face. The veto implicitly relies on the unexpressed theories behind the unitary Presidency. This presents the President as a constitutional reformer. By preserving and enhancing executive power, he 262 Steven Myers, Bush Vetoes Bill That Would Limit Interrogations, The n.y. Times, A1 (March 8, 2008). 263 Id.

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is restoring the Constitution to the correct balance of power it is meant to secure. However, there are very flimsy reasons for sustaining the trumping power of the President over the other branches of government. There is a concept deeply rooted in conservative ideology that the government that governs least, is the one that governs best. The President would have to explain why his veto secures the promise of limited government under the Constitution. This is not an argument that will pass the bar of genuine Republicanism or the judgment of national public opinion. The second response was that there could be a more realistic and selfserving explanation. If the President and the Vice President anticipated a new constitutional dispensation about executive power, would that new executive approach be on firm legal ground if it sought to investigate and prosecute the violations of u.s. and international treaty law? In practice, the sanctioning of robust interrogation methods suggests violations of u.s. and international law. The alleged violations are thought to be widespread but only lower level officials have been made to pay the price. However, if one reads the term ‘unitary presidency’ in terms of the law of war, then that law constrains and empowers the Commander in Chief. The Commander in Chief (the Executive) has a valid defense when he is out of power. He can claim that the definition of military necessity is an exclusive determination of the President. Similarly, he can claim that the concept of proportionality in the context of the unconventional war on terror is elastic and that the full stretch of that law is exclusive to executive interpretation. Finally, there is the principle of humanitarianism that includes the humanitarian provisions of the Geneva Conventions, the u.s. Code of Military Justice and customary international law. The President’s lawyers consistently spoke of not being bound by these rules and that they would have an arguable defense in that they acted within the spirit of those rules. The scope of the spirit it is defined by the President, and not the Congress or the Courts. The President’s lawyers have sought to expand his powers based on the idea that he is the Commander in Chief under the Constitution. They essentially argue that when he declared a state of war against global terrorism, his unilateral declaration changed his status to Commander in Chief and broadened the definition of those powers implicitly or allegedly inherent in the concept of Commander in Chief conditioned by a declaration of war. The power to declare war officially is a power reserved to Congress. The President as Commander in Chief must request that Congress so declare. Assuming that the sequential but limiting role of Congress is a mere technicality in this regard and that the only clear limitation is Congress’ power over the budget, the critical question would

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still remain as to the precise source and limitation of the President’s expanded powers as Commander in Chief. The President does not live in a constitutional or international legal vacuum. When he asserts the power of the Presidency as Commander in Chief, he is also asserting powers with regard to the Constitution of the United States as well as constitutionally-sanctioned powers over foreign relations which include the international law binding on the United States, including the Executive. Thus, the precise international and constitutional competence of the President as Commander in Chief lies with the foundations of the law of war or aspects of armed conflict analogous to war. These foundations give meaning to the term, ‘inherent powers’ of the President. These powers are both a sword and a shield for the Executive. The principles of self-defense based on military necessity, proportionality and humanitarianism consistent with a democratic society under the rule of law empower the President to act in self-defense for vital national interests such as security and safety of the American people. These powers are also a shield in the sense that he is secure from improvident action that may challenge his inherent authority and subject him either to impeachment or to prosecution after he leaves office. Should the President define the concept of inherent as limitless, he risks the loss of confidence of the people and their representatives in a time of crisis. That may itself be seen as undermining the security of the nation as a whole. The rules are there because they provide the parameters of authority and solidarity under crisis conditions. The practical outcome of the declaration of war on global terrorism has been that, having asserted a claim to universal jurisdiction over alleged terrorists regardless of territorial jurisdiction, the administration became implicated in practices that in general would have been violations of u.s. law or u.s. law that incorporates international law. The strategy of the Bush administration was based on the notion that international obligations relating to the practices used against suspects in detention would fall within the jurisdiction of the u.s. if these practices occurred on u.s. territory. To prevent the possible exercise of jurisdiction of u.s. courts or u.s. prosecutorial practices against the administration or intelligence agents under its command and control, an elaborate process was created to ensure that robust techniques of interrogation over suspects would happen outside of the geographic jurisdiction of the United States. If violations of law including international law as adopted by the u.s. were to occur and such conduct would have occurred outside the jurisdiction of the u.s., u.s. officials would be insulated from accountability under u.s. law. Second, violations that happen outside of the u.s. may occur in the spatial

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context of a legal vacuum, where no organized legal entity may assert jurisdiction over conduct under either its own domestic law or international law. This version of a rigid territorial limit on the reach of a state’s law is one that runs against the general jurisdictional trend in u.s. domestic law and international law. In the law of state court jurisdiction, there has been a long journey to reduce the salience of territorialism as the only indicator of licit jurisdiction over a party or a problem. In private international law, there has been a similar repudiation of the methodology of territorialism as an exclusive indicator of the appropriate choice of law or the law that is to supply the prescriptive rule of decision in particular cases. In international law, the jurisdiction to prescribe, apply and enforce law has been significantly influenced by the development of a jurisdictional rule of reason that permits the extraterritorial application of u.s. law so long as the application of that law is not unreasonable. These general principles make the Bush administration’s legal advisors look somewhat quixotic in their attempt to revive the limits imposed by 19th century jurisdictional concepts on the reach of a state’s law under international law. These mistakes have resulted in a massive embarrassment for the u.s. and branches of the government having critical responsibilities for security and intelligence. The most embarrassing of these practices has been the apprehension, detention and transfer of detainees to sites that the u.s. government officials thought would immunize the u.s. and its agents from legal responsibility under either u.s. law or international law. Perhaps the most important aspect of the embarrassment is the fact that constructions of law were given that now having been exposed to public scrutiny are not juridically tenable and have created the crisis that high level officials may well be subject to legal action after the administration leaves office. President Barak Obama must review the legal status and responsibility of officials who may have violated u.s. and international law. The risks to these officials are ones that appear to be understood by the current executive. The exercise of the veto that would appear to be gratuitous was in fact not so. The Bush veto asserted the President’s power to unilaterally exempt u.s. officials from u.s. and international law. Thus, the unitary Presidency concept established a defense against prosecution after administration change in the u.s. This suggests that the profusion of powers emanating from the executive as an exercise of war powers was essentially meant to provide a reasonable defense or a possible immunity from prosecution by a new administration. Two issues that would appear to have a possibly serious consequence for a judicial accounting both in and outside the u.s. are the issues of the black sites and extraordinary rendition. The cia operated so called ‘black sites’ outside of u.s. territory where robust interrogation techniques occurred under the

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c­ ommand and control of u.s. personnel. Revelations were made as far back as 2002 in The Washington Post.264 Since then, revelations have emerged from many sources including President Bush himself.265 On September 29, 2006, President Bush seemed to justify the black sites’ robust interrogation process as having made a critical contribution in the war against terror. President Bush stated, Once captured, Abu Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed were taken into custody of the Central Intelligence Agency. The questioning of these and other suspected terrorists provided information that helped us protect the American people. They helped us disrupt an al Qaeda operation to develop anthrax for terrorist attacks. They helped us stop a planned strike on a u.s. Marine camp in Djibouti, and to prevent a planned attack on the u.s. Consulate in Karachi, and to foil a plot to hijack passenger planes and to fly them into Heathrow Airport and London’s Canary Wharf.266 This justification of alleged success in thwarting terrorist plots may be completely insufficient as a legal defense for a public official who may be prosecuted for crimes based on the prohibition of torture and related practices. The u.s. has conceded that some forms of robust interrogation, e.g., waterboarding, have been used and are now discontinued. Although the Attorney General has been reluctant to state that this form of enhanced interrogation is torture, waterboarding is widely conceded to be a form of torture. The central weakness in the effort to construct a defense based on territorial limitations is that the Torture Convention prescribes a universal obligation under conventional international law. The prescriptive jurisdiction that defines the content of the crime is universal and not limited by territorial factors. The specific application and enforcement is effectively decentralized and, under conventional international law, this is jurisdictional competence allocated to state practice with a specific obligation attached to it. The state is required to prosecute the torturer, if the torturer falls within its application and enforcement jurisdiction or it is obligated to transfer the defendant to a state that is willing 264 Dana Priest, cia Holds Terror Suspects in Secret Prisons: Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11, Wash. Post, A1 (Nov. 2, 2005). 265 White House, Remarks by the President on the Global War on Terror (http://www.white house.gov/news/releases/2006/09/20060929-3.html). 266 Id.

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to prosecute. ­Because the u.s. is bound by prescriptive jurisdiction regardless of where the acts or conduct constituting torture happened, the only question is the application and enforcement jurisdiction. Because this will involve u.s. officials within the u.s., there are no jurisdictional barriers to limit the u.s. in honoring its international obligations. On March 8, 2008, President Bush vetoed the Intelligence Authorization Act 2008.267 The legislation included provisions that would have prohibited the cia from using waterboarding and extreme interrogation methods. The central thrust of the legislation was to make cia interrogation techniques consistent with interrogation methods that are explicitly prohibited in the afm., such as the use of waterboarding and at least seven other interrogation methods. These methods include the prohibition against stripping prisoners of all their clothes, forcing them to perform or simulate sexual conduct, burning, beating and similar forms of harm, hypothermia, mock executions, withholding food, water or medical needs, using dogs to attack or simulate attacks on prisoners, hooding the prisoners and taping the eyes of prisoners in custody. The President vetoed the legislation and, in effect, validated the excluded techniques and possibly others in the arsenal of robust or aggressive interrogation methods which may be used by the cia. The cia has publicly denied that it has used such extreme methods of interrogation ubiquitously. However, it has admitted to some selective deployment of methods presumably inconsistent with the policy in the afm and incompatible with the commonly accepted understanding of what may constitute a violation of both international law and domestic law prohibiting torture and other forms of cruel, unusual, and degrading treatment or punishment. The former Director of the cia, Michael Hayden maintained that the cia will continue to work within both national and international law.268 However, he maintained the cia’s needs are different than the Army, and it was for the cia to follow procedures suited to its mission. The President maintained that the legislation was overbroad in that it would have outlawed “all the alternative procedures we have developed to question the world’s most dangerous and violent terrorists.”269 The President came to 267 Veto Message From the President of the United States, Intelligence authorization Act for Fiscal Year 2008, reprinted in 154 Cong. Rec. H1419 (2008). 268 Director’s Statement on the Veto of the Intelligence Authorization Bill, Statement to Employees by director of the Central Intelligence Agency, General Mike Hayden, on Mar. 8, 2008, http://www.cia/gov/news-information/press-releases-statements/press_release-ar chive-2008. 269 Radio Address to the nation, President Bush on Veto of Intelligence Bill, reprinted in n.y. Times, Mar. 8, 2008, at 1.

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this conclusion having ignored the advice of 43 admirals and generals and 18 national security experts who all supported the bill. The effect of the veto is both retrospective and prospective. In retrospect, activities done under the color of executive authority, which authority challenges the legislative effort to outlaw such activity provides a colorable defense that those who ordered or carried out such activities did so under color of law and therefore did not have the mens rea to criminally violate the law. The failure of mens rea would certainly be a defense against prospective criminal prosecution, not only for cia operatives but also for those in command authority. The argument that the cia might need these unstated alternative methods which the President refers to is a matter which the cia itself disputes.270 Now that the extreme interrogation problem has largely been exposed for what it is, it is hardly likely that any u.s. governmental official is going to act in flat violation of the public record. The veto is one element in an effort to support an after the fact defense for conduct that in retrospect was unlawful. A similar assessment may be made on the plethora of memoranda that emerged from the White House and the Department of Defense which was largely designed to provide a colorable defense for operatives whose conduct using harsh interrogation methods ‘crossed the line.’ These legal memoranda were less guides to interrogation conduct than juridical shields to insulate decision makers and operatives from effective legal accounting under the law. The New York Times suggested that the veto underscored an ideological point about the scope and character of Presidential authority: the assertion of unaccountable authority under the theory that when the President unilaterally declares an indefinite war against a nonstate adversary, he assumes the status of Commander in Chief and that status is effectually a status that is above the rule of law.271 That theory is designed to show that even if it is theoretically unsustainable, it has a patina of plausibility as an argument. The patina of plausibility argument may represent a shield from prospective personal liability under the law. From all the evidence that has emerged from governmental and non-governmental sources there appears to be sufficient probable cause to justify an indictment against President Bush, Vice President Cheney and Secretary of State Rumsfeld. It is unlikely that such action will be taken by the Department of Justice under the Obama administration. However, should these three decision makers leave the United States for foreign travel, there is a risk that, like Pinochet, the state they are in or 270 Brian Ross & Richard Esposito, cia’s Harsh Interrogation Techniques Described, http:// abcnews.go.com/WNT/Investigation/story?id=1322866. 271 Steven L. Myers, Veto of Bill on c.i.a. Tactics Affirms Bush’s Legacy, http://www.nytimes .com/2008/03/09/washington/09policy.html.

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some other state may filed proceedings requesting that the state they are in extradite them to stand trial for all crimes or grave violations of human rights. At least the risk of such action is a possibility however remote. Should such an event occur the defense which the Israeli Supreme Court has validated at least, to mitigate punishment would be the defense of necessity. Exactly what standards of necessity would be sufficient to diminish the prospect of a criminal sanction remains speculative. xiii

President Bush’s Opposition to the opcat to the Convention against Torture

The Optional Protocol to the u.n. Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (opcat)272 is technically an extrapolation of a pre-existing treaty obligation in the Torture Convention.273 This obligation is found in Articles 2.1, 11 and 16 of the Torture Convention.274 According to Article 2.1, “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”275 Article 11 holds that Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the 272 Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: g.a. Res. 57/199, u.n. Doc. A/RES/57/199 (Dec.18, 2002). Valuable websites include the following: Amnesty International treaty bodies: http://www.amnesty.org/web/web.nsf/pages/ treaty_home. Association for the Prevention of Torture: http://www.apt.ch/. European Committee for the Prevention of Torture: http://www.cpt.coe.int/en/. United Nations Office of the High Commissioner: http://www.unhchr.ch/. Additionally, on the history of the Optional Protocol, see Amnesty International, The Draft Optional Protocol to the Convention against Torture—Developing an Effective Tool to Prevent Torture (ai Index: ior 51/01/96) and Optional Protocol to the Convention against Torture—Time to take a stand on the prevention of torture (ai Index: ior 51/006/2001). See also Report of the Special Rapporteur on torture, Mr. P. Kooijmans, u.n. Doc E/CN.4/1099/17; (Jan. 12, 1988) and Report of the Special Rapporteur on torture, N. Rodley; u.n. Doc E/CN.4/1995/34; (Jan. 12, 1995). 273 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 u.n.t.s. 85. 274 Id. 275 Id.

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c­ ustody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.276 Article 16 stipulates that Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.277 Articles 2.1, 11 and 16 contain language of obligation. The obligation is mandatory rather than permissive concerning a State’s responsibility to protect and promote the values of the Torture Convention. Each of these Articles uses the term ‘shall’ as part of the obligation to take effective measures to prevent torture. Thus, the opcat technically creates no new substantive or procedural rights under the Torture Convention. It is simply an agreement to adopt other measures to make more effective the policy obligation of preventing torture. The opcat is supported by the plain text of the Torture Convention. The legal status of the Torture Convention is that of conventional international law. The substance of the opcat, and its importance for the developing human rights law, seeks to prevent torture from happening in the first place. The development of the opcat was a response to the practical problem of how to more effectively prevent torture from happening. The opcat creates a mechanism vested with a right to intervene and make recommendations. The right to intervene includes visitation to places of detention. The fundamental strategy involves two critical techniques. The first is a technique of intrusive fact finding visitations, the purpose of which is to identify the l­ ocation of places which facilitate the violation of human rights. The second is the establishment of a process of communication with authorities to discuss how the ­situation should be remedied to prevent torture.278 Fundamentally, the approach under the opcat is designed to facilitate cooperation in the achievement of 276 Id. 277 Id. 278 Moradi Karkaj, Sahar, “Torture in Times of Terrorism,” Johann Wolfgang Goethe University Frankfurt/Main, 2008, 9.

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these objectives. These matters may be highly sensitive. It is understood that communication between the interveners and governmental officials respects confidentiality of good faith cooperation. A lack of cooperation provides the interveners with the possibility of publication of facts, which may be embarrassing to the government. Just as the Torture Convention has its roots in the arena of human rights activism, the opcat owes much to that tradition. An original draft of the ­o pcat was in fact proposed by Costa Rica as far back as 1991. In 1996, Amnesty International produced a document that was designed to present the objectives and concerns of a prospective Optional Protocol. Subsequently, Amnesty International, Human Rights Watch and the International Commission of Jurists produced a joint submission, which sought to clarify and refine the earlier proposals of the international ngo community. There was little progress until February of 2001. Notwithstanding that the proposed opcat was an extrapolation of pre-existing substantive rights and obligations, the negotiations at the level of states parties experienced years of stagnation. A central issue of sovereign state interests is the idea that in the exercise of either penal or security competence the states would be subject to the investigative competence of an international subcommittee with the right to freely enter its territory, including sensitive places of detention. States commonly see matters of criminal law and national security as falling within the exclusive competence of their domestic jurisdiction (Article 2.7 u.n. Charter).279 International intervention compromises the sovereignty of the state. The proposed wide powers of access to “any place” were disturbing to those states that hold to a strong Lotus280 version of sovereignty. Thus, the idea of a subcommittee with the powers of access, fact finding and recommendation became a stumbling block. In a sense, this barrier reflected the general concern that while international prescriptive obligations may be agreed to with relative efficacy, the specific application and enforcement may undermine the prescriptive intent and expectations in important ways. This weakens the international constitutional system and the rule of law.281 279 u.n. Charter art. 2.7. 280 The Case of S.S. “Lotus,” pcij, Ser. A., No.10, (1927). 281 Some states raised concerns about national sovereignty: they were concerned that they would lose control over who could visit their country, as once the Optional Protocol is ratified, the Sub-committee would have the right to enter freely. They also were concerned that their criminal justice policies should not be dictated by foreigners who might have a political motivation for criticizing their states. In particular, it was feared that

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The negotiations therefore evolved reflecting a strong sovereignty and weak international sub-committee on one hand, and a national mechanism proposed by Mexico that would be the critical instrument of visitation, fact finding and recommendations. Negotiations evolved further with the ­European Union and others negotiating an integration of the two approaches. Although initially the strong international competence in the sub-committee could be seen as a central principle in the opcat, the national mechanism which emerged from negotiations could be seen as a defense of sovereignty and evolved with a negotiated complementarity that appeared to strengthen the preventive object and purpose of opcat. The United States opposed the adoption of the opcat. Its public position was that the visitation process would violate its municipal constitutional principles of federalism and would therefore be unconstitutional.282 However, it was diplomatically conceded that the u.s. had a very large number of detainees, and the visitation rights of a sub-committee under the opcat would not be a simple matter for the Bush administration.283 Although President Bush stated with unambiguous clarity that the u.s. does not engage in torture, evidence that robust methods of interrogation, extraordinary rendition, black sites and the admitted use of water boarding, widely regarded as torture, underlined the difference between rhetoric and reality.284 The United States is a party to the Torture Convention. A The Objectives of the opcat Torture is a localized human rights atrocity. It does not simply occur within the sovereignty of the state. It usually happens in physical locations that are somewhat secretive inside a state. This means that the rational sanctioning goals of the law seeking to prohibit and punish torture must have the ­flexibility d­ eveloped countries would criticize developing states for failing to implement conditions of detention that they could simply not afford. Other states were concerned that giving a ­sub-committee wide powers of access to “any place” where detainees might be held would lead to a state security risk, as sub-commissioners might wish to go to military installations etc, to see if detainees were held there. Amnesty International website: http:// www.amnesty.org/en/library/asset/IOR51/006/2001/en/dom-IOR510062001en.html. 282 Sean D. Murphy, ed., u.s. View on Pursuing a Torture Convention Protocol, 2 u.s. Practice in Int’l L. 194 (2004). 283 Toby Harnden, Bush Refuses to Support un Over Anti-Torture Pact, Telegraph, 1 (July 7, 2002). 284 Jordan J. Paust, Above the Law: Unlawful, Executive Authorizations Regarding Detainee Treatment, Secret Renditions, Domestic Spying, and Claims to Unchecked Power, 2007 Utah. L. Rev. 367.

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and authority of national and international mechanisms of sufficient power to penetrate into places of detention where victims are held who are often nameless in cells that are unnumbered. The prescriptive force of the law that prohibits torture, to carry the efficacy of law, must be complemented by a principle of compliance. The obvious difficulty with compliance is the strenuous non-transparency that states and institutions might, in their jurisdictions, deploy to prevent access to information about the status of victims or potential victims. Once torture has happened, the damage is done to the victim, and this damage, both physically and psychologically, is hard to undo. In addition, if torture has happened, the state and its officials will be reluctant to expose it. The fundamental policy behind the rule that prohibits torture essentially prohibits strict retribution. Torture outlaws the idea of an eye for an eye. Cutting the perpetrator’s hand off does not help the victim who lost the hand. This policy reduces the theory of punishment based on strict retribution to the moral status of the torturer. Thus, torture, like genocide and other violations of human rights, can derive only a limited sense of justice from the conventional notion of making the punishment more or less fit the crime. However, an important aspect of punishment is that of prophylactic prevention. As a sanctioning objective, prevention carries important currency. A state may be willing to admit that a potential victim is detained but may be doing everything in its power to prevent the exposure of the torture of the victim in detention. Thus, even if there is an expectation internal to a state’s policing institutions that robust treatment happens and may cross the line into torture, making such institutions subject to a form of transparency is, itself, an important restraint and therefore an important shield for the vulnerable detainee. The expectation that there is an obligation on the part of state officials to allow international and national visitations as a matter of law, puts the spotlight on responsible officials recognizing that abuse of the detainee may be exposed and responsibility assigned. Activists have long recognized that Amnesty International’s Urgent Action Techniques are able to focus on the building, the cell number, the potential victim and the perpetrator. The follow-up of urgent action strategies with direct communication to officials and ministers frequently results in officials wanting to look clean publicly and often taking action to do so. Prisoners and detainees often have testified, and the spotlight of urgent action concern has resulted in improved and humane treatment for them. This addresses an important problem: the effective enforcement of human rights law by preventing the breach in the first place. This model of

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­transparency is influenced by the strategies of ngo work. It was strengthened when a European Committee for the Prevention of Torture was established under the European Convention on the Prevention of Torture (cpt).285 The cpt strategy of an independent visiting mechanism performs an important preventive function. The cpt examines conditions and procedures of detention, is able to make recommendations for the immediate improvement of the situation and like the Urgent Action initiative under Amnesty International, it provokes a dialogue focused on its concerns and implementation of its recommendations. Regular visitations can have a preventive effect on the personnel and authorities who might be otherwise tempted to abuse detainees.286 The benefits of visitations, both international and national, are important. For example, the preventive outcome of interventions is better than interventions after the fact. It is better than the vast cost and difficulty of rehabilitating the victim and assigning personal responsibility to state officials. Justice will remain a distant realization. In part, it is because if torture has happened, there is a strong incentive on the part of state officials to deny responsibility and accountability on behalf of the state. Often state officials are reluctant to hold their bosses accountable. Once torture has happened, the victim’s expectations may well be more torture. The victimizer, whatever the policy of the state, will have the advantage of the state’s presumption that its officials do not torture and the state’s reluctance to police itself internally. It will be apparent that timely and effective visitations may be a critical prophylactic in the strategic policy of promoting the end of torture. The Torture Convention’s policing process is weak and underfunded in terms of the global scope of the problem. The Optional Protocol is a partial remedy for this institutional weakness. B An Overview of the opcat To set the stage for an explicit exploration of u.s. policy and the opcat a brief overview of the instrument is given. The opcat is a treaty. Its status as a treaty makes it a part of international law. Its fundamental objective is to establish national and international mechanisms for preventing torture. The mechanisms relate to visitations to evaluate places of detention where torture and related prohibited conduct happens. Article 1 of the opcat stipulates that the purpose is

285 European Convention, e.t.s. 126, entered into force Feb. 1, 1989. 286 For more information on the cpt, see http://www.cpt.coe.int/ent/.

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to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel, inhuman or other degrading treatment or punishment.287 There are international mechanisms whose prime function is to respond to torture after it has been committed. These include the Special Rapporteur, the Committee Against Torture, and the Human Rights Committee. The mechanism of visitations provides intervention to prevent torture from happening. This mechanism is pro-active and therefore significantly different in character from other u.n. mechanisms. This approach requires direct visitation to non-transparent recesses with the capacity to evaluate the conditions and the operations of detention. A former Special Rapporteur, P. Kooijmans stated the following about the opcat, it “would to a certain extent, be the final stone in the edifice that the United Nations has built in its campaign against torture.”288 The central international institution created by the opcat is the Subcommittee on Prevention. The Subcommittee is composed of ten independent experts elected for four year terms by the states parties to the Torture Convention. Their prime mission (Article 11) is to visit places of detention where torture might happen and make recommendations for the protection of the detainees. The opcat envisions national preventive mechanisms. The Subcommittee has a critical role to play in collaboration with national preventive mechanisms. This is an important initiative because of the traditional barriers imposed by the idea that international law exists on a different plane from national law. There is a historic difficulty of grounding international human rights law in state practice, thereby rendering human rights law ineffective because it breaches state sovereignty. Globalization has made imperative the recognition of local to global communication and collaboration to advance human rights values. The role of the Subcommittee in facilitating the establishment of national mechanisms and effective communication, training and technical assistance, the purpose of which is to strengthen the national mechanism’s capacity for intervention and international cooperation, is a critical recognition that human rights interventions require collaboration at every level of effective decision (local to global and global to local). In this sense, 287 Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, g.a. Res. 57/199, u.n. Doc. A/RES/57/199 (Dec. 18, 2002). [hereinafter Optional Protocol]. 288 Special Rapporteur on Torture, 65, u.n. Doc. E/CN.4/1988/17 (Jan. 12, 1988), 21, 65 (prepared by Mr. P. Kooijmans).

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Professor K ­ ooijmans was correct about the potential promise that would flow from practice under the Protocol. The mandate of the Subcommittee is codified in Article 11 of the Protocol. This mandate requires visitation of places of detention and recommendations to states’ parties. The mandate also includes policies regarding the facilitation and development of national preventive mechanisms in terms of advice and assistance. The policy involves effective and, if necessary, confidential communication with such national mechanisms and technical and training assistance with a view to strengthening the national mechanisms. The Subcommittee has an obligation not only to the national mechanisms initiative, but also to cooperate with other u.n. organs, mechanisms and other organizations in order to strengthen the processes for protecting individuals from the abuse of torture. A critical global constitutional innovation is found in Article 12, which puts the states’ sovereigns under an obligation to cooperate with the subcommittee. Cooperation includes giving access to places of detention, providing all relevant information to the subcommittee that it may request and measures that should be adopted to protect prospective torture victims. The state is also under an obligation to facilitate contacts between the Subcommittee and national preventive mechanisms. Moreover, under Article 12 the state is under an obligation to examine recommendations of the Subcommittee and discuss measures for implementation of recommendations. The mechanics that relate to the visitation of places of detention include an approach that “must establish a system of regular visits” (Article 1).289 The concept of access and detention are broad. Visitations include “any place under its (states) jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence” (Article 4.1).290 The concept of detention itself is wide (Article 4.2). The deprivation of liberty includes “any form of detention or imprisonment or the placement of a person in a public or private custodial setting from which this person is not permitted to leave at will by any judicial, administrative or other authority.”291 How effective the subcommittee visitation process will actually be is to some extent dependent upon the requirement that under the Protocol the states’ parties are required to create, designate or maintain national visiting bodies for the prevention of torture (Article 3).292 The relationship between a 289 290 291 292

Optional Protocol, art. 1. Id., art. 4.1. Id., art. 4.2. Id., art. 3.

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national body and the subcommittee, will be a delicate one. It is an initiative that strengthens the linkage between global prescription and local ­compliance. The local to global nexus will make the experience of the national committee a critical norm-setting body in terms of state practice. At the same time, the national committees’ necessary relationship and process of communication and collaboration with the subcommittee should strengthen the prescriptive force and practical protections that international law might give to at risk detainees. C The United States and the opcat The United States is a party to the Torture Convention. It is important to recognize that the Torture Convention was the second major human rights treaty to receive the advice and consent of the u.s. Senate. It was widely acknowledged that the implementation mechanisms of the Torture Convention needed strengthening.293 Even the United States’ objections to the opcat were based on a criticism that the opcat simply did not go far enough and would be ineffective as well as expensive.294 Other expressed concerns were the “virtually unrestricted power” of the proposed subcommittee to “visit any place where persons are or maybe detained.” Additionally, the u.s. government expressed concern that the opcat would require states’ parties to create a national entity with similar visitation powers. The u.s. objected as a matter of principle to an “unrestricted grant of inspection power.”295 The specific concern was that allocations of power must be accompanied by appropriate checks and balances at all levels of governance.296 The problem of torture in undisclosed places of detention is an example of the use of governmental power and authority that is unlimited. In this sense, the narrow mandate of the subcommittee to visit is not an overarching unlimited governance mandate requiring undefined checks and balances. The central point of the Torture Convention and its enforcement mechanisms is that it is meant to be a check on unlimited governmental power exercised in the operations of torture and related practices. As a consequence, these general points of governmental disquiet do not disclose intellectual depth that we normally associate with u.s. negotiating skills.

293 Inter-American Institute of Human Rights, Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A Manual for Prevention 26–27 (2005). 294 United States Mission—Geneva, Areas of u.s. Concerns with the Chairperson’s Torture Protocol Proposal, http://geneva.usmission.gov/press2002/0327torture.html. 295 Id. 296 Id.

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Another concern was that the independence of the subcommittee from other international mechanisms under the Torture Convention might undermine pre-existing treaty based institutions. In fact, the subcommittee’s i­ ndependence has “potentially serious implications for the cat’s effectiveness.”297 It does but for the opposite reason of that implied by the u.s. representation. The most experienced actors in this field have concluded that the opcat will have serious implications for the effectiveness of the Torture Convention. These weak concerns raise questions about the quality of u.s. representation in these important fora. The u.s. representatives target Articles 12, 14 and 20 because of their unrestricted powers to “access to places, information and persons.” To the extent that this concern is serious, it is claimed that unrestricted access encounters constitutional due process issues. Since the issue of unjustified detention represents a failure of process that is due to the victim, it is difficult to understand how “appropriate restrictions on access” are meant to be the essential safeguard of due process liberties. One must presume that the due process the u.s. is concerned with is not the potential victim but the potential victimizer. The victimizer has only to play by the rules of his own institutions and laws to be immune from any unfair process. The u.s. is also concerned that those giving information to the ubcommittee may be moved to make false and malicious representations that may be subject to sanctions.298 It is true that Articles 15 and 21 preclude sanctions whether true or false. However, it should be kept in mind that to provide such information in general is highly risky for the informer and in many contexts the disclosure of the identity of the informant would be tantamount to a death sentence. In the institutional context, the unfair targeting of officials contains its own preventive sanctions and these involve the considerable risks of coming forward in the first place. The u.s. has objected to funding this mechanism out of the general budget of the u.n. since the protocol is an optional one. However, the prohibition and eradication of torture is an obligation erga omnes. It has jus cogens status and the opcat is merely adjectival and not substantive. The other objections against the opcat are similarly weak and not compelling. A sad comment on the u.s. position has been the effort to rewrite an instrument that had been negotiated for almost ten years and then to oppose it jumping in bed with Cuba as a sacrificial bedfellow. It is possible that there are stronger and unexpressed objections to the ­o pcat. Negotiating this instrument coincided with the approach the Bush 297 Id. 298 Id.

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a­ dministration took on the International Criminal Court (“icc”). The icc in turn became a focal point of isolationist displeasure. This was an incarnation of the late Senator Bricker’s legacy in the Senate led by such hardened right wing ­senators as the late Jessie Helms.299 The technical objection at the back of right wing concerns is that human rights treaties violate u.s. sovereignty and in doing so undermine the Constitution. In general, any obligation formally entered into by a state, especially in the form of a treaty, has an effect on sovereignty. The treaty will confer benefits on a state and that means the expansion of its powers. It also means that the state assumes obligations, and those obligations are duties that limit any notion of limitless state competence. A paradox exists of states fighting desperately for sovereignty, self-determination, and freedom only to give it up in part by subordinating their absolute sovereignty through their compacts with other states such as the European Union, African Union, and the u.n. Charter system. What states see is that the association with other states and groups of states enhances their power, efficacy and influence in the international community and they are prepared to concede some of those powers for the benefits of such cooperation. The appointment of Mr. John Bolton as u.s. Ambassador was one of the most obvious decisions reflecting the Bush administration’s skepticism of the un organization.300 There is another aspect to the u.s. opposition to the opcat. September 11, 2001 is the date of the terrorist attacks on the United States. An administration with an inherent skepticism of international institutions of cooperation and a greater skepticism of international law now confronted a crisis. Should the u.s. act unilaterally in the face of the terrorist threat? How far and to what extent do the rules of international law facilitate or hinder the war against terrorism? Clearly, there were officials who were impatient with international law and others who were not. These matters played out practically in terms of the so called New Bush doctrine which sets forth the idea that asymmetrical threats would require governmental action that goes beyond international law or there would have to be serious reconstruction of international law to meet the imperatives of national security in an age of terrorism.301 The initial reaction of the government was that it needed much more effective intelligence to determine future threats to the United States. In the context of the war against terrorism, President Bush made a decision that the Geneva Conventions would not apply to unlawful enemy combatants and conceded that detainees would 299 Sean Murphy, ed., Senator Helms on the United States and the United Nations, in 1 United States Practice in International L. 4–7 (1999–2001). 300 Aug.1, 2005. 301 Paust, at 346, 396.

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be treated humanely more or less in the spirit of the Geneva Conventions. From an institutional point of view, the Department of State objected to what the executive was doing. Many lawyers in the Judge Advocate General School lodged protests. These battles involved congressional intervention to make it explicit that the United States does not use torture.302 The President’s Special Military Commissions created to try unlawful enemy combatants took a beating in the courts and the Congress. Through all of these broad developments, disclosures were made that detainees were subjected to robust interrogation methods which probably fell under an accepted definition of torture. Additionally, the cia conceded that it had black sites. Detainees were kept outside of the u.s. to limit the territorial reach of the normal justice process and frequently detainees were rendered to states that the u.s. knew would use robust interrogation techniques that would qualify as torture under international law. The full story has not completely emerged but the flow of memoranda from various agencies of the u.s. government seems to suggest that a serious effort was made to redefine torture so narrowly that torture could occur and yet be arguably not be torture given the official semi-professional definition given it by lawyers within the government. Additionally, the definition of torture did involve efforts to specify particular techniques which might be functionally torture but not technically. This definition would provide for a future defense for those who ordered or carried out the torture. An additional defense was the notion that when a President declared a war on terror of unlimited duration, he was acting as Commander in Chief and the only limits on his power were those related to the military necessity for the security of the United States. As Commander in Chief, he was restrained by the principle of necessity, and that principle could only be challenged in an impeachment proceeding.303 This assertion of executive power has been justified under the theory of a unitary presidency. The administration will be very uneasy about a subcommittee having the power together with a national committee to visit places of detention during the war on terror. It is possible that this provides a partial explanation for the u.s. policy of opposing the opcat. Disclosure of Documents Relating to Administrative Policy on Interrogation of Detainees The disclosure of documents concerning u.s. policy with regard to detainees held in facilities outside the United States has revealed evidence that i­ mplicates D

302 Karen J. Greenberg, The Achilles Heel of Torture, What the jag Memos Tell Us, http://www .lawandsecurity.org/get_article/?id=48. 303 Paust, at 393.

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the possibility of command responsibility for the treatment of detainees that may be in violation of both u.s. law and international law.304 The evidence suggests wrong doing with a possibility of criminal prosecutions for administration officials. Some officials already have been convicted by military court martial but these are individuals at the lower end of the chain of responsibility. These activities have occurred in the light of President Bush’s own public statement that the United States does not engage in torture.305 That statement is a statement of the official position of the United States in both domestic law and international law. Although the u.s. position is not altogether clear because we do not have the issue coming squarely before a national or international tribunal, it is basically the impact of the disclosures before informed public opinion that provides the possibility of a reasoned scholarly appraisal. There are two issues that appear to be particularly significant. The first issue is what rights detainees have who have been apprehended in the war on terror and detained outside of the territorial borders of the United States. The second issue is a problem of how torture is defined in terms of whether the interrogation methods used on detainees to solicit intelligence cross the line from robust to licit interrogation to breaches of the law. The most obvious law that would apply to the status of the detainees in the context of armed conflict is the Third Geneva Convention. The President took his position on the advice of legal counsel reflected in his order of February 7, 2002, based on memoranda developed by White House Special Counsel, Robert J. Delahunty, and Assistant Attorney General John Yoo. The central argument of the administration was that Afghanistan was a failed state and was not in a position to honor its obligations under the Geneva Convention. As a result, those Taliban and Talibansupporter detainees could not rely on the Geneva Conventions because there was no functioning government in Afghanistan. This also depended on the competence of the President to suspend u.s. treaties with Afghanistan “pending the restoration of a legitimate government.” These lawyers also denied the efficacy of the rules of customary international law relating to ius in bello. The short response to this is the notion that Afghanistan was and possibly still is a failed state is not objectively an authoritative conclusion. That is a matter that is factually in dispute. For example, in the Bybee memorandum of January 22, 2002, Bybee concedes the point,

304 Id., at 418. 305 Richard Benedetto, Bush Defends Interrogation Practices: “We Do Not Torture,” usa Today, Nov. 7, 2005, 1.

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We want to make clear that this Office does not have access to all of the facts related to the activities of the Taliban militia and al Qaeda in Afghanistan. Nevertheless, the available facts in the public record would support the conclusion that Afghanistan was a failed state.… Indeed, there are good reasons to doubt whether any of the conditions were met.306 A dispute about a factual matter regarding the status of a detainee and whether that detainee should be treated with pow status is governed specifically by Article 5. Article 5 mandates a ‘competent tribunal’ to determine the status of the person in detention, to determine whether pow status is or is not secured.307 Similarly, the status of an unlawful combatant in terms of the insignia of identification of the combatant is another matter that would fall under Article 5 of the Geneva ConventionSandra Day O’Connor writing for a plurality in Hamdi v. Rumsfeld (2004) and Supreme Court Justice David H. Souter, concurring, stated that the Geneva Convention does apply to the Taliban detainees.308 In the absence of a tribunal under Article 5, detainees would appear to be protected by the text of the Third Geneva Convention. Until that determination by a competent tribunal happens, the rules protecting the detainees as pows apply. Grave breaches of the provisions of the Geneva Convention constitute violations of both domestic and international law. Grave breaches under the Geneva Convention include “any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.”309 President Bush mistakenly determined that the Geneva Conventions were not applicable to the universe of detainees in the war on terror. It is by no means obvious that the President was acting lawfully as Commander in Chief. Thus, there is the difficult possibility that the President issued orders and that 306 Memorandum of 22 January, 2002 from Jay Bybee, Office of Legal Counsel for Alberto R. Gonzales, Counsel to the President and William J. Haynes ii, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees, 16. 307 Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, g.a. Res. 57/199, Art. 5, u.n. Doc. A/RES/57/199 (Dec. 18, 2002). 308 Hamdi v. Rumsfeld, 542 u.s. 507, 124 S. Ct. 2633 (2004). 309 Third Geneva Convention, Art. 130.

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those orders were carried out by his subordinates in violation of United States law and international law, and constituted war crimes. With the green light given by the administration regarding the non-­ applicability of the Geneva Conventions, the technical question for the ­administration was what was precisely permissible in terms of interrogation practice. The Bybee memo provided a frontal assault on the definition of torture by suggesting that the intent factor be tied to the expectation of organ failure or death as a definition of the scope of torture. Bybee cited Professor Nagan’s oral testimony before the Senate Foreign Relations Committee. In that testimony, Nagan’s drew attention to the extreme sadism that sometimes accompanies torture, taken from the Amnesty International files. Among the illustrations was the gouging out of the eyes of a child. The objective was not to define torture in such narrow terms but to stress the important preventive message that the adoption of the Torture Convention would hold for human rights in the world community. The citation to Professor Nagan’s testimony is a misrepresentation of the position taken by him personally and the organization that he represented. In any event, no reputable authority has come out in support of the Bybee redefinition of torture. The disclosure of the Yoo/Delahunty Memorandum of January 9, 2002 was followed up a few days later by the Rumsfeld Order of January 19, 2002. The Rumsfield Order of January 19, 2002, directed to the Chairman of the Joint Chiefs of Staff, informed combat commanders “Al Qaeda and Taliban individuals … are not entitled to prisoner of war status for purpose of the Geneva Conventions of 1949.” According to the Rumsfield Order, combat commanders were authorized to depart from the Geneva Conventions on the principle of military necessity as the combat commander defines it. The Bybee memo followed shortly on January 22, 2002, and to a large extent supports the Yoo/Delahunty memo with an expansion of the international law issues. This in turn was followed by a memo from Alberto Gonzales to President Bush on January 25, 2002. The Gonzales memo provided a consolidated justification for a departure from the binding effect of the Geneva Convention as well as a response to the concerns and disquiet expressed in the Colin Powell memo of January 26, 2002. Gonzales accepted the principle that Afghanistan was a failed state incapable of honoring its international obligations. He also concluded that the Taliban forces were a militant, terrorist-like group. He then expanded on a further justification for discarding the prescriptive force of the Geneva Conventions: The nature of [a “war” against terrorism] places a high premium on … factors such as the ability to quickly obtain information from captured terrorists and their sponsors … and the need to try terrorists for war ­

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crimes … [t]his new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners… He also believed the ­determination “… eliminates any argument regarding the need for case-by-case determinations of pow status.” The determination, Mr. Gonzales said, also reduced the threat of domestic prosecutions under the War Crimes Act (18 u.s.c. 2441). His expressed concern was that certain gpw language such as “outrages upon personal dignity” and “inhuman treatment” are “undefined” and that it is difficult to predict with confidence what action might constitute violations, and that it would be “… difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.” He believed that a determination of inapplicability of the gpw would insulate against prosecution by future prosecutors and independent counsels.310 The Gonzales memo appears to concede the fragility of the legal argument put forward in these early memoranda by conceding that these positions by the administration’s lawyers would insulate interrogators and those in the chain of command from prosecution. Implicit in this position is the notion that a non-expert in legal matters may have a right to rely reasonably on the nature and scope of orders commanding interrogation for the purpose of acquiring information.311 E Attorney General Gonzales Partially Repudiates Himself On December 30, 2004, the flow of paper within the administration moved in a different direction with a memorandum written for the then Deputy Attorney General of the United States, Alberto Gonzales. The memo essentially repudiates the earlier memorandum of Mr. Gonzales. This Memorandum was a reappraisal of the August 2002 Memorandum. The 2004 Memorandum now

310 See http://www.nndb.com/people/332/000050182. 311 In a remarkable defense of the rule of law, the Department of State under Colin Powell challenged the legal sufficiency and policy soundness of the White House view of the role of humanitarian law in the war on terror. Among the arguments in the Powell Memorandum was the past adherence by the United States to the Geneva Conventions; the possibility that the u.s. may now be limited from using the Geneva process to protect u.s. personnel; the political implications of discarding the Geneva Conventions in particular, and its effect on our allies; the commitment of the u.s. to sanction “loopholes” in the system provided a signal to potential enemies to do the same; the turnover of terrorists by other nations to the u.s. may be compromised; and the military culture of the u.s. stresses the highest standards of conduct in combat.

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“supersedes the August 2002 Memorandum in its entirety.”312 The background appears to be the matter of disquiet that these now public memoranda had generated about precisely what the u.s. policy was on the question of torture. This Memorandum seems to vindicate the Colin Powell initiative in the State Department. The following quotation explains more fully: Questions have been raised, both by this Office and by others, about the appropriateness and relevance of the non-statutory discussion in the August 2002 memorandum, and also about various aspects of the statutory analysis, in particular the statement that “severe” pain under the statute was limited to pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Id. at 1. (5) We decided to withdraw the August 2002 Memorandum, a decision you announced in June 2004. At that time, you directed this Office to prepare a replacement memorandum. Because of the importance of—and public interest in—these issues, you asked that this memorandum be prepared in a form that could be released to the public so that interested parties could understand our analysis of the statute.313 This memorandum, it is stipulated, “supersedes the August 2000 memorandum in its entirety.” The term ‘supersedes’ presumptively makes this 2004 memorandum the authoritative statement of the executive’s understanding of the legal standards governing the prohibition against torture. However, the memorandum does not address the issue of the nature of the extent of claims of executive Commander in Chief competence, or its full currency with regard to defenses for those seeking to rely on superior orders should there be prosecutions for torture. The legal landscape continues to be murky because of documents released by the American Civil Liberties Union suggesting that President Bush signed a secret Executive Order approving of the use of torture on prisoners captured in the war on terror.314

312 Adam Liptak et al., The Reach of War: Legal Advice of ’02; Memo on Torture: “Gentle Soul for a Harsh Topic,” n.y. Times, June 24, 2004, A1. 313 Id. at 1. 314 Chris Floyd, Bush Signed Secret Executive Order Approving Torture, Moscow Times (Russia), Dec. 24, 2004, 1.

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Torture, National Security, and the Obama Presidency

The Obama Administration and the Issue of Torture and Other Forms of Cruel, Unusual or Inhumane Treatment of Detainees The official u.s. policy on interrogation and related components of detainees’ status in u.s. custody has had to confront the political dissonance of the u.s. involvement in torture. This matter was established in the context of the conviction of lower level u.s. Armed forces personnel in the context of the torture in Abu Ghraib. President Barack Obama campaigned on a platform that proclaimed a complete rejection of torture as state policy and practice and further promised a closure of the detention facility in Guantanamo, Cuba. On January 11, 2009, President-elect Obama stated, A

We are still evaluating how we are going to approach the whole issue of interrogation, detentions and so forth. And obviously, we’re going to look at past practices. And I don’t believe that anyone is above the law. On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards. And part of my job is to make sure that, for example, at the cia you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulder. On January 22, 2009, President Obama issued three Executive Orders and a memorandum on detentions and interrogations.315 The Executive Orders required that the treatment and interrogation of detainees fully comply with ­Article 3 of the Geneva Convention. The Executive Orders stipulated that extraordinary rendition flights be terminated, required the suspension of detainees in Guantanamo Bay, Cuba by military commissions created by former President George W. Bush and mandated the closure of the cia’s Black Site network. These Black Sites were the secret locations used by the cia for the purpose of interrogating terrorist suspects. Early in February 2009, u.s. Senator Patrick Leahy stated in speech at Georgetown University that it would be advisable for the United States to e­ stablish a

315 Exec. Order No. 13492, 74 f.r. 4897 (2009)—Review and Disposition of Individuals ­Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities; Exec. Order No. 13493, 74 f.r. 4901 (2009)—Review of Detention Policy Options; Exec. Order No. 13491, 74 f.r. 4893 (2009)—Ensuring Lawful Interrogations.

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Truth and Reconciliation Commission.316 Such a Commission could investigate the abuses of detainees, the politically inspired activity which included the efforts to manipulate intelligence prior to the Iraq war, the firings of u.s. Attorneys and the authorization of warrantless wiretapping. Senator Sheldon Whitehouse supported Leahy’s proposal as follows: “Chairman Leahy summed up a belief shared by millions of Americans: that we need to get the truth out about the damage done to this country under the Bush administration and what we must now do to repair it.”317 Senator Whitehouse continued: “He understands that the trust we hold for future generations can be safeguarded only when honesty, freedom, justice and compassion guide our institutions of government; that trust has been violated, the cost is incalculable; and the path to recovery leads through disclosure.”318 The Senator also challenged the Congress to discharge its “independent responsibility” to investigate.319 The President Obama’s reaction to the Leahy proposal was ambiguous and could not be considered an endorsement of it. At a news conference, the President said [N]obody’s above the law and if there are clear instances of wrongdoing, then people should be prosecuted just like any ordinary citizen, but generally speaking I am more interested in looking forward than looking back…. I will take a look at Senator Leahy’s proposal but my general orientation is to say let’s get it right moving forward.320 With increasing pressure from human rights interests and the media for ­further information and disclosures of the policies and practices of the Bush administration on the issue of torture, on March 2, 2009 President Obama ordered the release of several classified memoranda including the infamous Yoo and Bybee memos prepared in 2001 and 2002. It is clear that there is much more of a ­paper trail which would enhance transparency and also generate pressures for accountability and even prosecutions for violations of u.s. and i­nternational law. Also in March 2009, a Spanish court considered indicting members of the former Bush administration based on the memos that ­authorized ­torture in 316 “Leahy Calls for Truth Commission” in Political Intelligence at http://www.boston.com/ news/politics/politicalintelligence/2009/02/leahy. 317 Id. 318 Id. 319 Id. 320 http://blogs.georgetown.edu/?id=39814; http://www.democracynow.org/2009/2/10/head lines.

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contravention of the Geneva Conventions. However, this initiative was l­ater dropped. On April 16, 2009, Department of Justice memos were released. These memoranda, dated 2002 through 2005, described in detail the coerced interrogation techniques authorized for use by the cia against ­detainees held in u.s. detention. The extent of the use of waterboarding on Abu Zubayda and Khalid Sheikh was embarrassing. The White House said that  cia officers would not be prosecuted although lawyers and journalists stressed the fact that the White House could not broker such protection under u.s. law and practice. Since much of the rationale to justify these coercive techniques is largely r­epudiated, in particular, the conclusion that waterboarding is not ­torture, President Obama issued a statement: “We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”321 The serious economic crisis coupled with the critical and ambitious legislative agenda has generated concern in the administration that its energy and political capital should not be dissipated on a hunt for full accountability with the possibility of contentious prosecutions of prior officials. The President also indicated that he would not favor the prosecution of cia operatives who followed the legal advice given by the Department of Justice on the coercive interrogation techniques now deemed to be a violation of law.322 On April 21, 2009, President Obama reversed himself suggesting that policy makers of the enhanced interrogation methods could face prosecutions. The President indicated that the Attorney General was investigating the matter and that the final decision to prosecute or not would be made by him.323 The President also offered modest support for a bipartisan commission to examine the Bush administration’s enhanced interrogation program. Vice President Cheney called for the release of Bush Administration memos clarifying that in some cases waterboarding and other aggressive techniques produced actionable evidence. The issue of torture and detainee abuse became even more acute when on April 30, 2009, a prominent u.s. journal published an internal 2007 report of

321 “President Obama’s Statement on the Memos,” http://www.nytimes.com/2009/04/16/us/ politics/16text-obama.html. 322 Id. 323 Obama Opens the Door to Prosecution of Interrogation Memo Authors, The Washington Post at http://voices.washingtonpost.com/44/2009/04/21/obama_opens_the_door_to _prosec.html.

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the International Committee of the Red Cross (irc).324 In this report, the irc maintained that the interrogation practices of the United States were violations of international law. This was the third irc confidential memo to be leaked. This increased the pressures on the administration in terms of its philosophy of forward progress with amnesia. The Obama Administration has essentially supplemented the flow of documents giving detailed information on enhanced interrogation practices and techniques. However, it has not released documents about the policy making process identifying who the precise authors were of the policy and who drove it. Eric Holder, the Attorney General of the United States addressed the question of how the Department of Justice would handle the prosecution of officials implicated in torture. According to Holder “We are going to follow the evidence, follow the law, and take it where it leads. No one is above the law.”325 It would appear that the question of whether to proceed with prosecutions is appropriately a professional and not a political decision. Section 2441 of Title 18 of the u.s. Criminal Code stipulates that a person is guilty of a war crime if that person commits “a grave violation of Common Article 3 of the Geneva Conventions.”326 The statute defines breaches of the Geneva Convention. One such breach is torture. Torture is defined as “an act specifically intended to inflict severe physical or mental pain or suffering.” Several of the techniques of enhanced interrogation promoted by the Bush administration and justified by their legal advisors are now commonly thought to satisfy the torture requirements of the statute. This includes the support of waterboarding, “walling,” a procedure in which the detainees head is bashed against the wall, sensory deprivations, dousing of detainee with very cold water and confining detainees in areas of narrow confinement. It should be noted that Vice President Cheney defends these procedures publicly. Donald Rumsfeld himself issued a list of interrogation techniques and President Bush signed orders affirming that the Geneva Conventions did not cover Taliban or Al Qaeda detainees. On May 13, 2009, the Obama administration announced that it was reversing its promise to make public photos depicting detainee abuse by u.s. personnel overseas. The Department of Defense had told a federal judge that it would release a ‘substantial number’ of photos in response to a court ruling in an American Civil Liberties Union Freedom of Information lawsuit.

324 Mark Danner, The Red Cross Torture Report: What It Means, http://www.nybooks.com/ articles/22614. 325 Http://www.cnn.com/2009/POLITICS/04/22/Torture.Prosecution. 326 18 u.s.c. 2441 (2009).

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On January 29, 2010, media reports indicated that a Department of Justice report that probed whether John Yoo and his former boss, Jay Bybee, violated professional standards when they provided the Bush Administration with legal advice on torture has cleared both men of misconduct. An earlier version of the report, prepared by the Office of Professional Responsibility and completed in December 2008, actually concluded that Yoo, a Berkeley law professor, and ­Bybee, now a federal appeals court judge on the 9th Circuit, violated professional standards when they drafted an August 2002 legal opinion that authorized cia officers to use brutal methods when interrogating suspected terrorist detainees. The revised report accused Yoo and Bybee of showing “poor judgment” and was critical of the “legal reasoning used to justify ­waterboarding.” Neither Yoo nor Bybee will be referred to state bar associations where they could have faced disciplinary actions as a result. On February 19th, 2010, the Department of Justice released a memorandum regarding Bush administration lawyers Yoo and Bybee.327 The approach of the Obama Administration (through the Department of Justice) was to focus on whether the conduct of olc’s328 lawyers in drafting the so-called Torture Memos resulted in a breach of professional responsibility. This approach suggested that the administration was reluctant to prosecute Bush lawyers for violations of the torture statute. The Report of the Office of Professional Responsibility concluded that John Yoo and Jay Bybee had engaged in professional misconduct when they authorized enhanced interrogation techniques.329 However, in a memorandum to the Attorney General, David Margolis restricted his view to the conclusion that olc’s lawyers had simply exercised poor judgment.330 As a consequence, poor judgment would not be a ground for referring these lawyers to the relevant state bar associations for disciplinary proceedings. This posture completely undermines the prospect of criminal prosecution under the torture statute. However, some scholars maintain that there is a strong legal basis for going forward with a prosecution. These scholars believe 327 See Office of Prof’l Responsibility, Dep’t of Justice, Report (2009); available at http:// judiciary.house.gov/hearings/pdf/OPRFFinalReport090729.pdf; Memorandum to the Attorney General from David Margolis, Associate Deputy Att’y Gen. (Jan. 5, 2010), available at http://media.washintonpost.com/wp-srv/nation/pdf/MargolisMemo_021910.pdf. 328 u.s. Department of Justice, Office of Legal Counsel (olc). 329 Office of Prof’l Responsibility, Dep’t of Justice, Report (2009); available at http://judiciary .house.gov/hearings/pdf/OPRFFinalReport090729.pdf, at 260. 330 Memorandum to the Attorney General from David Margolis, Associate Deputy Att’y Gen. (Jan. 5, 2010), available at http://media.washintonpost.com/wp-srv/nation/pdf/Margolis Memo_021910.pdf.

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that there are other reasons of national interest why such a prosecution should happen. Most importantly, it would signal a clear defense (as national policy) of the rule of law and clarify the boundaries of poor judgment and professional responsibility. One of the grounds for seeking to insulate those responsible for recommending enhanced interrogation methods was based on the theory of the unitary presidency executive privilege. That idea would be buried in a judicial determination that determined that, when the President acts as Commander in Chief, the President’s powers under u.s. and international law are not unlimited. The second important issue is that lawyers who are charged with promoting and defending u.s. domestic law should not be seen to use their official positions to undermine the law that the President is constitutionally obliged to respect. Still, this issue is somewhat complex. Lawyers may give advice that may not be upheld in the courts. Should lawyers be personally responsible for giving advice that subsequently fails, this is a matter that is important and generates concern about how effectively a lawyer may represent the government and, at the same time, be personally responsible if the representation is not successful in the courts. This probably requires a more difficult inquiry into the indicators, which may have influenced the approach of the memorandum writers in the olc. For example, it could be that they were aware that they were giving advice that ostensibly could fall within the definition of torture. The definition of torture in the treaty and statute is broad. As such, their advice (without more) could literally fall within the definition of torture. Hence, the Bybee memo intentionally defines torture in the narrowest of possible constructions. This could be a strategy that is designed to provide a plausible subsequent defense to an agent using enhanced techniques of interrogation. The question then is—were the memos an elaborate construction intended to assure interrogators that they could go quite far knowing that they were in reliance upon a construction of the law that has a patina of professional justification? In this sense, the question is not whether the interrogator tortured or not; the question would seem to be instead—whether the interrogator has tortured in good faith reliance on a “professional” analysis of the ostensible limits of official conduct. If this is correct, it could be supported as well by the somewhat unrelated legal argument that—as a constitutional matter—when the President orders conduct as Commander in Chief, there is no foundation for a legal review in the courts or the Department of Justice concerning the ostensible illegality of such orders. As such, those who act in reliance on this privilege would have the defense of that privilege. This second reason seems to be a clear effort at establishing a constitutionally grounded defense, constitutional immunity from prosecution.

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The inquiry would then have to focus not so much on what was actually written but what was intended by the written expression. If what was intended was a skilled effort, with professional collusion, to subvert the administration of justice, it may be that these olc lawyers were responsible for furthering an illegal interrogation policy; and, in doing so, there participation could fall within the province of accomplice liability. If olc lawyers believed that their professional responsibility required a redesigned flexibility because of a public emergency, it should be remembered that emergencies do not absolve ­torturers from liability. Their accomplices would be similarly restricted. The domestic torture statute is based on the ratified convention against torture. The domestic statute provides: Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life. [18 u.s.c. Section 2340A(a) (2006).] The torture statute also holds that a conspiracy to commit torture is subject to the same penalties, with the exception of death. [id at Section 2340A(c).] It is obvious that olc lawyers did not commit torture. However, their proximity to accomplice liability may compromise them. The statute stipulates that “a person is an accomplice of another person in the commission of an offense if … with the purpose of promoting or facilitating the commission of the offense, he … aids or agrees or attempts to aid such other person in planning or committing it…”331 When the Model Penal Code is read with 18 u.s.c. Section 2340A(a),(c) (2006), then there is a clear foundation that, if it can be shown that in crafting the respective memoranda olc’s lawyers were in fact setting out a method of immunizing agents in a position of committing torture, then olc’s lawyers are accomplices in that they were aiding in the commission of prohibited torture by encouraging, soliciting, or otherwise contributing to such conduct by giving it a putative legal imprimatur. The critical question here is whether the state of mind of the olc lawyers, whose activities had the effect of encouraging an unlawful act, were motivated by the idea that this form of legal advice was primarily designed to aid in the defense of the agent in the field (and others). This inquiry, therefore, requires us to probe a deeper aspect of the mental state of the lawyers preparing these documents; did they believe that the ostensible interrogation procedures were 331 Model Penal Code Section 2.06 (1985).

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prima facie illegal but that the use of authoritative “from above” memos would render such illegality legal? Or, if not legal, provide a plausible defense and a plausible immunity to avoid the question altogether? One other issue that the olc lawyers had to confront was the broad definition of torture. Torture officially is conduct intended to cause severe physical or mental pain or suffering. It is unavoidable that specific techniques recommended for review by them would have to be more precisely appraised. Their approach was to redefine torture completely. Thus, the physical pain “must be of intensity akin to that which accompanies serious physical injury such as death or organ failure.”332 The issue here is the intent to inflict severe pain and suffering. olc lawyers suggested that the intent to inflict severe pain was only an incident of the real intent, which was to collect information with the aid of enhanced interrogation techniques. Thus, the agent would not have the requisite mens rea, the intent to torture, as the purpose behind the torture conduct. This may have the color of a legal argument; but it is a frivolous argument. It seems to be a make-weight. Probably an admission that the foundations of their legal argument were weak, or not plausible, and somehow it could be made more plausible with make-weight additions. This would suggest some plausibility behind the intent to create a defense and thereby release restraints on how interrogations were conducted. On this specific issue of the narrow definition of torture, which reflects on severe pain that accompanies organ failure or death, this of course was an effort to define torture in such a way as to validate a very large number of enhanced interrogation techniques that, without this definition, would qualify as torture. These would include long periods of shackling, sleep deprivation, waterboarding, enclosure in a box with insects, periods of nudity, mental distress, humiliation, and more. The citation to support this definition was my testimony before the Senate Foreign Relations Committee. In that testimony, I illustrated torture with some egregious examples, such as the gouging out the eyes of a child. This definition excludes forms of interrogation that are generally accepted as torture (including waterboarding for which the international military tribunal for the Far East convicted and executed Japanese operatives). Indeed, the Attorney General of the United States suggested the following:

332 Memorandum for Alberto R. Gonzales, Counsel to the President, From Jay S. Bybee, Office of Legal Council Re. Standards of Conduct for Interrogation under 18 u.s.c. §§ 2340–2340A, August 1, 2002; Alberto Gonzales Has Blood on His Hands, The Minneapolis Star Tribune; Editorial (6/1/05).

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If you look at the history of the use of [waterboarding] used by the Khmer Rouge, used in the inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam. I agree with you, Mr. Chairman, water boarding is torture.333 Arguments made in defense of the olc lawyers give attention to the detail with which they reviewed enhanced interrogation techniques and sought to provide some safeguards to ensure that the techniques were within the definition of torture as they presented it. For example, there are limits placed on waterboarding, which additionally require the presence of a medical expert. However, the insistence on a medical expert seems to affirm the idea that waterboarding incorporates severe pain and suffering. Other points made are that the waterboarding used by the Japanese in wwii, for which they were prosecuted, was some what different from the waterboarding used by the Bush Administration. Notwithstanding the Bush refinements, it is by no means clear that the waterboarding used—refinements and all—do not constitute torture today. This seems to be affirmed by the Attorney General himself. One of the issues that we have stressed is the mental orientation of the lawyers that primarily informed the legal advice they proffered. In general, we expect lawyers to proffer the best advice they can give. The concern here is whether the best advice they were giving was not a clarification objectively speaking of what the law actually is. Rather, it seems to be advice tailored to provide a defense from being accountable under the law, which the actor may have breached. It may be of some value to briefly look at Rule 1.2(d) of the aba Model Rules of Professional Conduct. There it is stipulated that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer made discuss the legal consequence of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the application of the law.” This good faith standard may have some traction—not only in the context of professional responsibility but also in the context of defining the scope of criminal responsibility. Here, a decision maker must consider the mental state of the drafters of the memo against the context and background within which it was drafted and presented as an official position. I am skeptical that, notwithstanding the technical value of these documents, that they cannot pass the test that the prime motivation was to create a colorable defense, should interrogators be subject to prosecution. The 333 Transcript, Senate Confirmation Hearings: Eric Holder, Day One, n.y. Times, Jan. 16, 2009. http://www.nytimes.com/2009/01/16/us/politics/16text-holder.html.

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critical question would be whether the lawyers have the burden, in a criminal context, of establishing that the advice they gave was driven by a good faith effort to state the law as it is, or by an alterior motive to provide a tool to undermine the law as it is. Regrettably, there appears to be no desire on the part of the Obama Administration to further explore these matters. xv

The Strategic Importance of Civil Society for the Eradication of Torture

Strategies must include several actors. Governments must be at the forefront of such efforts as they play the central role in rogue states as the aggressor, the perpetrator, and probably the facilitator of torture. A crucial actor in putting torture and other human rights issues on the agenda of the international ­community is the international non-governmental organization (ingo). The activism of ingos has helped create the necessary legal framework for realizing the ideal of completely eradicating torture. Still, these organizations are only one component of a global civil society network. Members of civil society must recognize their own potential victimhood and contribute to efforts to prohibit torture. The importance of global civil society as an instrument of advocacy was critical to the adoption of the Torture Convention, critical to the u.s. adoption of the Torture Convention and remains a critical factor in assigning appropriate responsibilities of the excesses in the War on Terror. Global civil society encompasses a vast variety of organizations, all of which have been affected by the communications revolution, particularly the Internet. The advancement in worldwide communication has broad implications for human rights advocacy, agitation, networking, and solidarity, for it can enable unprecedented levels of cohesion in the global civil society. Furthermore, this communication can facilitate campaigns of public awareness and collaboration among ingo’s to help realize and complement more formal efforts for eradicating torture worldwide. Power itself is fluid in the modern global context, and, if beneficent civil society does not fill the void, those committed to the future of human indignity undoubtedly will. More must be done to solicit participation from key institutions of global civil society, such as professional, academic, and scientific associations, as well as those individuals in the academic and scientific fields. ingos can launch appeals to those individuals in the legal, law enforcement, and medical professions, challenging them to enact their ethical and moral

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ideals to contribute to international efforts to combat torture. Since victims are often tortured for their political views, political parties and parliamentarians must mobilize their support for these persecuted individuals. Understanding and connection among the institutions of civil society would be an indispensable strategic initiative for providing public support and pressure to the important work of eradicating torture. One area that remains a challenge is the development of strategies for universalizing the enforcement and application of international law proscribing torture. Making torture a civil and criminal wrong and subjecting torturers to universal civil jurisdiction will be two essential steps toward this goal. Furthermore, universal recognition of both civil and criminal decisions will increase the effectiveness of these remedies. Other strategies for enhancing the enforcement of laws against torture include encouraging prosecutors to fulfill their obligation to prosecute torture cases, tightening extradition standards so that torturers will not escape ­responsibility, and pressuring diplomats to confront foreign leaders in countries that violate anti-torture laws. The Special Rapporteur is committed to carry out a comprehensive assessment of the social processes of torture334 and the monitoring of human rights violations will aid such a strategy.335 Uniting the efforts of ingos, professional organizations and other institutions will be an integral element of a worldwide plan to end torture.

334 See Interim Report of the Special Rapporteur of the Commission on Human Rights on the Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, un Assembly, 55th Session, Item 116(a) of the provisional agenda, Human Rights Questions: Implementation of Human Rights Instruments, A/55/290. (Aug. 2000). 335 See Patrick Ball, Who Did What to Whom? Planning and Implementing a Large Scale Human Rights Data Project (1996) (study done under the auspices of the American Association for the Advancement of Science). On the conceptual and practical challenges of this, see Schmid & Jongman, Monitoring Human Rights Violations (1991) (p.i.o.o.m.).

chapter 11

Toward an Affection Process of Human Rights Chapter 11 explores the socially directed formation of positive affect relationships and institutions. The importance of the social process specialized to ­affection is stressed. This process is critical to social activism for the erradication of human rights deprivations and the promotion of human dignity. The phase-mapping analysis of the Yale University New Haven School to develop a realistic detailed description of the social process specialized to affection in society is used. This description has broader implications than the focus on human rights. It is an important contribution to a better understanding of the role, challenges, and opportunities that inhere in the important uses and developments of social processes informed by positive sentiment. The focus of this chapter is on the establishment, protection, continuation and termination of emotionalized affective relationships. In earlier chapters, the importance of emotion and affection in terms of positive and negative sentiment to human rights values and practices was underlined. Essentially, affect and positive sentiment generate a capacity for human empathy and global solidarity. This is the foundation of human rights. The problems of human rights repose in the ubiquity of negative sentiment. Negative sentiment, reflected in hate, prejudice, and hostility, is a condition that challenges human rights foundations. It is from the behaviors conditioned by negative sentiment that the central problems of human rights deprivations are generated. Making sentiment an important part of the background which generates the problem of human rights draws from scholars who saw the importance of political psychology.1 These scholars were influenced by the insights into personality and culture drawn from the Freudian tradition. Lasswell’s exploration of psychopathology in political decision making and the role of global events on personal insecurity are indicators that sentiment, be it positive or negative, has a significant influence on the importance that emotions hold for personality. This issue has not received adequate attention in the scholarship and practice of human rights.

1 William Ascher and Barbara Hirshfelder-Ascher, Revitalizing Political Psychology: The Legacy of Harold D. Lasswell, (2005); see also Harold D. Lasswell and Myres S. McDougal, Jurisprudence for a Free Society, Vol. i; Part ii: The Social Process Context; 3. Personality: The Dynamics of Personality, 591–709 (1992).

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In setting out the analysis on the importance of emotion, positive and negative sentiment, on human rights, and human rights advocacy, Dominique Moisi’s book, The Geo-politics of Emotion: How cultures of Fear, Humiliation and Hope are Reshaping the World is a critical foundation.2 In his talk to the Carnegie Council, Moisi stressed that bringing emotion into the calculus of world geo-politics is intellectually a provocation. The problem is that emotions are subjective. How is it possible to integrate emotion with the broader stress on objectivity and rationality? Moisi stressed that without accounting for emotion, one “simply cannot understand reality of the world in which… we live.” He gave several examples to illustrate this point. One illustration was taken from the Israeli/Palestinian conflict in Gaza. Emotion touched on the fear of the Israelis and the humiliation of the Palestinians. Moisi stressed that “the world of our global age is at the same time transparent and interdependent.” There is no privilege of innocence. We know everything. According to Moisi “the very rich know how the very poor are doing, and the very poor know how the very rich live.” Moisi’s effort to map the ubiquity of emotion in world politics uses three critical markers: the emotions of fear, humiliation, and hope. Hope, a positive sentiment, is critical for social progress. Humiliation does the opposite. It is accompanied by both anger and hate. In destructive form, it implies that because “I cannot make it to your level. I want to reduce you to my level.” In the culture of humiliation, hope is extinguished by humiliation and there is no future. The marker of fear is the other emotive marker. Fear generates fear of others, for the future and the extinction of identity. Moisi’s goal was to demonstrate that emotions are critical for an understanding of the world as it is. The critical challenge in human rights policy and practice is to create a recipe for the reduction of fear and humiliation and facilitate cultural and emotional hope. These themes are explored in terms of the social processes which generate both positive and negative sentiment and how these factors are important to our understanding of the challenges of human rights and the possibility of devising constructive practices and perspectives for the emotional improvement of the human prospect. In this chapter, an outline for understanding human rights problems which are outcomes of the global social process context is provided. An appraisal of two key forms of sentiment produced in human interaction, namely, love and hate, is provided. An orientation is provided to the problems of sentiment experienced cross-culturally in institutions that are specialized to enhancing affect, or positive sentiment, but which may undermine rather than enhance 2 Dominique Moisi, the Geo-politics of Emotion: How Cultures of Fear, Humiliation and Hope are Reshaping the World (2010).

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it. The chapter also explores how religious myths may contribute to the undermining of affect and its importance in human relations. This chapter explores the conflicts about gender relationships and how these conflicts influence family forms. Since family forms have important influences on the shape of personality, it is important to know the extent the nature of family forms are predisposed to ‘affect’ rather than negative sentiment. Literature is explored to illuminate these issues and their implications for human rights. The chapter concludes with a model of how to conceptualize and map the social process of positive sentiment relevant to human rights. The chapter should be read in light of the context of negative sentiment described and explored earlier in terms of human rights deprivations such as genocide, racial discrimination, anti-Semitism, apartheid, torture and modern trafficking. These deprivations are expressions of negative sentiment and are frequently accompanied by low or high intensity conflict. In this chapter, a careful contextualized description of the affection process and its specialized functions in global social process is presented. This focus means that the outcomes of an affection process one designates for human rights and social science inquiry purposes as “affection units” are targeted. This emphasis avoids limiting the focus on families and family units that are peculiar to cultures and states. In this context, the human rights inquiry is a crosscultural inquiry dealing with relationships and institutions that are essentially micro-social in character. A significant number of cases of recorded experiences come from the field of private international law. The private law interventions from the point of view of human rights references are viewed. In this part of the chapter, a historical overview of the problems of recognizing of affection units across state and community lines is provided. The law implicates complex doctrines that are useful indicators for clarifying the boundaries of a modern affection process. These doctrines may be useful for comparative and cross-cultural human rights inquiry. A phase analysis drawn from the policy oriented approach to jurisprudence in order to map the phases of a realistic delineation of a global affection process is used. Processes of commitment, performance, termination and change and the cluster of claims and problems that emerged from these processes for which there is a demand for authoritative, human rights intervention are isolated and mapped. i

Social Structures and Formal Institutions of Affection

In the practice of international law, issues implicating plural family forms emerge as challenges for decision. In diverse cultures, different individual

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alignments emerge in social structures. These are encouraged, tolerated or actively frowned upon. A decision maker has to make a decision in such a situation, i.e., one that prima facie, at least, involves a cross-cultural confrontation. A key concern for any human rights concept of rationality in decision is that intervention should have some approximation to the goal values that it seeks to promote and defend. The concern with the focus on the term “family” is that it obscures the critical values which should condition decision making. For example, does the decision to intervene enhance or diminish affect? How does the decision impact on values implicated in intervention? How does this enhance or diminish the aspiration for essential dignity? Is it sufficiently inclusive to cover the nature of the social process of affective relationships? The limits of the term are further exemplified when one sees that, under the symbol family, a range of social behaviors are covered cutting across every aspect of society.3 When it is considered that the family is one of the frames for realizing affective goals, it is apparent that the term is insufficiently inclusive to account for the claims that emerge in the context of the social process dealing with affective interactions. The term also comes burdened with parochial meanings that hinder the ability of legal specialists to make clearer distinctions for the purpose of the prescription and application of law in the human rights context. The disutility of the concept of family for cross-cultural investigation has been demonstrated by Levy and Fallers4 in the following: In order to carry out comparative analysis, one clearly needs concepts on the most general level which are applicable in every society. The concept ‘family’ is commonly used in this way; that is, it is commonly assumed, either implicitly or explicitly, that in every society there is a social unit which is invariably associated with various functions. It may even be assumed that this unit is everywhere structurally the same.5

3 Broadly the literature of the social sciences represents great unclarity as to just what constitutes a “family” and just what distinctive functions characterize such a formation. See generally 5 Encyclopedia of the Social Sciences 301. A predominant theme in Western literature is that the nuclear family is the “normal” unit exhibiting highly specialized characteristics which are (erroneously) thought to be irreducible and serves as a model for cross-cultural study. 5 Encyclopedia of the Social Sciences 302 (1955). 4 M.J. Levy & L.A. Fallers, The Family: Some Comparative Considerations, The American Anthropologist 647–53 (New Series) (1959). 5 Id., at 647.

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Levy and Fallers showed how structure and function becomes blurred and that the empirical discernable structural units of diverse family systems and their distinguishable aspects have similarly been obscured. These authors suggested that the term ‘family’ derived its meaning from function by saying “we suggest that the concept ‘family’ … should be used to refer not to a single social unit in each society, but rather to any small kinship structured unit which carries out aspects of relevant functions” (these are themselves not clearly specified).6 The term remains as ambiguous as it always was. Moreover, no model for cross-cultural investigation has been invented that might approach the social process model of the Yale University New Haven approach. An example of a partial model that sought to integrate policy as an intervening variable in the affection process was offered by Ludwig L. Geismar.7 The concept of marriage was almost impossible to define in terms that will give it an inclusive reference in cross-cultural arenas. According to Leach, the difficulty was compounded by the ways in which values were allocated upon the formalization of the marriage process (by ritual or in fact).8 The thrust of social theory seemed to acknowledge the difficulty of adequately defining marriage in cross-cultural context. The terms family, household, and marriage provided a high degree of confusion in this field. The primary thrust of this chapter is on families and other affection units in the social process. The perspectives about affection and the operations ­relevant to the giving and receiving of affection differ significantly in comparative social process. The outcomes of the affection process reflect this diversity. These differences are often the outcome of entrenched ideologies that ­converge cross-culturally. Because the decision maker has to make critical choices affecting fundamental values, there has to be conceptual tools that facilitate effective decision making. The terms ‘affection’ and ‘affection unit’ are of great utility because one can distill from any set of facts whether affection is sought as a primary value or whether it is being used as for the realization of any other value. The markers of social process used in this chapter have been designed with a cross-cultural investigation from a human rights perspective. This f­ocus 6 Id., at 650. 7 Ludwig L. Geismar, A Framework for Cross-National Research on the Effects of Family Policy, v Journal of Comparative Family Studies, No.1, 109–16 (1974) T; see also Reubin Hill, CrossCultural Family Research: Attempts and Prospects, 14, International Social Science Journal 425–51 (1962). 8 See Leach, Rethinking Anthropology, Monograph 22, 10 Encyclopedia of the Social Sciences (1968).

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f­acilitates the ability to compare diverse institutions specialized to identical value processes. The inquirer is able to illumine whether affection units and business units realize such values as affection and wealth in ways that are equivalent, or whether they are non-equivalent. The model of social process used is that of human beings pursuing values through institutions predicated on resources. This model enables one to compare diverse social practices that are specialized to the accumulation and distribution of values and to evaluate to what success these values are achieved. From the policy orientation perspective, the most practical way to evaluate this event is to link situations to values and see this linkage in terms of process. Thus, one speakes of a social process specialized to affection as an affection process, and the modalities that characterize this process through time as affection units. A Cross-cultural Affection Units in Space and Time: An Overview A major problem with cross-cultural investigations of affection units is the continuing controversy as to what constitutes a family and what functions serve to characterize such units as family units.9 In this chapter, we will try to avoid these complexities by developing from our social process model the situation-value nexus as a basic operational framework. A link must be established between a context of interaction where affection is demanded as a primary scope value and any modality for the realization of demanded values. The western conjugal unit,10 often assumed to be heterosexual and specialized to accommodate expectations about socialization and procreation, has become a significant modality in patterns of world culture.11 This model has been influenced by industrialization, urbanization, and secular ideologies that have accelerated the demise of the idea of marriage as a sacrament. In many political bodies, there has emerged the idea that marriage is a civil agreement subject to various phases, including termination.

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Encylopedia of the Social Sciences, 301. Parsons & Bales, Family, Socialization and Interaction Process (1955); cf. Murdock’s survey of 250 communities concerning the functional adaptability of the nuclear family. Murdock, Social Structures (1949). Cross cultural surveys have isolated a wide variety of functions attributable to the “family.” These include expectations about: 1. psychological and physiological security; 2. emotional dependence; 3. companionship roles; 4. the division of labor and roles attendant thereon; 5. sexual gratification; 6. procreation; and 7. socialization. Modern society primary condition factors are: (1) industrial and technocratic culture; (2) urbanization; (3) increase in spatial and social mobility; and (4) widespread education and occupational differentiation. See generally K. Davis, Human Society (1949).

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The availability of termination means that sequential conjugal units may be established while structural features of the terminated unit still retain viability demanding continuous allocation of functions between the parties. For example, the task relating to the roles of father and mother of children may extend the range of filial responsibility for one party and make it more attenuated for another. But the roles themselves are not extinguished even if both parties establish stable affection units with other parties. The goals associated with the affection process have also undergone a significant redefinition because of the patterns of social change12 occasioned by industrialism and technocratic culture.13 These changes have been uneven, although the drift evidences deference to the individual demands because of the impact of the egalitarian myth and other factors. These changes have ­occasioned a decline in significant household forms as the center of economic activity. They have witnessed a shift from subsistence home-based crafts and agricultural activity to the wage labor of the factory and corporate associations. This change has radically altered the household from a producing to a consuming social unit,14 and has served to emphasize specializations attendant upon 12

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The studies of social change in traditional societies undergoing (in varying degrees) processes of accelerated industrial development are abundant. See Ross, The Hindu Family in Its Urban Setting (1961); Roy, Industrialization and “Fitness” of Nuclear Family: A Case Study in India, Journal of Comparative Family Studies, v, no. 1, 74–86 (Spring 1974). Studies also a multiplicity of structural formations that have modified traditional arrangements, while incorporating certain functional features of the conjugal pattern. See E. Litwak, “Geographic Mobility and Extended Family Cohesion,” in Edwards, ed., The Family and Change (1951). Some studies have questioned the hypothesis−that the nuclear family is a consequence of the industrial and urbanization processes. See Greenfield, Industrialization and the Family in Sociological Theory, American Journal of Sociology 67 (1960). A larger number of social theorists have attempted to demonstrate that, functionally, the nuclear family provides a better fit for urban industrial society. The most impressive of these studies are the following: Weber, General Economic History (1950); Ogburn & Nimkoff, Sociology (1950); Parsons, The Kinship System of the United States, The American Anthropologist 45, 1943; W. Goode, World Revolution and Family Patterns (1963); The Family (1964); Industrialization and Family Change, Industrialization and Society, B.F. Hoselitz & W.E. Moore eds., (1968). unesco. According to Goode, affection formations are moving in the direction of the conjugal pattern. He notes a lack of “fit” between the extended household forms and industrialization. On the significance of wage labor on stimulating a greater autonomy for the self system, see W. Goode, The Family at 109. The point here emphasized is and professional specialization coupled with equalitarian ideologies have undermined the less specialized household. Specific examples include care of the aged, medical care, care and socialization of children by the public authority, recreation and even the preparation of food. An

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face-to-face interactions. Still more pivotal for change in the affection process has been the development of school and pre-school institutions that have preempted areas of responsibility for the socialization process.15 The management of emotion as a central primary component of interactions in the affection process is attaining a higher degree of recognition and its importance in the formation of the personality and its emotional viability are increasingly being recognized in policy-making arenas. It is becoming clear that important social functions remain centered in micro-social units specialized to affection. These functions are outcomes of an entire process dealing with uniquely personal features of human behavior. The most visible of these outcomes include demands for and about affection among the parties, demands for and about access to sexual fulfillment16 and demands that incorporate the need for psychological stability in the individual.17 Despite these changes in the patterns and functions of the affection unit, it has retained three main, irreducible functions: emotional sustenance, sexual opportunity, and nurturing functions. In the past, formal elites have taken an interest in policing and supervising many phases of the affection process.18 Frequently, the reach of such concern

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­interesting problem as yet unstudied would be to investigate the impact of a chain production enterprise like McDonald’s Hamburger on the family patterns and what it does for the class identification of such units. See generally Aries, Centuries of Childhood (1961). A little acknowledged problem here is the outcome reflected in a great many traditional societies that female children undergo clitorectomies. The implications for interpersonal relations of such practices are not widely publicised, although they are a staggering violation of a human right. In modern societies kinship ties are themselves becoming less extensive and less significant and are being replaced by such symbols as are engendered by class, caste, race, nation, group, political party, skill-associations (professional, etc.). In industrial societies preliminary cross-cultural studies show that stratification plays a crucial role in the access to indulgences or deprivations of the micro-participants of an affection unit. See Goode, World Revolution and Family Patterns; Geismar, 116. On the impact of industrialization on family identification, see Roy, supra at 78; see also Moore, The Impact of Industry (1965). All cultures known to man regulate various sexual phases of the affection process. The general reasons seem to be are the power of the sex drive and its potentially disruptive qualities for social relations. Communities have tried to regulate such things as marital, premarital, and postmarital sex; frequency of sexual encounter, proximate relations; intergroup relations; periods of incontinence (menstruation, pregnancy, lactation); fornication (this latter is a typical); sex roles linked to sexual abstinence, to name some of the more obvious kinds.

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has extended beyond the requirements of an affirmative social process geared to optimally stimulating shaping and sharing affection and values contingent upon such outcomes. The concern over the features of the affection process has always been apparent in social groupings, and the precise allocations of competences about the process have been extremely variable. The Affection Process: A Contextual Approach for Cross-cultural Inquiry into Human Rights and Positive Sentiment The focus of this Chapter is on the importance of micro-social human associations such as the family and other affection units that are central to a fuller explanation to the role of positive sentiment in human rights theory and practice. The focus is therefore on decision making with human rights implications in a multi-state context. The term affection unit or formation refers in this study to any stable face-to-face relationship of a primary character where a major, though not exclusive, expectation of the relevant parties is the giving and receiving of affection. It is important to distinguish affection units from friendship units. In the latter case, the formations that, although characterized by face-to-face interactions, exhibit a lower degree of institutionalization over all phases of the “friendship” processes, i.e., there is little or no community supervision over the formation of a friendship circle and less control over the duration and termination of such a circle. One also needs to distinguish the affection unit or circle from those situations in which expectations of loyalty are prevalent or dominant but the modalities of which do not admit of personalized face-to-face relationships.19 In previous Chapters, the central organizing concept of the idea of sentiment was stressed. Sentiment was placed on a continuum from the negative to the positive. Moreover, positive sentiment was influenced by affect or affection. Negative sentiment from a human rights perspective, was driven by prejudice and hate as the driving force of negativity. These issues need to be clarified. We have used the idea of sentiment as roughly co-extensive with the idea of emotion. Emotion is a complex form of subjectivity which influences the system of identification, and the accommodation of expectations by the self. This form of subjectivity implicates the emotional state of the self which state varies with the experience of signs and symbols of communication which influence the triggering of different moods and emotions. An adequate

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On macro-social units, see Daniel Bell, Ethnicity and Social Change, in Ethnicity: Theory_and Experience, N. Glazer & D.P. Moynihan, eds., (1975).

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d­ escription of emotion is extremely complex and its explorations in poetry and the arts are a good illustration of this challenge. Emotion includes both conscious and unconscious processes of the self system. The extent to which the environment stresses either positive or negative experience does not guarantee that the behavior of the self will necessarily be driven by that experience. As Gonzalez, et al. indicated, “Nevertheless, any organism can make a mistake in its emotional evaluation. Any measurement process can be defective in variable degrees. The emotional mechanism, like the perceptive one, is limited and they are subject to multiple interferences, internal and external, that diminish their effectiveness. As a result, the experienced emotion may not evaluate properly the situation and, in this way, produce serious damage to the organism. That is to say, a situation can be evaluated positively (experiencing a positive emotion), although, in fact, it may be harmful for the organism.”20 They added that all living beings have this mechanism of emotion which guides them all the time, acting as a compass, to find favorable situations to survive (those which produce positive emotions) and to move away from those unfavorable for survival (which produce negative emotions). The management of emotion therefore is complex but critically important for humanity in terms of its social relationships and networks. We will now move from emotion, to the biopsychology of affection. Scientists have asked the question “What is affection?”21 They conceded that affection was usually understood as an aspect of emotion. A distinction was made in which much of emotion was a matter of internal predisposition of the self system whereas affection was part of an affection process which process was a component of interaction with the self and other selves. The work of Gonzalez and his colleagues suggested that affection was triggered by complex social processes of communication and collaboration. Affection was “something that flows and moves” between people, producing some form of emotion. A distinction was made between the positive predisposition to give affection (a positive emotion) and the quantum of physical energy needed to be deployed in order to actually get affection. Illustrations of the giving and receiving of affection included the attempt and effort to understand the problems of the other. Additionally, the attempt to please others by respecting their freedom would be another indication. The effort to increase the happiness of the other by giving a gift was another illustration of the expenditure of effort to communicate and provide the other with affection.

20 21

Id. What Is Affection?, M.P. Gonzalez, E. Barrull, C. Pons and P. Marteles, (1998).

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These studies provided the following three summary conclusions: First, “affection is something that flows among people, something that one gives and receives.” Second, to provide affection “is something that requires effort.” Third, “affection is something essential for human species, especially in childhood and in illness.” The social process implications of the affection process meant that it was an element of both social complexity and social necessity. Human beings cannot survive as solitary actors. They can only survive with the direct or indirect cooperation of others. Since we are born, we constantly need the collaboration of our fellow men. This social collaboration has benefits for social solidarity. According to Gonzalez, et al.: “…When people usually say that human beings need affection for their well being, we maintain that they are referring actually that they need the help and cooperation of other human beings to survive. That is to say, people express this need of social help as a necessity of affection. Hence, affection is considered something essential in the life of every human being. Giving affection means to help the others, to provide for their welfare and to procure their survival.”22 Affection may be seen in part as non-remunerated work for the benefit of someone else. When one stresses the complex communicative architecture of the affection process, one discovers that the critical affect of signs and symbols implicate a wide repertoire of “genetically and culturally stereo-typed behaviors, whose function is to ensure the affective readiness of one who emits them with regard to the receiver.” Smiling, cordial greetings, and signs of acceptance, promises of supportshow the commitment of the person who emits them and constitute a source of potential affection for the receiver. Affective signs are accompanied by an expectation of reciprocity designed to facilitate the exchange of affection. To this discourse, one may add the work of the Princeton groups’ efforts to measure human well-being, i.e., the Day Reconstruction Method [drm]. This approach sought to measure human responses to experience, in effect “an assessment of contiguous episodes over a full day.”23 According to Jolls, wellbeing in the drm was based on the ratings of the respondents from a low of zero to a high of six. This occurred in the context of a long list of positive and negative affect measures.24 Jolls’ table on the most positive and least positive activity responses in dealing with drm data follows:

22 23 24

Id. See Christine Jolls, Dworkin’s “Living Well” and the Well-Being Revolution, 90 Boston University Law Review 64 at 644 (2010). Id.

575

Toward An Affection Process Of Human Rights Table 11.1 Most positive and least positive activities in the drm data

Mean Positive Mean Negative Mean Proportion affect Rating affect Rating Hours/Day of Sample Reporting Most positive activities Intimate relations Socializing Relaxing Pray/worship/ meditate Least positive activities Computer/e-mail/ internet Housework Working Commuting

5.10 4.59 4.42 4.35

0.36 0.57 0.51 0.59

0.2 2.3 2.2 0.4

0.11 0.65 0.77 0.23

3.81

0.80

1.9

0.47

3.73 3.62 3.45

0.77 0.97 0.89

1.1 6.9 1.6

0.49 1.00 0.87

These reports about the nature of emotion and affection from empirical psychology largely supported the development of a systematic social process framework of the affection process. This model developed these ideas more systematically and permitted a clearer appreciation of the interrelationship of affect and a policy process and its human rights policy implications. Affection units, taken cumulatively, are the basic micro-social units of the social process.25 As such, they cut across and impact upon all other value processes. According to Goode, “[T]he family is the only social institution other than religion which formally developed in all societies.” He added that the term social structure in anthropology is “often used to mean the family and kinship structure.”26 The phenomenon of “kinship” is a universal social datum; indeed, kinship institutions “are found in all known societies.”27 To many 25 26 27

Id., at 159. Micro-social units include families, clans, friendship circles and neighborhood groups. Id., at 160. W.J. Goode, The Family, 4 (1964). C.C. Harris, The Family, 31 (1969).

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­anthropologists there is a pervasive belief that the etiology of kinship structures are coterminous with the etiology of culture. What is important to note is that kinship outcomes28 are both a consequence and a condition of fairly definitive expectations about participation in the affection process as well as in the generation of changing expectations about this process. In Freudian circles, it is generally thought that the capacity for affection of the average homo sapien is excessive, and that, in general, the displacement of this “excessive capacity” may be destructive in unorganized circles. Indeed, “[T]he human individual has sexual capacities and urges far beyond the outlets that are typically permitted in the system of mutual inhibition and substitute channeling we call culture.”29 Kinship systems are effectually the elementary components of all known cultural models. If the aforegoing is correct, then the minimum order functions sustained by the recurrent patterns of practices that serve to “control” these drives make it perhaps possible, if not easier, for human beings to live a corporate or group-like existence and engage in the multiple roles that relatively permanent affiliation and association demand.30 The model of social process elaborated earlier emphasized participants as interactors concerned with optimalizing value indulgences and avoiding deprivations and operating through various instrumental modalities specialized, in varying degrees of efficacy, to the shaping and the sharing of all specialized, though intersecting value sectors. The distinctive patterns of interaction concerned with the shaping and the sharing of values was designated a process. Similarly, the distinctive pattern of interaction specialized in whatever degree of actual efficacy to the shaping and the sharing of affection, one describes as an affection process. Three main features characterize this process. First, crucial to the affection myth are subjective events in the social process attributable to components of micro interaction. These “subjectivities” we call perspectives, the outcomes of which are characterized by emotionalized behavior or sentiments of a positive character. The second main feature refers to patterns of collaborative behavior involving the shaping and sharing of all values (operations) between the targets of positively sentimentalized behavior.31 The third feature involves 28 29 30 31

E.g, establishment of a kinship unit. See Kinship and Social Organization, Bohannan & Middleton eds., (1968). McDougal & Lasswell, Law Science and Policy Materials, 206, 83. Id. Cf. S. Stryker, Symbolic Interaction as an Approach to Family Research, 21 J. of Marr. and Fam. Living, no.2 (1959). It may also be noted that one of the important findings in the

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the ­management of signs and symbols between communicator and target ­person.32 The affection process may be seen to involve a distinctive and discrete pattern of communication and collaboration animated by the perspectives of various micro-actors that include emotionalized positive sentiments of the self and sustained and enhanced by collab orative “operations” that extend beyond the management of signs and symbols specialized to affection.33 Because this process is part of the social process, the facts of individualized interdependence and interdetermination have stimulated the emergence and recognition of the importance of structures and procedures which proscribe, tolerate, permit, or facilitate the accretion and distribution of affection according to established or emergent expectations about the diffusion of this value. Any value may be demanded as a scope or desired value and may serve as a base for achieving access to any other value. Claims about the affection process in private international law have encapsuled affection both as a scope or desired value or as a base value. The entire affection process of interaction may be broken down into three distinct categories or phases: 1. process of commitment; 2. process of performance and change; and 3. process of termination and change. The purpose of developing such a framework about the distinctive phases of the affection process is that it might facilitate decision making, i.e. the prescription and ­application of law in space and through time.

32

33

Kinsey Report was that the desire for sexual intercourse among both men and women was triggered by stimuli of a primarily symbolic character rather than of a psycho-social nature. See Nelson N. Foote, The Emotional Economy of Marital Relations, Social Problems, Vol. 1, no. 4 159–63 (April. 1954). The language of love among the traditional South African Xhosa is a language of “tokens and behavior understood by everyone.” See J. Hemming & Z. Maxwell, Sex and Love 62 (1972–73). Specifications of relevant indices of happiness, for microparticipants in an affection dyad are given in S.R. Orden & M. Bradburn, Dimensions of Marriage Happiness, 73 Am J. of Sociology (No.6) 751–31 (1968). This model is adapted from the lsp conception that every act is an interaction put on a continuum from the less observable subjectivities (perspectives) to the more in terms of subjective events (observations of self by self) and signs. A sign is a physical observable (operations). Thus every act includes patterns of “communication” and “collaboration.” The former word is defined operationally resource specialized to the function of reference. The subjective events are “symbols”; they are “intentions” and “interpretations.” A sign refers to “symbol” events. Collaborative activities use resources not specialized to signs. Non-sign resources are “materials.” See Lasswell, Clarifying Value Judgment: Principles of Content and Procedure, 1 Inquiry (no.2) 91–92 (1958).

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The affection value is enshrouded in its own myth and folklore.34 It is a value that in the social process is characterized by a “technique” peculiar to it. To give but one simple illustration. It is recorded for example, that “­aboriginal women have their own secret ceremonies in which love is a constant theme. They make love charms, and sing songs about their amorous longings, the way to gain lovers and how to retain the devotion of husbands.”35 Indeed, it is said that “love for them [was] a profound experience.”36 The power of the affection myth has often been a factor in the transformation of human relationships in positive or negative ways. The ubiquity of ancient love poetry and lyrics “speaks all the time with the voice of common humanity.”37 Such events are experienced in the most diverse cultural settings whatever the location in space or time. While the evidences of these events have been near universally established, the actual outcomes of the social process have reflected different priorities for the placement of affection in the scheme of socially preferred values. It is clear that a close nexus occurs between “personality” and “culture,” between perspectives and operations. Aside from the social context in which sexual approaches are made, there are the constraints or duties imposed on micro-social affiliations by the “principle of legitimacy,” because children are said to ‘belong’ to some set of parents or other. However, de facto responsibilities are allocated with respect to the child.38 It is now established that affection is an essential prerequisite for normal personality development. For the child/infant to develop a viable self system with a relatively stable pattern of identifications, i.e., an identification set that defines him as a human being per se capable of asserting the value demands required for group-like existence and developing a realistic set of expectations of the possible, continual attention and emotionally loving care are essential.39

34

35 36 37 38

39

Hemming & Maxwell, at 30. These have encapulated, inter alia, the humanistic; romantic; erotic; poetic; literary; and artistic. Cf. Vatsyayana, The Kama Sutra (1948) Andreas Capellanus, The Art of Courtly Love (J. Parry trans. 1941); Playboy, ed. Hugh Hefner; The Joy of Sex: A Gourmet Guide to Love Making, A. Comfort ed., (1972). Hemming & Maxwell, at 30. Id. Id., at 33. See B. Malinowski, Parenthood the Basis of Social Structure and T. Parsons, The Incest Taboo in Relation to Social Structure in the Family: Its Structure and Functions, 3ff & 48 ff, Rose Laub Coser ed., (1964). See C.C. Harris, at 31.

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The Map of the Affection Process: Process of Interaction by Phase Analysis 1 Process of Commitment The structural outcomes of the process of commitment are labeled affection units. These micro-social units are found in all societies known to man. Affection units are the relatively stable, face-to-face relationships by individual parties assuming or having attributed to them roles where the goal value, affection, i.e. the expectation of a mutual exchange or flow of positively displaced sentiments upon each other, is a primary but not an exclusive scope value and where the expectations of sexual intimacy is usually expressly or implicitly anticipated or explicitly proscribed. C

a) Participants Because almost all human interactions are tinged with some vestige of the ­affection value, the societal pattern of distinctive specializations has been taken to be an almost commonplace occurrence among participants, and, to this extent, full time specialization in the affection process is a pervasive, but to an observer, quite diffuse undertaking. The exchange of affective sentiments ismade more complex by the power latent in the sex drive.40 These “psychobiological” characteristics have served to reinforce, if not determine, the kinship delineation of role-patterns closely linked to sex-identifications. One might identify all participants in terms of their primary sex identifications: men, women, children, transexuals, bi-sexuals, homosexuals, lesbians and those with a distorted sense of the self or who have little consciousness of the self such as psychotics and other mental incompetents. During the commitment phase, various institutional “actors” facilitate interactions geared to channelizing affection-based sentiments in licit and what are deemed, in context, to be socially desirable ways. These include 1. the matchmaker41 and the functional equivalents in different cultures such as fraternities and sororities, 2. institutions geared to socialization42 about a­ ppropriate 40

41 42

Cf. “All human beings have, to one degree or another, surrounded sexuality with emotion and a set of ideals. A few peoples of the world have associated sexuality with evil and darkness; a few others have tried to make it a religious exercise. But wherever it may be, the community in which a person lives always prescribes and in some degree controls the emotions it considers suitable or allowable in sexual matters.” P. Bohannan, Love, Sex and Being Human 94 (1969). See, e.g., Vogel, The Go-Between in a Developing Society: The Case of the Japanese Marriage Arranger in Goode, Readings in the Family and Society 72 (1964). See I.L. Reiss, The Universality of the Family: A Conceptual Analysis, J. of Marriage and the Family 443 (1965). According to Reiss, “nuturant socialization of the new form” coupled

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sex-linked behaviors, e.g., religious groups, schools, civic organizations. Participants in the commitment phase include 1. the primary individual parties as identified by appropriate sex-role categories, men, women, 2. officials concerned with various aspects of community supervision that include health, ritual, and evidence of commitment, e.g., license officers, health officials, rectitude managers and witnesses. b) Perspectives, Identifications, & Primary Ego Identifications The affection process is intimately bound up with the character of a person’s primary identification pattern: the essential “I” and the contingent “we.” It has been generally thought that the emergence of the self is coincident with the inclusion of the symbols of other ego systems within the primary ego.43 Indeed, some theorists have suggested that “love” and “affection” have deep significance for the patterns of primary identification because the interactions occasioned between communicator and target communicatee are so emotionalized as to represent a kind of intersubstitutibility of ego systems between the primary ego and the ego of the target of one’s sentiments.44 These terms should not be taken too literally, although they serve to highlight a pervasive problem for individual identifications that is only now receiving serious scientific attention, i.e., the need to explore the existence and implications of a primary ego system that assumes a psychological dependency as a patterned response to a target stimulus. The summary of these research objectives were as follows. The primary aim of the research project was to examine the role of psychological dependency as an antecedent to interpersonal attraction, particularly, although not exclusively, in heterosexual relationships in which the individuals involved labeled their attraction “romantic love.” A related, but subsidiary, aim was to assess the potential of the dependency construct to provide the core of a theoretical framework whose predictive domain would encompass not only the milder forms of attraction, such as “liking” and “disliking,” but also the stronger forms, such as “love,” and “hate,” in both like and oppositesex relationships. An examination of the relationships between hypothesized dependency variables was made as well as an examination of the effect which environmental conditions conducive or non-conducive to fantasy may have

43 44

with positive affectionate care is necessary for normal personality development. According to Bohannan, supra note 17, at 82, “…babies die without love.” See E. Fromm, Escape from Freedom 26–27 (1941). “Where positive affection is involved there is the expectation that the boundaries between the self and another are not important.” McDougall & Lasswell, at 203.

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upon these variables. Too, the investigation of situational factors which may determine labeling of positive affect in dyadic relationships was undertaken. Research involved both laboratory and field investigation.45 The Proxmire study has been severely criticized by leading public figures in the United States,46 although its leading defenders have defended the project on the grounds inter alia that “love is the most important factor in the human condition” and that “any knowledge that we can obtain that furthers our understanding of this concept would be invaluable. The use of experimental research methodology to explore this vital domain may help to provide further in sight into the nature of attraction and love.”47 Affection and its displacement upon a target object represent a vitally important variable, perhaps an independent variable, in the pattern of primary identifications one designates as the I and we, whether the roles be that of siblings, lovers or parents. Whatever be the origin of the dependency factor in the establishment of an affection circle where emotional and conjugal intimacy are a major expectation of the parties, the dependency hypothesis has even greater plausibility when seen against the backdrop of personality developmental phases in children where parental roles conceived as biological or functional are most pivotal: The most important and profound influences on the formation of the individual are those introduced in the earlier stages of development. For most children the primary object of identification are their parents. Needless to say the character of the parental authority system plays a continuing role with respect to the emergence of the children’s primary ego system.48 These factors are relevant to the entire pattern of identification of the primary self during the process of commitment. Primary estimates of the self include not only the expectation about a developed, autonomous ego but also aspects

45 46 47 48

New York Times, March 23, 1975, sec. E, col 7. Letter of Senator William Proxmire to New York Times. Letter of Professor Bernard L. Murstein to the New York Times. Letter dated March 31, 1975. See P.O. Tiller, Parental Role Division and the Child’s Personality Development in Edmund Dahlstrom, ed., Changing Roles of Men and Women 80, 90–103, G. & S. Anderman trans., (1971).

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of fundamental sexual identification: male, female, heterosexual, homosexual, bisexual, transsexual, pre-pubescence, adolescence, and adulthood.

Attributed Identifications

Attributed identifications relative and important to the affection process also arise mainly from bio-cultural facts of social life. The most ubiquitous of these facts is the structure of kinship loyalties and sentiments.49 The origin of kinship structure is much disputed.50 But what is not disputed is the importance that kinship systems have played on the entire pattern of role ascription. Within any kinship system a set of expectations about appropriate role behaviors may be distilled and these roles may change and multiply quite significantly from group to group as well as from person to person. Therefore, one might distill a number of “social roles” or “social selves” which may be seen as attributed identifications and which are important to the commitment process. For example, “social selves” for men may include the roles for the same individual of husband, father, brother uncle, etc. For women the attributed roles would include, inter alia, mother, wife, sister, aunt, etc. For children, there are sibling roles and the roles of son, daughter, niece, nephew, roles about appropriate behavior for girlfriends, boyfriends and those bethrothed. Demands

The primary demands of individual parties during the process of commitment is for the freedom to give and receive affection. The essence of this demand is that the individual wants freedom of choice over the target that person has selected for the displacement of positive affective sentiments. These demands take place in the context of a socio-cultural process that includes a complex range of interactions that may culminate in the formation or establishment of an affection unit. These demands may include access to friendship circles, access to situations involving higher levels of mutual expectation (betrothal), and perhaps leading ultimately to the institution of marriage. These demands often cut across group or state lines, and in a contracting world, such demands are being insistently voiced. 49

50

See P. Bohannan & J. Middleton,; W.G. Dyer, Analyzing Marital Adjustment Using Role Theory, 24 J. of Marriage & Family Living (No. 4) 371 (1972); S. Cottrell, The Adjustment of the Individual to His Age and Sex Roles, 7 Am. Soc. Rev. (no. 5), 617 (1942); Coser, Part three “Role Distinction”; part four “Socialization”; part five “The Societal Network.” See also R.D. Laing, The Politics of the Family (1971). See generally Robin Fox, Kinship and Marriage 13–76 (1966).

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Expectations

Every community has a well-defined pattern of expectations about the conditions under which parties will give and receive affection. These expectations often define the scope and character of the “licit” avenues a person may travel in appropriately giving and receiving affection. The precise nature of these expectations is not always the same from one culture to another, although there is more congruence in these patterns of practices than has been commonly supposed. The pattern of expectations about the process leading up to “who marries whom” reflects a complex allocation of competence between state or group elites, the family, e.g., the pater familias, and the individual.51 The allocations of competence about all phases of the commitment process will often, if not invariably, reflect basic community expectations about the process of ­commitment.52 The interrelationship among the variables lends to the complexity in allocation of competence regarding the commitment process. The interrelationship of the variables in autonomy/authority during the commitment process can be illustrated via simple mathematical formulations. Assume that there are three variables that add up to the whole or “total control” over individual activity. The three factors are individual autonomy (X), authority of the state (Y), and parental control or discretion (Z). The sum of the three variable factors will always equal “1.0” or “total control.” This is mathematically illustrated by the simple equation: X + Y + Z = 1.0. The representation is to illustrate the relationship of the variables and how a change in one will impact on the others. The accuracy of such a graph would hinge on one’s ability to determine values to assign the variables in each factual context which is clearly impossible. The graph does show, however, that to reach the optimal level of autonomy or some minimal level (0.4 or 40% control in the example above), there has to be a decrease in one or more of the other variables. In our hypothetical, governmental authority (Y) would have to be decreased to 0.6 or 60% control in order to reach the outer limits of the “preferred zone.” If Z had a value, and state control remained at 0.8, individual autonomy must decrease and move even farther from the minimum preferred zone of autonomy on the graph.

51

52

See generally H. Clark, The Law of Domestic Relations 1–114 (1968); Winch, Mate Selection ((1958); African Systems of Kinship and Marriage (R. Brown & D. Ford eds. 1950). See also Goode, The Theoretical Importance of Love in Sourcebook in Marriage and the Family 249–57, M. Sussman ed., (1968). See Florida Conference on Marriage and the Family Unit, 376–81 (1975).

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Thus, allocation of power or authority over the individual by the state and/ or his parents, correspondingly decreases the autonomy of the individual. Community supervision over the friendship process and the freedom to associate is known in organized society.53 Often many indirect strategies are used by community elites or parents in this context to control the commitment process. In many cultures, the betrothal process expresses a degree of community acceptance of a relationship that reflects a higher degree of institutionalization than a friendship circle. In some cultures, there may in fact be no relationship between the parties, and betrothal may exclude, almost absolutely, a degree of freedom of choice to the individual parties themselves. The most visible expectation about the process of commitment is the single presumption that “purported marriages are presumed valid.”54 Other basic expectations reflect a paradigm of community intervention for the purpose of controlling such things as incest, non-age, impotence, miscegenation, mental competency, duress, fraud, venereal disease, plural marriages, proxy marriages, common law marriages and control over ceremonials and licensing.55 These community expectations are much more problematic when the claims relating to the process of commitment have a trans-group aspect, and when the cross-group aspects of the process reflect prima facie, a divergence between the laws of two or more states or groups. A decision in such a context advances some expectations and sacrifices others. The discretion reposing in choice may be veiled, but it lies in the decisional arena. Moreover, basic community expectations in the larger world community have been in a constant 53

54

55

On the formation and maintenance of friendships, see Readings on the Family and Society 124, Goode ed., (1964). On primary and secondary groups, See generally Horton & Hunt, Sociology 164–70 (1972). The concepts Gemeinschaft and Gesellschaft are sometimes thought to be consistent with the concepts of primary and secondary groups. Gemeinschaft relationships are thought to be personal, informal, traditional, sentimental, and general. Gesellschaft relationships are thought to be impersonal, formal, contractual, utilitarian, realistic, “hard-boiled,” specialized. See Horton & Hunt, supra, at 166. Compare Cross, Some Functional Consequences of Primary Groups in Formal Work Organizations, 18 American Journal of Sociology 368–73 (1953). This study shows some of the ways in which primary groups may support the aims of secondary groups. See also Olmstead, The Small Group (1949). See Clark, at 66–67; see also the collected cases in Annots, 34 Alr 464 (1925); 77 alr 729 (1932). The policy rationale behind this presumption is well stated in State v. Martinez, 43 Idaho 180, 250, 239 (1926); Annot. 34 alr 464, 473 (1925); “The law presumes morality, legitimacy and not bastardy.” See Clark, at 66–67.

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state of flux under the accelerated influence of social change, reflected in the spread of industrialism and the development of human rights standards. c) Base Values—Power A complex relationship between “power” and “affection” is to be found in almost every society in the world social process. Looking at this relationship from a global point of view, one can see clearly the intersecting value processes specialized to power and affection in terms of the claims various actors make about control over the process of commitment cutting across group and state lines. The general question to ask is how power is allocated in trans-state contexts with respect to every phase of the affection process. This at least focuses on more specific questions: 1. how is power allocated with respect to the process of commitment in a trans-state setting, 2. to whom is it allocated in each specific culture-context, 3. what conditions determine such allocations, 4. how ought such power over the commitment process to be allocated? Power may serve as a base value to secure and enhance the freedom of autonomous choice in the selection of a target for the displacement of one’s affective (emotionalized) sentiments, together with the freedom to vary and change the target of one’s choice.56 Of all power allocations that attend the affection process, the most ubiquitous is the control that formal and effective elites have allocated to themselves to determine within limits “who marries whom.” Such competences may be allocated to effective ruling groups directly or indirectly. A direct example was reflected in the early Roman law prohibition of marriage between patricians and plebians. A recent example was the Afrikaner elite’s prohibition of mixed marriages between all who, in terms of the South African Population Registration Act, were classified white and those classified non-white. Intercaste marriages were proscribed under Hindu customary law, a pattern of control engineered and manipulated by the Hindu rectitude managers who allocated themselves a lion’s share of that value. The power equation is further complicated by the allocations of power, especially in patriarchial societies, to the potestas of the bonis pater familias who might monopolize the supervision of those individuals in his potestas (those sui iuris). These allocations of power (to parents)57 have often been exercised 56

57

For example, the allocation of exclusive competences to state to police the affection process is well recognized in American law. See 28 usca §1738; u.s. Const. Art. iv, § 1; Estin v. Estin, 334 u.s. 541, 68 S. Ct. 1213, 92 L.Ed. 1561; see also Stevens v. i.s., 146 F.2nd 120. See Menchin, The Health and Consequences of Teenage Childbearing,4 Fam. Planning Perspectives, 34 (1972). Forty percent of children born out of wedlock are born to teenage

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in less visible ways to retain the integrity or rigidity of respect patterns and in a great many cases to freeze the status quo. It has been said that marriage is the master basis of social stratification.58 Examples of the exercise of these parental powers may be a subtle exploitation of the biological and sociological dependency factor, e.g., through the exercise of parental power over the child which may be isolated from contacts with potential affective relationships. Adults may discretely manage and channelize the range of social contacts with pivotal affective targets. They may discretely structure the range of potential targets to what “they” deem to be the “right partner.” Indeed, they may use a wide variety of patterns of supervisionto control the “love” variable including the ideology of romantic love, i.e., that somewhere there is a “right person.”59 Added to this has been the use of childrens as an exchange mechanism for the allocation of value indulgences to the particular affection unit. These may take the form of early marriage for women (girls).60 Sometimes this amounts to no more than functional servitude inasmuch as the range of autonomous choice allotted to the individual with respect to affection and all other value processes is definitionally excluded. In a multi-state context, law has often provided a mechanism whereby the individual could undercut the power of the state or the family over the selection of a marital partner. By marrying abroad, parties might return to their home state and demand that that state honor the prescribing competence of the state in which they married. This is an example of how power might be used and has been used to enhance the freedom of choice of the individual.

Bases of Power—Wealth

The wealth process cuts across all phases of the affection process. Access to and control over the wealth value has the potential of increasing the range of choices that relevant parties have over the mate selection process. When significant aggregations of wealth are controlled by the “family,” conceived as an inter-temporal dynastic entity, such wealth may serve to restrict choice because of respect (class) imperatives dependent upon the wealth value.

58 59 60

mothers. Pilpel & Wechsler, Birth Control, Teenagers and the Law, 1 Fam. Planning Perspectives 29 (1969). See also. Note, A Minor’s Right to Contraceptives,7 U. Cal. Davis L. Rev. 270 (1974); Note, The Minor’s Right to Abortion and the Requirement of Parental Consent, 60 Va. L. Rev. 305 (1974); Note, Parental Consent Requirements and the Privacy Rights of Minors: The Contraceptive Controversy, 99 Harv. L. Rev. 1001 (1974). See Robert K. Merton, Intermarriage and Social Structure: Fact and Theory in coser, at 128–52. See generally Harris at 55–61. Id.

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­Affection may, for example, serve as a base to secure the alignment of two family fortunes. On the other hand, for the great many human beings in the world, poverty may undercut meaningful access to affection circles. Sometimes this might mean an extensive delay in having access to the commitment process, with all the sacrifice that loss of affection might entail in the reduction of access to suitable partners; loss of attractiveness and limits on child bearing potentials.61 Some societies under the influence of egalitarian ideology have sought to ameliorate these disabilities by providing wealth indulgences for couples who are poor and who desire to establish an affection unit.62 In various forms, the wealth value has often had unintended but quite pernicious effects upon the freedom of choice in mate selection. Dowery practices in India have been outlawed but still remain as an operative norm of behavior. Labola or bride price in South African Nguni marriage systems have occasioned massive intrusions and abuses in the mate selection processes. In the private international law context, access to wealth may also be used to maximize the freedom to marry by enabling parties to migrate to a state where the expectations about free choice is greater than that experienced in the home state of the parties. Such parties may subsequently demand that their state of primary affiliation honor that marriage for certain purposes afterwards.

Bases of Power—Respect

Social class distinctions have and continue to play a major role in the efforts of elites and their parent surrogates to determine just “who marries whom” in the mate selection process.63 Affection may serve as a base for a socially mobile social climate and as a key to the imposition of self-worth and respect. Respect may serve as a base for gaining access to preferred choice in the affection process.64 The prohibition of marriages by parties of diverse ethnic, class or caste backgrounds is a perversion of the respect value.65 61 62

63 64 65

In South Africa there is a correlation between age of marriage and economic status. Urban blacks, who are poverty stricken, marry later than urban whites. The report to the United Nations on the Status of Women in Sweden 50–51 (1968) states the following: “In order to facilitate the formation of families, the state also grants homemaking loans for the purchase of furniture and other items for the home.” See W.J. Goode, The Theoretical Importance of Love, in Coser, at 217–19. See also Kingsley Davis, Intermarriage in Caste Society, in coser, at 105. See M. Kamaroysky, Blue Collar Marriage 230 (1964) on social rank and deference. See Loving v. Virginia, 388 us 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967).

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Bases of Power—Rectitude



Bases of Power—Enlightenment

The rectitude symbols attending the affection process have been a ubiquitous component of the affection process. Rectitude managers have often sought to prescribe the criteria for the process of commitment. They have prescribed various taboos over whom one might marry, when one might marry and even the conditions of sexual intercourse. Rectitude symbology has sought to prescribe for the supervision of fidelity, chastity, fertility and virginity.66 In a ­multicultural global context, affection patterns which may be the epitome of rectitude in one community may be the polar opposite in another. Virginity as a prerequisite for a formal affection arrangement in one society may be ­regarded as the symbol of a communal neurosis in another. Conceptions of propriety and impropriety, right and wrong, the acceptable and the unacceptable and the tolerable and the intolerable may be different from person to person, culture to culture, clan to clan, caste to caste, elite to elite, interest group to interest group, and from one community to another in the territorial sense or in the functional sense. Rectitude managers have often sought to manipulate the symbology associated with the commitment process by demanding due deference to ritual and folklore. Today these are deemed in many cultures to be mere matters of form. The level of education has an influence on the mate selection process. The impact varies considerably from culture to culture depending upon the priorities given the educational process as a means to social elevation, and the extent to which this might extend the range of one’s potentials in the marriage market. In some cultures, this can have drawbacks. A Xhosa woman who becomes a nurse may have her father impose an enlarged labola demand from a prospective suitor and have her “priced” beyond the reach of her own preferences. But these aberrations have not stultified the importance that the rising middle classes, not only in the West, but in the Third World as well, attach to an educated partner.67 A great many bodies politic including folk societies have structured practices to prepare younger members for the responsibilities of intimate personal relationships and parenthood.

66

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Courts have held that parties are entitled to a disclosure of unchastity as a precondition for the processes of commitment, engagement or marriage. Kent v. Buchanan, 149 F.2d. 289, 80 us App d.c. 50. See generally Goode, World Revolution and Family Patterns (1963).

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Bases of Power—Skill



Bases of Power—Well-being



Bases of Power—Affection

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The acquisition of skills in almost any culture context is considered generally to be of social value. The acquisition of skills with respect to any value process might enhance the desirability of a particular person as a marriage partner. Often mental incompetents, who are incapable of acquiring skills, are barred from establishing affection units.68 Occupational and intellectual skills are an important base value to parties in the commitment process. Well-being is an important base value for the affection process. All societies provide some avenues for the displacement of affection. Without such outlets, i.e., access to approved courtship circles leading perhaps to betrothal and marriage, the emotional security of the individual would suffer.69 The physiological and psychological health of a party is an important base value in the commitment process. Love breeds love. Affection is an important base for enhancing affection.70 Affection may serve as a base for access to other value indulgences, e.g., power, wealth, respect etc. For example, a claim having a trans-group aspect 68

69

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T. Parsons & R. Bates, Family, Socialization and Interaction Process 128–29 (1953). Skills have often served as a base for marrying upward. An individual’s skill potential might also enable him to command a large dowery. For an historical respective, see Elinor G. Barber, The Bourgeorsie in 18th Century France 99–103 (1955); A.B. Hollingshead, “Cultural Factors in the Selection of Marriage Mates,” 15 American Sociological Review 619–27 (1950). See also Killer, Residential and Occupational Propinquity in McGinnis_ & Barringer, ­Selected Studies in Marriage and the Family 476 (1962). See Skipper & Nass, Dating Behavior: A Framework for Analysis and an Illustration, 28 Journal of Marriage and the Family 412–20 (1966). This study shows the impact on the wellbeing of the parties when their expectations are divergent. In this study nurses in the sample are shown to date with a view to courtship and marriage whereas the mates they date do so mainly for recreational purposes. See also Kerckhoff & Davis, Value Consensus and Need Complementarity in Mate Selection, 27 American Sociological Review 295, 299, 301–03 (1962). Obviously the physiological wellbeing of a prospective marital partner is an important base value for the commitment process. It can be parenthetically noted that most states—at least in the United States, require a standard serological test (syphilis) before the issuance of a marriage license. See generally Fla. Stat. §741.051. See generally Goode, The Theoretical Importance of Love, at 249–57. Cf. Morgan, The Puritan Family (1944). Morgan quotes Thomas Hooker to the following effect: “If a woman has with a conjugal affection taken a man to be her husband, that same taking of him to he her husband, makes her love him….” According to Morgan the early Puritans were a rather “earthy lot,” more so than commonly supposed.

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­demanding that an otherwise proscribed affection unit be honored by a competent forum for realizing a tax indulgence, a preferred social security status or a preferred immigration status may be honored.71 d) Strategies—Persuasive The simple example of persuasive affective strategies involves the techniques employed in the giving and receiving and withholding of affection. This involves both strategies in communicative and collaborative acts. Affection relation­ ship is characterized by using a symbol that refers to the object of the primary ego of the other. As a symbol, this is characterized by friendly emotions or feelings. The self-system uses the symbol as a reference for the groups of other selves who are the target for the projection of positive affectionate sentiments. Thus, A’s projection of positive or negative or indifferent sentiments to a group of other selves B’s, would raise the further question of how many of these other selves, acting as primary selves B’s, will make similar projections on target A. The distinctive pattern of communication between A and Bn (the distinctive signs) are thus calculated to reciprocally arouse or elicit appropriate subjectivities about a particular stage of the affection process. These communicative strategies designed to elicit a desired response in the target person may be further reinforced by patterns of collaborative behavior involving the manipulation of all value processes to solicit a favorable response from the target of one’s emotionalized sentiments. These behaviors may be characterized by the exchange of gifts and tokens signifying varying degrees of commitment, like the exchange of sorority pins, or shark’s teeth, or a bull’s ear. They may reach a more intensively policed stage where the expectation that a diamond ring or other such value be given as a sign of a firm commitment betrothal to be consummated in the reasonable future. Anticipated community responses to these various strategies in the process of commitment may be a significant factor in “persuading” a person to follow through with her/his commitments. Take the breach of promise context as an example. The problem of how the reallocation of gifts exchanged is effectuated in contemplation of marriage may represent a complex and varied community response. These responses can be seen to move from the persuasive to the coercive depending on the character scope and intensity of community response.72 Other strategies may involve such measures as undue influence, fraud and access to ­social indulgences contingent upon the establishment of an affection unit. Such indulgences include, inter alia, tax advantages, social welfare advantages and preferred immigration status. 71 72

See Goode, at 249–57. See Clark, at 1–27, 99–114.

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Strategies—Coercive

The more directly coercive strategies inhering in the commitment process may involve such contexts as a sense of community or family disapproval over premarital pregnancy, the threat of a paternity suit, the problems of the shot-gun marriage, crimes calculated to intensify the desire for formalization (fornication), and the control over access to contraception and abortion procedures. To the extent that the community deems it right to police the phases of the commitment process and has the power of the state behind it to enforce its mandate, an element of coercion may be seen to repose in the allocations of competences that state elites make over “form,” e.g., health standards, licensing demands and witnesses, along with substantive competences over age, race, caste, sex, etc., of the parties. e) Situations—Institutional Every society has a framework within which licit and appropriate sexual and affectionate approaches might be made. However, seemingly disorganized these circles might seem to an outsider, they are pervasively present and cause the actions leading to a more formalized relationship to be rather systematic. Social scientists suggest that: A strong case can be made for seeing in all sexual regulations a unified set of systematic structures. The heart of an argument supporting such an argument is Levi-Strauss’s fundamental point in Elementary Structures of Kinship; namely, that sexual relations are not independent systems but aspects of systems of exchange. Incest taboos—i.e., sexual regulations— are the most focused part of systems of exchange because a woman is not simply a woman, but someone else’s daughter, sister, or mother.73 The institutionalization of the various phases of the affection process may be placed upon a continuum from optimal formal power to the individual ­parties to optimal formal power being allocated to the community and to the “family.”74 The allocation of competences over the various phases of the commitment process reflect all the expectations about form and ritual. Such events as the publication of banns, the procedures that account for licensing and registration are all important to contemporary society. 73 74

R. Shechner, Incest and Culture: A Reflection on Claude Levi Strauss, 58 The Psychoanalytic Review 568 (1958). Cf. text accompanying notes 106–07 supra, involving allocation among the individual, the family, and the community.

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Situations—Spatial

The notion of geographic “propinquity” plays a significant role in all the phases of the affection process.75 Statistics76 indicate that persons tend to marry those who live close by. Studies in the United States show that the majority of Americans marry partners who live within the radius of a mile from their homes.77 Factors such as group affiliation, e.g., domicile, nationality or intended matrimonial home, are drawn with reference not exclusively to territorially ­constituted groups. The spatial dimension may be indispensable for the formalization of an affection arrangement, e.g., proscription of proxy marriages, and be made more complex by the availability of electronic devices that minimize the complexities occasioned, in such a context, by the spatial dimension. Situations—Temporal

The time artifact is manipulated to accord with the needs of human psychophysical development and the social roles that are a major expectation of organized society. Such temporal limitations as the age of fertility; sexual attractiveness, capacity for assuming adult-parent roles and career cycles are important to the entire process of commitment, much of which is encapsuled in simplistic notions of “minority” and “majority” that characterize traditional legal formulations. For example, in many legal systems the time artifact is manipulated in such a way that upon the solemnization phase of the commitment process a minor, by operation of law, becomes a major. Sometimes couples who “live together” for a number of years may have that fact manipulated by the legal regime so as to amount to the equivalent of the entire commitment process including all the formalized ritual phases, e.g., common-law marriage, or putative marriages. Situations—Crisis

The crisis condition in this phase of the affection process may assume a great variety of forms that might serve to hinder or facilitate the efficacy of the ­commitment process. These may include such events as pregnancy, marriage because of the prospect of a huge financial loss by a threatened breach of promise action, or differences in tightly controlled loyalty patterns, e.g., class, caste, race, religion clan, sib, tribe, family. The crisis condition may include a demand that marriage be a condition precedent for the distribution of trust 75

Cf. Koller, Residential and Occupational Propinquity in Winch, McGinnis & Barringer, Selected Studies in Marriage and the Family 476 (1962). 76 Harris, at 362 ff. 77 Peterson, The Young Call It Cohabitation Parade, November 16, 1975 at 22; Weyrauch, Informal Marriage and Common Law Marriage in Sexual Behavior and the Law, R. Slovenko ed., (1965).

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income or other indulgences based on the administration of a decedent’s estate. Political crises have been caused or avoided by commitments about the affection process. f) Outcomes Outcomes of the process of commitment may reflect a. patterns of courtship, b. betrothals and c. the continuance or termination of the relationship. These outcomes may engender claims by the parties who may feel that a point of no return has been reached or that a change in commitments demands some solatium to the aggrieved party. The community response may be a punitive one— compelling specific performance or perhaps less drastically, the allocation of money damages as in breach of promise actions. Community responses may be even more drastic if claims are made that a female party has been seduced. In civil law countries, actions for seduction, to the extent that they survive, are delictual. Expectations about how gifts are exchanged in contemplation of marriage may have a bearing upon whether parties will or will not marry.78 If this process continues, outcomes viewed cross-culturally might be evidenced. The outcomes of the process of commitment reflect the following structural formations: 1. monogamous heterosexual affection units. These also include such formations as common-law and putative marriages, and void-voidable affection units which exhibit similar structural characteristics of such marriages. 2. polyandrous affection units. 3. polygymous affection units. 4. polygamous group affection units (group marriage). 5. extended family affection units. 6. communal non-consanguinous affection units. 7. contractually limited affection units. 8. monogamous homosexual/lesbian affection units. These formations may be lawfully characterized cross-culturally for many diverse policy reasons where diverse values impact upon the affection process, and for which this value serves as a base.79 These outcomes reflect an expectation about appropriate roles in the affection unit. For example, the Christian ceremonial puts the following, somewhat idealized words, in the mouth of the parties during the marriage ceremony: Dearely beloued frendes, we are gathered together here in the syght of God, and in the face of his congregacion, to ioyne together thys man 78

79

Less acknowledged outcomes have been the increasing proportion of female heads of households and the related fact that with increasing numbers of one-person households, trends toward premarital sexual experience—so-called illegitimacy—increasing as well. See Florida Conference, at 379. See also The Family in Search of a Future, H.A. Otto ed., (1970) where possible alternative outcomes more consonant with human rights dimensions are examined.

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and this woman in holy matrimonie, which is an honorable estate, instituted of god in Paradise, in the time of man’s innocency, signifying unto us the misticall union that is betwixte Chryste and hys Churche: whiche holy estate Chryst adourned and beutified with his presence, and fyrst miracle that he wrought, in Cana of Galile, and is commended of Saincte Paul to bee honourable among all men; and therefore is not to bee enterprised, nor taken in hande unaduisedly, lightely, or wantonly, to satisfie mennes carnall lustes and appetites, lyke brute beastes that have no understandynge; but reverently, discretely, advisedly, soberly, and in the feare of God: Duely consideryng the causes for whiche Matrymonye was ordayned. One was the procreation of children, to be broughte up in the feare and nurtoure of the Lorde, and prayse of God. Secondlye it was ordeined for a remedye agaynste synne, and to avoide fornicacion, that suche persons as have not the gyfte of continencie myght marye, and kepe themselves undefiled members of Christes body. Thirdly, for the mutuall societie, helpe, and coumforte, that the one ought to have of the other, both in prorperitie and adversitie; into the whiche holy estate these two persons present come now to be joyned. Therefore if any man can shew any just cause, why they may not lawfully be joined together: let him now speake, or els hereafter for ever holde hys peace. And also speakyng to the persones that shallbe married, he shall saye. I require and charge you (as you will aunswere at the dreadful day of judgment, when the secretes of al hearts shallbe disclosed) that if either of you doe knowe any impediment, why ye may not be lawfully joyned together in Matrimonie, that ye confesse it. For be ye wel assured that so many as be coupled together otherwyse then god’s word doth allowe, are not joyned together by god, neither is there Matrimoyne lawfull. At whiche daye of marriage it any man doe allege and declare any impediment why thei may not be coupled together in Matrimony by god’s law or the lawes of this Realme, and wyl be bounde, and sufficient suerties with him, to the parties, or elles put in a caucion to the full value of such charges as the persons to be married doeth susteine to prove his allegacion: then the Solemizacion must be deferred, unto such tyme as the trueth be tried. If no impedimente bee alleged, then shal the Curate saye unto the man. Wilt thou have this woman to thy wedded wife, to live together after god’s ordinance in the holy estate of matrimonie? Wilte thou love her, comfort here, honour, and kepe her in sickenes and in health? And forsaking al other kepe thee only to her, so long as you both shall lyve? The man shall aunswere, I wyll.

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Then shall the Priest saye to the woman. N Wilt thou have this man to thy wedded husband, to live together after god’s ordynaunce,in the holy estate of matrimony? Wylte thou obey him, and serve him, love, honour, and kepe him in sickenes and in health? And forsakyng al other kepe thee only unto him, so long as you both shall lyve? The woman shall aunswere, I wyll. Then shall the Minister saye, Who geueth this woman to be maryed unto thys man? And the Minister receiuing the woman at her father or frendes handes, shal cause the man to take the woman by the ryght hande, and so either to geue their trouth to other. The man first saying, I N. take thee N. to my wedded wife, to haue and to hold from this day foreward, for better, for worse, for richer, for poorer, in sickenes, and in health, to loue, and to cherish, till death us depart, according to goddes holy ordynaunce: And thereto I plight thee my troth. Then shall they loose theyr handes, and the woman takyng again the man by the ryght hand shall saye. I N. take thee N. to my wedded husbande, to naue and to holde from this day forewarde, for better, for worse, for richer, for poorer, in sickenes, and in health, to loue, cherish, and to obeye, tyl death us depart, according to goddes holy ordynaunce: And thereto I geue thee my troth. Then shall they agayne loose their handes, and the man shal geue unto the woman a ryng, laying the same upon the boke, with the accustomed duty to the priest and clerke. And the priest taking the ring shall delyuer it unto the man, to pul it upon the fourth finger of the woman’s hand. And the man taught by the priest, shal say, With this ring I thee wedde: with my body I thee worship: and with al my worldly goodes I thee endow. In the name of the father, and of the sonne, and of the holy gost. Amen.80 g) Effects The effects of this process may involve the institutionalization of structures that enlarge the opportunity for reaching affective targets in ways that preserve the aggregate interest in preserving friendship and congenial circles. The effects may therefore stabilize the context within which highly emotionalized behaviors may be “controlled” in positive ways. They may also be sufficiently restrictive as to narrow the range of opportunity so as to freeze the status quo. 80

The First and Second Prayer Books of Edward vi (1960).

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Outcomes of the process of commitment also reflect basic micro-social units; the establishment and duration of which have important consequences for the development of “personality” as well as “culture.” 2 Process of Performance a) Participants (1)

Primary Group Parties (Gemeinschaft)

(2)

Secondary Group Parties (Gesellschaft)

a. The micro-affection unit: husband, wife, children (legitimate, illegitimate, adopted, foster children, step-children) b. members of kinship network: grandparents, uncles, aunts, cousins, c. friends. a. Rectitude managers: priests, rabbis, ministers, witch doctors b. Respect managers: psychiatrists, psychologists, adoption agencies, social clubs, honorconferring institutions, e.g., country club memberships. Respect managers include those elites who shape the social structure of the family in society, e.g., caste, class, race; c. Power managers: lawyers, judges, administrators of the agencies of the welfare state. d. Well-being managers: doctors, nurses, family planning officers, hospital administrators, health personnel e. Enlightenment managers: teachers and professors f. Wealth managers: those who control production and distribution of wealth such as employers, businessmen. b) Perspectives

Identifications

Identifications of parties may be affected by the process of performance. New and emerging role expectations may be a major contributing factor. The most common types of identifications in this area reflect the loyalty patterns occasioned by the marriage. This enlarges kinship ties and vitally affects what the “I” now regards as the “we.” A name change may be effectuated by operation of law, reinforcing the changing pattern of identifications for the party whose name is subject to change (this differs from culture to culture).81 Marriage may result in the loss of one nationality and the acquisition of another which affects the larger loyalty patterns of one’s political affiliation. Children are dependent upon parents (biological or social) for the development of a stable-autonomous ego. They are dependent on the stability of the affection unit for their own basic identifications. The conditions affecting all phases of the process of performance may be critical in determining the pattern of identifications of parties with an affection unit. 81

See Q.T. Eldred, Change in Name in Florida Family Law 131, Strickland ed., (1972).

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Demands

The general demands that parties make during the process of performance relate to the maintenance of and potentials for maturation of the interpersonal relationships of the parties. Each party seeks to optimalize the shaping and sharing of all values to achieve personal fulfillment consistent with the fulfillment of the needs of other parties in the affection unit. Parties may make claims for changes to modify, alter or reconstitute the basic expectations of the parties to the affection unit.82 (1) Power

Power demands are a recurrent theme in a marriage. Parties make demands for power with respect to each other and with respect to the state. Power distributions are often disjointed in an affection unit during the performance process. A proposal submitted to the Governor of the state of Florida maintained the following: Americans have been hesitant to think seriously about the effects that public policies have on the social health of families. There is an aversion to creating bureaucracies and expensive programs; and as reflected in the Bill of Rights, there is opposition to any State invasion of individual and family rights. American ideology claims that raising children is the business of parents, not of government. But it is a moot question to argue whether or not the State should concern itself with families. Laws regulate the creation and termination of marriages; there are restraints on exercising testamentary freedom; parents are required to send their children to school; housing programs, urban renewal, departments of transportation, hospitals and clinics; health codes, children and family agencies, programs for the elderly and dependent, tax codes, employment services, regulations on hours and wages: all these also have profound implications for the family.83 The process of performance occasions complex allocations of power between all the relevant participants. As between husband and wife, a monumental aggregate of global society still reinforces a rampant inequality that is often formally accepted as part of the local legal regime, or is a culturally imposed 82

See the kinds of modifications envisioned in Van Deusen, Contract Cohabitation: An Alternative to Marriage (1975). 83 Mitchell, The State of Florida and Its Families: Moral, Legal, and Social Paradoxes in Florida Conference on Marriage and the Family Unit 376–77 (1975).

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­datum whatever the prescriptive norms effective elites have deemed desirable.84 These power complexities attending the process of performance have been further exacerbated by the complex prerogatives asserted by the community to supervise some of the internal value diffusions within an affection unit. The claims of the micro-actors to a zone of autonomy over interactions mainly centered85 within the “civic order” and the claims of individual microparticipants to some degree of civic autonomy from the other micro-actors, and from the community at large. The most advanced currents have reflected a demand that micro-actors create their own matrimonial regime with only the most benign and residual of power allocations to the state to supervise these “marriage contracts.” Similarly, parties will claim the power to prescribe or modify expectations about power diffusions within the affection unit. Claims that men make for the freedom to have more than a single concurrent wife have sometimes been justified on the basis that it enlarges the power base of the man. In Dlunge v. Dlunge,86 the South African Native Appeals Court stated that “[T]he object of marrying a supporting wife is … to ensure continual fruitfulness of the principal house, especially when such principal wife is no longer able to bear children, and to make such house numerically and materially strong…”87 The important point to note about the power-centered demand is that “complete freedom of choice implies that the social groups into which children are born have a corresponding lack of power to determine whom, their children marry. Now in no society known are such groups entirely 84

F. Engels highlighted this in The Origin of the Family, Private Property and the State (1970). More recently, by such writers as W. Reich, Sex-Pol Essays (1934) and others generally identified as the Freudian Left such as N.O. Brown, Life Over Death (1970), Herbert Marcuse, Eros and Civilization (1962), K. Millet, Sexual Politics (1970). More empirically based research includes such studies as Phyllis Hallenbeck, An Analysis of Power Dynamics in Marriage, 28 J. of Marriage and the Family (Vol. 2) 200–03 (1966), Rodman Hyman, Marital Power in France, Greece, Yugoslavia and the United States: A Cross-Cultural Discussion, 29  J. of Marriage and the Family, (Vol.2) 320–24 (1967) and very significantly, W.F. Fenkel, Traditional Family Ideology and Spousal Roles in Decision Making, 21 J. of Marriage an. Family Living (Vol. 4) 334–39 (1959). 85 For a contemporary example of these complexities, see M. Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Cal. L. Rev. 1353–39 (1973); Komarovsky, Blue Collar Marriage 224–32 (1964), Stresses the dynamics of conjugal power in working class circles in the United States. 86 See L.J. Wertzman, Legal Regulation of Marriage: Tradition and Change: A Proposal for Individual Contracts and Contracts in Lieu of Marriage, 62 Cal. L. Rev. 1169–1288 (1974). This study is essentially unicultural and class-dominated. 87 1937 n.a.c.c. & 0 176 at 178.

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uninterested in their children’s choice of mate.”88 Indeed, such groups “cannot be, because by virtue of the marriage they enter into relationship with the kin of their child-in-law.”89 (2) Respect90

Parties in a marriage demand respect. The most pervasive and wide-reaching of the respect-related demands are for equality and for the elimination of discriminations that are sex-based.91 The performance process stabilizes the socio-structural location of the affection unit and provides via the principle of legitimacy a specific context in which respect values are transmitted to successive generations. Some states still discriminate against the claims of illegitimate children. Claims for respect within a marriage may take the form of the expressed need of a spouse to “fulfill” himself (herself) by attempting to achieve a greater consciousness of his or her self-identity, e.g., hopes, expectations, goals, potentials.92 (3) Wealth93

Demands about the shaping and sharing of wealth in an affection unit center upon the basic resource needs of the family as well as the future security of the unit. Claims relating to wealth generating competences during the process of performance are highly significant features of the affection process, especially in traditional and modernizing societies where the household performs important economic functions. In patriarchial societies, it was the senior male who claimed the power to administer the joint or family estate. Often the female partner was bereft of any locus standi in judicio without the legal power to enter into contractual dealings in her own right and in effect to become an entrepreneur. Children engendered a host of claims concerning the diffusion of wealth and ­wealth-related 88 89 90 91 92

93

Id. See Harris, at 39. Id. See Komarovsky at 178 ff. and 202, 230, 186. Nena & George O’Neill, Open Marriage 182–220 (1972); see also Phillips v. Phillips, 1 App Div 2d 393, 150 nys 2d 646, aff’d, 2 ny 2d 242, 138 n.e. 2d 738 (1956). Cf. Barnett v. Barnett, 158 Okla. 270, 13 P. 2d 104 (1932). Consider the following: “A bastard shall not enter into the congregation of the Lord,” Deuteronomy 23.2. St. Augustine considered woman to be the “gate of the devil.” During 1964–67 there were 1,187,000 illegitimate children born in the United States. See Florida Conference on Marriage and the Family 379 (1975); H. Clark, The Law of Domestic Relations 155–76 (1968). See generally Young, Out of Wedlock (1954).

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competences. In civil law countries, the disabilities of minority could sometimes be removed by a claim for a grant of venia aetatis or a minor might engage in business practices and claim that he be liable only to the extent that he is “unjustly enriched.” Claims relating to the distribution of wealth between the parties to an affection unit represent a further and significant demand during the process of performance.94 (4) Rectitude

During a marriage, parties may make claims about the shaping and sharing of rectitude. The claims may reflect demands that a so-called traditional marriage become an “open marriage.”95 The claim may reflect a displacement of the expectations of “fidelity” symbolized in the religious mysticism of “one flesh,” by secular symbols based on the perceived need for an interpersonal “psychic space” for emotional health and growth (symbolized by the term “synergy”) and a heightened perception of the moral values of the self (superego). The problems of religious affiliations have other impacts upon the claims relating to the shaping and sharing of affection. For example, a Catholic husband may be opposed to the use of contraception, whereas his wife may deem it essential to marital bliss. The parties may demand a certain degree of control over the religious identifications which will be transmitted to children. To the extent that deeply felt beliefs about “right” and “wrong” are incorporated in the patterns of rectitude parties bring into an affection unit, the claims about morality are a continuing source of accommodation and tension. (5) Enlightenment

The demands about the shaping and sharing of enlightenment are important to the intellectual development of the parties and the appropriate socialization of their offspring.96 While the education of children is today largely ­preempted by institutions of a more specialized character, e.g., schools, 94 95

96

See generally May, Man’s Search for Himself (1953). On the effects of poverty on the affection unit; the economic interdependence of the parties in an affection unit; the abolition of wives into the labor market etc. See Komarovsky, at 61,155, 274, 288. See Fox, Another Look at the Comparative Resources Model: Assessing the Balance of Power in Turkish Marriages, 35 J. of Marriage and the Family 718–30 (1973); Donati, Social Structures and Functions of Today’s Family, 7 Sociologia, Vol.2, 41–75 (1973); Bebbington, The Functions of Stress in the Establishment of the Dual-Career Family, 35 J. of Marriage and the Family 530–37 (1973); Ryman, A Comment on Family Property Rights and the Proposed 27th Amendment, 505–37 (1973). An interesting radical perspective on the productivity of a woman’s labor in the role of homemaker is provided by Vogel, The Earthly Family, Radical America 9–50 (1973). See Clark, The Law of Domestic Relations, 181–260 (1968).

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­universities, ­parties still make demands about important socialization functions that essentially repose in affection units themselves. It is here that personalities are developed that are disposed to loving, congenial perspectives or those dedicated to the ideologies of, e.g., narcissism or generally harbor destructive propensities. (6) Skills

The claims parties make about the shaping and sharing of skill include a wide range of needs: home making, love making, child rearing, occupational, therapeutic, counseling, management and other occupational skills. These skills are crucial to the maintenance, development and indeed transmissal of “whole” personality systems and the aggregate consequences of such behaviors cannot be underestimated because these outcomes affect the character of the entire public order. It is sometimes maintained that the removal of some occupational skills from the household and their location in large mass industrial organizations represent an alienation of the person from skills crucial to self-esteem. The demand for skills may therefore have important familial and class-structure components. (7) Well-being

Demands for the shaping and sharing of well-being include the concerns ­parties have for the care and safety of each other and their dependents. These demands may include sexual access and the exchange of feel and touch ­especially with children. Well-being demands are made about the physiological health of the parties and an enormous panorama of claims has emerged from the new forms of property that are a creature of the modern welfare state.97 (8) Affection

Parties may demand that their sexual needs are accommodated. They may demand that positively emotionalized behavior be intensively displaced upon each other and their dependents. They may demand that the optimal shaping and sharing of every value represents the quintessential realization of love and

97

This ­covers such topics as support obligation, the legal status of women, the legal status of minors, the allocation of risk in tort actions within the family. See O’Neill, Open Marriage: Implications for Human Service Systems, 22 Family Coordinator 449–56 (1973) and Open Marriage: A New Lite Style for Couples (1973). The Neills speak of “synergy” (couple power) and claim that open marriage guidelines may be set out in the following model: Synergic interaction—Enchantment—Elation—Transcendence. See Open Marriage, at 261.

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affection. This demand may include such criteria as set out in the O’Neills’ concept of an ideally open marriage: …dynamic framework; open to the world; open to each other; spontaneous; additive; expanding; infinite potential; honesty and truth; living in the now; privacy for self growth; flexibility in roles; adaptable to change; individual autonomy; personal identity; incorporates others—grows through companionship with others; equality of statute; open trust; open love; an open expanding energy system; freedom.98 Expectations

Community expectations about the distribution of values to parties in an affection unit, while far from uniform, are nonetheless more dynamic than has been the case in the past.99 The key questions relate to how all values are distributed100 between parents,101 dependents and the community.102

98

See the study initiated by the Governor of the State of Florida, Office of Early Childhood Development, Strengthening the Family Through Programs of More Effective Parenting in Florida Conference on Marriage and the Family 334–38 (1975). This study focuses on the “questionable premise that the family knows best and is equipped by instinct to foster healthy development in preschool years” of the child’s life. Id. at 334; see also Komarovsky, especially 21, 144, 170, 180, 229, 261. 99 See generally Komarovsky,, at 268 and 311. See also Honig, The Impact of Welfare Payment Levels on Family Stability; Cutright, Illegitimacy and Income Supplements in Florida Conference on Marriage and the Family (1975). Cf. Child Support Collection Among ­Welfare Families 93d Cong., 2d Sess., Cong. Rec. House, December 4, 1974  H 11291–92 (Mrs.  Griffiths). See also Krause, Child Welfare, Parental Responsibility and the State in Studies in Public Welfare No. 1211, Joint Economic Committee 93rd Cong., 1st Sess. (1973). 100 O’Neil’s, at 264. 101 See generally, Goode, World Revolution and Family Patterns (1963). Three excerpts from Goode, ed. Radings on the Family and Society are useful illustrations of the above themes: Marx, The Approximate Effects of Machinery on the Workman 219–24; Levy, Contrasting Factors in the Modernization of China and Japan 224–30; Koyania, The Changing Social Position of the Japanese Wife 237–42. The following studies included in Sussman, Sourcebook in Marriage and the Family (1968) are also germane: Komarovsky, Functional Analyses of Sex Roles, 258; Rainwater, Social Class and Conjugal Role-Relationships; Strodtbeck, Husband-Wife Interaction Over Revealed Differences, 289; Rosen, Family Structure and Value Transmission 309; Infant Training and The Personality of the Child, 345; Davis, The Sociology of Parent-Youth Conflict 378. 102 See Kleinfeld, The Balance of Power Among Infants, Their Parents and the State in Children and Youth: Social Problems and Social Policy (1974).

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Two simple examples may illustrate the context of the changing expectations in the United States. In Doe v. Smith, the Federal District Court held that for the government to condition social security benefits on the premise that the wife had to set in motion termination proceedings was an interference by the state in a constitutionally protected zone of marital privacy.103 In Moreno v. Department of Agriculture,104 a Federal District Court held that food stamps could not be denied a group of commune members as a household even though the members were not kin by blood or marriage. Community expectations about the process of performance will cover an extraordinarily large range of interactions intersecting with every other value process. For example, there may be a definitive pattern of expectations about the distribution of power-decision making competences within the affection unit; a definitive pattern of expectations about the legitimacy of children; about the guardianship and adoption of children; about duties of support between parties; about support duties of kinship members outside of the nuclear unit; about the legal status of married women; about the legal status of minors; about the allocation of risk in tort actions; about the context of sexual approaches (prohibition, rights of consortium); about separation or modifying agreements; alimony and the custody of children. The expectations may purport to cover the context of procreation, i.e., its enhancement or avoidance.105 Under present conditions community expectations about all aspects of the performance process are in a state of flux. This changing context and its impact on public policy were well summarized in a proposal on family relations presented to the Governor of Florida. In that proposal the following was stated: …there is a need to review the multiplicity of trends and perspectives regarding public policy on families. Central to this review is an appreciation of the legal and diverse community orientations toward individuals, marriage, parent–child relations and the role of both the State and the private sector in influencing the social health of families and their members. Perhaps the most serious crisis lies in the confusion of values and the lack of moral consensus. Consensus, however, is often assumed by those who shape 103 Doe v. Smith, 330 F. Supp. 159 (E.D. Wisc. 1971). 104 Moreno v. Department of Agriculture, 345 F. Supp. 310. 105 Buck v. Bell 294 u.s. 200, 47 S. Ct. 584, 71 L.Ed. 1000; Re Cavitt, 182 Neb. 712, 157 n.w. 2d 171 (1968); Skinner v. State of Oklahoma, ex.rel. Williams, 316 u.s. 535, 62 S. Ct. 1110, 86 L Ed 1655.

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public policy. Individuals themselves tend to be inconsistent in the ethical positions they hold. As values change and as there is a gap between traditional values and trends in family living, there is a need to reassess positions. One purpose of the present proposal is to identify moral bases underlying diverse views of the family, how moral consensus within and between groups has changed, the possible need for a more visible social ethic that is consistent with constitutionally guaranteed freedoms, and how public policy on families can be more clearly related to social ethics.106 c) Base Values (Bases of Power) The key concepts that affect the power base of the family are as follows. 1. Authority: a. granting of competence to the family to supervise the accretion and diffusion of values affecting the internal process of the micro-unit; b. granting immunities from certain forms of community intervention relating to the social process of the family; c. allocation of facilities to the family to enhance the authority position of the micro-social unit in the context of the larger society. 2. Effective power: This is contingent on the capacity of the family to acquire effective control over all value process resources sufficient for that unit to maintain and extend its fundamental security. Any value can serve as a base of power to facilitate the realization of any other desired value. Affection often serves as a base value for the realization of other values like power, wealth, rectitude, respect, well-being, enlightenment and skill. Any of these values may serve as a base when affection is sought primarily as a scope value. In the international context, for example, the affection value often serves as a base, i.e., by its lawful characterization in another body politic, for gaining access to a wide variety of indulgences: preferred immigration and naturalization statuses; the administration of decedents estates; power to adopt children; tax preferences; immunity prosecution; social security and a host of other indulgences. At each discernible phase of the affection process, various value sectors will have distinctive impacts upon the accretion and distribution of affection. d) Situations (1) Spatial

Close physical proximity is a major characteristic of micro-social units that admit of face-to-face interactions. Voluntary and involuntary intrusions may be occasioned by a wide variety of conditions, and have, in the past, occasioned bizarre responses: the chastity belt and variations on a similar theme more than 106 Florida Conference on Marriage and the Family, Oct. 2–3, 1975, at 380.

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attest to the significance of the spatial dimension, and a deeply rooted belief in the folk tale that “when the cat’s away, the mice will play.” More recently questions have arisen concerning the number of non-related parties that might be deemed to have access to indulgences that flow from lawful characterization, i.e. the problems of communes and the zoning power of local communities to proscribe such spatially related living patterns. Such ideas as the “privacy” of the home attest to the allocations of primary competences over those aspects of content incorporating the affection-spatial nexus. Important questions arise as to who has been allocated the power to determine the geographic location of the household. Plural marriage systems often prescribe a “hut,” or separate living area for each wife in societies where polygyny is practiced. The domicile of parties, the problems of mobility in and through group space, the problems of spatial relocation (immigration), the problems of separation from so-called bed and board are all distinct elements of the spatial dimension. Finally, the spatial relationship with dependents, friends and colleagues and, in the context of the needs of those who need loving, tender care, the importance of feel and touch in space are gainsaid. (2) Temporal

The process of performance has a temporal dimension because affection units are located not only spatially but also temporally. It is the time factor; the duration of events that enables us to accommodate the process of change. Thus, the set of performance perspectives at the time of commitment may change quite drastically over time in terms of expectations about how values should be exchanged within the affection unit; and how in fact they are diffused. The time artifact is also crucial to the vesting of equities in the parties.107 Temporal limits on periods of separation also have an impact upon the diffusion of marital equities. (3) Crisis

Crisis during the process of performance may occasion severe deprivations for relevant parties. The lawful characterization may ameliorate the worst effects of such a contingency. For example, an affection unit may serve as a base 107 For example, a common law or non-ceremonial marriage, may acquire the characteristic of a lawful affection unit by the durational fact of cohabitation. See generally Clark, The Law of Domestic Relations_ 45–58 (1968); P.B. Bromley, Family Law, 27–29, 4th ed., (1971). See also Estate of Dallman, 228 n.w. 2d 187 (1975); Humphrey v. Humphrey, 293 Ala. 118; 300 So.2d 376 (cases which require high standards of proof of what constitutes a common law marriage).

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for receiving an immunity from having to testify as a witness against a marriage partner. It may be lawfully characterized for gaining access to workmen’s ­compensation benefits if a partner has been killed or injured. It may be relevant for interspousal delictual immunity. Family crises may be infinite and varied and include such events as 1. illness or death in the family 2. financial problems 3. criminal or delictual deprivations 4. abandonment 5. cruelty 6. adultery or lack of fidelity 7. non-support 8. impotence 9. alcoholism and drug addiction. e) Strategies

(1) Persuasive

These persuasive strategies involve the character of the affection unit as such: how values are shaped and shared within the unit; how parties manipulate these value processes to enhance the affection value or how affection as a base may serve to facilitate the optimal shaping and sharing of all other values. These interactions may be customarily prescribed according to “husband” and “wife” expectations about the diffusion of authority and control. They may be determined according to an ante-nuptial or post-nuptial agreement, and may extend the reach of the civic order domain in which decisions are made more by persuasion. Marital tensions may be ameliorated by agreements to arbitrate differences, by recourse to counselling services by condonation. When parties are bent on significant adjustments or changes in their relationship, the strategies of change may include the following: 1. support ­agreement 2. property settlement 3. separation agreement 4. consensual arrangement 5. recriminatory strategies. (2) Coercive

These relate to the degree to which the community allocates residual power over the diffusion of values within the affection unit and enforces them by the power of state process. These may involve rules about support, about conjugal rights. They may involve so-called poor laws: supervision over contractual claims, conciliation services, etc. The coercive strategies of change may envision blackmail, legal process or the threat of criminal sanctions. f) Outcomes The outcomes of this process may be both positive and negative. The positive outcomes of the performance phase represent outcomes reflective of congeniality and where appropriate, libidinal satisfaction. Further outcomes involve the procreation or adoption of children and the problems occasioned by scientific advances that enable human beings to control this

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­ rocess and modify it to their needs. These may include such procedures as p the ­transference of a ­fertilized ovum for the pregnancy period, the recourse to artificial insemination, the recourse to adoption procedures and abortions, sterilization. The crucial outcomes in this process may be seen to account for much of what  we deem to be normal or aberrant personality development. Outcomes related to the claims for change or modification of the position of the parties may envision 1. separation from bed and board, 2. child support decrees, 3. custody decrees, 4. alimony decrees, 5. property settlement and 6. visitation rights. g) Effects The effects of the process of performance may be positive or negative. The effects of this process may be to institutionalize a high degree of congeniality and personal happiness. The effects of this aspect of the process may also institutionalize the most intensive patterns of “hate” and destructiveness. Society is concerned with devising situations and strategies in which the former is facilitated and the latter discouraged. The effects of change may result in a greater capacity for all the parties to achieve personal happiness in the circumstances without a total destruction of the affection unit. 3 Process of Termination and Change a) Participants The same range of social actors in the process of performance is involved in the process of termination and change: the private parties and the official and semi-official participants. b) Perspectives

Identifications

The process of termination and change involves complex modifications and changes in the primary kinship identifications of the parties and their dependents. Demands

The fundamental demand of parties wishing to resign permanently from an affection unit is the freedom of choice to terminate continued commitment to those patterns of affection and loyalty behaviors. Parties sometimes demand the freedom of choice to realign or redirect their strategies to other parties for the purpose of establishing other patterns of commitment and performance. Parties demand that they be accorded equitable treatment with respect to

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the diffusion of property and support equities and the custody and visitation rights of the parties relating to children. These demands may be more specifically stated as follows: (1) Power

Parties may demand the competence to prescribe the conditions precedent of termination, as well as conditions subsequent. (2) Wealth

Parties may demand a just and equitable settlement and division of property upon termination. (3) Well-being

Well-being may be demanded as a scope value when, without termination, the marital unit threatens the physical and mental health of the parties. (4) Enlightenment

Enlightenment may be demanded when the marital institution impedes the intellectual development and maturity of the parties. (5) Skill

The acquisition of various occupational skills may be demanded and may require in context a termination of the marital unit. (6) Respect

Respect may be demanded because the marriage frequently undermines the ability of each party to develop a vigorous autonomous ego. (7) Rectitude

When the continuance of the marital unit is inconsistent with a party’s concept of right and wrong, that party may demand termination. Termination may be important to the realization of the rectitude value of the parties. (8) Affection

The demand for freedom of choice to terminate an affection unit may be the perception by the parties of a net-loss of affection. Termination may enable the parties to optimalize their degree of free choice in the mate-market.108

108 See generally W. Goode, The Theoretical Importance of Love, (1960).

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Expectations

Expectations about termination and change in the affection process are expectations that a great many communities have only grudgingly entertained. In the Western culture complex, the marital bond was conceived as a divine vinculum ordained by God that no “man” could put asunder. In the Islamic world, termination was, in theory, easy for the male but not a practical alternative when the prospect of a return of “dowery” was contemplated. Even today while expectations about termination and change seem to be somewhat more palatable, there still exists a strong sense of social disapproval because of the disequilibrium occasioned in the stability of family relations. For this reason, bodies politic have allocated to themselves near exclusive competences to control the processes of termination and change, and have only reluctantly accorded deference to proceedings obtained in foreign jurisdictions. However, claims of individuals for the power to modify, terminate or substantially change the character of an affection unit are increasingly recognized, although the complex human traumas engendered by change are still a fact of major community concern.109 Such concern is reflected in the nature of institutions110 and decision makers to which parties have recourse in order to effectuate termination outcomes. Globally, community expectations are in a significant state of flux. c)

Base Values

(1) Power

Parties may invoke the termination “myth” (state laws) to secure termination of the affection unit, and the diffusion of values and incidents that are contingent on termination. In the international arena, the claims for the competence to prescribe the conditions of termination are almost entirely subsumed under the concepts of judicial jurisdiction and group affiliation. States jealously guard these competences to apply and prescribe policy for termination. A person seeking an international divorce must tread wearily if he is to avoid the disaster that befell the defendant in the case of Williams v. North Carolina.111 There the defendant obtained an out-of-state divorce, remarried, and was subsequently convicted under North Carolina bigamy laws. 109 For example, the problems of child custody still provide decision makers with a significant degree of disquiet. See generally, J. Goldstein, A Freud; A.J. Solnit, Beyond the Best Interests of the Child (1973). Cf. Note, The Importance of Ferreira v. Ferreira, 62 Cal. L. Rev. 365–405 (1974). See generally Krause, Family Law Cases and Materials 729–81 (1976); Clark, at 327–413; Rheinstein, Marriage, Stability, Divorce, and the Law (1972). 110 Clark, at 327–413. 111 325 u.s. 226 (1945). On divorce generally, see the cases and materials collected in Crampton & Currie, Conflict of Laws: Cases, Comments, Materials 752–840 (1975).

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(2) Wealth

Access to the termination process may be significantly conditioned by the wealth value. For those unable to afford legal services, “holy deadlock” may be the only realistic expectation of “termination” and “change.” For the wealthy, on the other hand, capacity to change may be quite mercurial, because termination statuses may be “purchased” by those with enough wherewithal. But, in general, communities have closely supervised the process of termination and change in order to secure a fair and equitable division of property and provide adequate protection for children. (3) Respect

Because these processes provide a distinct avenue of social disequilibrium regarding the respect categories associated with an enlarged kinship network, and because of the difficulties encountered by persons who have access to alternative alliances with perhaps different respect priorities, communities have been reluctant in the past to countenance termination and change demands. Moreover, in Western society (this may be relevant for some non-Western societies too), it is believed that core respect patterns tend to be centered on couples. As a result, “the man or woman, but especially the (divorced) woman is in an awkward position.”112 Parents Without Partners, Inc., says in the preamble to its constitution that “the single parent in our society is isolated in some degree”;113 and that “[D]ivorced women still suffer from a truncated social life which is based on married couples…”114 Notwithstanding the disadvantages, respect-wise, of the single parent household the community interest in maintaining stable social class distinction is rapidly being displaced by the respect demand people make for a stable self-system; particularly when termination processes are seen by the parties to be the surest way of achieving such stability. Thus “incompability” and “cruelty” as grounds for termination show respect as a base value for optimizing the potentials of the parties to seek and receive affection in other friendship circles. (4) Rectitude

Rectitude may serve as a base to secure or impede the termination process. The prescriptions available to a male person who professes the Islamic faith may be informal and expeditious;115 whereas, to his Catholic wife, they may 112 113 114 115

J. Barnard, No News but New Ideas in Divorce and After, 9, P. Bohannan ed., (1971). Id. Id., at 10. E.g., the Talak divorce.

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proscribe divorce. The symbols of rectitude to which the parties subscribe may be tolerant−of change envisioned in the termination process, or these symbols might reflect a severe resistance to termination of an affection unit. Thus, a party may change rectitude identifications to facilitate or impede the termination process.116 (5) Enlightenment

The enlightenment value may be highly significant in the process of termination and change. Education may be the key to an understanding that a particular unit is destructive of affection and all other values. Education may provide the key to a viable set of alternatives in structuring change patterns with a minimum of social and psychic disequilibrium. (6) Well-being

Well-being may be basis for termination, or prevent it. For example, the age and physical health of a party may be factors that discourage termination (empathy for the ailing party) or they may speed the process of termination (inability of one party to provide care and attention to the other party).117 (7) Skill

Lack of occupational and household skills may serve as base for termination. A party may not have acquired the skills necessary to support a family; a party may not have the skills necessary to maintain a household. (8) Affection

The parties may perceive a net-loss of affection in the affection unit and desire to terminate it. Paradoxically, affection as a power base for termination of an affection unit has been accorded the least deference by rectitude and power elites cross-culturally. For example, the mysticism associated in the western tradition about one flesh left little room for error, if any, at all.

116 “Fidelity,” a concept with significant moral implications about right and wrong, provides a technical ground for termination when parties exhibit a lack of it, e.g., adultery. In New York until 1967, adultery was the only ground for granting a divorce absolute. See Clark, at 327. 117 Living separate and apart, desertion, etc., have been recognized as grounds for termination. See Note, Divorce on Ground of Separation, 18 Wash. & Lee L. Rev. 157, 164 (1961). On desertion, see Clark, at 331. Cruelty may also be subsumed under the well-being value. See Clark, at 341.

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d) Strategies

(1) Persuasive

The persuasive strategies available to parties who desire to terminate an affection unit include 1. the withdrawal of affection 2. the “carrot and stick” negotiations and bargaining relating to support and property settlements; 3. the potentials of recommendation; 4. the termination by consent. (2) Coercive

Coercive strategies to secure termination may include the threat of a law suit or the latent or patent threats of cruelty and violence to secure termination. The prospect of blackmail is yet another coercive strategy to secure termination. e) Situations (1) Spatial

Notions of group affiliation and territorial impact are major factors determining the allocation of powers over dissolution and the incidents that flow therefrom. Because territory is a base of power in private international law, the problems of allocating values attending dissolution have been all the more complex when these competences are concurrently or sequentially shared. Symbols that purport to account for the spatial dimensions include such concepts as lex situs and lex domicilii. When the parties spatially reside in different homes or generally live separate and apart, the spatial situation becomes an important one for the termination process. (2) Temporal

Time may be manipulated by diverse actors in various ways to effectuate desired patterns of change, including the dissolution of an affection unit. Here state elites may prescribe a period of time before termination may be formalized. They may prescribe a period after termination in which new alignments are proscribed. (3) Crisis

The facts animating termination and change that involve elements of crisis include the following: infidelity, incompatibility, cruelty, financial crisis, alcoholism, drug addiction, impotence, and changes in sex identity (sex change operations). f) Outcomes The outcomes of this process may include the following: divorce a mensa et thoro; divorce absolute, annulment, custody decrees and child support;

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­alimony decrees; property settlements, visitation rights; single parent households; rights to effectuate new personal alignments, leading to what social scientists call extant plural marriage outcomes: extant structural polygyny and polyandry. g) Effects The effects of termination and change involve severe traumas for parties accustomed to hyperintensive and emotionalized interactions on a face-toface basis. These effects impose structural constraints on elementary kinship ­systems by imposing a demand for new identification priorities without quite displacing the prior pattern. These often have drastic impacts upon the personality development of children involved in these issues. 4 Process of Claim As in all other legal contexts, there are certain recurring types of controversy or claims that relate to each phase of the affection process. Since the affection process is multidimensional and further complicated by formal and informal ties among participants, the most convenient form for setting out claims is in terms of the phases of the affection process. By necessity there will be some repetition because certain claims cut across the entire affection process. The claims outlined, infra, relate to either or both primary and secondary competences to prescribe policy. The central value of mapping the process of claim is that it permits one to specifically map the problems that emerge from the different phases of the social process of affection. The map of problems provides one with specificity about the nature and contextual location of the problem. In fact it provides one with a critical tool for the diagnosis of the problems and, in particular, facilitates the clarification of its human rights dimension or implications. In the next section, the claims or problems that have emerged, are emerging or may in the future emerge from the different phases of the affection process are mapped. a Claims Relating to the Process of Commitment Claims relating to Participation, i.e., to give and receive affection • Claims relating to freedom of association and access to friendship circles • Claims relating to sexual identifications, e.g., gender identifications • Claims relating to group characteristics race, caste, class or status, e.g., prisoners • Claims relating to age

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• Claims relating to mental competence • Claims relating to physiological well-being, e.g. venereal disease, tuberculosis, impotence Claims relating to Perspectives • Claims relating to identifications • Claims relating to personal autonomy (a viable self-system) • Claims relating to proximate relations (kinship identifications and attendant taboos) • Claims relating to gender identifications (male, female, transsexual, homosexual, lesbian) • Claims relating to group affiliation, e.g., domicile, citizenship Claims relating to Demands • Claims for the freedom of associational choice in friendship circles • Claims for the freedom to receive and give (or reject) a demand to participate in all phases of the process of commitment (of the affection process) Claims relating to Base Values • Claims relating to power • Claims that the individual be allocated the formal and effective power to participate in the commitment process • Claims that the civic order competences of individuals be honored across state lines • Claims relating to citizenship or nationality • Claims relating to wealth • Claims for access to basic resources necessary to facilitate commitment process • Claims for abolition (or establishment) of class distinctions which restrict commitment process • Claims relating to rectitude • Claims that systems of rectitude be honored which promote the giving and receiving of affection in the process of commitment • Claims that systems of rectitude which impede the commitment process not be honored in the process of decision • Claims relating to respect

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• Claims relating to the core personality • Claims relating to race, caste, class or group identifications in the commitment process • Claims relating to enlightenment • Claims relating to skill • Claims relating to well-being • Claims relating to affection • Claims relating to the honoring process of commitment to an affection unit for the purposes of, inter alia: (a) administering a decedent’s estate (b) conferring an immigration and naturalization indulgence (c) legitimizing children (d) immunity from prosecution (e) interspousal immunity purposes (f) conferring full civic status (majority) (g) working person’s compensations (h) Social Security and public welfare benefits Claims relating to Strategies • Claims for freedom in cultivation friendship, love and affection in the preestablishment phase: • Claims relating to “fornication” or sexual access • Claims relating to sex education • Claims relating to birth control (contraception, sterilization, abortion) • Claims relating to explicit promises to marry • Claims relating to implicit promises to marry • Claims relating to agreements in restraint of commitment process • Claims relating to antenuptial agreements • Claims relating to gifts exchanged in comtemplation of marriage • Establishment claims • Claims relating to free and voluntary consent to marry • Claims where voluntary consent is lacking: (a) party drugged or drunk (b) party physically coerced (c) party blackmailed (d) party defrauded (e) party is mistaken as to identity of target of affective sentiments (f) party was subject of a joke • Claims to be free from discriminatory strategies

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Claims Relating to Situations – Institutional claims – Claims to initiate and constitute all institutional forms specialized to friendship and affection which are intimate and congenial – Claims relating to so-called common law or informal marriages (a) that there was reciprocal agreement and intent to constitute an affection unit (b) that the parties interacted with an expectation of being “husband” and “wife” (c) that the parties behavior as communicated to the society-at-large was that they were “husband” and “wife” – Claims that a common law marriage be honored across state lines for ­various purposes – Claims relating to unconsumated marriages – Claims relating to plural marriage Spatial claims – Claims relating to proxy marriages – Claims relating to telephone and telecommunication for the process of solemnization of marital commitments – Claims relating to written correspondence – Claims relating to domicile at time of solemnization – Claims relating to matrimonial home Temporal claims – Claims relating to the vesting of expectations because of lapse of time (prescription) – Crisis claims • Claims that all crisis conditions should diminish the aggregrate flow of affective relationships in precise proportion to the crisis condition • Claims Relating to pre-establishment outcomes • Claims relating to paternity • Claims relating to support • Claims relating to welfare • Claims relating to custody • Claims relating to the equality of treatment of the child (extinction of the idea of illegitimacy)

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• Claims relating to outcomes of process of commitment • Claims relating to ritual (a) publication of banns (b) witnesses (c) presence of official (d) rectitude managers (e) marriage vows • Claims relating to void affection units • Claims relating to voidable affection units b Cliams Relating to the Process of Performance – Claims relating to Participation – Claims relating to exclusion (fidelity and exclusive loyalty) – Claims relating to inclusion (wider distribution of participation in microaffection unit) – Claims relating to adoption – Claims relating to inclusion (who may be included in the adoption process) – Claims relating to exclusion (who may be excluded from the adoption process) – Claims relating to the extinction of “illegitimacy” – Claims relating to a wider definition of legitimacy – Claims relating to artificial insemination – Claims relating to perspectives – Claims relating to identifications – Claims relating to names – Claims relating to civic status (citizenship, nationality, domicile, natu­ralization) – Claims relating to demands – Claims relating to power – Claims that parties be allocated the power to determine and modify the matrimonial regime – Claims that the individual parties be allocated power equitably within the affection unit: – Claim to power of males – Claim to power of females – Claims to power of dependents – Claims relating to wealth – Claims relating to the allocation of responsibility of debts – Claims relating to allocation of responsibility for deprivations (torts, parent–child)

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– Claims relating to partnership principles (putting husband or wife through graduate or professional school) – Claims relating to freedom of contract – Claims relating to respect – Claims that all affection units (single family, nuclear, pluralistic or communalistic) be free from discriminations incompatible with human dignity – Claims that all parties in the affection unit be accorded equality of status without regard to gender identifications – Claims that no human being be regarded as illegitimate – Claims relating to rectitude – Claims relating to fidelity – Claims relating to morality of open marriage – Claims relating to fetus and abortion – Claims relating to birth control – Claims relating to religious freedom of dependents – Claims relating to religious freedom of participants – Claims relating to enlightenment – Claims relating to education of parties – Claims relating to education of children – Claims relating to scholarships – Claims relating to public assistance – Claims relating to tax benefits for enlightenment – Claims relating to skill – Claims relating to access to occupational skills – Claims relating to equalizing social worth of household skills and marketplace skills – Claims relating to well-being – Claims relating to health care – Claims relating to social security – Claims relating to workmen’s compensation – Claims for “normal” sexual access – Claims relating to neglect of dependents – Claims relating to affection – Claims that affection be optimally shaped and shared by all parties in affection unit – Claims relating of base values – Authoritative – Claims that the world process of decision is available to defend and enhance the freedom of choice of the parties in an affection unit to reciprocally give and receive affection

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– Claims for protection – Claims for protection from excluded spouse – Claims for protection from “child-snatchers” child custody context – Controlling – Claims that the fullest participation in the shaping and sharing of each value process be available as a base of power for the maximization of the affective goals of all parties – Claims that persons or groups especially deprived be given special affirmative assistance to ensure stability and security of affection unit – Claims for commitment of mentally ill – Claims for control of incestuous father – Claims for commitment of delinquent minors – Claims relating to situations – Claim relating to spatial matters – Claims relating to immigration status – Claims relating to geographic choice of household – Claims relating to spatial inviolability of household – Claims for consortium – Claims relating to matrimonial home – Claims relating to zoning practices – Claims relating to temporal matters – Claims relating to vested (or divested) equities because of lapse of time (separation, etc.) – Claims relating to majority status – Claims relating to minority status – Claims relating to crisis matters – Claims that the withdrawal of affection be proportional to the nature of the crisis pervading parties to affection unit – Claims that impact of crisis minimally affect the civic order freedoms of the parties – Specific crisis claims – Claims that party has been abandoned or deserted – Claims that party has been unfaithful – Claims that one party is perverse and sadistic – Claims that party responsible for support and well-being is derelict – Claims relating to child abuse and neglect – Claims relating to religious and moral beliefs of parties and dependents – Claims relating to strategies – Claims relating to post-nuptial agreements covering the identification and distribution of all values

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– Claims relating to power, e.g., arbitration agreement – Claims relating to wealth production and distribution – Claims for respect and preservation of human dignity – Claims relating to rectitude, e.g., agreement as to religion of parties or dependents – Claims relating to well-being (agreements as to support, inheritance, etc.) – Claims for affection and allocation of time and resources, e.g., vacations – Agreements to separate – Coercive strategies – Claims relating to post-nuptial demands by coercive strategies – Claims relating to the use of violence – Claims relating to the use of base values to impose the will of one party upon the other (a) withdrawal of support (b) withdrawal of respect (c) withdrawal of rectitude standards etc. (d) threat of lawsuit (e) threat of scandal and blackmail (f) withdrawal of affection – Claims relating to outcomes – Claims relating to enhanced civic order competences in the marital unit – Claims for change (a) separation (b) child support (c) alimony (d) property settlement (e) claims of children (f) claims of elderly dependents – Claims relating to size of family (a) claims relating to reproduction (b) claims relating to adoption c – – – – – – –

Claims Relating to Termination Claims relating to participants Claims that party has become alcoholic/drug dependent Claims that party has become insane Claims that parties are incompatible Claims relating to dependents, ascendants, collaterals Claims relating to perspectives Claims relating to identifications

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– Claims relating to identification of dependents – Claims relating to identifications of parties (name change, gender, identification change, loyalty changes etc.) – Claims relating to demands – Claims relating to power – Claims for the legal power to prescribe the conditions formal and substantive of termination (a) Claims for the reciprocal freedom of choice to permanently terminate an affection unit (b) Claims for the unilateral freedom to terminate an affection unit – Claims relating to wealth – Claims for equitable property settlement and support – Claims relating to well-being – Claim that termination is essential to mental & physical health of parties – Claims relating to enlightenment – Claim that termination is the essential base for acquisition of enlightenment of parties – Claims relating to respect – Claims that party is unable to develop self-identification in family unit – Claims relating to rectitude – Claims that parties’ rectitude values are incompatible – Claims relating to affection – Claims that affection unit institutionalizes hate in the parties – Claims that the parties do not love each other anymore Claims realting to Base Values – Claims that states have the authority to prescribe and apply policy relevant to the process of termination – Claims that states having control over the affection unit defer to the prescribing authority of another state when it comports with inclusive policies community to do so – Specific bases for invocations of authoritative and controlling decisions: – Claims relating to adultery – Claims relating to desertion – Claims relating to insanity – Claims relating to perpetual imprisonment (term) – Claims relating to indeterminate detention as a habitual criminal – Claims relating to conjugal rights for prisoners – Claims relating to cruelty and perversion

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– Claims relating to psychic cruelty – Claims relating to alcoholism, drunkenness and usage of drugs Claims relating to Strategies – – – – – – –

Claims relating to procedural formalities Claims relating to collusion Claims relating to condonation Claims relating to adequate support Claims relating to dependent well-being Claims relating to affection Claims relating to property agreements

Claims relating to Situations – Spatial claims • Claims to separate bed and board • Claims relating to change in territorial affiliation and political loyalties – Temporal claims • Claims relating to temporal restrictions on termination • Claims relating to sanctions for violation of temporal restrictions • Claims relating to Crisis • Claim relating to: (a) adultery (b) cruelty (c) lack of support (d) neglect (e) rectitude Claims relating to Outcomes – – – – – – –

Claims relating to annulment Claims relating to separation Claims relating to divorce absolute Claims relating to alimony Claims relating to disposition of property Claims relating to debts Claims relating to guardianship and custody (a) inclusive supervision (b) exclusive supervision

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Effects – Claims to reconstitute affection unit – Claims relating to process of commitment ii

Relevance of the Human Rights Focus on Goals and Values

From a human rights perspective, the developments of the law of marriage in the context of European legal experience have represented a complex and sometimes opaque challenge implicating fundamental values of human rights salience. First, the idea of the lex loci celebrationis reflects a deference given to citizens, nationals or domiciliaries of one state who exercise the freedom of association in migrating to another state where they celebrate the ceremony of a marriage relation based on the freedom of choice that they exercise. The law of the place of the celebration of the marriage which permits outsiders to exercise the free choice of marriage is in effect a law that promotes the freedom of choice in the establishment of the most intimate of relationships. Thus, the specific human right of free choice in the exercise of the freedom to marry represents an important but by no means absolute human right. Marriage is a status that is an expectation and therefore fact generating. Marriage not only creates expectations between the parties with regard to the shaping and sharing of affect and intimacies, but also implicates issues of emotional and economic security, status, and the possible development of broader family relationships including children which in turn implicates matters of inheritance and migration rights. What is clear from an observer’s point of view is that there are a multitude of distinct human rights’ normative issues implicated in the marriage or affection process. The claim that rests on the freedom to marry represents civic freedom in a vital and sensitive area of human experience. However, once a family or affection unit is established, other claims emerge from that relationship as a fact or expectation generating phenomenon. Thus, the questions emerge should the marriage be recognized for a multitude of other purposes? For example, if the law of the parties’ home state prohibited first cousin marriages and the parties went to another state which permitted them and got married there, would such a marriage be honored in the original home state for a multitude of other purposes than the freedom to marry? For example, the question of the legitimacy of the children implicates status, respect and security. The economic security of the wife and children could be threatened if the marriage was not recognized. Central to these claims is that the marriage or affection

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process in different stages implicates other important values vested with some human rights sensitivity. The overview of the evolution of the lex loci celebrationis and the lex domicili in the context of comparative private international law reflects the changing character of religious and later state control over the freedom of choice to marry. This tradition, although implicating important cross cultural values for the control and regulation of affect and the values it implicates, is not presented with a clarity that permits a more careful appreciation of the fundamental human rights implicated in the exercise of political control over this process. The general factors that have perhaps influenced the evolution of the dominating perspectives in this area of the law are summarized infra. The central point is to lay a foundation for a reconceptualizing of the entire process so as to provide it with a focus on human choice and the values implicated in those choices. The Importance of an Appropriate Standpoint in Cross-cultural, Comparative Human Rights Inquiry The establishment of an observational standpoint is critical in providing a human rights sensitive theory because all the other relevant criteria are dependent upon it: focus of inquiry, relevant intellectual tasks and postulation of preferred public order goals. The legacy of the past has for a variety of reasons failed to stress the importance of the establishment of an appropriate observational standpoint. It has accordingly emphasized by default perspectives that were closely related with trans-empirical values. Indeed, these perspectives were reinforced by a religious ethos in Europe that sustained itself by vindicating high expectations of violence.118 The “secular” paradigm that emerged as a reaction to these outcomes had a perspective ostensibly committed to the extinction of intolerance based on a multiplicity of contending systems of rectitude. But the pattern of identification demanded implicitly in the new nationalism reflected a limited and inadequate sense of the self. The net result of change served to parochialize the operative symbology, a malaise from which scholars have been unable to extricate themselves for establishing an effective observational standpoint relevant to the affection process. The most visible outcome has been that few scholars have been able to establish criteria for appraising past decisions in terms of common interests in affection shared by the global community although there has been a lingering sense of disquiet in the private international law culture about the more inclusive definition of the self. Hence, a leading “unilateralist” could write, “the basic

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118 The religious wars that led to the Westphalian Peace have already been referred to. The use of such institutions as the inquisition further reinforces the point.

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objection to u ­ nilateralism goes much deeper… it has its psychological roots in the Kantian categorical imperative, the fear of parochialism, and the dread of chauvinism.”119 Unfortunately, this statement is somewhat tautologous. To say that the “fear of parochialism” or the “dread of chauvinism” has conditioned the formation of a Kantian categorical imperative in the pre-conscious subjectivities of scholars in this area begs the question of etiology of the “dread” and the “fear.” If one can specify any empirical indices to account for these pre-dispositional outcomes, they lie in the construction of a pattern of identification that realistically transcends the exclusive and narrow and that defines the self in terms of a more inclusive aggregate of mankind. It is easy to see how various symbols have been manipulated to sustain the perspectives of secular or religious based elites over the affection process and how common interests have invariably suffered. The problem of developing an observational standpoint may have been further compounded by the problems attending sexual identification and the anachronistic, but pervasive perspectives on sexual morality, further compounded by a global context in which sexual pluralism has been most pronounced. Latent anxieties about the sex-identifications of the self, in a context in which such identifications might differ from group to group, have perhaps accentuated the erratic exclusivist-inclusivist patterns of decisional behavior about the affection process across group lines. To one culture the equivalent of Victorian morality may epitomize the realm of the “civilized,” whereas, to a member of another culture, it may represent the epitome of moral depravity. These structured expectations do not account for the significant individual variations in sexual response on an individual basis and in a larger sense of the affection process itself. All these factors underscore the necessity of self-observation, the necessity of accounting for subtle and discreet sexual identification, and the necessity of accounting for biases attributable to the problems of culture, class, personality and even personal crisis. Indeed, there is a necessity for locating one’s self as an active and responsible member of a fraternity dedicated to enlightenment and for realizing that such activity is part and parcel of an entire social process demanding a more inclusive sense of just who the scholar is in the first place. As the growth of the statist paradigm intensified and the symbols of new nationalism became more discrete, the concept of community in global terms became hard to symbolize. Correspondingly, the processes of effective power were seen in much more parochial terms, as was the character of transnational authoritative decision. For example, in the Brook case, the House of Lords 119 See H.W. Baade, Preface, Law and Contemporary Problems 677 (1963).

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urged that it was bound by an act of parliament to invalidate a marriage valid in Denmark, on the spurious theory that the matter was an “exclusively” English one, governed “exclusively” by Lord Lyndhurst’s Act. This Act made not the slightest reference to marriage of a transnational character. B The Importance of a Broader Conception of Law Past theory with its emphasis on “rules” has tended to account inadequately for perspectives and indeed operations as crucial ingredients of choice. The reliance on merely two complementary rules for providing a basis for informed choice concerning the great many phases of the affection process is lamentable. The poverty of received doctrine is exacerbated when the rules, the lex domicilii or the lex loci celebrationis, are themselves the epitome of ambiguity, and when the policy basis that had customarily inhered in these ideas, disappeared in the aftermath of the formalists. The result has been that in operation these rules became essentially reified. Moreover, these rules under the impact of the formalists (lex domicilii, lex loci celebrationis) served to undermine what is deemed to be the most important methodological innovation and imperative for rational decision: the contextual principle. No meaningful account of group affiliationcan be made without regard to context and goal. The problems regarding the various processual phases of the affection process for which value-demands are made cannot evoke meaningful responses from authoritative decision unless every aspect of the present and the projected context is examined. C The Importance of Control and Authority in Transnational Context Originally, writers tried to establish the authoritative and therefore licit ­character of an affection unit on the basis of whether or not a transempirical vinculum had been established. The secularization of marriage failed to eradicate this fallacy. The import of this failure has been summarized by Engdahl as follows: By the middle of the eighteenth century marriage in England had been secularized; but secularization accomplished only a partial rectification of the subtle errors of metaphysics. The habit of conceiving marriage in terms of validity, rather than empirically as the Anglo-Saxons had, survived. This vexatious ghost of medieval metaphysics still haunts the law of marriage today, preventing a humane solution to some of the difficult problems of domestic relations. Rights of support, rights of succession, prosecutions for bigamy, rights of innocent subsequent spouses, and all the conflict of laws problems relating to marriage still turn, in the

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o­ rdinary case, and despite patchwork remedies in some cases, upon the question of validity or invalidity of marriages rather than upon humane consideration of the unhappy problems resulting from the marital affair of real people. Until this useless and indeed mischievous vestige of medieval metaphysics is excised from the law of marriage, anything more than a haphazard approach toward humanizing American marriage law seems but a vain aspiration.120 The idea of the “validity” of the marital bond has not been purged from the affection process. Thus, efforts to establish authority factually in terms of the perspectives, especially the real expectations of human beings who constitute the concept of community, have suffered. Recognition of Fundamental Rights in Global Context; Human Rights Values and the Goals of the Affection Process Not only is there no clear delineation within the affection process as to just what kinds of claims encroach on the constitutive process and on the public order, but until recently, little attention has been given to those kinds of decisions involving the civic order dimension. There is little evidence in past theory of a concern for the five intellectual tasks relevant to any of the phases of the affection process. Human rights as expressed in the Universal Declaration express value preferences that in the aggregate are meant to realize the goal of universal human dignity. The conceptualization of human rights values in functional terms provides a more effective tool of normative guidance to situations of specific application. The central insight of value analysis is that the human rights framework is essentially reduced to more or less eight values and the dynamics of application permit one to appreciate the degree to which the values of human rights serve as bases of power for the realization of all the values in the process of decision making. The rights serve as discrete goals but even those goals must have applications and prescriptive reach that does not disparage the other values within the human rights framework. The focus of this work has been on one of the complex value outcomes of social organization, the affection process, and the complex varieties of claims and problems implicated in this process. The threshold normative guidance one can glean from the value of affection is that its production and distribution must be seen to enhance the principle of human dignity as well as its role as a compliment to the other values in achieving this objective. At the broadest level, one can maintain that public

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120 Engdahl, at 528.

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order is enhanced in terms of its commitment to human dignity if its public policies and social practices are dedicated to the widest production and distribution of affection. This is in the context of affection as a demanded value. However, affection can serve as an important base of power and it is important that the function of power conditioned by affect be seen to enhance the promotion and defense of all values implicated in the enhancement of universal dignity. The clarification of the precise guidance that affection can give one in the ­context of human rights perspectives is problematic from the perspective of the fundamental documents of human rights law. The documents collapse a number of critical interests that for clarity should be kept distinct. For example, the Universal Declaration in Article 16 expresses in clear terms the rights of men and women of full age having the human right to marry and found a family. This makes the right to marry possibly contingent upon the rights of the family. The provisions hold that marriage must have the full, pre-consent of intending spouses. It adds that the family is both natural and fundamental to social organization and entitled to human rights protections. The confusion lies in part in the fact that the freedom of choice is an individual human right, but that choice implicates a natural and fundamental institution of society and that institution carries a social preference with the implication that human rights gives this preference a higher status. Thus, in 1983, the Holy See published a Charter of the Rights of the Family. In this document, the family was accorded a status with a religious and social interest that was almost sacramental. According to the Holy See, “Marriage is the natural institution to which the mission of transmitting life is exclusively entrusted.” It maintained that “the family, a natural society, exists prior to the state or any other community, and possesses inherent rights which are inalienable.” The stress of the Holy See on the family that was heterosexual and monogamous captured the conventional intuitive sense that marriage and procreation were heterosexual matters and that since this was the common experience, the values indicated in the Charter as well as the document produced by the ­Pontifical Council for the Family, “The Family and Human Rights,” reflected a powerful defense of conventional affection units. The Pontifical Council stressed the values that emerged from the family as a procreative unit and these included the notion that the family was a foundation for universal ­brotherhood and that it was the basis of society. The document stressed the importance of mutual respect and dignity for man and woman in marriage and respect for work and marriage roles. The limitation of the approach was in the area of reproductive freedom. This was largely the extent to which women had a choice over the circumstances under which they will give birth to children or terminate their pregnancies for reasons of physical and mental health and

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other reasons. Modern science and psychiatry had indicated that the world was not easily divided exclusively between male and female genders. Society produced a male or female with their anatomical status as male and female but with a gender orientation that may be different. Medical sciences progressed to the point that a woman who wished to be transformed into a male or vice versa may be a candidate for surgical procedures as well as hormonal therapies for the purpose of sexually reassigning that person from one gender to another. The question was whether these persons had individual rights that were human rights to establish affection units that will have legal consequences and values that paralleled those of normal heterosexual relationships. The church’s preference for a particular family form that is to be given ­human rights protections is based on a religious assumption that a heterosexual marriage is one that is a sacrament. As a sacrament, it is in effect a ­relationship in which God is a participant. That relationship cannot be terminated by secular mandate. Overwhelmingly, cultures permit determination of marriage through divorce. The Catholic Church itself permits the termination of marriage by an annulment. Regardless, the second most important family forms for example in the u.s. is the single parent and usually the mother is the head of the household. This is still a family form but it is unclear whether it carries the same privilege status of the dyadic family form. The development of the no-fault divorce has meant that husbands and wives may have multiple m ­ arriages, and multiple family ties so long as those ties are established sequentially and not concurrently. This does not include the complexities of cultures and religious traditions that approve of polygamous marriages. The question would be whether a polygamous marriage with a man and multiple wives is consistent with the human rights conception of both individual rights and the rights of the family. These problems suggest that one take seriously the values-based clarification of individual and family rights in terms of affection and the other basic human rights values. One way to approach this is to clarify the normative goals for the affection process from a global cross-cultural point of view and clarify those goals in particular with regard to the distinct phases of the affection process. We start with the process of commitment. Our overriding goal is to maximize the shaping and the sharing of affection. More specifically this means a commitment to the allocation of competence to the individual. That allocation of confidence involves the freedom of choice of commitment. It will be readily evident that both historically and cross culturally there have been a longstanding social interest in controlling how this liberty is exercised. Usually this is done by restricting the freedom to establish an affection unit to a large extent in the context of conventional heterosexual relationships. It is the

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male/female monogamous relationship that has generated the most intense social and public interest. To the extent that the freedom of choice in this context is a fundamental right implicating human rights values, there are intense claims that limiting the establishment of same sex or transsexual affection units is a violation of human rights. These latter claims are largely based on the fundamental importance of individual human choice in the shaping and sharing of affection. The freedom of commitment in heterosexual relations appear to be related to the expectation of procreation and therefore to a justification of the normative preference of such a family form as preferred. In this sense, the liberty of choice is an expression of individual interests as well as a social interest. This latter interest is not as strong regarding same sex or transsexual affection units. The social interest in projecting the monogamous family as preferred seems to be distinctively a part of the Christian religious tradition. In this tradition, marriage is a commitment involving the immediate parties and the universal spirit. It is a sacrament. What the sacrament creates is sacramental. Hence, this particular family form is the one usually thought of as being vested with human rights qualities. Other religious or cultural traditions see marriage as a complex social contract often involving family alliances. These alliances mean that there are more parties to the process of commitment than the immediate parties. In some instances, especially in cultures that permit child marriage, the parties’ choice may be marginal or non-existent. Still, this version of marriage does not vest it with the transcendental sacramental qualities. It is in the nature of a complex contract of exchanges. Although the Holy See sees marriage and the family as prior to the state and society, modern law challenges this assumption. Over the past several ­centuries, the state has emerged as the dominant form of political association. The rise of the state has seen the state appropriate the power and validation of affection units. The state views the marriage form as a status which it creates, regulates and terminates. Essentially, affection units in modern law are functions of the state and its power to create civil statuses. It is the state that is the third party participant in the different phases of the affection process. E The Fundamental Policies of Commitment The general policy is to maximize the shaping and sharing of affection by ­giving the parties to commitment the highest degree of freedom of choice. The fundamental policies of participation encounter limitations based on gender identity, race, caste, age, health, familial relationships and kinship ties. Society places significant limitations on the freedom of choice. The critical normative question is how these limitations on the process of commitment are justified

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as derogations from the freedom of choice to establish and enhance the affection value. Some of these restrictions are easy to dispose of from a human rights point of view. Restrictions based on race, age, gender, and familial relationships tend to be excessive and are not easily justifiable. The normative guidance given to the maximization of affection will compel a rethinking of the limitations imposed on the process of commitment. To the extent that an affection unit is not a sacrament, the form of marriage of same sex couples simply represents the establishment of an affection unit recognized by the state and subject to the rights and duties imposed on all other affection units by law. To the extent that such units enhance affection, they are consistent with evolving mandate of human rights. However, the general policies of enhancing affect as an aspect of the enhancement of the aggregate experience of human dignity requires a nuanced, specific elucidation for the particular nature of the claims that emerge from the processes which constitute the affection process. All of the different phases  of this process at a general level involve specific claims which implicate policy constraints on how affect is actually allocated. The specific issues in the process of commitment will involve the distinctive claims about participation in the process of establishing an affection unit. Participation includes important ­issues such as the association of freedoms, a clearer understanding of the scope of gender identifications as well as the importance of age of commitment and matters of mental competence. There may be defects in psychological well-being which provide for limitations on the processes of commitment. In addition to the claims about participation, there are the important claims about perspective which include the degree of deference given to the self-­identification of the parties, as well as their articulate claims for not only participation in the sharing and shaping of affect, but also of access to all other values important to the enhancement of the goals of affection. These perspectives of identity and demand are moderated by the impact and importance that cultural expectations vest in the appropriateness of the full reach of the freedom to participate in the establishment of an affection unit. Still other claims which implicate the reach of the claims to participation involve the bases of power and authority that participants can mobilize or have access to in the pursuit of affect. Because affection units in general implicate the authority reposing in rectitude, parties generally have access to the institutions of rectitude which support at least some forms of association such as the heterosexual form. Society is still working through the precise lines of the allocation of participatory competence among individual claimants and the social and political interest which may seek to either enhance or limit such competence.

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The claims relating to strategies radically exclude the strategies of coercion or exploitation in the establishment of an affection unit and seek at the same time to enhance the strategies of communication and collaboration which are an intrinsic part of the exchange of positive sentimental affect. The seriousness in the establishment of an affection unit lies in the degree to which a­ ffect is in effect subversive of personal autonomy. In ultimate expression, the reciprocal exchange of affect is the epitome in human experience of altruism. This means that the boundaries of the self and the object of affect are dropped and in fact, experience an inter-substitutability between two autonomous self ­systems. As a consequence, the policies which are to secure affective communication require great sensitivity since the foundation of human rights is based on the respect for the autonomy of the individual and not on the removal of the boundaries of the self. There is a compelling social and political interest in ensuring that the competence and autonomy of the parties to commitment does not involve exploitation or emotional abuse by either party or by social and political forces. For example, law in general is strict about policing circumstances in which voluntary consent is lacking. These could include the circumstances of the party being drugged, coerced, black mailed, defrauded, mistaken or being the subject of a cruel sense of humor. The claims relating to situations generally involve a context that is not necessarily well-institutionalized which gravitates to the creation of an affection unit which is institutionalized. Policing or regulating the lack of institutional context which may precede the process of commitment permits exploitation and a denigration of the value of both affect and human rights. Crises which may happen during the commitment phase may be difficult to manage by the parties themselves without familial support and community assistance. The claims relating to the process of commitment in terms of outcomes generally implicate concerns for the form and or the gender character of the affection unit. From a global perspective, the form of the affection unit tends to be generally heterosexual and frequently involves a single male and female in a monogamous relationship. However, culture has also sanctioned the establishment of monogamous heterosexual relationships without licensure. Historically, these were known as common law marriages. These were informal marriages but nonetheless ones sustained by the facts of cohabitation and public representation. In addition, there were polygamous marriages, and many cultural traditions permited polygamy. The term “polygamy” identifies a male with a multitude of concurrent wives. In terms of human rights, the critical question is whether such a system is compatible with human rights values. In such context, women were generally limited in terms of political and economic power. Such marriages tended to have some degree of coercion

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or exploitation implicit in the process of commitment. It cannot be said that polygamous marriages were ones that were protective of the human rights of women. Other marriage forms (albeit rare) included a woman with a multitude of husbands. Such family forms have been found in the Hindu tradition. However, they were too rare to be considered of importance today to implicate human rights issues. The form of the family has received considerable attention as a critical ­social preferred outcome of social process. This is largely in the Christian ­tradition but it is generally a model followed in other cultures as well. The practical problem with the model is that modern society has made divorce more easily accessible and with divorce comes remarriage and the creation of new ­family forms. This does not mean that all the ties from the earlier form are extinguished. Modern developments witness the emergence of a form of extent structural polygene and polyandry. In the modern context, the claim that the social interest is so elevated in monogamy must perhaps be moderated. ­Additionally, it is now well established that human sexuality and gender orientation is more complex and ubiquitous cross-culturally. A better understanding of these issues has meant more tolerance of difference and a greater awareness of the human rights dimensions of commitments to establish affection units by persons whose gender and sexuality do not correspond to the conventional heterosexual assumptions of affection units. The general human rights interest in promoting the shaping and sharing of affect would provide a justification for validating the civil status of same sex affection units. F The Fundamental Policies of Performance The claims relating to the process of performance are claims that occur once an affection unit has been established and recognized in terms of its potential legal and social implications. There are a multitude of issues that emerge from the relationship itself and its possible social and civic consequences. These implicate the exclusivity of the relationship and the protection of its civic autonomy. To a large extent, the central claim as between the parties is to maximize the shaping and sharing of affection. To do this optimally, such an institution requires the management of other values as bases of support for the objectives of affect. Thus, critical to such relationships is the allocation of competence between the parties. This implicates competence over how power is shaped and shared in a relationship, as well as respect, skill, health and well-being, wealth, and rectitude. The normative guidance provided by human rights during the process of performance of the relationship is the maximal production and optimal sharing of all the critical values during the subsistence of the relationship.

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G The Fundamental Policies of Termination The third phase of the affection process is the process of termination and change. This historically has been a matter that has required that the parties live together without the possibility of lawfully ending the relationship. This is in part a reflection of the notion that marriage is a sacrament and that it is a contract made between the parties and God. Since the bond is a sacrament, it cannot be terminated by mere human choice. Other cultures have been more flexible in this regard. The Islamic culture views marriage as a human transaction but gives the male the competence of unilateral termination. Today the secularization of the affection process as well as the influence of human rights has meant that the state is in essence the institution that must preside over the termination of a marriage and the legal consequences that flow from it. Some states have made it difficult to have access to divorce or termination procedures. More recent developments have resulted in the no fault divorce which has made marital termination more volitional. The assumption is that if a marriage is irretrievably broken, it does not conform to contemporary moral sentiment to sustain holy wedlock in the form of holy deadlock. This seems to implicate the slowly emerging idea that there is as well a human right to associate or to disassociate from an affection unit. The central questions for social and human rights policy are essentially ones that deal with the human rights of children, and human rights implications of allocating economic and other interests upon the termination of the marriage. In this latter context, the value of the woman’s contribution to the home and the family and, which has taken her out of the market, has been recognized as marital property and a contribution which must be recognized when the relationship is ended. Regarding the termination of same sex or transsexual marriages, it is unlikely that there will be questions of children and custody but such relationships could certainly order the effects of termination by contract or other agreement. iii

Human Rights Values and the Affection Process: A Generalized Trend Overview

According to the Roman lawyers, marriage was regarded as the parent rather than the child of society: Principium urbis et quasi seminarium Republicae.121 Yet, the Romans deemed it important that many phases of the affection process be allocated to what is essentially a zone of familial autonomy and a great 121 See Dalrymple v. Dalrymple, 2 Hagg Cons. Rep., 2, 62 per Lord Stowell.

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deal of supervision was achieved “without the intervention of the state.”122 H.F. Jolowicz commented as follows: We are so penetrated with the idea of marriage as a juridical status that it is difficult for us to realize that for the Romans, as for other peoples of antiquity, the question of whether two people were married or not was as much one of fact as it was one of law.123 In early nineteenth century American case law, the naturalistic perspective coupled with the practical demands of a frontier society was still prevalent in many American state court jurisdictions. In Newbury v. Brunswick, for example, it was said that: To marry is one of the natural rights of human nature, instituted in a state of innocence for the protection thereof; and was ordained by the great law giver of the universe, and not to be prohibited by man.124 According to the Newbury theory, community supervision was necessary for 1. safety, 2. security of community and 3. it was said that these “forms” and “regulations” must be within the reach of everyone, “wishing to improve them”125 and if they are not, “other forms and customs will be substituted.”126 Taking a slightly more secular perspective, but emphasizing the international policies implicit in the lex loci celebrationis formulation, the Tennessee Supreme Court declared in 1889 that: Marriage is an institution recognized and governed to a large degree by International Law, prevailing in all countries, and constituting essential elements of earthly society. The well-being of society, as it concerns the 122 Schultz, Principles of Roman Law 147 (1936). “The relation of husband and wife, for ­example, was extremely individualistic (except in the case of manusmarriage).” The Roman law texts refer to an affection unit as follows: “Nuptiae sunt coniunctio maris et feminae et consortium omnis vitue, divini et humani iuris communicatio.” D. 23, 2, 1, and this “joining” of the parties is expressed in terms of the affection value in Roman literature: “maritalis affectio”; mariti affectio (the latter probably interpolated); maritalis affectus. It is also thought that “consent” conceived as a continuing state of mind was sufficient to establish an affection unit in classical Roman law. See Jolowicz. 123 Roman Foundations of Modern Law 141 143–44 & n.6 (1957). 124 2 Vt. 151, 159 (1829). 125 Id. 126 Id.

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relation of the sexes, the legitimacy of offspring, and the disposition of property, alike demands that one state or nation shall recognize the ­validity of marriage had in other states or nations, according to the laws of the latter, unless some positive statute or pronounced public policy of the particular state demands otherwise.127 These perspectives often evidenced an allocation of competence to the individual or the family because of the importance attached to privacy affectivedirected formations. Other traditional cultures have evidenced a functionally similar point of view, for example, the Islamic culture. On the other hand, the emergence of the highly organized and centralized bureaucratic state provided state elites with a powerful instrument of social control over micro-social units deemed to be the sine qua non of civilization. A good illustration of this point of view emerged from the u.s. Supreme Court in 1888. In Maynard v. Hill, the Court said that the institution of marriage was “the foundation of the family and of society without which there would be neither civilization nor progress.”128 In Murphy v. Houma Well Service,129 the 5th Circuit Court of Appeals declared that “Society—American society, American constitutional society— is committed to the existence of some institutions, the stability of which is deemed essential for a healthy existence as a nation. The home-family is such an institution.”130 Still more recently the Supreme Court reiterated the theme articulated almost a hundred years earlier in Maynard v. Hill.131 In Labine v. Vincent132 the Court said: “[T]he power to make rules to establish, protect and strengthen family life … is committed … the … state.”133 These statements ­reflect a strengthening of the assumption that control over family units is critical for social solidarity in modern society; and that in the result, control over family matters is in general committed to the state. In a great many contexts, the allocations of competences to formal and ­effective elites to “manage” various phases of the affection process have been extensive, even moving beyond the demands extant in sustaining the barest parameters of the civic order domain (the right of privacy). However, when 127 Renneger v. State, 10 s.w. 305, 406 (1889) (Folkes, J.). 128 125 u.s. 190, 211 (1888). 129 409 F.2d 804, reh’g denied, 413 F.2d 509 (5th Cir. 1969). 130 Id., at 807. 131 125 u.s. 190 (1888). 132 101 u.s. 532 (1971). 133 Id., at 538.

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one transcends the generalities that idealize the necessity and indeed the “purity” of “the family” as the sine qua non of public order, civilization and progress, there are distinct avenues of community supervision that elites usefully perform that sustain the viability, if not the vitality of affection units.134 The interests in the advancement of “real” public health standards, protection of children and adolescents, and monitoring population profusion are all useful and generally promoted through the instrumentality of the marriage license and registration procedures. However, if the license, the instrument, becomes an end, rather than the goals implicit in the affection process itself, the community supervision becomes overly paternal or authoritarian. Other visible kinds of supervision have included control over the structure of kinship systems, control over the structure of “morality” and prescribing value allocations that reinforce role identifications during the processes of performance and termination.135 The claims that emerge from the social process concerned with the affection value have implicated every phase of that process and incorporated a concern for all social values. In the transnational context, the pattern of claim has encapsulated a concern for all values, but the claims have been structured to account for the complex power diffusions that attend trans-group perspectives about authoritative decision. The pattern of claim assertion in the private international law domain has, as a consequence, been framed in terms of the dynamics of controlling competences in private international law and how, to whom, and for what purposes these competences have been allocated. In the context of claims relating to the affection process, parties make claims across group or state lines regarding many phases of this process. For example, parties may claim that an affection unit be formalized where one or more of the parties is affiliated with another group or state. Other claims may involve a claim that an affection unit lawfully established in state X be lawfully characterized in state Y where such a unit is perhaps proscribed. The characterization may be demanded for scope value purposes, i.e., that the parties be immune from prosecution because there is a prima facie violation of state Y’s proximate relations taboos, or for base value purposes, i.e., for the allocation of various value deprivations and indulgences, e.g., power, respect, 134 See generally The Family in Search of a Future. H.A. Otto ed. (1970). This book gives a useful overview of past, present and possible outcomes of the processes geared to the establishment of diverse structural formations and style images associated with the affection process. 135 See generally Goode, The Family 2–3 (1964); Rheinstein, Marriage Stability, Divorce, and the Law 42 (1972).

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wealth, ­rectitude, well-being, enlightenment, skill. In more specific terms, affection may be used as a base value to secure preferred events as claims for the legitimation of children, claims about wrongful deaths, adoption rights, tax indulgences, administration of decedents’ estates, support, social security, workmen’s compensation, group insurance, immigration and naturalization and interspousal torts. Many of these claims will require transstate or transnational accommodation. Claims have been made concerning the diffusion of values within an established affection unit, as well as claims concerning the lawful termination of participation in an affection unit and all the impacts that flow from such outcomes to identify the more significant kinds of claims having a transnational character in this context. The most casual perusal of past practices will demonstrate a pattern of decision quite at variance with basic community expectations and indeed often bordering on the absurd. In the context of termination policy, a person could be simultaneously married, divorced, or remarried depending upon the spatial locus of that person at a particular point in time. Such a person may be lawfully remarried in one state and be subject to bigamy prosecution and conviction in another state.136 Still other outcomes may, in certain cases, prevent the parties from ever lawfully terminating an affection unit because the marriage ceremony was formalized under a regime that tolerated plural marriage.137 In other contexts, a child may be delegitimized and denied his patrimony on the basis that his deceased parents were related by affinity: a degree of proximity proscribed by the lex domicilii but licit according to the lex loci celebrationis.138 In still other cases, courts have declared marriages void where the parties were of a different race, religion, or caste even though such arrangements were licit according to the expectations about control and authority of at least one of the interested bodies politic. These examples give only the barest inkling of the complexities attending the prescription and application of basic community policy to claims relating to the affection process. These claims cut across all phases of the social process demanding that deference be giver to a complex constellation of community perspectives of a widely divergent and variable character. An appreciation of the social facts animating claim and precipitating decision is an essential starting point for realistically responding to the complexities of claim and decision in this arena. It is precisely here that the legacy of the past has been less than commendable. Past practices have suffered greatly from an inadequate 136 Williams v. North Carolina i, 317 u.s. 287 (1942). 137 Williams v. North Carolina ii, 325 u.s. 226 (1945). 138 R.V.R. Hammersmith Superintendent Registrar, ex parte Anwaruddin, [1917] i.k.b. 634.

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a­ rticulation of just who is trying to do what to whom. Past theories have failed to delineate realistically the transnational character of the process through which such decisions were made and to estimate meaningfully the transnational consequences of such outcomes relative to particular participants as well as aggregate community perspectives. Past practices have been insufficiently sensitized to what is really being claimed. Outcomes and their collective impacts on the shaping and sharing of all demanded values in the social process have suffered accordingly. Far from approximating any kind of optimal perspective about the allocation of values attending the affection process, past decisions have frequently served to undermine even the basic stability in expectations about the affection process across state lines. The crystalization of human rights perspectives in many arenas of national and transnational decision have riveted the attention-span of effective elites and opinion leaders to the potentials in private international law decision making for advancing or frustrating the goals of human dignity in this arena. For example, the Brook139 case involved a claim to the estate of the deceased parents who were lawfully married abroad, and who were related in a degree of affinity proscribed by their lex domicilii. The English court declined to uphold the marriage (valid according to the lex loci celebrationis) for the purpose of declaring the children legitimate and lawful heirs of the deceased. From a human rights point of view, the critical question would not be the affinity proscription as applicable to a deceased couple (whatever sanctioning goals might be advanced by such an inquiry) but the question of the human rights140 of the children, their claim to legitimacy and their claim to their father’s patrimony. In this case, the court bastardized the children and declared the property at issue to be bona vacantia and escheat to the Crown. A Trans-state Decision Making Trends and the Affection Process In developing this description of decision making trends to through time we must caution the reader that these trends however formulated implicate fundamental policies of the affection process including The idea of an affection process has had only the most partial kind of ­recognition in the private international law tradition. The early trans-state jurists, the statutists, did not do much theorizing about honoring affection units across state lines. The omission is easily explained. These persons were concerned with “secular” law rather than “Gods” law. In this latter arena, the 139 Brook v. Brook, [1861] 9 h.l.c. 193, 11 Eng. Rep. 703. 140 See Universal Declaration of Human Rights Art. 25. “All children whether born in or out of wedlock, shall enjoy the same social position.”

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church had allocated to itself the competence to prescribe and apply policy regarding the “essence” or “sacrament” of marriage. The allocation power in this context was reinforced and sustained by canonical mysticism. The marital bond, the vinculum, was a sacrament enjoined by God, which only He or his duly annointed agents could put asunder. The bond could only be severed under the fiction that it had never formally and effectively been established in the eyes of the church to begin with; that is, it was a nullity. The Canonical fathers did, however, distinguish the mystical bond (encapsulated in the transcendental idea of “validity”) from what might be called the practical value aspects of the commitment process. Technically, the Church regulated aspects of the affection process where affection was sought as a goal or scope value and left to the secular authority those phases of all value processes where the affection unit served as a base for access to values other than affection, e.g., dower, property rights, legitimacy, inheritance and policy.141 The statutists developed legal ideas to accommodate the “incidents” of marriage, but this system was dependent upon the affectional vinculum being sanctioned by the Church. In this area, standards were universal and, prima facie, there could be no conflict as to the essence of marriage. The pattern of universality was shattered by the Reformation and, in the legal vacuum that emerged, scholars of 16th century Europe, reasoning by models and analogies, pressed into service the concepts invented by the statutists for the solution of trans-group contractual problems.142 B The Effects of the Reformation The Reformation and Counter-Reformation did not signify drastic and immediate changes in the marriage process.143 The participants in the Peace of Augsburg adopted the principle “cuius regio eius religio,” viz. that there would be compulsory obedience to the faith of the sovereign. The Council of Trent, that great instrument of the Counter-Reformation, promulgated the famous 141 See Bouscarin, Ellis and Korth, Canon Law 470–71, 4th ed., (1963). 142 See D. Engdahl, The Canonical and Metaphysical Background of the Classic Dutch ­Marriage Conflicts Rule 15, Nederlands Tijdskrift voor International Recht 43, (1968). “The glossators did, of course, tend rules for the solution of conflicts problems relating to ordinary contracts, and centuries later their contract rules would be invoked by other scholars as determinative of conflicts relating to the ‘contract’ of marriage; but there is no evidence that the glossators themselves ever intended their contract rules-or any rules which they conceived—to apply to the problems concerning the essence of marriage.” 143 This was so despite the fact that Protestant ideas about the marriage myth system entertained a rather different outlook from that obtaining in Catholic Canon law. See 1 Howard, History of Matrimonial Institutions, Ch. 9 (1904).

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Tridentine decree on the reformation of marriage about a decade after the Peace of Augsburg (1563). The decree thereafter known as the tametse decree instituted an interesting and not obvious distinction into the canon law marriage tradition. So-called clandestine marriages entered into prior to the decree were to be honored if the requisite intent of the parties existed, because such marriages still retained a sacramental character and were valid according to divine law. Marriages entered into after the decree was promulgated and within practical limits not relevant here by all baptised persons living under Catholic sovereigns were to meet Tridentine formalities. The marriage would have to be solemnized before a priest and two or three witnesses. Failure to follow such procedures meant the “marriage” would be an invalid one, but this time, it would be invalid144 according to ecclesiastical as distinct from divine law. The Peace of Augsburg and its complement for the affection process, the Tametsi decree, had the effect of accentuating and formalizing trans-group divergences in European marriage law. This stimulated a further instance of complementarity: the emergence of theoretical solutions to solve trans-group conflicts about the affection process. The decree, Tametsi, was not universally initiated in Europe:145 “[a]s a consequence of the Church’s failure to obtain for the Tridentine Tametsi decree uniform reception throughout Catholic Europe, the medieval unity of European marriage law was finally lost.”146 Engdahl summarized the impact of events leading up to, and including, the decree, tametsi, in these words: After the Council of Trent, there were significant differences from place to place in the requisites of a valid marriage. Moreover, these were differences ordained by the canon law itself, and thus could not be ignored by the canonical jurists. The conflict of laws concerning the essence of ­marriage was a conflict of the churchs’ own making.147 144 The Tridentine decree on the reformation of marriage 1564 was printed in Waterworth, Canons and Decrees of the Council of Trent ccxlii–ccxliv (1848). The Council decreed the following, “Those who shall attempt to contract marriage otherwise than in the presence of a parish priest or of another priest authorized by the parish priest or by the ordinary and in the presence of two or three witnesses, the holy council renders absolutely incapable of thus contracting marriage and declares such contracts invalid and null, as by the present decree it validates and annuls them.” See Engdahl, at 47. 145 Id., at 47. 146 Id. 147 Id., at 48.

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Canon lawyers responding to the problem of the establishment of an affection unit and its lawful characterization abroad for whatever purposes discerned an affinity to the formation of contractual relations. The analogical equivalence of the contract-marriage nexus was not a difficult conceptual gap to bridge. Both kinds of interaction involve, at least in the civil law, the elements of consensus ad idem and both kinds of legal relationships make the element of voluntarism a necessary if not sufficient condition for “validity.” From these conceptual roots and the inherited private international law superstructure of trans-group contracts, there emerged a framework from which it was thought a viable theoretical edifice could be erected to manage the trans-state claims of the affection process. Covarrubias148 was the first canon lawyer to secure explicitly the conceptual linkage between the affection process and the law of contracts.149 The other significant canon lawyer was Sanchez.150 His beginning point was the lex originis principle. This idea was qualified by caveats gleaned from notions of territorial sovereignty, served so as to provide an extraordinary high tolerance of party autonomy and reinforce notions of a presumptive, though rebutable, validity of marriage. The lex loci celebrationis was given precedence over the lex domicilii, except when the conduct of the claimant or defendant could be characterized as fraus legis. Sanchez’s book went into twenty editions which indicated the practical importance decision makers attached to his work. The significance of the Sanchez point of view was that it, in fact, came closer to the old paradigm, while paying lip service to new realities in the disposition of religious influence. The perspective articulated was an essentially inclusive one. From a technical point of view, Sanchez provided a methodology whereby a decision maker could not 148 Covarrubias (circa 1545) was a canon lawyer. The thrust of his work tended towards a presumption of validity even where the forms and ceremonials were not complied with, so long as the marriage was contracted de praesenti. Id. at 49. Whether, as Engdahl says, such a conclusion is really a gloss on Covarrubias’ work is beside the point, as is the point that Covarrubias cited the glossators on contract law problems to support his thesis. The important thing is that myth and doctrine were manipulated to meet the problems occasioned by a veritable legal vacuum and the essential thrust of these trends was the stability of affection units transcommunally. 149 The civil law has a law of contracts and not a law of contract as the common law. This probably made the identification of the establishment of an affection unit as a kind of contract doctrinally easier to accept. Cf. Id., at 49–51 and citations. 150 See 3 Schulte, Canonisches Recht 737–38 (1880). Sanchez was a Jesuit scholar who lived from 1550 to 1610. His substantial treatise on marriage, De sancto matrimonii, was published in 1602.

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only account for existent power realities, but at the same time could reconcile outcomes with basic community expectations evidencing a common interest in maintaining the stability of family relationships across group lines. During the latter part of the 16th and most of the 17th centuries, the Netherlands became a major center in the development of continental legal culture generally, and private international law in particular. In the area of the affection process, the pivotal formal instrument defining the “essence” of marriage as an essentially secular matter was the famous Political Ordinance of 1580. Paradoxically, the essential thrust of the Political Ordinance was reactionary. It introduced stringent sanctioning policies and allocated powers to officials to declare void certain kinds of marriages that, while frowned upon, were not necessarily void under canon law.151 Indeed, marriage ceremonials were mandated. Avoidance meant the imposition of severe sanctions including the prospect that a particular affection unit would be declared void ab initio. Medieval mysticism played havoc with the secular perspective which seemingly could not resolve the trans-empirical implications of the “essence”—“vinculum” sacramental ideas associated with the marital bond.152 Engdahl explained that: The great and mischievous invocation of the metaphysicians was the conceptualization of marriage in terms of validity. While the Protestant Dutch rejected many of the implications scholastically drawn from metaphysical premises, the ghost of metaphysics—the habit of conceiving marriage in terms of validity—survived. Validity became, to be sure, a legal rather than a grossly metaphysical conception; but secularization entailed no return to an empirical characterization of marriage.153 However opaque Engdahl’s formulation, the message did come through. The ideas of “bindingness” and “validity” are the substitutes for the canonical perspective associated with the divine. These categories effectuated a formal shift and not a functional change in the character of the prevailing paradigm. C The Dutch School and the Affection Process Grotius in an early “opinion” applied the validating ideas in the lex loci celebrationis only in so far as it was established that the parties had “intended” to 151 See Maasdorp, Institutes of South African law appendix l, 317–32.1, 5th ed., (1929). See also Hahlo, The South African Law of Husband and Wife (1969). 152 Engdahl. 153 Cf. Maasdorp, Appendix 1. See also, at 54–55.

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change their primary group identifications (the equivalent of Cheshire’s intended matrimonial home concept). While considerable weight was given by Grotius to the lex loci policy, he was sufficiently Protestant and nationalist (a paradox for this great internationalist), to take a stronger view of the lex domicilii than had been the case with his Spanish predecessors. Grotius reasoned from contract law principles rather than from canonical sources, and his work provided a key to later developments in the Netherlands.154 The Friesan jurist, Ulrich Huber, developed more fully the complementarity of the lex loci celebrationis155 viz., the lex domicilii. In the Jurisprudence of My Time, he wrote: If (marriage) is legitimate at the place where it is contracted, then it holds good everywhere. For instance, if an inhabitant of Brabant (Spanish Netherlands) has married his brother’s daughter under dispensation from the Pope, he and his spouse may not be troubled here (in Friesland) on that account; but Frisians who have gone for that purpose to Brabant, and have there entered into forbidden wedlock after that fashion, would, if they returned after a short while, be scarcely tolerated here…. In the same way it often happens that young persons under curatorship here … make a trip to … some other spot where Imperial law is in use in this respect, according to which the guardians cannot prevent the marriage of minors under their charge. There they get united, and at once come back to Friesland. The marriage is, however, illegal here, and can at once be obstructed and nullified by the guardians, for it obviously tends to undermine and stultify our laws.156 Three years later in his famous De Conflictu Legum (1689) Huber again wrote, this time on the private international law aspects of the establishment of an affection unit. These were his words: If it is lawful in the place where it is contracted and celebrated, it will be valid and effectual everywhere, subject to the exception, that it does not prejudice others, to which may be added, unless it is too revolting: for example, if a marriage in the second degree incestuous according to 154 Engdahl, at 55. 155 The Dutch theorist van Coesvelt came to a position that approximated Sanchez and Covarrubias in giving greater deference to the lex loci celebrationis rather than the lex domicili. Engdahl. 156 Huber, The Jurisprudence of My Time (1686) 14–15, Gane’s transl., (1939).

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the law of nations happened to be permitted anywhere, which is hardly likely to be the case. In Friesland a marriage is constituted when a man and a woman agree to marry, and take one another as husband and wife, although they have never been in a Church. In Holland this is not treated as a marriage. Nevertheless, Frisian spouses will enjoy in Holland without question the rights of husband and wife in the matter of marriage settlements, the children’s rights of succession, etc. Similarly, if a citizen of Brabant, who under a Papal dispensation has married there, it seems that his marriage should not be recognized here on his return, since our law would thereby be evaded by the worst precedents. The following observation also bears on this matter. It often happens that young persons under guardians desiring to seal their loves in marriage go to Eastern Friesland, or some other place where the consent of the guardians is not required for the marriage in accordance with Roman Law, which is no longer in force with us on this matter. They celebrate their marriage there, and immediately return home. I consider that this obviously involves the subversion of our own law, and that, therefore, our magistrates are not bound by the law of nations to recognize and (hold valid) such marriages here.157 From a policy oriented point of view, Huber’s perspective was in many respects close to that of Sanchez and the conflicts tradition that had been emerging in Catholic Europe. However, there was one very significant difference: fraus legis in Huber’s eyes was fraud on the Friesan state. The Friesan state became the symbolic equivalent of moral justification for Huber that the tametsi decree was for Sanchez. This symbolic shift reflected the thrust of Huber’s positivism. But the state (Friesan) was also an abstraction from reality. The symbol substitution of the state as a moral criterion for church mysticism was not realistic enough to account for the facts animating transstate perspectives about the affection process and realistic expectations about authority and control in such a context. Huber’s positivism replaced the church as the “source” of authoritative prescription and paved the way for the neo-idealistic formalists who proclaimed themselves to be the expositors of positive law.158 Structurally, conflict of laws  prescription would be located within the authority structure of the 157 Huber, De Conflictu Legum (1689). 158 Austin replaced the state with the sovereign. Grey replaced the sovereign with “nine old men.” Kelsen replaced all of this with an initial postulate: a grundnorm; Hart sought to refine this by assuming a secondary rule of recognition which was thought to have, at a knife edge instant, an empirical reference in community acceptance. McDougal and

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­ uro-centric nation state. These developments had human rights implications E because they vitally affected and regulated the freedom of choice to marry and the consequences of the recognition or non-recognition of marriage. D Common Law Developments The developments in the common law system did not precisely parallel those of the continent. The secularization of English marriage law was inaugurated by Henry viii, who assumed control over the English Church. The most significant of Henry’s legislative innovations was the far-reaching Act of Parliament of 1540.159 The trend toward secularization continued under Edward vi,160 although the drastic revisions envisioned in the Reformation Legum Ecclesiasticarum were aborted by the pre-mature death of Edward.161 Again, the importance of the changing perspectives on the affection process laid not so much in their substance but “in the new conceptions of secular authority they came to reflect. The same Parliament which watched over the common law governing the pure civil incidents of marriage now stood as the oracle of the divine and the source of the ecclesiastical law governing the essential validity of marriage.”162 Aside from the effort to revive the authority of the papacy by Mary (Henry’s daughter by the Spanish Catherine of Aragon), the secularization of English law proceeded apace, but not without controversy,163 until in the 18th century, Blackstone affirmed the following:

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Lasswell have asked what the purpose of all this was in any event and what, if anything, these exercises had to do with ordering the social process in preferred ways. See 32 Hen. 8, C. 38 2 (6)(8) 1540, where Parliament so to speak, declared or authorized God’s law according to the proximate relations restrictions in the Levitical decrees. The other important allocation of power was the effort to undercut the vinculum that God enjoined upon private consents sents de praesenti (the so called precontract) “not consummate with bodily knowledge…” 32 Hen. 8 C 382 (7) 1540. The importance of these and certain less consequential prior Acts lies not so much in their substantive detail, but in the assumption of power by secular authority over the affection process, at least significant phases thereof. See Engdahl, The Secularization of English Marriage Law, 16 Kan. L. Rev. 505, 515ff (1968). See Dibdin & Healey, English Church Law and Divorce 16 (1911). The Reformatio Legum would assuredly have passed if Edward vi had not had such an untimely death. They remained significantly influential, however. See Engdahl, at 516–17. Id., at 517. Id., at 21–27 in which the problem of treating the marriage vinculum as a divine or secular bond is discussed.

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Our law considers marriage in no other light than as a civil contract… And taking it in this civil light, the law treats it as it does all other contracts …164 From a formalistic point of view, the enactment of Lord Lyndhurst’s Act confirmed the trend toward secular competences to prescribe and apply authority for the affection process. The important point to note in all these historical developments on both the Continent and in England was that secularization did not necessarily mean demystification. While the marital vinculum was replaced by the criterion of validity, the latter notion bewildered theorists in the conflict of laws perhaps as much if not more than the old vinculum confused the canonical theorists. According to Engdahl; … the vigor of metaphysics is in the subtlety of its errors; thus while the gross embodiment of metaphysics was dispelled from English marriage law, its ghost remained. The secular law now regulated marriage without deference to theological speculations about divine interposition of a marriage bond; but the secular law adopted the habit of distinguishing between “marriages” that were void. The metaphysicians had reasoned that if certain conditions were met, God would interpose a metaphysical bond; and if that bond were interposed, a valid marriage would result. Secularization only removed the intermediate step from this argument: if certain conditions were met, a valid marriage would result. Even the terminology appropriate to the metaphysical view survived. Lawyers and courts continued to speak of a vinculum, a marriage bond; it was incidental that this “bond” was now considered a legal construct, rather than a real, metaphysical thing.165 But there were affirmative aspects to the canonical perspective. These aspects  carried a sound policy basis in that they stabilized many aspects of the affection process cutting across state lines, because a marital bond carried with it a presumption of validity. The practical benefits of the canonical perspective were well illustrated in the following statement from Scrimshire v. Scrimshire;166

164 Blackstone, 1 Commentaries on the Laws of England, Ch.15, 421 (1765). 165 Id. note 56, at 527 (footnotes omitted). 166 (1752) 2 Hagg Cons. Rep. 395, 417–18 per Sir E. Simpson.

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From the infinite mischief and confusion that must necessarily arise to the subjects of all nations with respect to legitimacy, successions, and other rights, if the respective laws of different countries were only to be observed, as to marriages contracted by the subjects of those countries abroad, it has become jus gentium, that is, all nations have consented, or must be presumed to consent, for the common benefit and advantage, that such marriages should be good or not, according to the laws of the country where they are made. It is of equal consequence to all that one rule in these cases should be observed by all countries, that is, the law where the contract is made. By observing this law no inconvenience can arise, but infinite mischief will ensue if it is not. If countries do not take notice of the laws of each other with respect to marriages, what would be the consequence if two English persons should marry clandestinely in England, and that should not be deemed a marriage in France? Might not either of them, or both, go into France and marry again; because by the French law such a marriage is not good? And what would be the confusion in such a case? Or again: Suppose two French subjects not domiciled here, should clandestinely marry, and there should be a sentence for the marriage; undoubtedly the wife, though French, would be entitled to all the rights of a wife by our law. But if no faith should be given to that ­sentence in France and the marriage should be declared null, because the man was not domiciled, he might take a second wife in France, and that wife would be entitled to legal rights there and the children would be bastards in one country and legitimate in the other.167 Limits on the power of the state to exercise concurrent competences to supervise the formation of an affection unit were supported by frequent resort to the natural law tradition. The following dictum was a good example. But when two persons agree to have that commerce for the procreation and bringing up children, and for such cohabitation, that in a state of nature would be marriage, and in the absence of all civil and religious institutions, might safely be presumed to be, as it is popularly called, a marriage in the sight of God.168 The Phillippine Supreme Court embraced a similar perspective:

167 Id. 168 Lindo vs. Belisario, 1 Hagg Cons. Rep. 216.

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Surely (marriage) is something more (than an ordinary contract) … marriage is an institution. It confers a status on the parties to it, and upon the child that issue from it. Though entered into by individuals it has a public character. It is the basis upon which the framework of civilized society is built; and as such, is subject in all countries to general laws which dictate and control its obligations and incidents independently of volition of those who enter into it.169 The trend toward secularization of community expectations about various phases of the affection process in Europe was accentuated by termination of the religious wars. The formalization of emergent power configurations under the aegis of state sovereignty was exemplified by that most “decisive juridical event” of 1648, the Westphalian peace.170 The patterns of political authority that continued to emerge reflected complex alliances between the secular and the religious, but of a distinctively decentralized type, both in fact and in style.171 These events marked a watershed in the emergence of the most significant model of global political organization: the European nation-state. In these political structures, formal and effective power was increasingly centered in state elites, however recruited.172 Loyalties shifted from religious-based trans-group perspectives, and from local attachments to nationalism and the symbol of the sovereign nation-state. The juridical framework for these perspectives became even more formalized after the Napoleonic wars and The Concert of Europe, 1820.173 In the common law world, the jurisprudential landmark that served to ­buttress this trend toward the sovereign omnipotence of the nation-state was epitomized in the scholarship of John Austin’s The Province of Jurisprudence Determined (1832), in which a partial and inadequate, but very influential theory about state sovereignty was popularized. After Austin’s death, his theory was given additional weight by such scholars as Holland and Dicey in England and 169 Mordaunt v. Mordaunt (1870), 43 Phil. 32 (1922). 170 See generally L. Gross, The Peace of Westphalia 1648–1948, International Law in the Twentieth Century 25, Leo Gross, ed., (1965). Compare also R. Falk, A New Paradigm for International Legal Studies, 84 Yale L.J. 969, 975–92 (1975). 171 Falk sees this as being coterminous with the emergence of a new paradigm for the international process, a paradigm he has styled “statist.” 172 The international law scholarship of such writers as Grotius, De Jure Belli ac Pacis (1625); and Vattel, Droit des Gens (1757), J. Chitty transl., (1834) provided a significant theoretical structure to stabilize state directed perspectives about authority and control in international affairs. 173 See generally Hindsley, Sovereignty.

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Beale and Grey in the United States.174 These developments signaled a major change in the allocation of controlling competences over private international law-type claims notwithstanding the fact that in the context of the affection process, the old canonical labels were still used to provide manifest justification for decisional outcomes. But now, these outcomes were conditioned by a context animated by a constellation of conditions demanding deference to the power of effective territorial elites. Decisions relating to the affection process across group lines were no less important to these developments than decisions relating to other value sectors. For example, the symbol lex loci celebrationis was largely purged of its transnational policy function of stabilizing licit expectations about the affection process in a trans-group setting. The concept was further emasculated by subverting the reciprocity implied in its customary formulations by the restriction of deference to the so-called formal indices (not excluding ritual), characterizing the process of commitment. Substantive indices characterizing this process were accordingly allocated to the exclusive competences of the lex domicilii or the lex patria, for which optimal deference was a major expectationso far as formal and effective elites were concerned.175 Correlatively, the lex do micilii was allocated the exclusive prescriptive and applicative competences over the essential validity of the marriage even where transnational features of this process were clearly evident. The implications suggested the emergence of the status aspects of the affection process, with greater powers allocated to the state and diminished powers to the individuals. State prerogatives in this arena further enlarged when the empirical reference accorded the symbol lex loci celebrationis designated exclusive competences to territorial elites to make and apply law within their own “spatial” limits. This was an idea which involved a “right” creating competence that for formalistic reasons was “valid” everywhere unless circumscribed by that other complementary symbol, the lex domicilii. This norm involved the exclusive competence to prescribe and apply authority by a territorial state to those in 174 The invention of the vested rights theory is attributable mainly to Holland, The Elements of Jurisprudence 228 (1880). Dicey claimed that his whole concept of Private International Law had been influenced by Holland in both his writings and in conversations. See Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 22 (1896). This made its way into American law through the efforts of Professor Beale who reviewed Dicey’s book, having begun to teach the subject at Harvard some years earlier. See Beale, Dicey’s Conflict of Laws 10 Harv. L. Rev.108 69 i (1896). Beale was ultimately the author of the Restatement of the Conflict of Laws (1934). 175 See, e.g., Berthiaume v. Dastour, (1930) a.c. 79. Cf. Starkowski v. A-G, (1954) a.c. 155 (h.l.); Talzanowska v. Tazanowski, nowski, (1957) P. 310 (c.a.); Kochanski v. Kochanska, (1958) c.a. 147. On continental practice see Ehrenzweig & Jaynie, 1.

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whom reposed some basis for sustaining an affiliation or nexus with a politically constituted group or state. In common law jurisdictions, the connecting index for group affiliation was called domicile. In the continent, it largely reposed in whatever meanings were ascribed to the nationality symbol. Both these concepts, however, were used to aggrandize state power and restrict the structure of reciprocal tolerance accorded to other territorial elites concerning the allocations of controlling competences over the affection process. For example, a state may prescribe and apply exclusive authority to determine all the “essentials” of the affection process when claims were made within its spatial arenas asserting the omnipotence of the spatial dimension. A state could also claim that no person “affiliated” with it may licitly establish an affection unit elsewhere that is inconsistent with the prescriptions of the lex domicilii, or whatever its elites deem “essential” or “substantive.” This doctrinal shift ushered in a pattern of decision that sought to subordinate demands for deference to more inclusive perspectives. Indeed, these outcomes created a strident state-centered structure of control sustained by an exclusivist pattern of minimum order imperatives that became a characteristic feature of Euro-centric jurisprudence during the 19th century.176 That these perspectives served to condition absurd outcomes was readily evident from the barest perusal of some of the outcomes in this area. For example, the problem was evident in the Brook case where the affinity prescription of the lex domicilii was deemed to demolish the “vinculum” of the decedent’s marriage and disinherit his children. The assumptions, underlying the Brook outcome, were interesting and of general jurisprudential significance. Protecting ‘The Family’ was deemed to be an essential pre-condition for minimum public order, the only kind of public order recognized in a period dominated by laissez-faire thinking and definitive perspective on appropriate avenues of community supervision. The family was conceived, not in processual terms, but as a static unitary conception. The family became bound by an inflexible and undiscriminating juridical methodology that sought single factor explanations from which to establish legal conclusions. A marriage was either valid or invalid for all purposes. To illustrate this point, the single issue pervading almost all claims attending the affection process reduced itself to a simple question: what is a valid marriage.177 The criterion of ‘validity’ thus came to replace the old vincame culum in the secular state, and, to a very great extent, ­contemporary theorists have not entirely purged themselves of trans-empirical 176 See A. David, The Strategy of Treaty Termination: Lawful Breaches and Retaliations (1975). 177 Swan, New Approach to Marriage and Divorce in the Conflict of Laws, 24 v. Toronto L.J. 17 (1974).

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fantasies. For example, Professor John Swan of the University of Toronto saw the Brook case as an “easy” one for “modern” conflicts perspectives. The case, he held, was a “no conflict or false conflict cases.” He justified this conclusion as follows: The facts of Brook v. Brook illustrate an important point. In that case the parties had clearly intended to escape the prohibition of English law by arranging for their marriage in a more enlightened jurisdiction. The fact of evasion (or attempted evasion) in a sense emphasizes and justifies the concern which a court should have for the purpose of English law and, at the same time, it decreases the concern for the purpose of the Danish law, for the couple could never be said to be members of the Danish social community. It is also interesting to note that the parties in that case probably had some doubts about the validity of their marriage, for the children of the second marriage, the void marriage, were specifically named as beneficiaries in the husband’s will so that their illegitimacy would not affect their right to succeed. If it had not been for the untimely death of one of the children of the second marriage, the way the family’s affairs were arranged would have made the abstract question of the validity of the Danish marriage irrelevant.178 Here the Brook outcome was justified in twentieth century “colonial” jurisprudence on the basis that either the intended evasion of English law (fraus leqis) or the unamended group affiliation of the deceased parties made this case a “no conflict or false conflict” case. If there was a falsity about this problem, it reflected on the tenacity with which the older nineteenth century perspectives tended to determine the structure of current thinking in private international law. Herethe unitary conception of the affection process was part and parcel of the philosophy of laissez-faire. Law as official commands backed by force is a form of regulation appropriate for the maintenance in the short run of minimum order and preservation of the status quo. Its net effect is to limit the interference of the state in the affairs of individuals. For the rising bourgeoisie, the best law was minimum law, a law that protected only life and property and guaranteed business freedom from both legal regulation and notions of public welfare that might obstruct the so-called inherent laws of the market or political arena. Such a minimum

178 Id.

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law is inappropriate in the context of contemporary communities, which usually strive for higher goals.179 “The family” was deemed to be a sine qua non of minimum public order and a legal ideology that sought to minimize the function of community supervision over all but the necessary and sufficient features for the stability of the public order would reflect a massive allocation of competence to supervise all phases of the affection process conceived as an unprocessual unity. How else does one explain Professor Swan’s “modernist” perspective? How else does one explain the almost casual importance attached to Brook by almost all modern English private international law theorists including a prestigious law reform commission? Aside from erratic and sometimes absurd results that have epitomized the outcomes attributable to the existent paradigm, the inherent and recurring problem of the allocation of competences over the affection process across group lines lies in the conceptual shoddiness that has congenitally hindered the invention of a more satisfactory conceptual and practical basis for the allocation of values bearing upon all phases of the affection process in optimally preferred ways. In reality, Brook was not a case about the vinculum of a marriage in which the parties were dead. It was a case about whether the ostensible validity of a foreign marriage would be recognized for the purpose of the legitimation of offspring and inheritance policy. Sanctioning and punishing a dead couple for their marriage ended sanctioning and punishing their innocent offspring and their claims to inheritance. The recognition of an affection unit may be for a multitude of different purposes and legal interests. When there is clarity about the nature of interests being litigated and how it might affect the expectations of justice and human rights, a wise decision is made.

179 David, at 243.

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Family, Gender, Sexual Orientation, Human Rights and the Affection Process Human gender and sexual orientation are generally seen as representing conventional categories of male and female. The conventional view represents that these orientations represent the conventional biological and moral assumptions about what is normal. Modern science and studies of the psycho-sociology of social process disclose that the categories of maleness and femaleness are two ends of a continuum in which there is variability about the stability of these categories as one approaches the center of the continuum. The categories of what is unambiguously male or female become variable. This variability makes conventional morality uneasy. Historically there was a recognition of variability as a deviance with the implication that it was morally sinful. In contemporary society, there has been a wider understanding of how ubiquitous the evidence is of gender and sexual variability. One owes the recognition of this social fact to developments in the sociology of sexuality, insights drawn from gender, sexuality and psychoanalysis, and from recognition that gender and sexual variability involve aggregates of human beings. The recognition of gender and sexual variability in social process has provided challenges to the conventional wisdom which translated into criminal law standards and persecution, and prosecution and punishment of individuals who acted consistent with a particular gender or sexual orientation. Deeper understandings of human sexuality, moral sensibility and human rights and the deference given to maximizing positive sentiment and affection have led to changes in both morality and law. In this chapter, all variations in gender or sexual orientation are not explored. Two categories, the outcomes of homosexuality and the problems of trans-sexuality, are focused on. The specifics of the problems generated by such orientation, their value and human rights implications, the trends in perspectives and decisions, the projection of trends and a consideration of alternative value appraisals are clarified. Precisely how one locates questions relating to gender in the commitment process is not without a bearing upon decisional and policy consequences. Claims relating to gender identifications in the commitment process may be viewed as claims to participation. From this point of view, restrictions based on gender-related criteria may be seen as licit so long as minimum r­ ationality

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_014

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is shown by elites desiring to control the exchange of affective sentiments. However, when claims relating to gender identification are seen as part of the perspective necessary for the stability of the core personality it becomes apparent that claims relating to gender reflect a primary condition of being that is rarely subject to significant variances. Race and sex are the two key conditions of being that possibly qualify for such status. i

Social Process Context of Gender Claims

In developing the social process context regarding the value of affection, one of the most important outcomes of that process was the process of commitment leading to the creation of the family. The conventional idea of the family is that it is a heterosexual unit. The idea is that heterosexuality is a natural and inevitable experience in social process. Historically and in cross-cultural perspective, various states and groups have been intolerant of persons of the same gender displacing affection calculated to enhance reciprocal commitment. Such activities have been considered unnatural, and in varying degrees, have been proscribed. The practical effect of disapproval meant that society will not accept or give recognition to an affection unit in which the parties exhibit a gender or sexual orientation that differs from the heterosexual model. The chief kinds of problems relating to gender patterns involved homosexual and lesbian types, and included transsexuals and others.1 In this chapter, 1 Other categories involving problems of gender identifications but which are not specifically considered in this chapter include: (1) Transvestitism (the desire to look like the other sex by wearing the clothing of that sex). See Brown, Psychosexual Disturbances: Transvestitism and Sex-Role Inversion, 22 Marriage and Family Living 218 (1960). It is unclear where the determinants of transvestitism are biogenetic or psychosocial. Id., at 219. See also Transvestitism, Cauldwell ed., (1956); Hirschfeld, Sexual Anomalies (1948); Lukianowicz, Survey of Various Aspects of Transvestitism in the Light of Our Present Knowledge, 128 Journal of Nervous and Mental Disease 36–64 (1959). (2) Fetishism (refers to sexual arousal and gratification mainly or exclusively associated with a specific item of clothing, part of the body or inanimate object) See Brown, supra, at 222. (3) Exhibitionism (a sexual disturbance in which exposure o f genitals brings erotic excitement and gratification) See Brown, at 222. (4) Hermaphrodism (covers androgyny and gynandry is an anatomical-physiological condition in which there is ambiguity in external genitals and/or a contradiction among the chromosomal, gonadal, external genital structures, and internal accessory sexual structures). See Brown, at 222. It may be parenthetically noted that Bracton classified persons not only as being bonded or free, but also by their gender, i.e., male, female, hermaphrodite. Z. H. Bracton, On the Laws And Customs of England 31–32 (1968).

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consideration will be confined to the commitment claims of homosexual, lesbian and transsexual types. Homosexuality and lesbianism can be defined in several ways. The definition of Gould follows: “A homosexual is any individual whose sexual object of choice is someone of the same sex.” The etiology of homosexuality is uncertain. It is unclear whether homosexuality represents an illness, or whether the nature of gender preference is symptomatic of cultural conditioning that reinforces heterosexuality. According to Gould, the evidence about homosexuality appears to disclose three distinct homosexual types. First, there are those who are mentally disturbed and their “homosexuality reflects that disturbance symptomatically.” Second, there are disturbed individuals who are homosexual, but whose problems are not related to their being homosexual. The third type is better described in Gould’s own words: .

[T]here are those homosexuals who are not psychiatric patients, and who live comfortable, happy and productive lives, often committed to long-lasting, intimate and constructive one-to-one relationships. This “low-profile” homosexual group is obviously largely unknown to psychiatrists, many of whom state categorically (and wrongly) that homosexuals are incapable of attaining such a stable life-style. As more homosexuals in this silent minority decide to “come out,” the general public (and some professionals) may be forced to realize that homosexuals can be as well -or as poorly- adjusted as many “normal” heterosexuals.2 The case of the transsexuals’ gender identification is still different. The categories of male and female appear to crumble. Some persons do not easily fit into the category of male or female exclusively.3 The transsexual person is one 2 Brown, at 58. 3 Money & Ehrhardt Man and Woman, Boy and Girl (1972); Green & Money, Transsexualism and Sex Reassignment (1969); Green, Sexual Identity Conflict in Children and Adults (1974); Benjamin, The Transexual Phenomenon (1966). It is estimated that there are some 10,000 transsexuals (those who are in fact transsexuals and those whose gender identification predisposes them in that direction). There are approximately 3500 postoperative transsexuals in the u.s. In 1975 approximately 300 operations were performed. The number appears to be increasing. Transsexualism is not regarded as simply another form of homosexuality from a clinical perspective; or indeed of transvestism. It is thought to encompass a more fundamental identity conflict in which a person in a male body views the self as a woman and a person in a female body views the self as a man. Operations are performed on men and women although the American statistics indicate a larger percentage of claimants for gender reassignment, procedures are not reversible they are resorted to by doctors only as a “last hope” See Simpson, Crossing Over, The Wall Street Journal, p.1, Col.1 (Jan. 28 1977). While the inversion

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whose condition may perhaps best be understood in terms of the concept of sex-role inversion.4 For example, when an individual’s thinking, feeling, and acting are more characteristic of the other sex than his or her own, the result is inversion.5 Trans-sexualism has acquired a more specific and accepted meaning. A transsexual is an individual wants and gets a sexual transformation by medical and surgical methods. Homosexuality has rarely been looked on with tolerance or equanimity.6 While there might be social disapproval of persons with a disposition toward homosexuality or lesbianism, such pre-disposition has not been deemed sufficient to invoke intervention through criminal law.7 However, when these persons associate with a view to sexual intimacy, societies have sought to

theory is generally accepted as the cause of the transsexuals desire for realignment, compare the following: Experts don’t agree on the cause of transsexualism. Some suggest that it may result from prenatal hormonal imbalances in the mother. Others contend that it is a matter of conditioning during the early stages of childhood. Most, however, say there is no cure short of surgery. “Classical psychotherapy, behavior therapy and psychopharmacological therapy have met no success so far as getting such an individual -male or female—to change his orientation to one consistent with his anatomic sex,” says Dr. John Money, a psychologist who helped start the sexual-behavior consultation unit at Johns Hopkins Hospital in Maryland. One who disagrees with this view is Dr. Charles W. Socarides, a New York psychoanalyst who says analysis enabled two of his transsexual patients to function heterosexually. Dr. Socarides considers sex change operations harmful. “Transsexuals suffer from psychological problems that people are attempting to ameliorate through drastic, mutilating,” he says. See Simpson, supra, Col. 2. 4 Brown, The Development of Sex Role Inversion and Homosexuality, 50 Journal of Pediatrics 613–19 (1957). 5 Brown, at 224. 6 See The Encyclopedia of Sexual Behavior 485–93; 620–30, Ellis ed., (1967). See also Sherwin, Some Legal Aspects of Homosexuality, 4 Inter. J. of Sociology 4, 2226 (1950); Report of the Committee on Homosexual Offenses & Prostitution (1957) [hereinafter cited as Wolfenden Report], “Homosexuality seems to have been known almost from the dawn of civilization” (486). See also Goldstein and Katz, The Family and the Law, 9, n.1 (1965). These authors state that “it is, of course, conceivable that decision makers may wish to authorize… a process and criteria for establishing ‘marital status’ for homosexual partners.” This statement incorporates a recommended policy, to decision makers, in this chapter. See also Note, The Legality of Homosexual Marriage, 82 Yale L.J. 573 (1973). See also 22 Drake L. Rev. 206 (1972). 7 See the following: “The action of the State Department (of the u.s.) in quietly ridding itself of known homosexuals rested on the well-founded opinion that homosexuals are notoriously subject to blackmail.” Plescowe, Sex and the Law, 195 (1951).

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proscribe such behavior under a theory of its being unnatural.8 Decision makers presumed that they were speaking for the community when they expressed their disapproval of what they considered unnatural acts. The following statement by a Virginia court adequately captures this perspective: Nonetheless, while there may be severe social disapproval of persons with a disposition towards lesbianism or homosexuality, it can hardly be necessary for us to say that the subject of this opinion has been distasteful … An adequate consideration of it seemed to require a somewhat full discussion, and we have endeavored to meet this requirement without unnecessarily indelicacy of expression, but also without prudery or idle denunciation of the act charged. This character of evil conduct is the voice of low and depraved natures and instances of it appear to have been notably rare in this jurisdiction.9 The problem of the transsexual does not draw upon a history of expectations loaded with prejudice. The transsexual as a problem demanding a legal response emerged as a result of advances in medical science and medical technology as well as psychoanalysis. Developments in these fields made it possible to sexually re-assign persons. Such re-assignment has carried with it distinctive legal problems, since global society is still by and large committed to a heterosexual outlook.10 To a large extent, the layman may still associate 8

9 10

For a summary of American attitudes toward homosexuality in the 1950’s, see Plescowe, at 195–215. The attitudes of the Federal courts involving homosexuals in the civil service having been dismissed for immoral conduct show an initial pattern of unwillingness to get involved. See dismissals for immoral conduct, Dew v. Halaby, 317 F.2d. 582 (d.c. Cir. 1963), cert granted, 376 u.s. 404, cert. dismissed, 379 u.s. 951 (1964), Anonymous v. Hacy, 378 F.2d 317 (5th Cir.), cert. denied, 393 u.s. 1041 (1968). These cases declined to review administrative determinations where procedural regularities were followed. More generous treatment was given in Norton v. Mary, 317 F.2d. 1161 (d.c. Cir 1969); Gayer v. Schlesinger 490 F.2d 740 (d.c. Cir. 1973). In Society for Individual Rights Inc. v. Hampton, 63 f.r.d. 394 (n.d. Cal. 1973), it was held that a dismissal based solely on sexual preferences was a violation of due process. In the area of equal protection the courts have been inconsistent. In Boutillier v. Immigration and Naturalization Service, 363 F.2d 488 (2d Cir. 1966), aff’d, 387 u.s. 118 (1967), the court upheld a deportation order on the basis that a homosexual was deemed to be a psychopathic personality. In the case In re Labady, 326 F. Supp. 924 (sdny 1971), the court held that homosexuality was irrelevant to the evidence of good moral character within the statute. Wise v. Commonwealth, 193 Va. 757 115 s.e. 508 (1923). See Strauss, Trans-sexualisrn and the Law, 1 (1970) (Paper read at the Second World meeting of Medical Law, Washington d.c.).

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trans-sexualism as a variant of homosexuality. In any event, homosexuality and trans-sexualism pose the same question about the relationship between the individual and the state over the nature of the individual’s gender orientation and its impacts upon the social process. Gender and Sexual Orientation as a Human Rights Problem: Trends in Perspective One of the most important developments in changing the perspectives of law with regard to homosexual behavior was reflected in a famous report commissioned in the United Kingdom, The Wolfendon Report. It inspired a widely publicized debate between one of the u.k.’s most distinguished law Lords, Justice Devlin and Oxford’s most prominent legal philosopher, H.L.A. Hart.11 These figures debated the Wolfendon Report in terms of the appropriateness of the State to exercise its powers as a guardian of public morality, specifically, whether the state should express a concern, by policing homosexual behavior between consenting adults through the use of the criminal law. According to Lord Devlin, regulating matters of sexual “morality” were a striking aspect of social organization, without which society would decay. The true test of an act’s morality was what the average man thought about it. Professor Hart’s response to Devlin suggested that community intervention should be a more circumscribed one and that there was no historical evidence that sexual pluralism caused social disintegration.12 These opinion shaping discussions stimulated significant legislative reforms both in England and the United States. The reforms had the effect of legalizing homosexual conduct, or resulted in a degree of prosecutorial tolerance and discretion in exercising investigation, detection, apprehension, prosecution, trial and conviction. The importance of the effort to decriminalize homosexual behavior lies in fundamental and recurring constitutive questions posed by it: how power over civic order competences is allocated and whether homosexual and transsexual behavior can and should be protected rather than punished by the state. The importance of the Wolfendon report lay in its showing the irrelevance of homosexual conduct to minimum order standards. The conceptual pathway has now been cleared to examine considerations of freedom and justice for the individual in this context. The focus of attention has shifted from minimum

A

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Devlin, Law and Morals (1961) and The Enforcement of Morals (1965); Hart, Law, Liberty and Morality (1963) and Social Solidarity and The Enforcement of Morality, 35, U. Chi. L. Rev. 1 (1967); Dworkin, Lord Devlin and the Enforcement of Morals, 75 Yale L.J. 96 (1966). Id.

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conditions of social order to considerations of justice for people whose gender identifications are at variance with the majority. These problems cut across group and state lines and are challenging other forms of control and regulation by law. The legal and social problems experienced by persons whose gender identifications do not comport with a heterosexual perspective cover a range of social behaviors eliciting disparate responses. Examples include wearing the clothing of another sex might be frowned upon or even constitute conditions for a misdemeanor or felony. Homosexual behavior may be punishable by the law. A spouse who undergoes a sex change operation may render sexual relations between that person and their spouse liable to laws which proscribe homosexuality or render such a marriage liable to nullification because the parties are of the same sex. Transsexuals may encounter any number of identity problems of an administrative nature like name changes, birth certificate changes, change of school and professorial certificates. There may be gender classification problems relating to a transsexual’s right to marry. Further problems might be incurred in connection with military service.13 13

Strauss, at 1. The very lawfulness of sex charge operations may be questioned c/f the following: Of special concern to the transsexual, as well as to the surgeon performing the operation (and other specialists involved), is the question whether the “sex change” operation is lawful. It may be argued that these operations have now become so common that they have become socially and juridically accepted. But doubts regarding their lawfulness are nevertheless expressed from time to time. In principle it would seem as though any drastic operation of a non-therapeutic nature is unlawful, unless a legally justifiable purpose is sought to be attained by it (e.g. a cosmetic improvement which will not substantially endanger the life or health of the patient, or the removal of tissue or an organ from a healthy person for the purpose of transplantation upon a diseased person.) Does the objective sought to be achieved by conversive surgery fall within this category? The answer to this question will depend upon a consideration of all the surrounding circumstances in a particular case, and evaluation of these in the light of public policy. It is clear that the consent of the patient cannot per se afford justification, notwithstanding the superb skill with which these operations are performed. (Many of these operations, especially in the case of male to female conversion, have produced astounding results, judged by purely aesthetical standards.) It has been contended that the justification for this type of surgery lies in the fact that its true nature is therapeutic. The genuine transsexual is said to be a seriously disturbed person psychologically who is unable to adapt himself to normal social relationships. Frequently he develops suicidal tendencies. Psychotherapy, so it is contended, is of almost no avail and the only remedy is for the surgeon to apply his skill and to convert -the patient’s “external” physiology to his psychological orientation, thereby bringing equilibrium.

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B Claims Relating to Process of Commitment The specific identification claims we are concerned with are those relating to the establishment of an affection unit and its lawful characterization for providing access to other value demands. The freedom of choice demanded in the commitment process by these claimants includes freedom associated with every phase of the commitment process. The key question is whether these freedoms are freedoms of the civic order domain, i.e., the right to privacy, basic civil rights of man, suspect classification, and the legal immunity from invidious discrimination. It is submitted that the claims essentially relate to civic order competences. These claims include claims for freedom to marry, claims that specific gender classifications be honored, claims that transsexual or homosexual marriages be honored across state lines and claims that a party receive medical and surgical treatment to effectuate a closer alignment between the primary self and ascribed identification or a change in the ascribed identification to comport more fully with the primary conception of the self. ii

The Human Rights Values and Policies Relating to Gender and Sexual Variability

The key values implicated in the effort to control and regulate gender and sexual variability represents claims for power to regulate and claims that this power be allocated to the state or to the individuals themselves. Implicit in the state’s claim to control and regulate a person’s gender or sexual orientation is the power to ascribe a gender and sexual orientation to that person regardless of the psychological, sociological or medical facts. Challenging this ascription of power to the state is the claim of the individual that the individual’s experience of gender or sexual orientation is a matter that must be allocated to the individual. From a third party appraisal committed to human rights, the first principle is the idea of freedom of choice allocated to individuals in intimacy involving behaviors. A preference consistent with the human rights outlook would be to provide all individuals, regardless of gender or sexual orientation, with a zone of authority in which they express their freedom of choice to give and receive positive sentiment and affection. This means that the individual is capable of autonomy in the exercise of choice. The common interest of a society is better served when its policies and practices promote and defend the common interest in the shaping and sharing of affection and the emotions of positive sentiment. A society does better with more affect and more positive sentiment than with negative sentiment and hate and prejudice. The recommendation

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is for a system in which the choice of the individual to give and receive affection is accorded the highest deference so long as that choice is reconcilable with the choice of the aggregate as well as the value of human dignity. In this context, the Wolfendon Committee’s report offered guidance as to the kind of community policies that should limit community coercion. This committee maintained that “high deference should be given by society and law to individual freedom of choice and action in matters or private morality…”14 The Committee added: “Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must be a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”15 The realm of private morality and immorality is an effort to establish a zone of civic order in which the role of the collective is heavily circumscribed. The Wolfendon report was an effort at adumbrating the initial contours of the civic order in the affection process. The policy preference was commendable and recommended in this study for guidance in the direction of human rights outcomes. However, the Wolfendon Report does not go far enough. In recommending that the criminal sanction be eliminated, the Report did not eliminate the restrictions on freedom that resulted from denying to individuals their full access to rights in the affection process of the civic order domain. For example, the Committee recommended that there was a zone of behavior that was not the law’s business. This put the issue in a peculiarly negative and passive way. The question suggested was: how far does law go in establishing, protecting and advancing the idea of a civic order of human dignity? The role of the state in this regard should not be a passive one. From this perspective, it was not community intervention that was thought to be undesirable, rather it was the nature of the intervention that needed close scrutiny.16 What was recommended was community intervention calculated to enhance the shaping and sharing of affection and to extend a public and civic order of human dignity in the affection process. The question of the nature of community 14 15 16

Wolfenden Report, at 24. Id. A perspective that in rough measure approximates our recommendation is that of Sir Guy Powles, the New Zealand Parliamentary Commissioner (Ombudsman). See The Citizens Rights Against the Modern State, And its Responsibilities to Him, 13 i.c.l.q. 761 (1964). He said, inter alia, I suggest, therefore, that one of the most important responsibilities the state has to the individual citizen is to provide adequate, efficient, and effective mechanisms for the enforcement of his rights, even if this enforcement may be sought against the state itself. Id., at 766.

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intervention, whether it be active or passive, coercive or persuasive, cannot be answered without reference to the values one attaches to a public and civic order with human dignity. The human rights preference recommended is for the expanded reach of a civic order of the affection process consistent with the goals of human dignity. Such a preference would accord deference to the freedom of choice of consenting adults in their self- image and the primacy of gender choice as the predicate for participation in all phases of the affection process.17 The effort to clarify the values behind the human rights dimension of the intimacy aspect of human beings inspiring to or engaging in the phases of the affection process stress the importance of the right to privacy. This is a formulation of the protected interests in negative terms. Professor Miller observed that [T]he concept of privacy is difficult to define because it is exasperatingly vague and evanescent, often meaning strikingly different things to different people. In part this is because privacy is a notion that is emotional in its appeal and embraces a multitude of different “rights,” some of which are intertwined, others often seemingly unrelated or inconsistent.18 An aspect of the vagueness of the privacy concept is that it is meant to define a zone that does not explain the nature of the interests inside the zone. The concept misses the crucial insight of human interaction. A zone of privacy is also a zone of human interaction. One of the most ubiquitous aspects of human 17



18

Gould, at 59. It is not at all clear that human nature has reached the acme of sexual development when it comes to the gender identifications. Consider the following perspective of Gould: Freud said we are all born bisexual, and young children are “polymorphously sexually perverse” -their sexual drives strike out in all directions. He believed that if the innate, constitutional proportion of maleness (or femaleness) is right, we will make the appropriate (opposite) sexual object choice through the “civilizing” process of what the nuclear family teaches us. Based on what we have observed in children and adolescents, our knowledge (although sketchy) of animals and other cultures past and present, the studies done comparing non-patient groups of homo-and heterosexuals, and, finally, my own recent observations of changing sexual patterns among young adults, I have come to believe that if there were no social restrictions on sexual object choice, most humans would be functioning bisexuals. Accidental, personal experiences might predispose an individual to lean more in one direction than another without pathology or disorder being involved. Indeed, if all the taboos were lifted, pathology might very well consist of exclusive interest in one sex, regardless of which sex-one chooses. Miller, A.

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interaction is the recourse to decision making including decision making within the zone of privacy. This insight requires a better organization of the interests implicated in privacy which are broader than its conventional meanings. McDougal and Lasswell approached the problem by suggesting that privacy was an indicator and an aspect of a broader aspect of human rights public order. They called it the zone of the civic order. They explained their approach as follows: Sometimes it is employed as a functional equivalent to the “right to be alone,” with practically the same broad reference that we impute to civic order. It appears more appropriate, however, to restrict the reference of privacy to freedom of the individual in terms of the information that can be acquired and communicated by, and to, others about him. So defined, the concept serves as an important component of the more comprehensive freedoms encompassed within a properly functioning civic order. Such restrictive usage may help to bring relevant policy considerations into sharper focus and to facilitate the contextual analysis essential to decision making.19 When civic order is understood in terms of the fundamental freedoms of human choice regarding all value processes, one has a broader understanding of freedom and human choice. Consider the fundamental freedoms implicated in the values of the Universal Declaration of Human Rights outside of power: [I]n relation to enlightenment, the freedom to acquire, use, and communicate knowledge; in relation to well-being, the freedom to develop and maintain psychosomatic integrity and a healthy personality; in relation to wealth, freedom of contract and of access to goods and services; in relation to skill, the freedom to discover, mature, and exercise talents; in relation to affection, the freedom to establish and enjoy congenial personal relationships; and in relation to rectitude, freedom to form, maintain, and express norms of responsible conduct.20 With regard to every right specified in the International Bill of Rights, there was an expectation that these rights required the allocation to exercise such 19 20

Mcdougal, M., H.D. Lasswell & L. Chen, Human Rights and World Public Order, 470 and 817 (1980). Mcdougal, M., H.D. Lasswell & L. Chen, Human Rights and World Public Order, Chapter 7: Claims Relating to Fundamental Freedom of Choice, 470 and 817 (1980).

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rights be vested in the human person. A fundamental assumption behind the International Bill of Rights was the idea that it was there to defend, promote and advance the human dignity of individuals. The correct policy maximized the freedom of choice of the individual and the rights of others without coercion. For example: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.21 This policy represented a commitment to a vigorous and well-defended civic order. It was acknowledged that successful human rights public orders were ones in which there was important political, cultural and social space for civil society. In practice, such social dynamics represented the assertion and definition of a zone of civil society secured by a framework of civic order. The human rights documents contained prescriptive expressions of components of civic order and in the aggregate that was what they constituted. The development of the idea of a civic order was seen in the perspectives of the u.s. Supreme Court. As early as 1928, Justice Louis D. Brandeis in the case of Olmstead v. United States wrote an important dissent supporting “the right to be let alone.”22 This concept of privacy may have influenced the Wolfenden Report, although the Wolfenden Report referred to an area or zone where an individual may make decisions without fear of community or state coercion. In the United States the concept of privacy seen as an aspect of civic order received a significant endorsement in the judgment of Justice William O. Douglas in the case of Griswold v. Connecticut.23 Justice Douglas found in the text of the Bill of Rights that several provisions carried broader implications which, 21 22

23

Universal Declaration, Art. 30, u.n. Doc. A/810 at 77. Olmstead v. United States, 277 u.s. 438, 478 (1928); “The protection by the Amendments is much in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the rightmost valued by civilized man. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Griswold v. Connecticut, 381 u.s. 479 (1965).

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when read together, provided a constitutional foundation for a zone of privacy which was an important contribution to the conceptual foundations of a civic order. Justice Douglas read the first, third, fourth, fifth, ninth and fourteenth amendments as conceptually justifying this idea. The reasoning was the concern for the freedom of choice in matters of human intimacy and reproductive freedom. In the case of Stanley v. Georgia,24 the u.s. Supreme Court declared a Georgia statute unconstitutional. The statute criminalized possession of obscene material within the home. According to Justice Thurgood Marshall, there was a fundamental right, the “fundamental right to be free, except in very limited circumstances from unwanted governmental intrusions into one’s privacy.” In the case of Eisenstadt v. Baird,25 the Court struck down a Massachusetts law which prohibited unmarried persons from access to contraceptives. According to Justice William J. Brennan, Jr.: If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and a heart of its own, but an association of two individuals each with separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.26 The decision was a significant advance over the theory of Griswold. It extended the zone of autonomy over intimacy and procreation to non-married individuals. The most momentous doctrinal advance in the u.s. Supreme Court came in the Roe v. Wade decision.27 In this case, the Texas anti-abortion statute was struck down. Justice Harold A. Blackmun produced a doctrinal foundation for establishing the doctrine of privacy in terms that established protected autonomous choices over fundamental human rights freedoms. The Justice gave prominence to the liberty concept in the fourteenth amendment. Liberty involved the freedom of choice. Freedom of choice implied the allocation of competence to exercise decision making choices within the zone of the civic 24 25 26 27

Stanley v. Georgia, 394 u.s. 557 (1969). Eisenstadt v. Baird, 405 u.s. 438 (1972). Id. Roe v. Wade, 401 u.s. 113.

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order. Within the framework of constitutional values, there was space for civil society and that space was sustained by the constitutional foundations of the civic order. It would be useful to quote an important passage of Justice Blackmun in that judgment; The Constitution does not explicitly mention any right of privacy. In a line if decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia (1969); in the Fourth and Fifth Amendments, Terry v. Ohio (1968), Katz v. United States (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut; in the Ninth Amendment, id. (Goldberg. J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit” in the concept of ordered liberty, Palko v. Connecticut (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia (1967); procreation, Skinner v. Oklahoma (1942); contraception, Eisenstadt v. Baiord; id. (White, J., concurring in result); family relationships, Prince v. Massachisetts (1944); and child rearing and education, Pierce v. Society of Sisters (1925), Meyer v. Nebraska, supra.28 Scholars noted that the evolution of privacy in constitutional practice established a zone of prima facie autonomy. Scholars stated that the concept of privacy obscured the real issue, which is constitutional freedom for the individual in a civic order. Extremist interest groups continued to remain in a state of anxiety and apprehension over expanding freedom in a civic order under Roe. Others have supported legislation to indirectly influence the exercise of the freedom indicated in Roe. In comparative jurisprudence, one finds the development of concepts that are functionally analogous to the freedom of choice and the vindication of autonomy in the u.s. Supreme Court practice. To affirm the concept of civic order within which the individual may maximize freedom of choice in human rights values, attention is drawn to its 28

Id.

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importance for the affection process. The important value that freedom of choice might secure is the freedom to maximize the reciprocal flow and experience of positive sentiment and affection. A Human Rights and the Problems of Gender and Sexual Orientation This section focuses on the human rights issues created by institutions of family, gender, and social orientation. This section looks at a selected number of issues in the context of small-group interactions, where family, gender, and social orientation have critical relevance. This section underscores the problems generated by misunderstandings or misuses of the social process of affection. The global struggle for equal respect involving issues of gender identity and sexual orientation is a struggle largely concerning the human rights of women. However, problems of gender and sexuality beyond the conventional male/female distinction, also implicate important human rights issues. The complexity of treating such issues as distinctive should not be mistaken as an emphasis that vests with a weakened human rights concern. In general, the control, regulation and the ascription of identity be it gender-based or sexual, from which rights, duties, benefits and punishments flow, is a matter that is sensitive, volatile, complex and very important from the perspectives of human dignity. There is a correspondence between gender identity and sexual orientation. A person’s gender and sexual orientation coincides with conventional categories of male and female. This insight underscores the conventional sense that gender and sexuality are the same for men and women and tends to obscure a small class of persons whose gender and sexuality are not consistent with conventional understanding. Thus, as a group, persons who do not fit within the conventional understanding will also not fall within conventional morality. The morality of the conventional majority will often be translated into a coercive regime of stigmatization, repression and discrimination. In addition, the cultural and legal relationship between male and female, cross-culturally, is generally regulated and controlled by tradition and custom which is a codification of conventional morality. However, a sizable element of humanity is organized in community systems that are largely patriarchal. Patriarchy in general favors the male over the female in terms of the complex relations of human intimacy and the practical incidents that flow from it. As a generalization, the minority of cultures that are matriarchal will be less discriminatory in general and less discriminatory against males and probably not discriminatory against females. Thus, gender and sexuality implicate strong concerns about non-discrimination as a legal norm and implicate a significant range of critical normative human rights concerns.

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The focus of this part of the book is largely on the human rights of women, and the human rights of minorities who are defined by gender and sexuality different from conventional moral traditions. From a global perspective, the human rights of a large class of human beings are compromised because tradition supports rigid categories by which persons ascribe, often coercively, who should be male or female. More importantly culture and law insist on ascribing such categories to individuals regardless of their own orientation or actual identity in terms of sexuality and gender orientation. This group suffers cross-culturally from custom and tradition. They suffer condemnation, persecution, and intolerant victimization. The human rights issues involved in gender identity and sexual orientation are complex and provoke the conflict that human rights norms which aspire to universality are insensitive to cultural diversity and tradition. In a world of great cultural diversity, these issues frequently challenge the efficacy of custom and tradition versus the efficacy of human rights, social progress and tolerance. The question brings into the inquiry the difficult question of cultural relativism. The control and regulation of human intimacy and bonds of kinship and affiliation raise some difficult and important issues relating to the precise reach of human and fundamental rights and the extent to which tradition and custom may be appropriately reconciled with human dignity on a universal basis. Efforts to control and regulate intimate feelings and emotions tend to involve some competition for power. Culture frequently assumes that the foundation of its identity and stability is rooted in its defense of the structures by which human emotion and affect are displaced and shared These two statements implicate a resistance to changing cultural norms for fear that changes will provoke threats to cultural survival. When the structures and institutional artifacts through which intimacies are expressed are supported by religion or other symbol, progressive change may be resisted. States legislating rules providing for equality and protections in family forms may experience resistance. One of the great challenges of modern human rights is to understand issues of gender, sexuality, sexual variance, the status of women and children and the changing roles of men. This understanding will more adequately support traditions that are compatible with fundamental rights and the development of change when change is mandated by the morality of fundamental human rights. B The Focus on the Human Rights of Women The human rights of women are a matter of critical global concern in this millennium. Historic and cross-cultural experience underlines the global

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depreciated status of women. Cultural domination, be it gender or sex based, is rooted in anthropormorphic norms which reify cultural experience as “patriarchial.” In general, this means that the cultural expectations implicating gender and sex start with an implied perspective of male preference, male regulation and often, male domination. In a recent decision of the Constitutional Court of South Africa, the bhe case, the Court was confronted with an inheritance case. The wife was married under African customary law. She had children. The husband died fortuitously. Her right to inherit, on her own behalf and on behalf of her female children, was challenged by a stranger. The stranger was a male, a distant relative of the husband, unknown to the wife or her children. He claimed that he had a primary right to inherit as the oldest male member of the tribal clan. In this case, both the deceased and the wife lived in an urban area and were working normal jobs in the wage labor economy. For the oldest male to take would have been not only to expropriate the children of their birthrights, but would have expropriated the wife’s property and earnings as well. The Court ruled for the wife. The Court would not countenance a rule of custom based on male patriarchy. The principle of equality and respect in the new Constitution, trumped the customary rule. The institution of patriarchy invariably means female subordination and in the bhe case, exploitation and appropriation of the earnings of a woman. Matriarchial societies do exist. They are the exception, not the rule. Matriarchial societies are not generally known to subordinate and dominate men. The cultural of patriarchy is invariably reflected in the cultural and legal rules that make women second class citizens. It may be of value to canvas illustrations from comparative experience to see how deeply resilient cultural rules and expectations are to change consistent with human rights standards and expectations. In South Africa it is a common practice in traditional society that a bride price must be paid by the bridegroom’s family to the family of the bride. This means that a male who cannot afford an elevated “price” will have his freedom to marry limited by an inability to meet the demanded price. The institution in South Africa bride price is known as the “labola.” The labola is normally given in terms of cattle. A bride’s worth to her family and the bridegroom is measured in the currency of cows. The institution of “labola” has a tenacious hold on traditional marriage custom and the freedoms to marry. Change will doubtless be resisted and practice will tend to ignore the claims for change. In India, it is the institution of dowry, which has a tenacious hold on the freedom to marry. The bride’s family will have to organize a store of precious metals and jewels as part of the dowry of the bride for transfer to the family of the intended bridegroom. Marriage is often an exchange of a woman for

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value for the “privilege” of marriage. If the dowry is not sufficiently lucrative, the bride now in the custody of the husband’s family may simply be assigned the role of a servant. Frequently, the possibility of getting rid of a bride whose dowry is modest, provides an incentive for improvident accidents in the home of the husband. The bride may perish in a household accident, thus providing the husband for a second opportunity of selling himself for a dowry in the marriage market. The dowry sometimes provides an incentive for scandalous human rights violations inside the family. These atrocities are difficult to police by the state. In the tradition of the common law, a woman would often have no legal identity apart of that of the husband. The parties marry, they become mythically one, but he is the one. Her property becomes his property. It is widely held that the married women’s acts of the 19th century had less to do with protecting women’s property rights from male patriarchy than with the reality that women now in the industrial labor market would make bad workers if the husband had the right to expropriate their wages. Women’s rights evolved as strut for capitalism rather than a strut for the dignity of women. In the tradition of Islam, one of the most obvious examples of patriarchy is found in the principle that a husband may unilaterally end a marriage by simply pronouncing three ritual words: talak, talak, talak. This was not a right given to women. These examples are illustrations of the rootedness of patriarchy in cultural expectations, which validate male supremacy and female subordination. These examples are not meant to obscure the complexity of gender and sex in the broader picture of social coexistence. The working categories, male or female, have a correspondence with markers in psycho-social experience. These categories reinforce the processes of how one conceptualizes the concept of female and maleness and implicate normative priorities, which are based on the interplay of symbol, myth and religion. Thus, as cultural rules, they include a claim of cultural distinctiveness and moral preference. For these reasons, human rights theorists confront the question of the clash between human rights mandates on the one hand, and the mandate of cultural diversity which implicates cultural relativism on the other. The rules tolerated by cultural relativism, justified by diversity, may be oppressive or discriminatory with regard to women’s rights. Cultural relativism is often justified by the assumed virtues of diversity as an intrinsic good. If the good of diversity is not self-justifying, then the reasoning is supplemented by the idea that the goodness of diversity is supported by the goodness of tolerance. Thus, the categories of maleness and femaleness become infused with culturally constructed justifications of morality and tradition. In the context of social process, these constructions are

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prescribed, applied and enforced with social pressure or organized coercion which may be public, or which may be organized in the private sphere with a tacit consent of the elite in the public domain. The variability about issues of gender and sexuality and their interrelationships are not simple. They implicate complexity and intimations of what it is to be human and experience feelings and emotions without unreflective or unrestrained social pressure or repression. For example, a person whose social markings are male or female for gender purposes may have a sexual orientation, which targets their own sex, or targets both males and females. In this sense, there is a clear distinction between the idea of gender and the idea of sexual orientation. Similarly, a person conventionally marked female may have a sexual orientation, which targets other women or men and women. In this sense, the issue of gender and sexual orientation implicates a complex range of understandings about the individual’s perception of the self and the social ascription for the self’s construction of the self. Historically, people in this social group experience persecution. Another aspect of the sexual orientation issue is the case of the pre- and post-operative transsexual. A pre-operative transsexual is a person whose gender and sexual orientation is either male or female, and that person wants and goes through a procedure by which that person may be medically re-assigned both from a gender and from sexual orientation point of view. A post-operative transsexual is a person who has been realigned either as male or female. The courts have grappled with what the legal effects are of such a transformation. Some courts have held that the medical procedures cannot change the biological facts. These facts are in the structure of the chromosomes of the person. The chromosomes remain unchanged, Therefore, the operation does not legally change the person from male to female or female to male. Other courts have gone in a diametrically opposite direction. Those courts hold that it is not a matter of chemistry or chemical reality. The central fact of legal salience is the psychological reality of the post-operative transsexual’s condition of being. If that post-operative reality is consistent with the psychological reality of what the person feels the person is, that is the reality, which is recognized and given legal effect. Society places limits on whatever one’s feelings are about one’s true self. Such feelings, predispositions or orientations cannot be displaced as sexual aggression, predatory sexual practices and the abuse of others. The community and the state seek to protect its vulnerable members who may be targets of predatory behaviors regardless of the degree of maleness, femaleness or any other aspect of the gender and/or sexual orientation. This is a complex and important discourse. It seeks to understand and mediate between the self’s

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perception of the self and the appropriateness of the social and cultural expression of this indicator of personhood. To the extent that the expression of personhood, invades the boundaries of others by exploitation, coercion, or aggression such conduct must be restrained. This is so when those “others,” targeted by such conduct are vulnerable and depend on human restraint for their physical and psychological well-being. There are three interdependent, distinct phases relating to the social control of the affection process. The first phase deals with the extent to which associational rights driven by affect and intimacy are protected, including the nature of those affective ties, some of which include expectations of sexual intimacy, while others include expectations of deep intimacy but with defined boundaries which exclude sexual expectations or abuse and in fact use affection and positive sentiment as a base of power and authority for the protection of children and vulnerable human beings, especially women. The second phase deals with the outcomes that establish families or affection units. The human rights values implicated are the special protections given to particular affection units or the repression of other such units because they are deemed culturally inappropriate or deviant. The third phase deals with the termination of the ties of affection and other fact-creating conditions that were created by the existence of the relationship itself. How far and to what extent is it appropriate to coercively maintain an affection unit when the unit in fact reproduces not affection but negative sentiment? The three phases therefore generate a complex of issues and interests which are rooted in contextually reality and implicate a significant number of human rights interests some of which may be complimentary to each other, while others may be ostensibly antagonistic to each other. Thus, the scope of decision making is fraught with complexity in determining how much competence should be a matter of individual autonomy, a matter of small group autonomy within established microsocial relationships, specialized to affect and which forms of decision making are vested with a broader public interest involving the community or the state and the global public interest in the human rights dimensions of the affection process. This section begins with a specialized aspect of the affection process. That aspect deals with the human rights of women. Not all issues relating to the human rights of women are directly tied to the affection process itself. It is with the opaque indirect ties that one often sees the ways in which women experience a depreciation of their humanity. What ties women directly to the affection process is that women, like men, are the targets of heterosexual communications vested with affective indicators. Statistically, this would represent a near universal sampling of human experience. The global aspect of this

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experience is that in this millennium women still experience a disproportionate share of discrimination based on their gender. This does not mean that important strides have not been made to improve the status of women and move in the direction globally of an inclusive norm of non-discrimination. Anthropologists have recognized that universally there is a distinction that is biologically affirmed, and culturally received and developed. Anthropologists have recognized that the concept of male and female while exhibiting certain biological constants differ significantly from one culture to another. Culture often assigns roles on the basis of its own conception of maleness and femaleness more as cultural artifact than a biological datum. Societies tend to be patriarchal and that politics and power are often male dominated. The subtext of many cultures is that women are subordinate, the weaker sex. From the principles of discrimination, they are both biologically and culturally easily identified as the ‘other’ and thus meet a criterion of the identification of the victim of discrimination. These issues are well-expressed by Ralph Linton and Simone de Beauvoir. According to Linton, All societies prescribe different attitudes and activities to men and women. Most of them try to rationalize these prescriptions in terms of the physiological differences between the sexes or their different roles in reproduction. However, a comparative study of the statuses ascribed to women and men in different cultures seems to show that while such factors may have served as starting point for the development of a division the actual ascriptions are almost entirely determined by culture.29 Simon de Beauvoir, a twentieth century feminist, concluded as follows: Thus humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being … And she is simply what man decrees; thus she is called “the sex,” by which is meant that she appears essentially to the male as a sexual being. For him she is sex— absolute sex, no less. She is defined and differentiated with reference to man and not he with reference to her; she is incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute—she is the Other.30

29 30

R. Linton, The Study of Man 116(1936). Simone de Beauvoir, The Second Sex xvi, H. Parshley trans. & ed., (1961).

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From an international perspective, the issue of women’s rights was a matter of activism on the part of feminists and those sympathetic to improving the status of women. The difficulty with improving the status of women is not simply the weight of tradition and custom. On the contrary, it has a great deal to do with the fact that improvement of the status of women would come at the expense of men. Regardless of the class or caste status of the male, an improvement of the woman’s status would be directly felt by the male counterpart or partner. The feeling in part would be that the male’s right to displace physical and psychological wants on the woman, the ‘other,’ would tamper with a very basic expectation of the male’s maleness. Thus, the role of feminists as activists was complex. Is a feminist inherently antagonistic to male positive sentiment? Is male positive sentiment that targets the female really positive sentiment or gratification masquerading as positive sentiment? Feminists as activists had to promote a complicated agenda in which politics, an issue in the public domain, had to be restructured as well as the consciousness of the private domain. The most important difficulty in this context remains the idea that human intimacy is a private matter. However, if intimacy reproduces a depreciation of human rights and dignity then surely that is a public matter. Progressive men and women confront a difficult conceptual and normative problem; the problem of public policy, i.e., drawing discreet lines about the scope of the public and the nature of the private. This is a challenge for human rights because the received categories of what is public and what is private, what is state and non-state, deliberately or through cultural blindness, obscure the relationship between power and affection. In doing so, one is unable to clarify the proper scope of human privacy and civic order on one hand and the appropriate role of public ordering on the other. The activism of women was reflected in international policy during the period of the League of Nations. For example, employment in the League was required to be non-discriminatory regarding men and women. In the International Labor Organization, there was a continuous effort to enhance the equality of women in terms of working conditions. These initiatives found expression in regional international law in the Americas. These interests were espoused as far back as 1928 by the Inter-American Commission of Women. The tradition of the League of Nations was continued and expanded by the founding of the United Nations. The u.n. sought to place no restrictions on men and women participating in their activities. The u.n. Charter refers to the rights of women as fundamental human rights. The Universal Declaration of Human Rights refers to the fundamental human rights of women so that there is no ambiguity about the normative standard that the international

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community expects from the states parties to the u.n. Charter’s system. A multitude of international instruments have evolved since the udhr dealing with various aspects of discrimination of women’s human rights. Among the most important of these are the Convention on the Political Rights of Women, the Convention of the Nationality of Married Women, the Convention dealing with Discrimination in Employment and Occupation, the Convention Against Discrimination in Education, the Convention on Consent to Marriage, Minimum Age for Marriage and the Registration of Marriages, the Declaration on the Elimination of Discrimination Against Women and the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw). The policies behind the international normative framework drew their support from the texts of the u.n. Charter and the Universal Declaration of Human Rights as well as the two critical human rights’ covenants that reduced to treaty form the fundamental principles of the udhr. These principles established an international human rights norm of non-discrimination. This general norm of non-discrimination referred in practice to “unfair discrimination” or discrimination implicit in public policy that can not be objectively justified. Thus, the norm did not mean that state action to protect a vulnerable class, such as women, was prohibited by the norm of non-discrimination. For example, the Convention (cedaw) confirmed this interpretation although the language was not quite as clear as it might have been. For the purpose of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or the purpose of impairing or nullifying the recognition, enjoyment or the exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any field of public life.31 The fundamental thrust of international policy on human rights was the protection of women based on the principle of equal respect. The concept was not sufficiently nuanced in that the concept of respect could not grapple with a value that was produced and distributed in a normative way and was actually subversive of the idea of respect. When the free and uncoerced giving and receiving affection in terms of human love occurred, the egos of those who 31

Convention on the Elimination of All Forms of Discrimination against Women. Concluded at New York, Dec. 18, 1979. Entered into force, Sept. 3, 1981. Signed (on July 17, 1980) but not ratified by the United States.

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shared the affective ideal were dissolved in each other. Real love and affection required an intersubstitutability of individual egos. The fundamental policy promoted the protection of respect and autonomy, and the protection of the affective dynamic by which positive sentiment was reciprocally shared in terms of the ideals of love. It was this difficulty that required persons to be more discriminating about affection, especially where the expectations of intimacy and sexual experience were high. However, the intersubstitutability of affection may be shared without the expectation of sexual exchange; in fact, sexual exchange may be destructive of it. Thus, the close ties between parents and siblings reflected deep intimacies which cannot be properly experienced without proper boundary lines. The traditional incest taboo was one such example. Sometimes the relationship between the teacher and a student also exhibited a high level of emotional intimacy that was driven by the shared value of intellectual curiosity and discovery. Thus, a high level of intimacy may tap into the values of positive sentiment, but if the boundary lines were breached, positive sentiment gave way to a negative, even destructive emotional dynamic. In the 19th century, John Stuart Mill provided us with normative guidance that holds great value today. That the principle which regulates the existing social relations between the two sexes—the legal subordination of one sex to the other—is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.32 In the 20th Century, McDougal, Lasswell, and Chen provided a modern gloss from a human rights perspective of the Mill position. In a global community aspiring toward human dignity, a basic policy should be to make the social roles of the two sexes as nearly interchangeable or equivalent as possible. To achieve genuine equality between the sexes, it is vital that “nobody be forced into a pre-determined role on account of sex, but each person be given better possibilities to develop his or her personal talents.”33 Such a policy need not preclude separate consideration of matters arising from “a physical characteristic unique to one sex.”34 “So long,” wrote the authors, 32

John Stuart Mill, The Subjection of Women, in Essays on Sex Equality: John Stuart Mill & Harriet Taylor Mill 123, 125, A. Rossi ed., (1970). 33 Ginsburg, The Status of Women: Introduction, 20 Am. J. Comp. L. 585, 589 (1972). 34 Brown, Emerson, Falk, Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights of Women, 80 Yale L.J. 872, 893 (1971).

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“as the law deals with only with a characteristic found in all (or some) women but in no men, or in all (or some) men but no women, it does not ignore individual characteristics found in both sexes in favor of an average based on one sex.” C The Sensitivity of Human Affect and the Inheritance of Hypocrisy More than half the world’s population are women. The position of women in the global scheme of access to the values, which affirm equal respect and dignity, is disproportionate to the demographics of women. It is women who experience disproportionate powerlessness in the producing and sharing of power. Women are often a disadvantaged class in the political economy. The same may be said for their role in producing and sharing the benefits of virtually all other values, which constitute the fulfillment of human rights. Women are an educationally deprived class. They experience disproportionate deprivations in professional and work environments; they experience similarly deprivations related to health and well-being, as well as fundamental equality and respect. In the area of fundamental morality and rectitude, women are frequently victimized by cultural values, which mask male hegemony under the cover of pre-empting or subverting religious values. Religious values are often perverted and used to support double standards of sexual morality as a cultural mandate. Infusing double standards with religious dogma is sometimes used to limit the importance of human rights in this area. In some cultures, men may enjoy the right to end the marriage unilaterally but a woman may not. A woman’s freedom of choice in the area of affective ties and emotional intimacies are often subject to exploitation or double standards regarding male responsibility and female victimization. Even in the context of aesthetics, the woman’s body is disproportionately seen not as an object of aesthetic beauty but a commodity exploited for commercial and market purposes often fueling illicit trading in human beings. In global society, the disparity between the idealized version of women and the grim reality of deprivation makes the explicit articulation of equal rights for women a necessary and specific mandate of international law. This was expressed in the Preamble of the u.n. Charter. It has a special and obvious proximity to the authority foundations of the Charter. It was placed in the second sentence of the Preamble. This sentence followed the specific prescription of authority upon which the u.n. was founded. That foundation was in “We the People.” That second sentence reaffirmed fundamental human rights in the dignity and worth of all persons, and this was specifically tied to the equal rights of women in the clause following. It was in this context of the specific placement of the human rights of women in the context of equal rights, dignity and worth that one sees the mandate not emanating from the states

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parties, but from the authority foundation of the states parties themselves. “We the Peoples” were the authority. This principle conditioned the notion of contemporary state sovereignty itself. It was no accident that the text of the Preamble was structured the way it was. Organized political society from time immemorial excluded women from participation in the formal processes of governance unless such participation was essentially covert, indirect and, in particular, at the discretion of male political elites. Since religion often served as an authority predicate rather than authority rooted in the people, religion itself became political and often benefited from assigning roles of marginal salience to women in the governance of religion itself. Seen in this light, the terms of the Preamble require a much more discriminating view of tradition, culture and religious practice on a global basis. D Myth, Belief and the Roots of Gender and Sexual Hypocrisy In historic terms, the interplay of culture in politics and myth systems based on belief meant that politics was driven by existential claims and elaborate justifications of myth systems in which religion was dominant. Culture was infected with rules and in particular, moral rules. Religion answered the question, whose rules were they? Since they were transcendent, they could be changed. They could be interpreted. Practical politics and its offshoot practical law used such rules as it selectively appropriated and implemented. The rules provided a preference to one group of power claimants and not another. However the governing process was structured, there was a contestation for controlling a myth system, which validated the power. The operative rules of sexual relationships and their boundaries were justified by recourse to the religious myth and the moral rules that the elite preferred. Since religion itself was an institution of critical dualism, the bridge between man versus God, religion held sufficient rectitude to compel social submission to religion in the culture. However, to sustain that consequence, religious elites used the power of religious myth to influence the dynamics of power, wealth, affect, education and all other social values. Religion as a form of rectitude served as a base of power to secure and consolidate its position of preference with regard to all the other values., and a powerful religious myth often mandated submission to the will of God as understood by the religious elite. Religious elites used their symbols and beliefs to promote themselves in power, to acquire wealth and to acquire power over the intimate and critical components of individuated humanity; the power over how persons must feel. Religion sought to monopolize control over the process of developing, displacing and reproducing a critical component of social process and human identity. That component was the process which sought to control and regulate the

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giving and the receiving of affection, and the giving and receiving of positive sentiment. One of the most ritualized and often sanitized elements of the dynamics of human feeling which was pre-empted by institutionalized religion. Religion insisted cross-culturally that God or the universal spirit or the Supreme Being was love itself. Other forms of love were deviations from the supreme and required a religious imprimatur of either permissibility or restraint. There were comparative differences that evolved from how one culture or religious tradition sanctified certain behavior and punished deviance according to its religious experience. It may be of value to start with the biblical story of Adam and Eve. This story was widely known cross- culturally and shared with Christianity and Islam. Adam and Eve were God’s creation and lived in the paradise of the Garden of Eden. They were innocent and uncontaminated by gratification or the desire for possession. This state of innocence ended when Satan, in the form of a serpent, persuaded Eve to eat the forbidden fruit of the tree of knowledge and she persuaded Adam to do the same. It was conventionally assumed that the knowledge acquired by Adam and Eve was about conscious sexual intimacy. Such knowledge, if experienced mutually, was created out of sin and correspondingly, the fruit of such knowledge, i.e., children, were conceived in sin. This was the original sin myth. The story was a religious myth and may be interpreted as a myth designed to teach, educate and enlighten. This myth may do the opposite, unless one gives it a construction in keeping with the nature of God as God. If the story was a myth as a gift from God, what was the lesson that God sought to communicate? Of course, the conventional wisdom was fear of God. God was vengeful and unforgiving. That was only one interpretation and one that could suit the desire for social control based on the idea that every time a couple felt a natural sexual urge, they were morally flawed, laced in sin and fit for hell. A possible alternative was that God was a God of love. The creation of Adam by God was an act of love. The creation of Eve, as an aspect of both God and Adam, was the creation of love inclusively. The nature of God’s love was that it was love without boundaries. Thus the love of God for Adam and Eve was an unbounded love. The love of Adam and Eve for each other and for God was an unbounded love. Love meant the complete merger of the self with the other, the woman and the man, and with God whose nature included man and woman. What then disturbed this relationship of unbounded love? The metaphor of the apple was really a metaphor that the unbounded love ideal was something that must be learned and re-learned. One learns this by learning to love one another, and love was the vehicle for breaking down the barriers of

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otherness. When one learns true love and breaks down the barriers of love between a man and a woman, one learns the pathway of unbounded love to God. Thus, Adam and Eve in acquiring sacred knowledge actually knew something about growing up. They received God’s love as a gift. Now they must earn God’s love as a component of growth and emotional maturity. They must learn to love each other in order to have children and the children must in turn grow and learn to love and replicate the cycle of love as an unbounded ideal between people amongst themselves and with God. The boundaries between God and Adam, God and Eve, as well as the boundaries between Adam and Eve, represented the concept of human self-­ determination, free choice and the capacity with the boundaries of selfhood to make moral and ethical choices consistent with human responsibilities for mutual caring and evolvement. However, the boundaries that were implicit were the boundaries of individual self-awareness, distinctiveness and essential personhood. Thus, self-knowledge was about the importance of the ego for the human being, the ego was the foundation of the concept of respect and the concept of respect established that every human being has a sacred boundary within which that person’s human capacity evolved. The relationship of man-to-man and to God was in part a relationship of knowledge and awareness of wisdom and spiritual growth, which started with the boundaries of the self. The individual must understand love and when it was experienced it created the greatest possible achievement in human emotional experience and one of its greatest threats. Love was not trivial. To properly experience it, it involved the inter-substitutability of the object of one’s love on a reciprocal basis. To drop the boundary was to promote unbounded love. To drop the boundary and be exploited or abused brought abuse to an acme of deprivation. It was precisely this kind of love that was characteristic of God’s unbounded love. It was a matter that required responsibility, growth, generosity and ultimate altruism. Thus. the Adam and Eve myth was a powerful story and its truths were timeless. Such was the power of myth. Finally, there was the question of Adam and Eve in the Garden of Eden with fully developed sexual organs apparently having no sexual desire. This was an odd assumption. Perhaps the better assumption was that in a certain state of nature, the relationship between Adam and Eve did not preclude the mutual giving and receiving of sexual intimacy. Since it was not exploitive, it was natural and mutual and almost a religious expression of the unboundedness of love. However, with the recognition of boundary in the self-system, came the recognition of ego and ego demands. These demands put the idea that both Adam and Eve effectually competed to take something from each other. Eve was there essentially to gratify Adam from Adam’s male perspective and Adam

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was there to gratify Eve from Eve’s female perspective. Thus, the boundary would see the relationship as a matter not of the intersubstitutability of the man and the woman in the relationship, but rather a competition as to who can get maximum gratification for the self. This was corrosive of love as a dissolution of boundaries and reinforced the idea of the self as an atomized entity incapable of taking the steps toward transcendent love. This was the challenge of being human and is the proper meaning of the Adam and Eve myth. The boundaries of the self were necessary and did not drop automatically. God did not expect them to be dropped automatically. The boundaries were there for persons to learn and grow and be worthy of the love of God and at least on earth, the love objects of one’s life. In the first instance, the self must have a boundary in which it can learn to love itself and then dissolve that boundary when appropriate to broaden the circle of love inclusively. The reduction of the Adam and Eve story to a transmittal of the human situation as one, which was condemned in the eyes of God and which was replete with the notion that sin engulfed the innocent and the guilty alike, was a particularly cruel distortion of a plausible construction in keeping with the idea of a loving God. This was a high point of manipulation and hypocrisy. In the Old Testament, men were assumed to have a divine sanction to have multiple wives. A man could have multiple wives concurrently. God forgave and blessed David who murdered the husband of a woman with whom he was infatuated. David was rewarded with a son, by Bathsheba. His name was Solomon who was the wisest of the wise. Solomon, too, loved women by the multitude. Among Solomon’s great sexual encounters was the African Queen of Sheba. Apparently, she was black. The fact that David never gave up in his effort to seduce the Queen indicated that David with God’s blessing was one of the great precursors of diversity and sexual integration in traditional Jewish history. Jesus of Nazareth was of course a descendent of David and presumably a relative by blood of the David/Solomon/Sheba line. The Old Testament of the Bible did not endorse monogamy, and certainly did not repudiate plural marriage or concubinage. Religious apologists often suggested that in fact God did not approve of plural marriage because it disrupted family and social life. This however is an after the fact rationalization better articulated in terms of contemporary ideas of dignity and feeling than in the psycho-pathology of antiquity. In Hinduism, myths simply overmatched the Jewish tradition. Krishna, at least in popular culture, appeared to be an enormously attractive prospect for women. The girls loved him and he graciously reciprocated. Krishna’s passion and love as God was limitless. But Hinduism went further in its mythology. In the Mahabaratha, the Queen Draupadi, reportedly a woman of astonishingly

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beauty and character, was married to several brothers. Thus, as a matter of principle, the Hindu myth not only permited but actually made a woman with multiple husbands an iconic heroine. Islam provided for polygamy. However, the religion placed a prudential limit on the number of wives that a man may have simultaneously. The Koran stipulated that all women married to the same man must be treated equally. How far this goes was not precisely recorded. Some Islamic theorists held that the standard was impossible to meet for most men and, therefore, this limitation on polygamy was a rule that prohibited it in fact although making it permissive in form. After the Iran-Iraq war, the Iranian Republic experienced a population loss of men who were killed or were casualties of the war. The religious elite developed a policy for a more flexible and equitable distribution of men and women, given the reality of the shortage of men and the abundance of women. The Aytollahs decided on the idea of limited term marriages. A man and a woman could enter into a contract of marriage for a fixed term and then leave. If there were children, different rules would apply. This suggested a radical idea in terms of giving and receiving of affect with the expectation of sexual intimacy. The creators of this system, however, saw themselves as fundamentalists and conservatives. Women wore coverings that clearly showed a depreciation of any ostentatious projection of self in terms of attractiveness. This was an important illustration of a religious elite, which was particularly attentive to the issue of the distribution of affection and respect. Perhaps this was based less on God’s revealed morality than a politically astute recognition of a serious social problem. A depletion of the male population by an unfortunate war meant there were more eligible women than men in the marriage market. The religious elite were not going to be defeated by gender demographics. They manipulated the rules for political benefits and gave those rules a religious blessing. In many societies today the control and regulation of affect has taken interesting twists and turns accounting in part for the survival of traditional religious beliefs. It was commonly assumed that in the Judeo-Christian tradition that there was a relationship between sex and sin. The widely held interpretation was that the act of sexual intercourse was immoral and sinful and organized religion condemned it. State policy also sought to regulate and possibly punish it in certain contexts. Marriage provided an exception for sexual intercourse that was permissible. Permissibility did not often extend to the conception of a child. In traditional terms, whether the parents were married or not, the child was still conceived in sin. The logical consequence was that the child in utero was conceived in sin. If the child was aborted for any reason, the child was condemned to purgatory. Baptism cleansed the sin of a child, but, if

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abortion occurred prematurely, then no baptism happened and the child was consigned to purgatory. There was a very powerful traditional myth that a child should be carried to term. Thus, the child should be baptized, cleansed of sin and that was where the moral obligation ended. If the child died afterwards from hunger, exposure to cold or the elements or was abused, that was simply a minor matter, compared to the benefits of baptism. This myth was no longer tenable today. It was replaced by a more powerful child-centered moral proposition: the child in utero has a right to life. In this view, the child was not secured from purgatory because of baptism. The child was a being per se with a right to life. The mother was obligated to carry the child to term and, if she did not do so, she may face condemnation of religion, and possibly the criminal law power of the state. One thing remained constant. The child’s right to life did not extend so far as to require the state to pay for the costs of pregnancy, birth and responsibilities for care and nurture after birth. The assumption was that the family, the husband or the partner would pay the bill. But where this did not happen, there was no further social responsibility. In the United States today, the most important family form, second only to the monogamous marriage, is the single-parent mother. Thus, the dilemma exists of how far family values extend when it comes to the allocation of social responsibility to women who bear the costs of support, child-caring and, at the same time, must be active in the workplace in order to survive. When it came to the role of the state in seeking to control and regulate intimacy, feeling and affect today, a vast number of states worldwide proclaimed themselves to be states that legislated the validity of monogamous marital forms. In many traditions, this form was created by limiting access to divorce. For the wealthier citizens, the solution to this limitation on the freedom to divorce was simply to temporarily migrate to another state, meet the technical requirements of domicile, obtain a divorce and return home single. Many jurisdictions would have at least two forms of marriage co-existing. The one form was marriage for life for the poor and the other form was marriage for the convenience for those with funds to use out-of-state procedures to end the marriage. Eventually, the system of hypocrisy resulted in the concept of a no-fault divorce. One could get a divorce on demand with some reasonable time delays and remarry. The result being that in form marriage was a monogamous system. In fact, it was a system of extant structural polygamy. A male or female may now have multiple marital partners so long as these partners are experienced sequentially rather than concurrently. In this overview, there is a factor which stands out in the control and regulation of affect. The controlling of affection, however effective, is seen as vital to

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the system of political identification and solidarity. Either a religion or state may infuse values of state power with consequences well beyond a narrow conception of intimacy and micro-social family values. Whichever concept of marital form is considered, without effective community intervention, the control and regulation of affect will be manipulated by guilt, terrorists, organized crime, social reactionaries or religious fanatics. This does not state anything new. It was an insight implicit in much of Freud’s work, especially his meta-psychology. Freud focused attention on precisely the question of how affect was controlled and regulated so that culture and cooperation as well as personality development may proceed in constructive ways. In his book, Totem and Taboo, Freud rooted the universal restraints on the displacement of affection in terms of sexual access in small groups such as family units in the universally experienced taboo on incest.35 This was a powerful insight which is today of critical value in modern society. For example, today we exhort the importance of family values and correspondingly family privacy. The state and the community are restricted from intervening in the sacred space of civic privacy, which formed the boundary of family autonomy of freedom of choice regarding interactions within the bounds of the family. In his book, Civilization and Its Discontents, Freud more carefully examined the cultural implications of unrestrained sexual expression.36 He was particularly concerned that the cultural rules and their legal equivalence were in general a critical part of the concept of civilization itself. Of course, this defense of the rules of restraint, specifically in intimate human relations, was not designed to reproduce psycho-pathological governmental repression. The insights concerning the universality of the incest taboo were particularly striking. Indeed, without a well-understood norm which clearly stipulated through culture, religion and community that incest was a taboo, what restraint would there be regarding sexual connections between members of the same family in which some members, e.g., children and females, are the most vulnerable? This does not suggest that the taboo has universal efficacy. But common sense suggested that without the taboo it was extremely difficult to protect the weakest members of the family from being exploited internally. It was possible that those cases involving internal sexual abuse were more common than appreciated. The cases, which came to the surface, may only represent the tip of the iceberg. No matter how extensively society legislates equality and respect for all members of the family including women and children, what actually happens 35 36

Sigmund Freud, Totem and Taboo (1952). Sigmund Freud, Civilization and Its Discontents (1962).

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inside the family may be the opposite of what equality and respect demand. The very family values of privacy and autonomy may actually make the weakest members of the family unit even more vulnerable since outside knowledge of disparity and abuse only happens after a crisis and public intervention is required. E Psychoanalysis, Politics, and Feminism The Freudian insights generated a powerful intellectual and scientific movement whose influence, although on the wane for some time, may in fact be resurgent in aspects of modern feminism, culturally diversity and the greater acceptance of affective intimacy beyond the categories of both male and female. Freud’s basic ideas were an important orientation to a proper appreciation of the exploitation of women as well as other categories of gender and sexual exploitation. Possibly the most important and widely accepted idea in Freud’s thinking was that there was an implicit insistence on the human vulnerability of human sexuality and identity. This idea itself suggested that society should be less judgmental and more tolerant of human weaknesses and vulnerabilities. The implications today are fairly obvious. The ubiquity of human variability in gender and sex orientation underlines the element of diversity as an existential datum. An adequate appreciation of Freud’s general insights provides us with a deepened understanding of the nature of freedom, the responsibilities inherent in it at a deeper psychological level, and insights to understanding the nature of childhood and the construction of identity. Ideologically as well as in Freud’s meta-psychology, there was an insistence on tolerance about human vulnerability. This may be contrasted with the role of hack specialists in rectitude and their hack political acolytes who stand as a barrier to the scientific and intellectual insights that are provided to humanity as a great intellectual legacy. Freud’s contribution improved our understanding of women and the politics of sex and gender. Perhaps the most arresting insight in Freud’s work was the issue of how personalities were formed or deformed in family culture and society. The Freudian tradition provided vital insights into the reproduction of human personalities, some of whom became political leaders or worst dictators. The insight was uncomplicated. Children are born into a family unit. The child’s personality will be shaped in substantial measure by the character of innocent practices of child nurturing and care. Freud’s insights showed us that children were not little adults. They were beings per se. For example, the child’s sense of time and its experience of deprivation may be completely different to a teenager or an adult. A short period of time which might be involved in neglect may be a minor matter for a mother or

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care-giver but may be an eternity for a child. The deprivation of food, warmth or discomfort similarly may be dramatic for the child but a minor matter for the adult. Thus, deprivations and the child’s experience of time which were interdependent issues were critical indicators of personality development be it normal or possibly dysfunctional. One of the earliest efforts to apply Freudian insights was the work of Harold Lasswell. Before ww ii, Lasswell wrote two extremely important works applying Freud’s ideas to the concern that political leaders may have psycho-­ pathological deficits. One of his earliest books given a brave title that could have only come from Lasswell’s own youth at the time was titled Psychopathology and Politics.37 Today the idea that many blood thirsty dictators are psychopaths is a common place idea. Hitler, Stalin, Franco, Idi Amin, Pot Poll, Mao Tse Tung, Pinochet are examples. How does a society produce a pathological personality capable of mass murder without conscience or remorse? Can a society invent preventive politics that can limit the damage done by such personality types? Lasswell looked carefully at the social construction of personal insecurity from a global perspective. These were profoundly important insights into the applications of general psychoanalytical insights in a study of political behavior. From the perspective of women’s rights and feminism, one might look to the work of some key figures in the so-called Freudian left. Among the most important of these was the psychoanalysist, Wilhelm Reich. Reich was particularly interested in why certain cultures reproduced personality types that were essentially authoritarian in character. In certain cultures such as the German tradition there was a tendency to expect children to manage deprivations as a method of producing strong little Germans. What Reich saw was a process of reproducing authoritarian personalities in abundance or the reproduction of personalities prone to accept authoritarian culture. In a remarkable book, The Mass Psychology of Fascism, Reich made the link between psychoanalysis and the political culture of authoritarianism which influenced contemporary culture in many important ways.38 Since the authoritarian style was intolerant of ambiguity, markedly repressive regarding feelings of affect and intimacy, and supportive of guilt and fear as a critical style of governance, Reich challenged the moral certitude of inherited authoritarianism concerning social repression. Social repression meant the repression of women because they were centrally the objects of male sexual desire. The sexual allure of women would itself be seen as socially disruptive 37 38

Harold Lasswell, Psychopathology and Poltics (1960). Wilhelm Reich, The Mass Psychology of Fascism (1933).

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and itself a matter of assumed guilt for all women as a cultural norm. There was male repression and male guilt, but these forms of self-examination were less judgmental. Male feelings about sex, although repressed, could still express itself in ways that did not carry the same quantum of social guilt and condemnation as with the situation of women. The assumption was that women had presumably more control over their bodies because they tolerated sex or were thought to repress feelings of pleasure since this was discouraged for women. Reich confronted this matter so directly that even today the title of his book startles the reader. That book’s title was The Function of The Orgasm.39 Reich argued that both men and women experienced orgasms and that it was completely unscientific to suggest that men only experienced orgasms and culturally have a right to a male orgasm. On the other hand, it was clear that women, biologically and psychologically, experienced orgasms. A powerful cultural myth stipulating that there was something deeply wrong, evil or profoundly immoral in the experience of female orgasm, was both biologically and psycho-analytically a matter of fantasy or cruel political manipulation sustained by scientific ignorance. These insights took time to percolate into the general culture but generated an important intellectual movement called the Freudian Left. Perhaps the term “Left” overstated the matter. However, it was from these roots that the feminist writers began to generate an attack on the bastions of cultural, psychological, legal and political dimensions of male hegemony and gender inequality. This approach touched off a critical intellectual discourse in developed societies. For example, the idea that genital mutilation was a mandate of religion was shown to have nothing to do with faith-based beliefs. It was more in common with male control, male insecurity and male domination. This was supported by an implicit social pathology covered up by the mask of tradition, cultural relativism and cultural diversity. The Right to Cultural Diversity and the Place of Women in Diverse Cultures The emphasis on women’s rights and the broader framework of gender and sexual equality and respect was underlined by the concept of struggle, and the concept of effective advocacy as a critical part of the culture of human rights and change. This struggle continues. It is a struggle for the dignity of most of the people on the planet. It is sometimes forgotten that the promotion of dignity and respect has radiating effects, which broaden the scope of human rights for all. The focus on women’s rights is a critical dimension of the struggle for the rights of men and the inclusive rights of all of humanity.

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Wilhelm Reich, The Function of the Orgasm (1927).

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The global insistence on respecting identity, the evolution and development of human rights norms of non-discrimination and equal respect became critical at all levels of social activism. That process continues today and human rights activism is a critical part of that struggle. The issue of women’s rights and gender equality was invariably tied to the complexities of intense small, micro-social relationships. The most obvious example was the concept of the family. Human reproduction was the most obvious practical condition for the creation of family ties. Women in general will monopolize reproduction in the sense that women conceive and give birth to children within or outside of marriage. Either way, the mother and child relationship functionally constitutes an elemental family tie. A family may exist without marriage. None the less, there is a close and important connectivity between the concept of marriage and the concept of family. Marriage usually presupposes the creation of a family unit. But a family unit does not necessarily presuppose marriage. This insight is made more complex when one recognizes that the concepts of family and marriage are culturally universal. On the other hand, what exactly a family is in one culture or in one part of history may be vastly different to the meaning given to that term cross-culturally or in another time period. Similarly, the rituals, forms and expectations of marriage may be vastly different in terms of culture and tradition. Empirically, there are very wide ranges of family forms. Cultures generally believe that their own family forms are cultural constants and immune to change. Sometimes, these expectations are vested with high normative commitments. Thus, issues of marriage and the family which touch the most intimate components of shared intimacy and social responsibility are often tenaciously defended and changes to the particular system are often viewed within that system as culturally subversive and possibly even destructive of the bonds of social solidarity. For example, the dominant form of marriage in Western society is influenced by the tradition of monogamy which is supported by religion. G Forms of Marriage Efforts to change the monogamous relationship or to tolerate a variety of different family forms run into the strenuously asserted political debate about “family values.” In the Islamic tradition, a form of polygamy was accepted as part of an appropriate marital form. This tradition remained strenuously defended by the Islamic religious establishment which in other respects appeared to be rather strict in the definition of sexual morality outside of marriage. Many African traditional systems were polygamous and co-exist in pluralistic societies with other religiously-based marital forms. This posed a problem about the rights

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of parties to establish intimate relationships and the extent to which those relationships would receive the blessing of the state or the religion as officially valid unions. The problem became more complex when one posed the further question as to what precisely were the human rights’ issues which may be furthered or depreciated by different cross-cultural expectations about marriage, family and intimate associations. Is it appropriate to vest monogamy with an exclusive claim to the virtues of human rights’ legitimacy? Is polygamy which permits only the male to have more than one official female spouse a limitation on the human rights of women, or is it an abuse of human rights on the part of the male sanctified by the law of male dominance? If there is something morally virtuous or superior in a dyadic male/female relationship, does the virtue lie in the union exclusively of male and female? Or is it the two-person relationship that is superior? In the latter case, we would then be confronting the question of the appropriate status of same sex or transsexual or other monogamous or dyadic relationships or ties. The normative question is frequently collapsed into the gate-keeping function of the ritual of marriage. The gate-keeping function expresses the depth of emotional and moral commitment to certain kinds of relationships and, at the same time, precludes others. In Christianity, this is an issue which vests marriage with a sacramental character. When a man and a woman otherwise eligible are married by the church the marriage bond [the vinculum] is a bond created by God and it is essentially a sacrament. Today, marriage is largely a matter monopolized by the state. However, the state, in general, has not seen marriage as merely a matter of two parties contracting with each other to make a complicated deal for life. It is a status and the state seeks to regulate, guard and control all aspects of its creation, duration, termination and post-termination effects. Marriage is a status which has contractual aspects but it is vastly regulated by the state. In many other traditions, such as Islam and traditional African and Asian cultures, marriage is seen as a contract often with families being represented and settlements being agreed to. Thus, marriage is not often cross-culturally seen as vested with high religious implications but as seen in a much more exchange-oriented approach analogous to a complex institutional transaction. However, this does not mean that the cultural foundations of marriage in this sense is not strenuously defended from outside influences or forms of intervention. When one views this background in human rights terms, one is confronted with certain difficult and tenaciously resilient problems. Human rights are meant to be rights of individuals. To what extent do basic micro-social structures respect individual rights in terms of choice, security, and the capacity for human development in all of its forms? Since the family is so critical to

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the survival and development of the human personhood including personality, the human rights issue involves not only the relationship partners but also the relationship of additional members adopted or created in the relationship. The  poet, Wordsworth, with a brilliant insight said, “The child is the father of the man.” Perhaps, we can underline the importance of human relations in family units by noting that it is precisely in these social units that humans reproduce the next generation of social participants. Thus, within the family, within innocuous practices of nurturing, caring and rearing persons are reproducing personality types which may be the most important human resources for either a productive or destructive future for humankind. The issue of women’s rights and gender seen in the context of the broader framework of intimate micro-social relationships cross-culturally and globally may well be suitable material for a modest degree of re-conceptualization. This effort might provide a greater clarity about precisely what human rights issues are implicated in all the complicated relational situations and structures that constitute micro-social groups in which intense intimacies are experienced whether these be in terms of sexual exchange or in terms of exchanges that prohibit sexual intimacy, i.e., the relationship of parenting figures to children. Instead of starting as conventional scholarship insists with a focus on the institution of the family and then focusing on the culturally-specific rituals of marriage, one might start with a different focus. A culturally-specific institution of the family in one culture may not constitute a family in another culture. The marriage ritual of culture A may not be recognized or even respected in cultural B. It may be of value to ask the following: what fundamental expectations do human beings anticipate when small group ties are established and maintained with expectations of reciprocal emotional and psychological intimacy in which expectations of identity and sexual exchange, normally heterosexual but not exclusively, with appropriate limits occur? The emotive drive that energizes this process is commonly called “love.” Love without limits is of course not love. It is gratification, narcissism or extreme self-love and, on the extreme end, sexual or gender terrorism. Love is an emotion universally admired. It is an emotion for which there is universal aspiration. The moral foundations of love imply that it expresses a human ideal of the self in relation to other selves and in ultimate expression reflects the ultimate indication of moral altruism and virtue. It is a sentiment that begins in the most elemental of human relationships and has the capacity to radiate wider expressions of positive sentiment ultimately shaping the nature of micro-social experience such as the self in the family. That experience in turn radiates into other social relationships and ties in kinship units and broader community structures ultimately extending to the structure of

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the nation and the state itself. Positive sentiment transcends the state as well as shaping the character of the state as founded on the institutionalization, protection and enhancement of positive sentiment which often gravitates from love to loyalty to patriotism. When positive sentiment transforms and transcends the state and sovereignty, humans gravitate to the notion that human planetary solidarity is founded on a broad inclusive conception of love as positive sentiment which permits identification and empathy with all of humankind, the entire eco-system and all the sentient and non-sentient life forms that constitute the earth-space community. At the heart of love is the conception of positive sentiment from the micro-social to the global level. The institutional expression of this form of positive sentiment today is rooted in the conception of human rights in the broadest sense. This in part explains why modern human rights which emerges in terms of ostensibly secular initiatives and processes none the less finds a deeply empathic partner in virtually religious traditions, when those traditions are not corrupted by the imperfections of human faithlessness. The major religious traditions see God or the universal spirit as the ultimate ideal of what God is. That ideal is translated in one way or another in terms of love. God is love. The ultimate ideal of Godliness is the capacity to love and be loved on a completely selfless basis. The purest expression of positive sentiment, i.e., love between human beings and between God and human beings, cannot be limited by boundaries. Love and positive sentiment mean complete altruism and selflessness. Complete altruism of the self is merged in the ideal of love. God symbolizes love. From this perspective, the relationship of positive sentiment to human rights is often assumed but not adequately understood. Whether one bases the justification of human rights in secular, existential values about positive sentiment and love for one another or whether that justification is based on religion rooted in God’s love and redemption through love, both secular philosophy and spiritual experience converge on the centrality of love and positive sentiment as a universal moral virtue. This virtue is as well the ultimate moral foundation of human rights and human dignity. From a secular point of view, the highest aspiration of moral philosophy rests on the universal respect and dignity of the human person. From a religious point of view, the greatest human contribution to the celebration of God is the dignity and worth of the human being on a universal basis. If, according to religion, humans are God’s creatures, humans love God and in doing so humans celebrate the dignity, worth and the beauty of the human being in all its complexity and wonderful unfolding dimensions. The simple truth is that human rights are founded on the universal centrality of the giving and receiving and the exchange and experience of positive sentiment at every level of psycho-social experience.

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Thus, when one looks at “domestic relations,” “family law,” “family values,” one immediately begins to focus on the form and the value implications of the particular form or the legal cultures that institutionalize particular social or cultural forms of micro-social experience. The discourse itself starting from this premise may in fact be observing or focusing with cultural biases and prejudices that presume forms that are unfamiliar simply do not exist or should not exist or should be discouraged or destroyed. Thus, we obscure what we must actually do as a matter of practical, social policy to rationally promote and enhance values of love and positive sentiment. These values are at the heart of human rights and a great deal of religious experience. The approach conventionally taken is one that focuses on how the community and/or the law seek to control and regulate what the community defines as the appropriate or legitimate family form. Thus, in modern law, what one calls family law is about the control and the regulation of the family and certain rights incidental to it. The central word is control. To say that society controls the family and certain incidents involving family ties and relations is serviceable but it comes at the price. To control a form and its incidental features might not be the same thing as controlling emotion, feeling, intimacy, or prescribing how people must feel about each other, or what level of sexual feeling may itself be controlled and regulated. Or communities may go further and hold that controlling the sexuality of women may be critical to the control of the family and thus controlling the capacity for gratification through sexuality must be done by either psychological or legal repression or in certain cases the genital mutilation of women on a community-wide basis. Thus, one may be obscuring important human rights issues simply by the conceptual lens and focus that one deploys for inquiry. The concern in this context is that practices which may be indefensible from the perspective of positive sentiment and human dignity are routinized by custom, tradition and convention. In this sense, reshaping the tools of inquiry is a critical component of human rights as an agent of change. Correspondingly, such an approach gives human rights advocacy a clearer objective in terms of the nature of the violation, the strategies of advocacy, the institutions of intervention and the possibility of improving the human rights landscape. It may be startling if we simply acknowledge the rather simple observation that culture, law and tradition seek on a universal basis to control and regulate affection which we may now describe as positive sentiment. The community seeks to control how we feel at every level of social organization. The community seeks to control love in the sense of what intimate relationships may be established and protected or prohibited and punished. It may seek to establish what broader social ties of sentiment are included in the “I,” the “we” and the

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“other.” It will seek to do this by strengthening the “I” and the “we” and often demonizing the “other,” the enemy. Thus, solidarity, loyalty, patriotism, internationalism, humanitarianism, human rights and dignity exist on a continuum which in varying degrees is conditioned by the dynamics of affect and positive sentiment as well as by the dynamics of otherness, prejudice, discrimination, hate and extermination. iii

Trends and Conditions Relating to Human Rights and Sexual Orientation

Roman legal culture held sexual behaviors associated with homosexuality in low esteem.40 According to the lex Julia de Adulteris, unnatural acts between males were punishable by death.41 The Romanist perspective found its way into medieval and modern civil law systems. A similar development occurred across the English Channel. In England, for example, Henry viii allocated power to the secular courts to punish “the detestable and abominable vice of buggery.”42 The crime and vice of buggery became a common law crime, enlarged and codified under the influence of Victorian sex morality and was modernized in the Criminal Law Amendment Act of 1885 to include gross indecency between males whether these acts were done in public or in private. Most of English law relevant to sex morality was ultimately consolidated in the Sexual Offenses Act of 1956 which excluded homosexuality among women from its reach for historical reasons.43 Two years prior to the Sexual Offenses Act of 1967, the Wolfenden Committee “was appointed to consider the law and practice relating to homosexual offenses and the treatment of persons convicted of such offenses by the court’s…”44 The Wolfenden Report stimulated a vigorous debate about the desirable

40 41

42 43

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The Roman pagan position was also reflected in the Judea-Christian tradition. Leviticus 18:22 stated as follows: “Thou shall not lie with man as with woman, it is an abomination.” D. 47. 11.1.2; D. 48. 5. 34.1 1. Iust 4.18.4. Roman-Dutch lawyers considered unnatural sexual acts as “Onkuisheid tegen de natuur” and as “Venus monstrosa.” The distinctive civilian crime was that of the gratification of sexual lust in a manner contrary to the order of nature. See R v. Gough and Narroway (1926) C.P.D. 159. 25 Hen. viii c. 6. The reasons were that when this legislation was brought up for consolidation, it was felt that the inclusion of lesbian women within its reach would offend Queen Victoria’s sensibilities. Wolfenden Report, at 24.

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relationship between law, liberty and morality in the common law world.45 The Wolfenden Committee’s recommendations were adopted in the Sexual Offenses Act of 1967. The American Law Institute adopted in broad outline the Wolfenden Committee’s recommendations in its Model Penal Code and the laws criminalizing homosexual behavior have been more relaxed in various state court jurisdictions of the United States. In many nations, homosexual behavior is still a crime and severe penal deprivations may be applied to convict parties.46 Why elites have continued to embrace such an attitude toward criminalizing homosexual activity may be found in perspectives about the nature of the public order and its relationship to principles of social solidarity. According to Lord Devlin, there appeared to be a similarity between matters of immorality (sexual) and treason, both of which encompass the malady of having societies disintegrate and tolerating men drifting apart.47 For lesbians and homosexuals to voluntarily displace affection on each other poses no threat to goals of society and is not inconsistent with the human dignity and human rights of these individuals. While the social process was muddied by the proscription of avenues for giving and receiving of affection by homosexuals, a class of claims emerged that focused on ideas of individual justice. In addition to claims for the removal of criminal sanctions for homosexual acts, there were formal and informal claims for honoring the freedom of homosexuals, lesbians and transsexuals in the choice of affective targets as a step in the direction of optimal order. Where such persons are formally married the affection unit should be honored for various purposes including the administration of revenue laws in the context of joint income tax returns, legal significance of the unit to accord benefits to the parties the adoption of children and simplified insurance problems. The status of persons who have undergone sex change operations poses similar problems. The trend in decision in the u.s. has moved toward a recognition that gender identification may be a condition of “being,” unalterable or alterable only so as to effectuate a closer alignment between the perception 45 46 47

Id. 15 and 16 Eliz. 11. C. 60. The Wolfenden report contained a survey of continental policy regarding homosexual conduct. The recent meeting of the American Medical Association refused to take a position on homosexual conduct that would have supported the American Law Institute’s position that private sexual behavior between consenting adults should not be subjected to criminal process; The New York Times, Dec. 4, 1974, at 26, Col. 3. The doctors expressed concern that such action might be misinterpreted as an endorsement of prostitution; A.L.I. Model Penal Code §8.05 (1962).

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of the self and the physiological aspects of gender classification. Support for this conclusion is drawn from cases such as Griswold v. Connecticut48 which limited the states’ effort to control sexual behavior by outlawing contraceptive devices; Loving v. Virginia49 which regarded the freedom to marry to be a basic civil right of man and proscribed restrictions on this freedom based upon an unalterable condition of being and Roe V. Wade50 which established autonomy for women regarding their power of determination over termination of pregnancy. Decisions dealing with the allocation of power to the individual in the commitment process initially grew out of the u.s. Supreme Court exercising a concern over freedom of speech and assembly.51 This focus drew attention to claims for free and private association. Specifically, the Supreme Court, speaking through Justice William O. Douglas, appeared to extend the protections accorded political groups to social and perhaps even affection groupings. According to Justice Douglas the first amendment had a “penumbra where privacy is protected from governmental intrusion.”52 He continued, “In like context, we have protected forms of ‘association’ that are not political in the customary sense but pertain to the social legal and economic benefit of its members.”53 Justice Douglas drew support for these associational penumbras of freedom from a reading of the first, third, fourth, fifth and ninth amendments54 as expressive of the idea of “liberty” in the fourteenth amendment. Construing these amendments as effectually one of the major purposes of the constitutive myth, Justice Douglas declared: We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not

48

See D. Martin & PI Lyon, Lesbian/Woman103 ((1972). See also Hunter and Polikoff, Custody Rights of Lesbian Mothers: Legal Theory and Litigation, 25 Buffalo L. Rev.691 (1976). 49 381 u.s. 479 (1965). 50 388 u.s. 1 (1967) See also Stanley v. Georgia, 394 u.s. 564 (1969). 51 410 u.s. 113 (1973). 52 See naacp v. Alabama, 357 u.s. 499 (1958); Gibson v. Florida Legislative Investigating Committee, 372 u.s. 539 (1963); Elfbrant v. Russell, 384 u.s. 11 (1966); Williams v. Rhodes, 393 u.s. 23 (1968). 53 381 u.s. 479 (1964). 54 Id., at 483.

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commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.55 The constitutional position of the homosexual’s freedom to marry according to his gender preference is related to the extent to which courts may be prepared to protect homosexuals from discrimination because of their gender preferences. The question is whether states may proscribe same-sex affection units or whether the power of the state is circumscribed by constitutional amendments and prescriptions protecting the privacy of the individual homosexual, lesbian or transsexual. In contemporary constitutional analysis, the zone of autonomy has been technically analyzed in terms of the suspect classification doctrine. The suspect classification doctrine has also been used in adumbrating the reach of the equal protection clause of the fourteenth amendment. The meaning of a suspect characterization was explained by a federal court as follows: In the past several years, the Supreme Court has applied a two-tier analysis to problems of equal protection. Triggering strict scrutiny have been the cases involving a suspect classification, or fundamental interest. Absent either of the above only minimum scrutiny, enough to establish any rational relation between the rule and the goal has been necessary to sustain a regulation or statute.56 The strict scrutiny standard triggered by the character of state laws to determine interests of the constitutional value system reflected a technique which mandated a reversal of the efficacy accorded the state’s power to make and apply law. The state had the burden of establishing a compelling public interest that would outweigh interests associated with the purposes of the constitutive myth relating to the civil rights of man. For example, the allocation of power to a state to sterilize habitual criminals was held by Justice Douglas to fall within this penumbra of freedom or liberty because it involved “the basic civil rights of man.” He continued, “marriage and procreation are fundamental to the very existence and survival of the race,”57 and unlike most legislative outcomes, allocations of competence had to be carefully screened before it would be deemed constitutional. 55 56 57

Coming to the merits, we are met with a wide range of questions that implicate the due process clause of the Fourteenth Amendment. Id., at 481. Id., at 486. Gay Students Org. of U. of n.h. v. Bonner, 367 F. Supp. 1085, 1096 (d.n.h. 1974).

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Aside from the interest a homosexual may have in gender preference in the choice of a mate and thereby raising a constitutional claim,58 the homosexual may trigger suspect status by presenting his condition as belonging to a class saddled with disabilities and having a history of discrimination and political powerlessness.59 The rationale of the immutability requirement is that the imposition of legal obligations should bear some relationship to legal responsibility. The homosexual has no more control over his homosexual outlook than a heterosexual has over his. A transsexual has no more control over the transsexual’s outlook than a homosexual or heterosexual. Moreover, once the transsexual has undergone reassignment, the physiological change is immutable. This presents the constitutional perspective with the claim of a homosexual to have his gender preference in the choice of affective targets.60 There were two early 58

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Skinner v. Oklahoma, 316 u.s. 535 (1942); see generally, Korematsu v. United States, 323 u.s. 214, 216 (1944); Shapiro v. Thompson, 394 u.s. 618, 634 (1969); Loving v. Virginia, 388 U.S 1 (1967). A factual predicate for the fundamental interest analysis may be distilled from the following: Ford and Beach, Patterns of Sexuial Behavior (1951). Frequency of human sexual relations is rarely determined solely by the phy- siological condition of the participants… In human beings frequency [of sexual relations] is rarely a simple function of the degree of readiness, desire, or potency of the two partners. On the contrary, every society imposes restrictions upon a couple’s sexual activity and enforces various periods of abstinence which have nothing to do with the man’s or woman’s capacity for erotic responsiveness or sexual performance. It is clear that the desire for coitus is determined by more than physiological factors. Psychological factors are also consequential. Moreover, sexual “gratification,” something uniquely individuated is quite beyond the competence of community interveners to prescribe for. Nevertheless, these deep gratifications encapsulate vital aspects of the individual ego’s selfregulative system, including inter alia, the feelings about self-worth, security, power, love and other value processes. Ford and Beach continue: It might be expected that in our own species learning would have the most marked and far-reaching effects upon sexual activities. This expectation is amply verified by the facts. Human sexuality is affected by experience in two ways: First, the kinds of stimulation and the types of situations that become capable of evoking sexual excitement are determined in a large measure by learning. Second, the overt behavior through which this excitement is expressed depends largely upon the individual’s previous experience… To a certain degree, unguided trial-and-error learning may influence the development of the individual’s sexual patterns. But this is exceptional. By far most of what people learn to feel and to do in the realm of sex is learned from or with other individuals [Ibid, 262]. These classifications have been even more broadly interpreted by the Supreme Court: On race, see Korematsu v. United States, 323 u.s. 214 (1944); compare Levy v. Louisiana, 391

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cases in the state courts that suggested that some state courts were not yet prepared to engage in a deeper constitutional analysis of homosexual claims to marry. Baker v. Nelson61 and Jones v. Hallahan62 were illustrations. These cases involved the claims that homosexuals had a right to marry. In Baker, two males claimed a right to be issued a marriage license. The claim was refused on the grounds that both were of the same sex. The state statute in question employed the term “marriage,”63 which the Supreme Court of Minnesota interpreted to mean as between a husband and wife or bride and groom of a different sex and upheld the clerk’s decision that the statute did not authorize the establishment of same sex affection units. The court held that the statute as construed did not offend the first, eight, ninth and fourteenth amendments to the u.s. Constitution. The court took the position that the primary expectation about the institution of marriage was its heterosexual nature and the procreation and rearing of children. This latter point the court took to be, as “old as the book of Genesis.”64 This was a somewhat archaic view of marriage in the Western world. It may be that the sexual drive is primarily instituted between consenting persons to fertilize a relationship rather than an ovum. The court thought that the principal function of the institution was its importance to group existence and survival.65 The court distinguished away loving on the ground that “not all state

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u.s. 68, 72 (1968) with Labine v. Vincent, 401 u.s. 532 (1971) (illegitimacy); Takahashi v. Fish and Game Commission, 334 U.S 401 (1948) (alienage); Edwards v. California, 314 u.s. 160 (1941); (indigents); Shapiro v. Thompson, 394 u.s. 618, 627 (1969); (welfare) Carrington v. Rash, 380 u.s. 89 (1965) (voting). See generally, Invidious Discrimination: Justice Douglas and the Return of the “Natural Law—Due Process· Formula” 16 U. C. L. A. L. rev. 716 (1969). See Comment, Constitutional Aspects of the Homosexual’s Right to A Marriage License, 12 J. of Family Law, 607, 615 (1972–73). It appears homosexuality has the critical features identified by the Supreme Court as deserving “suspect” status. These are: (1) its inherent character; its relative permanency and immunity from change; it need not be entirely unalterable. Tests from alienage and poverty endorse the view that the standards about future change are laxer ones, (2) symbolic stereotyping as a sociological basis for identification and resultant deprivation, (3) “neutral” factor tests—where the homosexual classification is irrelevant to social process (4) Homosexuals are a relatively powerless group, (5) endemic hostility with pervasive ongoing pattern of deprivations. 291 Minn. 310; 191 n.w. 2d 185 (1971). 501 S. W. 2 d 588 (Ky. 1974). Minn. Stat. §517; at 312. 291 Minn. at 312. On the right to marry, the New York courts followed the Baker route. See Anonymous v. Anonymous, 67 Misc. 2d. 382,325 n.y.s. 2d 499, 501 (Sup. Ct. 1971); B v. B, 78 Misc. 2d; 112, 355 n.y.s. 2d; 712 (Sup. Ct. 1974) (involving a preoperative transsexual’s

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restrictions are beyond the reach of the Fourteenth Amendment.”66 The court held that there was a significant difference between a restriction predicated on ‘race’ and one predicated on ‘sex’67 without designating what the significance was and why it was relevant.68 There was an unusual aspect to the Baker case. Before the Minnesota Supreme Court rendered its decision, Baker and his “spouse” McConnel were already pursuing other avenues toward union. McConnel adopted Baker legally in Minneapolis for the purpose of securing tax advantages. Baker thereupon legally assumed the name of Pat Lynn McConnel, although he continued using the name Baker in his daily affairs. About a month before the court’s decision in the pending case, Baker applied under his new name for a marriage license in Mankato, Minnesota and was duly married to McConnel by Rev. Roger Lynn of the United Methodist Church. After the wedding ceremony, John Corbey, the Blue Earth County Attorney opined that the marriage was null and void because Baker’s address as listed on the certificate “was not that of the bride.”69 Under Minnesota law a marriage certificate must be issued from the county of the bride’s residence. Baker had given the address of a vacationing professor as his Mankato address. A Hennepin County grand jury considered the legality of the marriage and concluded that the question was “not worth pursuing.”70 As the couple was now “legally” married under Minnesota law, the case before the state Supreme Court should for practical purposes have been mooted, because the gravamen of that claim was the refusal to issue a marriage license. The precedential value of this case was doubtful. It should be parenthetically noted that the United States Supreme Court denied a petition for certiorari on the basis of the lack of a substantial federal question. The next phase of the McConnel saga had the parties filing a joint income tax return. The Internal Revenue Service ruled that the parties would not be deemed to be husband and wife within the meaning of the Internal Revenue Code.71 Notwithstanding the moot element in the Baker case, it was principally relied on to deny the claim of a lesbian couple

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marriage which was held void). Cf. Singer v. Hara, 11 Wash. App. 427, 522 P.2d. 1187 (App. Ct. 1974), a case which denied homosexuality as a suspect classification. 291 Minn.312. Id. Id., at 315. Id. See Homosexual Wins Fight to Take Bar Examination in Minnesota, The New York Times, Jan. 7, 1973, 55, Col. 1–5. Id., at Col. 4.

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that they be issued a marriage license in Jones v. Hallahan.72 In this case, the Kentucky Court held that two women, the plaintiff appellants, were not entitled to be issued a marriage license, because they were of the same sex. The plaintiffs canvassed a variety of constitutionally inclusive standards without success.73 The Kentucky statutory scheme made no provision for a marriage between parties of the same sex. Commissioner Vance of the Court of Appeals, citing a variety of sources including dictionaries and encyclopedias, ruled that, although the case was one of first impression in Kentucky, he would nonetheless be guided by Baker v. Nelson74 and denied the claim.75 These cases, of course, raised a conflict within the structure of primary competences to prescribe policy of an order that differed from the classic conflict of laws paradigm of Loving v. Virginia, for example. Here, the conflict was between the allocation of competences between the state and the individual. First, whether state elites under the fourteenth amendment, were obliged to apply inclusive community policies associated with those constitutive values. Second, whether the state elites could be allocated the power to police and deter the establishment of homosexual or lesbian affection units. A trend in decision was toward an inclusive community policy under federal constitutive process. Individuals attached importance to protected features of public and civic order domains relevant to the affection process and recognition that a same sex affection unit that was stable and enduring be provided the participants with deep psychological gratifications. These feelings included “the need for security, feelings of personal worth, feelings of power and the assurance of being loved and lovable.”76 Policies associated with the public approval of affectionate behavior, including assistance in the diffusion of value indulgences and deprivations such as termination policy, alimony, support, maintenance, all provided for a pattern of orderliness and stability in the folkways of the community. That such benefits were denied homosexual or lesbian sexual behavior was the antithesis of the protected features of a civic order of the affection process where a major goal value to be promoted was the enhancement of affection. For the homosexual or lesbian, the right to establish 72 New York Times, Jan. 5, 1975, 35, Col. 1. 73 501 s.w. 2d 588 (Ky. 1974). 74 The right to marry, freedom of association, freedom of religion, the prohibition against cruel and unusual punishment. Id. 75 291 Minn. 310, 191 n.w. 2d. 155 (1971). 76 Compare Jones with the new English legislation. According to the Matrimonial Causes Act, C. 18 1 (11) (1973), a marriage celebrated after July 31, 1971 shall be void in England if the parties are not male and female respectively.

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and lawfully characterize this type of affection unit represented access to a great many value indulgences, e.g., respect, well-being, rectitude, affection, power, etc. It implied a degree of stability in a more permanent and secure relationship. It implied relative freedom from official and informal persecutions. It may include access to other tangible value indulgences which were accorded to lawfully married couples. For example, using a licit homosexual affection unit as a base, the parties to such a formation may be to collect tax benefits,77 immunity from testifying against spouse,78 access to wrongful death benefits in tort or under workmen’s compensation,79 prisoner’s rights (visitation), adoption and foster parenting support and maintenance.80 Less visible value indulgences denied homosexual couples among others included family plans in insurance, social security and automobile insurance premiums. The denial of these values to homosexuals and lesbians constituted a pattern of drastic deprivation.81 The conflict of laws aspect of Baker and Hallahan may emerge in the following situation. If a marriage certificate was issued by a local 77 78

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Berelson and Steiner, Human Behaviour: An Inventory of Scientific Findings 279 (1964). See, e.g., Int. Rev. Code of 1954 §1244 (b) (with regard to losses on small business stock, “loss from the sale or exchange of an asset which is not a capital asset shall not exceed $25,000 or $50,000 in case of husband and wife filing joint returns”); Id. §121 (a) (d) (if taxpayer has attained age of 65, gross income does not include gain from the sale or exchange of property). For husband and wife filing a joint return, even though only one spouse satisfied the age requirement, both shall be treated as satisfying it; Id. §37(i) (2) (A) (similar provision for retirement income); Deductions. Spouses are allowed deductions for each other as dependents in certain instances. See Int. Rev. Code of 1954, §214 (when incapacitated or institutionalized); Id. §213 (for medical expenses not compensated by insurance); Id. §15l (generally, $750 and an additional $750 if one is blind). “A husband and wife may make a single return jointly of income taxes under subtitle A, even though one of the spouses has neither gross income nor deductions.” In addition to the general advantage· of factoring two incomes of different amounts into a single tax return, there are instances of joint returns being given other preferential treatment; Id §179(b) with regard to additional first year depreciation allowance for small business, the ordinary limitation of $110,000 is raised to $120,000. On the other hand, certain prescriptions in the Internal Revenue Code tend to disfavor “married” persons… See generally Richards, Discrimination Against Married Couples Under Present Income Tax Laws, 49 Taxes 536 (1971). The policy here is to preserve peace and harmony within the primary affection unit. See 8 Wigmore, Evidence2237-2245, 3d.ed., (1940). Penal Institutions severely restrict visitation rights. “Wives” or “husbands” are generally given preferred treatment. See generally Abanime v. Murphey, 108 Cal. App. 2d 294, 238 P.2d 606 (1951). Some bodies politic do not allow “unmarried” couples or individuals to adopt children or have foster children in their homes. See Tsilidis v. Pedakis, 132 So. 2d 294, 238 App. 2d 770, 43 Cal. Rptr. 160 (1965).

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marriage officer, and the parties solemnized a same sex marriage, will such a marriage be honored within and across state lines to secure the advantages of 1, lawful termination policies; 2. the law relating to decedents estates and future interests; 3. the law relating to inter-spousal immunity; 4. the law encompassing the various forms of social legislation; 5. the law relating to immigration and naturalization; and 6. the law that may accord the parties immunity from prosecution for homosexual behavior as a result of a lawful marriage according to the lex loci celebrationis? These problems and complexities have been avoided within the American state system as the constitutional penumbras of liberty in the fourteenth amendment have been extended to protect the privacy of homosexual affection units. True conflicts have been resolved according to the inclusive standards presumed to repose in the major purpose of the constitutive myth. As to the transsexual arena, analogies drawn from the outlawing of sex-based discrimination82 are helpful in providing justification for the development of the global constitutive process. A Trends and Conditions: Sex change Decisions The key question concerning sex change decisions is what indicia are used to determine that the sex change is a change of sufficient substance that a male be reclassified female and vice versa. The following indicia have had some relevance to decision making: (1) (2) (3) (4) (5) (6) (7)

Sex chromosome constitution. Gonadal sex. Sex hormonal pattern. Internal sex organs other than gonads. External genitalia. Secondary sexual characteristics. Apparent sex (the sex others presume you are and therefore the sex role in which you are reared).83

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There is a serious question in the Baker case as to whether the court dealt adequately with the constitutional issues. For example, can the state deny a marriage license to a heterosexual couple who agree prior to applying for the license not to have children? The equal protection issue is even more confusing. It appears that where all women can only marry all men and vice versa, the person who wants to enter a same sex marriage may be denied the right because it is denied to all. This surely is question begging. Most of these are collected in McDougal, Lasswell & Chen, Human Rights for Women and World Public Order: The Outlawing of Sex-based Discrimination, 69 Am. J. Int. Law497 (1975).

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The kinds of claims that have significance in decisional arenas included elements of both criminal and civil law. In the area of criminal law, there were claims that surgeons be immune from prosecution for reassignment surgery, although such action would apparently be contingent upon what standards were applied to establish informed consent.84 A claim may be that of immunizing the transsexual before, during and after treatment for cross-dressing. Cross-dressing was often a prescribed treatment of a transsexual before reassignment is attempted. Cross-dressing laws were often found in local ordinances rather than in state criminal codes. Further problems emerged in the context of an inmate’s treatment on the gender identity the person ought to have.85 Civil claims revolved around public records and gender status, possible liability of medical practitioners, claims for a marriage license and claims that a transsexual marriage be honored for various purposes including termination. The desire to have a name that, from a cultural standpoint, comported more with the sex-identity the individual projected to the public was a predictable demand. Courts found little difficulty in honoring this demand to comport more realistically with the transsexual’s post-operative gender.86 It was hardly likely that the acquisition of a new name should cause transstate problems. Trends and Conditions: Transsexual Marriage and Matrimonial Relief In Corbett v. Corbett,87 a post-operative transsexual male (to female) married a man, who sought to have the marriage nullified. The transsexual (Ashley) sought to have the marriage characterized as a lawful one for the purpose of having the relationship terminated by divorce rather than nullification. The court ruled that the biological sex of a person was fixed at birth for the purpose of matrimonial causes. Sex change would, in the result, not be honored at law.88 In this case, April Ashley, a person of the male sex that underwent a sex change operation, and sometime thereafter, married Corbett. Ashley instituted divorce proceedings against Corbett and Corbett countermanded with a claim for nullification on the ground that Ashley was, from a formal point of view,

B

84 Note, The Law and the Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 Conn. L. Rev.288, 290 (1975). 85 See Holloway, Transsexuals—Some Further Legal Considerations, 5 Comparative & Intl. L. J. Southern Africa, 71, 78 (1972). 86 Rouse v. Cameron, 373 F. 2d 451 (d.c. Cir 1966). 87 Id. 88 2 All e.r. 33 (pda) (1970).

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still a male. The court went into great depth analyzing the character of biophysical changes Ashley had undergone, and held that it would nonetheless regard her as being still male. It may be parenthetically noted that in Corbett the court indicated that, in the matter of court costs, it would have treated Ashley as a woman for the purpose of allocation of expenses, although in the instant case this was unwarranted. April Ashley had scored an economic hit with the publicity gleaned from the case, and was not suffering a financial squeeze. The important point to note was that Justice Ormrod would have deemed Ashley to be a female for purposes of economic hardship in the matter of allocating court costs. Justice Ormrod approached the problem from the point of view of the New York court in Weiner, i.e., whether the post · operative transsexual could be deemed to be a woman for the purpose of honoring the marriage for the purpose of granting a divorce absolute. The court concluded that the operation did not change Ashley’s true sex reasoning as follows. The respondent had been shown to have xy chromosomes and, therefore, to be of ‘male chromosomal sex; to have had testicles prior to the operation and, therefore, to be of male gonadal sex; to have had male external genitalia without any evidence of internal or external female sex organs and, therefore, to be of male genital sex: and psychologically to be a transsexual. The evidence did not establish that she was a case of Klinefelter’s syndrome or some similar condition of partial testicular failure, although the possibility of some abnormality in androgenization at puberty cannot be excluded. Socially, by which the manner in which the respondent was living in the community, she was living as, and passing as, a woman, more or less successfully. Her outward appearance, at first sight, was convincingly feminine, but, on closer and longer examination in the witness box, it was much less so. The voice, manner, gestures and attitude became increasingly reminiscent of the accomplished female impersonator. The evidence of the medical inspectors, and of the other doctors who had an opportunity during the trial of examining the respondent clinically, was that the body, in its post-operative condition, looked more like a female than a male as a result of very skillful surgery. Professor Dewhurst, after this examination put his opinion in these words ‘the pastiche of femininity was convincing.’ That, in my judgment, was an accurate description of the respondent. It was common ground between all the medical witness that the biological sexual constitution of an individual was fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means.

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The respondent’s operation, therefore, could affect her true sex. The only cases where the term ‘change of sex’ was appropriate were those in which a mistake as to sex made at birth and subsequently revealed by further medical investigation.89 In order, therefore, for a marriage to be valid according to English law the parties have to be male and female according to their “true” sex.90 According to Justice Ormrod, marriage is was “the institution on which the family (was) built, and in which the capacity for natural heterosexual intercourse (was) on essential element.”91 Justice Ormrod seemed to have based his decision as to Ashley’s sex classification on the biological fact that Ashley would never be able to reproduce the species and would consequently never be able to perform the natural sex role that nature apparently required. This decision encompassed the worst of both sexual worlds. Consider Ashley’s choices in the aftermath of Corbett. If Ashley married a “true” female, her lack of male sexual organs would render her unable to consummate a ‘natural’ heterosexual relationship, let alone conceive a child. Such a marriage would be voidable at best, and probably void, and Ashley would effectually never be able to establish a lawful affection unit according to the Corbett view of English law, unless, of course, Parliament intervened.92 A transsexual has, however, been given a license to marry in England, Corbett and Parliament notwithstanding. In a special report to the New York Times, the journalist Joan Cook, recorded the story of Gordon Langley Hall, an English transsexual. Hall had undergone surgical and other treatments in the Gender Identity Clinic at the Johns Hopkins Clinic in Baltimore for sex change purposes. Emerging from these procedures as Dawn Pepita Langley Hall, she requested and was granted permission from her medical advisor to 89 90

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See, e.g., c.u.c. 7 d.l.r. (1969); T 3d 35 (o.h.c.); l.c.u. g.c. (1969); 9 d.l.r. 3d (nbsc., q.b.). Id., at 46, 47. Counsel for the respondent urged that since only two sexes were cognizable at law the respondent should be assigned to one or the other and that it would be better that the petitioner be assigned as a woman. First, the subjectivities of the respondent’s own self-system were so directed. Second, the doctor who had done the reassignment regarded her as female. Third, respondent had been treated as female for certain purposes (living in a female hospital ward, national insurance, etc.). It is probable that the Corbett case was conditioned less by the specific sex classification and more by the impermanence of the marriage, the lack of consummation and the fact that the male party was a transvestite. At least one American court has explained Corbett in these terms. See m.t. v. j.t., 355 terms. See m.t. v. j.t., 355 A.2d 204, 208 (1976). Corbett v. Corbett, 2 All e.r. 33, 48 (pda) (1970).

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marry an American black mechanic, John-Paul Simmons. The couple lived in Charleston, s.c. for a time and then went to England and went into a second marriage ceremony in St. Clements Anglican Church, Hastings, England. The couple finally settled in Catskill, New York with “their” daughter, Natasha. The report, however, noted that “… doctors familiar with sex change operations say it is impossible for Mrs. Simmons to conceive a child.”93 This marriage raised interesting questions. First, the parties were indeed “married” in the United States. This meant that at certain administrative levels, transsexual marriages were deemed to be licit ones, even where one party was an English ‘domiciliary’ and the other was an American. Second, the parties, apparently without having the American marriage formally honored in England, entered into another ceremony, again ostensibly a licit one. The parties were living in New York and, were deemed to be a lawful affection unit. New York courts already recognized sex change in identifications for some purposes. On the other hand, in Corbett,94 English courts declined to characterize a change in bio-psychic identity of a person for the purpose of termination proceedings. Thus by implication, the marriage might be regarded as one involving two “males” and, therefore, proscribed for some purposes.95 In m.t. v. j.t.,96 a New Jersey appellate court considered and specifically rejected the reasoning and the result in Corbett. In this case, the plaintiff transsexual had been lawfully married to the defendant (male) in New York and settled in New Jersey. After two years, the defendant apparently deserted the plaintiff whose complaint was for support and maintenance. The court upheld the claim determining that the post-operative transsexual was female and that the marriage would be deemed valid. The court rejected Corbett reasoning as follows. Against the backdrop of the evidence in the present record we must disagree with the conclusion reached in Corbett that for purposes of marriage sex is somehow irrevocably cast at the moment of birth, and that for adjudging the capacity to enter marriage, sex in its biological sense should be the exclusive standard. On this score the case has not escaped critical review. Our departure from the Corbett thesis is not a matter of semantics. It stems from a fundamentally different understanding of what is meant by “sex” for marital purposes. The English court apparently felt 93 94 95 96

New York Times, Dec. 9, 1974, §C at 39, Col. 3. Id. Corbett v. Corbett, 2 All e.r. 33 (pda) (1970). Subject of course to the precise reach of the 1973 Act.

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that sex and gender were disparate phenomena. In a given case there may, of course, be such a difference. A pre-operative transsexual is an example of that kind of disharmony, and most experts would be satisfied that the individual should be classified according to biological criteria. The evidence and authority which we have examined, however, show that a person’s sex or sexuality embraces an individual’s gender, that is, one’s self-image, the deep psychological or emotional sense of sexual identity and character. Indeed, it has been observed that the “psychological sex of an individual,” while not serviceable for all purposes, is “practical, realistic and humane.” Genitalia in the case of a transsexual cannot “affect her true sex.” Its conclusion was rooted in the premise that “true sex” was required to be ascertained even for marital purposes by biological criteria. In the case of a transsexual following surgery, however, according to the expert testimony presented here, the dual tests of anatomy and gender are more significant. On this evidential demonstration, therefore, we are impelled to the conclusion that for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards. Implicit in the reasoning underpinning our determination is the tacit but valid assumption of the lower court and the experts upon whom reliance was placed that for purposes of marriage under the circumstances of this case, it is the sexual capacity of the individual which must be scrutinized. Sexual capacity or sexuality in this frame of reference requires the coalescence of both the physical ability and the psychological and emotional orientation to engage in sexual intercourse as either a male or a female.97 This case was really the first one in the common law world to have effectively rebutted Corbett point for point. m.t. courts will still decline to honor such a marriage, unless a public policy rationale of same order is reinvented. The m.t. and Corbett cases with their latent private international law components posed interesting questions for transstate decisions. These questions may become more frequent and more explicitly posed when the procedures of acquiring a marriage license are examined. In most countries, the issuance of a marriage license is an administrative decision. The issuing offer is given certain information which more often than not does not require that a postoperative transsexual disclose the facts of transsexualism. The problem of the freedom to marry may be directly presented if the transsexual disclosed 97

355 A. 2d 204 (1976).

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his gender preference and changed condition. Often statutes were written in gender neutral-terms such as “applicant” or “person,” or in terms of “man” and “woman.” In either case, the transsexual may licitly not disclose his transsexual condition unless a birth certificate was demanded, and the certificate disclosed either the facts of transsexualism, or the prior, ascribed gender identification. In most instances, the transsexual will be issued a license by the unsuspecting town clerk, and the issue is unlikely to be tested because transsexuals are rarely publicity seekers. Stated simply, transsexuals who want to marry invariably can be lawfully married. The key problems these affection units then pose for transstate decision will be less directed at the freedom to marry, but rather the use of the affection unit as an authority base in transstate decision for realizing other value indulgences. These claims will invariably impact across government lines as the m.t. and Corbett cases attest. What principles ought to guide choice in the context of claims demanding a private international law response? To the extent that such determinations are based on sex-classification, it may be that the claimed classification be honored in the context of each claim where to do so would advance the civil and human rights of the parties as well as the aggregate whole. In contexts where deference is given to the primacy of the individual’s self-image, and where it is thought that sex-based distinctions irrelevant to individual merit or rational minimum and optimum order goals ought to be disavowed, the choice of law issue may be resolved by according high deference to the lex loci celebrationis. C Appraisal and Projections for Transstate Decisions The traditional approach of the law has been to allocate power to the state as to the legal effects of gender identifications. Persons whose gender identifications and sexual preferences have been different from the ascribed model have been persecuted for behavior according to their own concept of the self rather than that of the state. The response of the state has been to claim exclusive competences to deter and punish such persons on the basis that such behavior threatens the minimum public order of the state. Progressive societies have sought to strip the state of the claim to exclusive competence on the basis that there should be a sphere of private association where personal morality was not the business of the state. It may be that the battle concerning appropriate minimum order goals implied in social solidarity and conscience has already been won and that the battle for optimal justice is only beginning. The trends in decision support this projection. The recurrent problem of private international law was the claim relating to the allocation of law-making and law-applying competences. What principles of content and procedure ought to guide choice in the context of each claim

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involving the freedom to marry or the lawful characterization of a family or affection unit for realizing other goal values for which the family or affection unit was an authority base? The greater the global acceptance of the transsexual operation itself, the easier will be the acceptance of the consequences of a sex change and the easier it will be to establish a greater freedom of choice in the establishment of a family or affection unit. iv Recommendations Perhaps the surest way to protect the human rights of homosexuals, lesbians and transsexuals is by legislation. Such law reform should aim at: (1) revising the various criminal codes to decriminalize gender preferences in sex matters that are consensual; (2) allowing these parties to establish affection units which may be honored for advancing the value position of the parties and the aggregate; (3) establishing international conventions that explicitly address the problem of sex discrimination of this type in the transstate context.

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Human Rights and Socio-Economic Justice This chapter describes the goals of socio-economic justice and the effects of economic security on social stability. The importance of social justice in a global context of human rights is explored. Implicit in the human rights context of global economic order is a possible right to full employment. Such a right, if it exists, generates important challenges for economic theory and international human rights law.1 The challenge presented by this theme certainly does not lack for magnitude in scope or import: the global quest for human rights. The professional culture of human rights has developed into a distinct and important branch dominated by legal culture and its attendant professionalism. However, a great deal of human rights concerns do not necessarily fall within the legal culture and its human rights practices. Of particular relevance is the perspective of human rights associated with political culture. Tension between the political and juridical aspects of human rights is palpable. Some rights are regarded as quintessentially juridical, and the development of the specific institutions of law are likewise regarded as a natural fit for the specific prescription, application and enforcement of human rights as law. Essentially, this means that human rights problems may be reduced to the processes of legal advocacy within institutions like human rights commissions and courts that are easily identified as juridical. Human rights are often prescribed, applied and enforced in ordinary municipal courts as well as courts specialized to state constitutional law. Major human rights themes include morality, ideology and economic ­theory, as well as issues of peace and conflict and the use of children in armed conflict. Concerns for good governance, communication and religious freedom, torture and professional responsibility, human trafficking, and the psychology of peace as well as issues of land and development are included. The fundamentals concerning the nature of human rights and its promise or lack thereof in the quest for an improved world order require our consideration. i

The Intellectual Roots of Socio-Economic Justice

The conceptualization of human rights in its varied forms has, for the most part, reflected deference to disciplinary orthodoxy. Among the most influential 1 Winston P. Nagan, Human Rights and Employment, Vol. 1 Cadmus No. 1, 49–52 (October 2010). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_015

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of these traditional notions is the characterization of human rights values as a generational step-function. Under this framework, civil and political rights ­values make up the foundational first-generation human rights. The ­realization of first-generation human rights is, in turn, a condition for the realization of second-generation human rights, i.e., the social justice rights. Finally, the ­so-called “collective” human rights round out a third generation of rights, realized only upon the attainment of the first two. The right to peace and the manifold environmental rights are prominent examples of third generation human rights. The implication of this generational model was that progress on generations two and three could be justifiably be deferred while humanity grappled with generations one and two. This orthodox model is now largely rejected in favor of one that recognizes human rights values as interdependent. Civil and political rights influence socio-economic rights and vice versa. These rights in turn influence the right to peace and environmental integrity and are, in turn, influenced by these latter values. Perhaps the best and most lucid explanation of the interrelationships of human rights values is found in the Maastricht Guidelines, stipulating that “[i]t is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, states are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights.” Thus, a view of rights as interdependent requires us to develop explanatory models indicating the nature and consequences of the interdependence of human rights prescriptions. A Human Rights and Theories of Justice Concern for the oppression of the poor has roots in a multitude of religious traditions. In Christianty, Christ elevated the status of the poor by declaring that the poor were blessed in the sight of God. This was an important way to address the personhood and the problem of how the poor are marginalized and often discriminated against. In the Hindu tradition, generosity and the giving of food to those without material sustenance was considered to be a religious obligation. In the tradition of Islam, the provision of alms for the poor was a religious obligation. In terms of secular perspectives, there was the tradition of Marx and Engels which deplored the expropriation of the surplus value of labor and sought to provide a more equalitarian form of access to the economic patrimony of the community. In contemporary social theory, important philosophers sought to bring normative understanding. For example, the important work of John Finnis2 sought to provide a contemporary natural law foundation 2 John Finnis, Natural Law and Natural Rights, (1980).

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for ­fundamental rights. In the American context, the work of McDougal and ­Lasswell3 focused on human rights and explicitly endorsed the important status of socio-economic rights as aspects of the human rights approach critical to a world order of human dignity. Theorists such as Rawls4 provided a critical foundation for a theory of justice that took care of the worst off in society and the work of Sen5 which looked at the idea of justice more comprehensively and from a global perspective. Clarifications emerged from Dworkin in his work, Justice for Hedgehogs,6 which provided a complex justification for the universality of the principle of human dignity. The concern for the oppression of the poor has its roots in a multitude of religious tradition and found expression in philosophical and political theory in the works of Marx and Engels, Kant and Rawls, as well as McDougal and Lasswell. The enhancement of socio-economic rights into the discourse of world order owed a great deal to Eleanor and Franklin Roosevelt. B The New Deal Influence on The Freedom From Want The currency of contemporary human rights found its boundaries in the Four Freedoms proclaimed by President Roosevelt to the u.s. Congress which was later included into the text of the Atlantic Charter. The Atlantic Charter reflected the war aims of the allies. It expressed in simple but telling terms the idea of why we fought. The Four Freedoms could be generalized in terms of the critical importance to human survival and human welfare of the idea of security. The Four Freedoms stated four different dimensions of the critical importance of security to human values. The Four Freedoms included the freedom from fear, which was the freedom from aggression and the protection of the right to peace; the freedom of speech and expression, which was the freedom of political security; and the freedom of conscience and belief, which was the freedom to be secure in one’s fundamental perspectives of belief. Finally, there was the freedom from want, which was the security for the material survival and well-being of the person. The central importance of the Four Freedoms was that they served as an inspiration for the goals and purposes of the u.n. Charter. They inspired the development of an international bill of human rights. Thus, the boundaries of the security interests would evolve in widespread ways and impact global values in important future directions. The freedom that this chapter focuses on 3 4 5 6

Mcdougal, Lasswell & Chen, Human Rights Andworld Order. Rawls, Theory of Justice (1971). Sen, The Idea of Justice (2011). Dworkin, Justice for Hedgehogs (2013).

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is the freedom from want. This freedom encapsulates the importance of socioeconomic values to human welfare and reflects a concern for the salience of social justice as a global human rights imperative. President Roosevelt was elected at a time that the United States was ­facing its worst economic crisis in its history. The economic system was on the verge of collapse and the widespread effects on employment and poverty was a national crisis. The Roosevelt administration experimented with governmental initiatives to revive the American economy and explore policies that would alleviate the economic suffering experienced by millions of Americans who were victims of the depression. The administration determined that there was a crucial role for the government in developing and implementing policies to alleviate the material suffering of millions of Americans who suffered ­economic deprivation. Economic deprivation meant that millions of people were deprived of essential wants necessary for material survival. According to Roosevelt, economic laws which dictated poverty were not “sacred, inviolable, unchangeable.” He stressed that “economic laws are not made by nature. They are made by human beings.” Roosevelt explained the problem that inspired his freedom from want. In this nation I see tens of millions of its citizens—a substantial part of the whole population—who at this very moment are denied the greater part of what the very lowest standards of today call the necessities of life… I see millions denied education, recreation and the opportunity to better their lot and the lot of their children. I see millions lacking the means to buy products of farm and factory and by their poverty denying work and productiveness to many other millions. I see one-third of a ­nation ill-housed, ill-clad and ill-nourished. Roosevelt saw such extreme material deprivation as a deprivation on that most cherished of American values, the concept of liberty. Material deprivation made American citizens less free. According to Roosevelt, “necessitous men are not free.” Roosevelt believed that there would be a need for constitutional change for the purpose of creating a bill of socio-economic rights which would have constitutional stature and would be an essential safeguard to the freedom of the American citizen. In 1943, the Public Resources Board began working on a draft of a Bill of Socio-Economic Rights which Roosevelt approved. The preliminary draft was submitted to Congress. The rights enumerated in the draft took the following form:

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• The right to work, usefully and creatively, through the productive years; • The right to fair pay, adequate to command the necessities and amenities of life in exchange for work, ideas, thrift, and other socially valuable service; • The right to adequate food, clothing, shelter, and medical care; • The right to security, including freedom from fear of old age, want, dependency, sickness, unemployment, and accident; • The right to live in a system of free enterprise, free from compulsory l­abor, irresponsible state power, arbitrary public authority, and unregulated monopolies; • The right right to come and go, to speak or to be silent, free from the spyings of secret political police; • The right to equality before the law, with equal access to justice in fact; • The right to education, for work, for citizenship, and for personal growth and happiness; and • The right to rest, recreation, and adventure, the opportunity to enjoy life and take part in advancing civilization. Roosevelt’s belief in freedom and the importance of socio-economic rights in strengthening human freedom was more than a matter of national A ­ merican politics. The Four Freedoms were not “a vision for a distant millennium. It was a definite basis for the kind of world attainable in our time and generation.” He compared this to “the new so-called order of tyranny which dictators seek to create with a crash of a bomb.” He appreciated that there was something revolutionary in the Four Freedoms. He justified it as follows: “Since the beginning of our American history, we have been engaged in change—in a perpetual peaceful revolution—a revolution which goes on steadily, quietly adjusting itself to changing conditions—without the concentration camp or the quicklime ditch.” The goal of the Four Freedoms was to defeat ­“Hitlerism in the world forever.” The New Deal experience of President Roosevelt reflected the values that explained to the American people why they were engaged in the wars against Hitlerism. The idea that the deprivations of poverty were antithetical to both religious experience as well as major commentators on social thought and social justice clearly had influence on Roosevelt. These influences had direct affects on the development of human rights in the post-war period. The boundaries of the Roosevelt’s Four Freedoms included a wide vista of human rights interests. One of the critical questions is what exactly is the status of the human rights in implicating socio-economic justice? Some views sought to distinguish them by suggesting that human rights represent discrete clusters of interests that were dependent on each other for efficacy. It was urged that

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the first generation of human rights were essentially civil and political rights. That a society must establish the culture of these rights before it can aspire to the rights of the next generation which were socio-economic and the aspiration to realize collective rights to peace and environmental integrity cannot be realized until the first and second generation rights were realized. An innovative conceptualization of the International Bill of Rights suggested that all the rights are interdependent in the realization of the entire human rights agenda. In his 1941 Atlantic Charter iteration, Roosevelt specifically included the freedom from want in the four freedoms that were the basis and justification for the war. In his 1944 State of the Union Address, he challenged the notion that true individual freedom could exist without economic security and independence. “Necessitous are not free men.” He suggested that unemployment often became a strut for the creation of dictatorships. He spoke specifically about the practical acceptance of a “second Bill of Rights” under which a new base of security and prosperity could be established for all. Among the specific rights mentioned in that speech were the right to employment, adequate food, clothing, recreation, the right of every family to a decent home, adequate medical care, the right to social security, unemployment, and a good education. According to Roosevelt, all these rights “spell security.” Roosevelt saw the postwar period as an opportunity to move toward the implementation of these rights and establish “new goals for human happiness and well being.” Eleanor Roosevelt was given the task of organizing a draft of the ­Universal Declaration of Human Rights. As a result of her involvement, the u.s. Delegation offered strong support for the inclusion of economic and social rights. Later Republican administrations would reverse the official policy of the United States toward the concept of economic and social rights, despite a concurrent acknowledgment of “the urgency and moral seriousness of the need to eliminate starvation and poverty from the world.” The justification centered around the fear that repressive governments too easily abused the idea of ­economic and social rights, claiming to promote human rights while simultaneously “deny[ing] their citizens the basic civil and political rights.” Since 1948, when the Universal Declaration of Human Rights (udhr) was adopted as a General Assembly Resolution of the United Nations, the udhr came to constitute a major part of international relations and international law. The juridical character of the udhr’s ongoing development belied the more accurate description of its original adoption as an instrument of political obligation. The udhr was not considered to be a juridical instrument imposing binding obligations on states and was anything but a reflection of strict legalism in practice. The subsequent development of the culture of human rights into the realm of law mirrored the development of human rights instruments

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as international treaties imposing binding obligations on states. The udhr’s political message and the political morality implicit in the articulation of the rights in this instrument had a lengthy life reflected in the considerable global consensus that those rights must be transformed into instruments of juridical importance. The political moral status of the Universal Declaration was converted into a regime of complex treaty obligations incorporating concerns for socio-economic justice. ii

Human Rights, Political Economy and Development

Having noted the influence of the New Deal on socio-economic rights, specific provisions dealing with socio-economic rights were inserted into the drafting of the International Bill of Rights. One of the important aspects of social economic justice was the issue of human development. One of the ideas behind human development was that every human being was a potential socio-economic asset and resource. It was therefore in a state’s interest to optimally utilize its human resources to advance that state’s path to prosperity and development. Simultaneously, the viability of a state’s political economy was a critical condition for the promise of human rights therein. It is commonly accepted that we live in a world in which the sovereignty of a state and its borders are increasingly porous, conditioned by the forces of globalization. Within these forces, economic indicators loom large. We currently confront one of the downsides of the political economy of globalization: a global recession. Commentators maintain that the crash of the financial markets in 2008 occurred in large part because the major institutional players were able to exploit a zone of no regulation. The state became a bystander to the dynamics of the financial markets. The prime players were making money under the sole directive of self-interest. The agenda of self-interest precluded self-regulation and was abetted by the concurrent lack of state regulation. This recession may endure for some time and it is not clear how it will ultimately impact the human rights expectations of the world community. The current recession is an outcome of a change in the way wealth is exponentially generated in the national economy of the United States as well as the global reach of its economic style and practices. The crisis is a financial one and reflective of the dynamism of the financial sector in the economy. That dynamism was partly facilitated by a regime of non-regulation in the United States, which regime was even more accentuated in the global context. That regime was deeply influenced by the ideology of neo-liberalism as an

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organizing perspective of economic decision-making. Neo-liberalism became a critical ideological strut for the ascendance of financial mechanisms as driving the accretion of wealth. The financial mechanisms were facilitated by ingenious ways in which property interest and securities could be invented or created. This gave dynamism to the financial markets as these new instruments became a cornerstone for market trading. The process by which paper assets could be manipulated and marketed essentially resulted in a ton of paper assets generated by new financial instrumentalities such as derivatives. This made for a huge gap between finance capital and capital generated by the real economy. The securitization, bundling and marketing of mortgage obligations and the growth of sub-prime lending accelerated the gap between finance capital and the real economy. This gap proved to be unsustainable and the financial bubble burst creating a major economic crisis in the economy of the United States and other leading economic powers. The financial sector remains a backbone of the real economy and the collapse of the financial market impacted upon the viability of the real economy. The recession impacted on the global political economy of all states with resultant impacts for socio-economic justice. When national economies struggle, the struggle is reflected in the depreciation of living standards. To put these developments into a broader context of governance perspectives, it is important to recognize that the u.n. system inspired by the Four Freedoms had developed a confidence in the role of government in moderating the negative effects of free market capitalism. The role of governance and regulation was at least implicitly apparent in setting up a global mechanism of limited but important global normative guidance in the form of the United Nations. When Roosevelt expressed the war aims of the allies in terms of the Four Freedoms, he was expressing the aims of a social democratic form of governance which, as a global matter, was engaged in a war with totalitarianism. In the totalitarian state, the assumption of omnipotent powers could be seen as powers which extinguish freedom. In 1944, the scholar, Karl Polanyi provided a critical meditation on the role of governance and regulation in the context of human freedom. He distinguished two kinds of freedom: a form of good freedom and a form of bad freedom. Bad freedom involved the freedom to exploit others: the freedom to take disproportionate benefits without commensurate service to the community, the freedom to appropriate technological invention without use for public benefit and the freedom to exploit social disaster for private benefit. With regard to the good side of freedom, Polanyi stated “The market economy under which these freedoms throve also produced freedoms we prize highly. Freedom of conscience, freedom of speech, freedom of meeting, freedom of association,

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freedom to choose one’s own job.” These freedoms are the product of the conditions that also give us the bad freedoms. Polanyi speculated interestingly, on a post-market economy and its capacity to enhance freedom. According to Polanyi: The passing of the market economy can become the beginning of an era of unprecedented freedom. Juridical and actual freedom can be made wider and more general than ever before; regulation and control can achieve freedom not only for the few, but for all. Freedom is not an appurtenance of privilege, tainted at the source, but as a prescriptive right extending far beyond the narrow confines of the political sphere into the intimate organization of society itself. Thus, will old freedoms and civic rights be added to the fund of new freedoms generated by the leisure and security that industrial society offers to all. Such a society can afford to be both just and free.7 Polanyi noted that an important impediment to such a future was the moral obstacle of liberal utopianism. According to Polanyi, “Planning and control are being attacked as a denial of freedom. Free enterprise and private ownership are declared to be essentials of freedom. No society built on other foundations is said to deserve to be called free. The freedom that regulation creates is denounced as unfreedom; the justice, liberty and welfare are decried as a camouflage of slavery.”8 Polanyi’s view of neo-liberalism was that it was doomed. It had the seed of authoritarianism and fascism. The good freedoms were destroyed and the bad ones ascended. Polanyi’s view of good and bad freedom and the role of the state in maximizing the good and minimizing the bad was an important insight into the modern industrial state influenced by social democratic political ­principles. It was consistent with Roosevelt’s view that severe economic deprivation and poverty diminished the freedom of the person deprived. Polanyi’s view was that the disparities between the wealthy elite and the deprived poor were moderated by regulation which had the consequence of enhancing good ­freedom and moderating bad freedom. Regulation in this view was not an oppressive state-centered invention but part of the complex process of using the state to manage power in ways that enhanced the aggregate ­position of the individual in terms of equality and freedom. This idea was 7 K. Polanyi, The Great Transformation 256–58 (1954); see also David Harvey, A Brief History of Neo-Liberalism 36–37 (2007). 8 Id.

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reflected internationally in the International Bill of Rights. The development of human rights codes, regulations and practices were not instruments of repression but instruments that enhanced human freedom and liberation. The u.n. Charter and Roosevelt’s Four Freedoms reflected social democratic ideology about the values which guided and animated governance and regulation at the international level as well. It was the implications of social democratic ideology and values that gave significant impetus to the development of an alternative ideological perspective: neo-liberalism. Neo-liberalism was essentially meant to provide a solution to the problems of capitalist political economy. But it would do so in ways that were antithetical to the modern New Deal-style state. In 1947, a group of influential academics met in Switzerland in a town called Mont Pelerin. There they formed the Mont Pelerin Society and formulated a founding document which would serve as a guide to its members. Those who attended the meeting included the Austrian political philosopher, Friedrich von Hayek, Milton Friedman and the philosopher, Karl Popper. The founding document explained the problem of modern political economy as seen through the lens of a neo-liberal philosophical perspective: The central values of civilization are in danger. Over large stretches of the earth’s surface the essential conditions of human dignity and freedom have already disappeared. In others they are under constant menace from the development of current tendencies of policy. The position of the individual and the voluntary group are progressively undermined by the extensions of arbitrary power. Even that most precious possession of Western Man, freedom of thought and expression, is threatened by the spread of creeds which, claiming the privilege of tolerance when in the position of a minority, seek only to establish a position of power in which they can suppress and obliterate all views but their own.9 The group held that these developments have been fostered by the growth of a new history which denied all absolute moral standards and by the growth of theories which questioned the desirability of the rule of law. It held further that they have been fostered by a decline of belief in private property and the competitive market. For without the diffused power and initiative associated with these institutions, it was difficult to imagine a society in which freedom may be effectively preserved. They firmly believed that self-interested greed in the market would be moderated by the invisible hand in the market 9 Id.

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institutions that would generate benefits for all. The invisible hand was one of the elements in neo-liberalism that stood in stark contrast to state interventionist’s theories inspired by John Maynard Keynes. In the context of post-war policies, governments were still committed to various versions of Keynesian economics to manage the ups and downs of the business cycle. The founding statement was an especially skilful draft in its effort to support the foundations of freedom, human dignity and the rule of law. Central to the privatizing of the political economy would be the institutions of private law themselves. These institutions reflected the notion of strong protections of private property by law. They reflected a critical reliance on the stability and efficacy, if not primacy of contractual undertakings. To the extent that the economy was subject to legal regulation, it was legal regulation anchored in institutions of private property and the security of title as well as the rules generated in the market relating to the terms and conditions of enforceable exchanges. The emergence of neo-liberalism from its modest beginnings in Switzerland to a dominating global ideology was in itself a remarkable narrative of the power of ideas and the ability to disseminate them. Two institutions besides Mont Pelerin of importance were think tanks which were generously supported by private sector capital. These were the London-based Institute of Economic Affairs and the u.s.-based Heritage Foundation in Washington, d.c. These institutions provided a regular flow of critical appraisal of economic policy. In 1974, the neo-liberal perspective gained considerable respectability when Hayek received the Nobel Prize in economics. Two years later, Milton Friedman received the Nobel Prize as well. Neo-liberalism was fed by powerful, well-financed, critically placed think tanks together with the validation given by two Nobel prizes. There was the emergence of two critical leaders on the international stage. The first was Margaret Thatcher who was elected Prime Minister of the United Kigdom. She had a strong mandate to reform the ailing British economy and she generated an economic revolution based on privatizing public enterprises, diminishing the entitlements of the welfare state, reducing taxes and creating a favourable business climate which induced foreign investment. Thatcher’s approach to the implementation of the neo-liberal economy was revolutionary. She described economics as the method, but the objective was effectually to change the soul of the individuals comprising the body politic. In the United States, President Ronald Reagan led the charge for the drift in the u.s. economy toward neo-liberal values. Just prior to Reagan coming into power, Paul Volcker, Chairman of the u.s. Federal Reserve, organized a major change in u.s. monetary policy. It was an approach which effectually

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undermined key tenets of the New Deal. Central to Volcker’s objective was to bring double digit inflationary psychology under control even if it meant high unemployment. When Reagan came into power, his advisors intuitively liked Volcker’s monetarist initiatives for the ailing u.s. economy and he was reappointed by Reagan. Reagan then provided the political muscle for massive deregulation and tax cuts. These developments were sufficiently far-reaching in the u.k. and the u.s. that the Labour government of Tony Blair and the democratic administration of Bill Clinton were basically conducting economic policy within the doctrines of neo-liberalism. The ideology of neo-liberalism influenced institutions critical to the global political economy such as the imf and the World Bank. Central to the construction of freedom and human dignity in the neo-liberal view was the divorce of social justice policies from governmental intervention. The New Deal human rights ideological framework, which covered economic, social, and cultural rights, did not have a preferred placement in the structure and process of neo-liberal governance. The millennium goals developed by the United Nations based explicitly on the promise and mandate of the Four Freedoms did not figure prominently in the discourse of neo-liberal political economy. At least there is a consensus that the current financial crisis which has threatened the foundations of the global economy was partly the result of the de-regulation of the financial sector. The financial sector was essentially driven by the self-interest of the financial leaders unconstrained and unguided by effective regulatory values. This meant that the leaders had vast powers of entrepreneurial freedom and, without a regulatory scheme sanctioned by law, the only limits on their decision-making competence driven by self-interest, would be whether there were moral standards of good judgment that should have served as instruments of decision-making guidance and constraint. Some scholars argued that the self-interest was in fact fuelled by moral ­heuristic principles. Self-interest was fed by the assumption that, since everyone was acting in terms of expanded risk, such decision-making was appropriate, a kind of bandwagon prejudice. Another justification for high risk decisionmaking was the assumption that it was morally right and must be assessed according to consequences. This meant that if your high risk paid off, it was not wrong. Similarly, wrongfulness only attached to failure. This was described as an ‘ornamental’ heuristic. A further limitation on the self-appraisal of high risk conduct in decision relied on amnesia and incomplete data about past failures. Whether the market implicit in neo-liberalism conspired to limit the focus of appropriate decision-making inquiry may suggest that such limitations undermined the possibility of identification in terms of solidarity, empathy, and the

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mandate of altruism. It is possible that the model of thinking required for success was so limited by the boundaries of self-interest that the construction of freedom and dignity rather than being enhanced was in fact disparaged. Nevertheless, prior to the global financial crisis, important outcomes of the state of the world’s political economy were as follows: • Global economic apartheid;10 • The human right to development or development as a gift of the planet’s economically dominant actors;11 • Global economic institutions and their preference for vindicating the interests of the powerful over the interest of the powerless: free trade versus fair trade;12 • Protection of the environment, global warming, and the undermining of global understandings regarding the balance between sustainable development and the destruction of the environment;13 • Human population growth and the capacity of the earth to maintain human populations within the eco-social and economic capacity of the earth; • The global health crisis, e.g., aids, malaria, bird flu, resurgence of tb, etc.;14

10 11 12 13

14

See Winston P. Nagan, An Appraisal of the Comprehensive Anti-Apartheid Act of 1986, 5 j.l. & rel. 327 (1987). See Declaration on the Right to Development, g.a. Res. 41/128, at 186, u.n. gaor, 41st Sess., Supp. No. 53, u.n. Doc. A/41/128 (Dec. 4, 1986). See Ravi Batra, The Myth of Free Trade: The Pooring of America (1996). See u.n. Conference on the Human Env’t, June 5.16, 1972, Declaration of the United Nations Conference on the Human Environment, u.n. Doc. A/CONF.48/14 and Corr. 1 (June 16, 1972); World Charter for Nature, g.a. Res. 37/7, at 17, u.n. gaor, 37th Sess., Supp. No. 51, u.n. Doc. A/37/7 (Oct. 28, 1982); United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, u.n. Doc. A/CONF.151/5/Rev.1 (1992); Johannesburg Declaration on Sustainable Development, u.n. Doc. A/CONF.199/L.6/Rev.2, in Report of the World Summit on Sustainable Development, u.n. Doc. A/CONF.199/20 (Sept. 4, 2002), available at http://www.un.org/esa/sustdev/ documents/WSSD_POI_PD/English/POI_PD.htm. World Health Organization, The World Health Report 2006, Working Together for Health (2006), available at http://www.who.int/whr/2006/whr06_en.pdf; World Health Organization, The World Health Report 2005: Make Every Mother and Child Count (2005), available at http://www.searo.who.int/LinkFiles/Making_Pregnancy_Safer_WHR2005 .pdf; World Health Organization, The World Health Report 2004: Changing History (2004), available at http://whqlibdoc.who.int/whr/2004/924156265x.pdf; World Health Organization, The World Health Report 2003: Shaping the Future (2003), available at http://www .who.int/whr/2003/en/index.html.

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• Global capacity to respond to natural catastrophes, e.g., tsunamis, earthquakes, hurricanes;15 • The crisis regarding the respect for human rights and humanitarian values;16 • The crisis of the global war system;17 • The acceleration of the global arms market at all levels; • The proliferation and ostensible deregulation of nuclear arsenals as well as biological and chemical weapons of mass destruction;18 and • The growth of civil society deviance which threatens the world order in the form of apocalyptic terrorism, state terrorism, organized crime, trafficking in human beings, drugs, small arms, and possibly criminal trading in the components of weapons of mass destruction.19 The unfinished and contested structure of normative priority for international economic order and social justice reflected the clash of two critical ideological perspectives associated with the original North/South divide. The United Nations General Assembly Resolution on Permanent Sovereignty over Natural Resources articulated a link between state sovereignty and the sovereign’s right and obligation to vest a stronger form of property entitlement in the state ­itself.20 The resolution formulated the principle of a state’s right to ­permanent 15

16

17

18 19 20

New York University Center for Catastrophe Response & The American Red Cross of Greater New York, How Prepared are we New York? (2006), available at http://www.nyu .edu/ccpr/pubs/NYU-RedCrossPreparednessReport.pdf. See, e.g., Winston P. Nagan, African Human Rights Process: A Contextual Policy Oriented Approach, 21 Sw. U. L. Rev. 63 (1992); Winston P. Nagan, The Politics of Ratification: The Potential for United States Adoption and Enforcement of the Convention Against Torture, The Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, 20 Ga. J. Int’l & Comp. L. 311 (1990); Winston P. Nagan, International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States, 14 Fla. J. Int’l L. 155 (2002); Winston P. Nagan, Strengthening Humanitarian Law: Sovereignty, International Criminal Law and the Ad Hoc Tribunal for the Former Yugoslavia, 6 Duke J. Comp. & Int’l L. 127 (1995). See, e.g., Winston P. Nagan & Craig Hammer, The New Bush National Security Doctrine and the Rule of Law, 22 Berkeley J. Int’ L. 375 (2004); Winston P. Nagan & Craig Hammer, Patriotism, Nationalism and the War on Terror: A Mild Plea in Avoidance, 56 Fla. L. Rev. 933 (2004). See Winston Nagan, Nuclear Arsenals, International Lawyers, and the Challenge of the Millennium, 24 Yale J. Int’l L. 485 (1999). See Winston P. Nagan & Alvaro de Medeiros, Old Poison in New Bottles: Trafficking and the Extinction of Respect, 14 Tul. J. Int’l & Comp. L. 255 (2006). Resolution on the Permanent Sovereignty Over Natural Resources, g.a. Res. 1803 (xvii), u.n. Doc. A/5207 (Dec. 14, 1962) [hereinafter Resolution on the Permanent Sovereignty] available at http://www.unhchr.ch/html/menu3/b/c_natres.htm.

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sovereignty over its natural resources and touched on critical, practical, and ideological interests. For example, in justifying the state’s power to control and expropriate property, the resolution targeted the economic legacy of colonialism. The Resolution on Permanent Sovereignty21 was a significant effort to change the economic expectations of the colonial era.22 It was a critical step in dissolving colonial claims and transitioning the colonized people towards independence. By promoting traditional market-driven concepts of state appropriation of property at the expense of colonialism, the Resolution weakened the protection of the right to property in the international environment. Paragraph 1 of the Resolution stated the following: 1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.23 Paragraph 1 was favorable to peoples who have emerged from colonial rule and must establish their sovereignty and independence in the world community. It is clear that sovereignty implies a significant economic component. Paragraph 4 may be just as contentious as the implications of paragraph 1. This dealt with the competence of the State to control and regulate foreign investment and the rights of foreign investors to secure the protections of their investments under traditional international law. This was a provision that weakened the protection of the title to private property in the international environment. The text of paragraph 4 reads as follows: 4. Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction 21 22 23

United Nations Resolution on Permanent Sovereignty over Natural Resources Adopted by the United Nations General Assembly, 14 December 1962 Resolution 1803 (xvii). See Resolution on the Permanent Sovereignty. Id.

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of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.24 The controversy about paragraph 4 was principally in the use of the terms “appropriate compensation.” This would appear to weaken the traditional protections of foreign investments from sovereign takings, i.e., the takings be subject to the standard of just, prompt and adequate compensation, in addition to the taking being in the public interest. Behind this resolution was a major controversy which implicated important economic theories and ideologies. If the engine of development was rooted in the private sector, then the private property titles of the private sector would be a critical foundation for effective economic development. If the engine of development was vested in the state, then the traditional strong protection of private property could be seen as a limitation on the power of the state to maximize development capacity. This was followed by the adoption of a Charter of Economic Right and Duties of States25 as well as a Declaration on the Right to Development. These instruments became the cornerstone of the demand for a new international economic order under the umbrella of the u.n. system. The Charter of Economic Rights and Duties of States established an ambitious agenda for global economic development. It stipulated: Desirous of contributing to the criterion of conditions for: a. The attainment of wider prosperity among all countries and of higher standards of living for all peoples, b. The promotion by the entire international community of the economic and social progress of all countries, especially developing countries, c. The encouragement of co-operation, on the basis of mutual advantage and equitable benefits for all peace-loving States which are willing to carry out the provisions of the present Charter, in the economic, trade, scientific and technical fields, regardless of political, economic or social systems, d. The overcoming of main obstacles in the way of economic development of the developing countries, 24 25

Id. Charter of Economic Rights and Duties of States, Resolution 3281 (xxix) adopted by the General Assembly, 2315th Plenary Meeting, A/RES/29/3281, December 12, 1974.

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The acceleration of the economic growth of developing countries with a view to bridging the economic gap between developing and developed countries, The protection, preservation and enhancement of the environment,

Mindful of the need to establish and maintain a just and equitable economic and social order through: a. The achievement of more rational and equitable international economic relations and the encouragement of structural changes in the world economy, b. The creation of conditions which permit the further expansion of trade and intensification of economic co-operation among all nations, c. The strengthening of the economic independence of developing countries, d. The establishment and promotion of international economic relations, taking into account the agreed differences in development of the developing countries and their specific needs…26 Article 2 of the Charter provided the State orientation to the objectives delineated above. Article 2 stated the following: 1. 2.

26

Id.

Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities. Each State has the right: a. To regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities. No State shall be compelled to grant preferential treatment to foreign investment; b. To regulate and supervise the activities of transnational corporations within its national jurisdiction and take measures to ensure that such activities comply with its laws, rules and regulations and conform with its economic and social policies. Transnational corporations shall not intervene in the internal affairs of a host State. Every State should, with full regard for

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c.

its sovereign rights, cooperate with other States in the exercise of the right set forth in this subparagraph; To nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.27

The most controversial part of the Charter was an effort to establish an obligation on the part of technologically advanced societies to transfer technological advances to developing States. This was codified in Article 13, which stated as follows: 1. 2.

3.

4. 27

Id.

Every State has the right to benefit from the advances and development in science and technology for the acceleration of its economic and social development. All States should promote international scientific and technological co-operation and the transfer of technology, with proper regard for all legitimate interests including, inter alia, the rights and duties of holders, suppliers and recipients of technology. In particular, all States should facilitate the access of developing countries to the achievements of modern science and technology, the transfer of technology and the creation of indigenous technology for the benefit of the developing countries in forms and in accordance with procedures which are suited to their economies and their needs. Accordingly, developed countries should co-operate with the developing countries in the establishment, strengthening and development of their scientific and technological infrastructures and their scientific research and technological activities so as to help to expand and transform the economies of developing countries. All States should co-operate in research with a view to evolving further internationally accepted guidelines or regulations for the

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transfer of technology, taking fully into account the interest of developing countries.28 This was followed by the adoption of the u.n. Declaration to the Right to Development.29 From a human rights point of view, the Declaration made the connection between the individual human being, development and human rights; Recognizing that the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development… Article 1.1 made the connection between development and human rights explicit: Article 1 1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.30 The Declaration cross-referenced to the human rights covenants with a clear implication that the Declaration was built on human rights foundations. Article 6 made explicit the idea that human rights in comprehensive context implicated the right to development. Article 6 read as follows: Article 6 1. All States should co-operate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion. 2. All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should

28 29 30

Id. United Nations, Declaration to the Right to Development, A/RES/41/128 (December 4, 1986). Id.

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be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights.31 These instruments were vigorously contested globally. At best, the principal values behind these documents attained a modest imprimatur of soft law. In part, the lack of traction for the agenda of the new economic order reflected the demise of the socialistic model of development identified with the u.s.s.r. It was seriously blocked by the emergence of the neo-liberal form of political economy. The supporters of the new international economic order forged ahead with the u.n. initiative, the Charter on the Economic Rights and Duties of States.32 This charter was followed by the Declaration on the Right to Development.33 These two instruments forged expectations about the conflicts in international economic order. The Charter and the Declaration vested a great deal of development power in newly freed states. The economic model, apparently incorporated into this state-central ideology, implied a form of creeping socialism. The principle behind the Declaration on the Right to Development included the idea of sharing economic and technical resources to benefit the new states.34 The United Nations promoted the principle of sharing as a mandatory rather than a discretionary obligation to sustain global equity. This evolving international law confronted two radically contentious ideological perspectives. The first was the promise of protecting property in the international environment. The protection of property would be a marker of a state’s commitment to a paradigm sympathetic to the global private sector rather than the national or global public sector. The second perspective was associated with the perspectives of international socialists or social democratic ideology. It recognized that the public should control all economic development or that the public shared in the management of the production and distribution of wealth and related values. The contemporary state of the global economy witnessed the ascent of the privatization of national and global economic institutions. It witnessed 31 32 33

34

Id. See Charter on Economic Rights and Duties of States g.a. Res. 29/3281, u.n. Doc. A/ RES/29/3281 (Dec. 12, 1979). See Declaration on the Right to Development, g.a. Res. 41/128, at 1, u.n. gaor, 41st Sess., Annex, Agenda Item 101, 97th plen. mtg., u.n. Doc. A/RES/41/128 (1986), available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/496/36/IMG/NR049636 .pdf?OpenElement. Id., art. 3(3).

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emerging market economies, free trade zones and the dominant role of corporate enterprise. The mantra of the free trade market phenomena was world peace through world trade.35 The ascent of the private sector was considered to be more efficient and less wasteful than corrupt and inefficient state bureaucracies. The global institutionalization reflected these developments, e.g., the legal and political cultures of the wto, the imf, and the World Bank. They developed at the expense of working through the development agencies of the United Nations. However, a significant policy shift emerged in the global economy, reflected in the emergence of a coalition of economically dominant states, i.e., the Group of Eight. From a technical point of view, the international economic soft law associated with the new international economic order became even softer. On the other hand, it was unclear what the general emerging rules were that governed the neo-liberal economy. The institutions of this perspective have been under pressure in part because the lex specialis within these institutions was sometimes incompatible with general international law and international human rights law. Critical appraisal of many of the operational rules often showed that the rules were enforced strictly against the powerless and often ignored by the powerful. The efficiency of the model was under critical examination because the outcomes seemed to generate greater global disparity and greater global alienation. Some would even suggest that the radical division between rich and poor was a cause of radical religious activism or possibly even apocalyptic terrorism. Catastrophic natural events such as the tsunami in Southeast Asia, Hurricane Katrina in the United States and the earthquake in Pakistan raised the question of whether the global collective responses to these natural tragedies were a matter of beneficence and altruism or whether the responses themselves simply generated tacit but important expectations of international soft law obligation. In Africa, the high intensity violent conflicts in many parts of the continent, e.g., particularly in the Sudan, the horn of Africa, Sierra Leone, and the Democratic Republic of the Congo, raised concerns about the protection of global peace and security as either a matter of discretionary altruism or legal obligation. In the context of natural or man-made catastrophic crises, it may be that 35

Lawyer Roles, at 134. “The world peace through world trade movements, spearheaded by the Trilateral Commission, envisaged a global world order under the direction of the captains of corporate monopoly efficiency, a vision which comprises a diffuse human rights agenda focusing on the role of ngo’s and an enhanced role for the corporate side of civil society.”

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constructing a stronger moral foundation for global solidarity required that the first step in moral or value justification to be an appeal to the self-interest of the powerful sectors of global society. A compelling argument may be made that the self-interest of the ‘haves’ in security, economic prosperity and the health of their populations was better protected when those interests were recognized as of critical importance. When that interest was complemented by the idea of global solidarity and the element of altruism, a stronger basis for the design of progressive policies that ensured a commitment to the deprived parts of humanity was made. Helping the poor actually helped the rich as well. Modern economic theory sought to insulate the market from non-market factors. Altruism may be valued only to the extent that it has market value. Altruism standing alone as a moral principle may actually be seen as a marker indicating weakness within the functions of market conditions and corporate culture. The business culture thrives on self-interest. This is the reality. Theory might improve the structure and process of both business and the larger social universe if the meaning of self-interest is defined more broadly to capture the real world of human and economic relations and supplemented by an altruistic gloss to provide a strong justification for broadening the focus and concern of the culture of enterprise. iii

Socio-Economic Rights in Municipal Systems

Fundamental rights as socio-economic rights have received traction in ­domestic legal systems. These domestic systems have been influenced by the socio-economic rights expressed in the global Bill of Rights. The normative issue was how societies weigh the production and the distribution of these enumerated values, which included wealth, power, respect, skill, health and well-being, enlightenment, affection and rectitude. The normative challenge, at least implicitly in the aspiration for universal dignity, was that the production and the distribution of these values should be optimally produced and fairly and equitably distributed. The values themselves were interdependent. It was difficult to achieve effective outcomes on economic sharing if respect, power, or any other value was disparaged. The issue of socio-economic rights posed the problem of whether these kinds of rights may be expressed in terms of conventionally enforceable legal rights of a fundamental character. The argument against this conception of these rights was that they implicated policy judgments and, as such, were quintessentially political and not legal rights. These rights were essentially hortatory or aspirational. David Matas, a Canadian jurist, addressed this question

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in an article in which he distilled twenty myths that fueled the notion that such rights were not amenable to the normal process of judicial enforcement.36 The practice of Supreme Court adjudication demonstrated that the modern court, influenced by the ideology of the New Deal, was sensitive to socioeconomic justice. In an early decision in 1941, the state of California enacted a law banning people from bringing indigence into the state. The Supreme Court ruled that this ban violated the commerce clause in the Constitution. The Court suggested that states were not permitted to discriminate against poor people. In the case of Griffin v. Illinois,37 the Court determined that the Equal Protection clause required states to provide trial transcripts at no cost to poor people who had lodged appeals against their convictions. In 1963, the court decided Gideon v. Wainwright38 in which the court ruled that the Constitution required the state to pay for the defense counsel in criminal cases where the defendant could not afford access to such resources. In Boddie v. Connecticut,39 the court required the state to pay for an indigent person’s costs and fees in a divorce proceeding. In terms of economic deprivation, the u.s. Supreme Court in Shapiro v Thompson40 ruled that a waiting period of a year before a person could be qualified for welfare benefits was unconstitutional. The Court mentioned the special needs of poor people suggesting that those needs were of constitutional importance. In 1970, Goldberg v. Kelly,41 the Court in effect recognized welfare benefits as a new form of property entitled to due process protection. In Goldberg, the Court emphasized the “brutal need” of those who depend on welfare. The Burger Court in a series of decisions retreated from this perspective. Consequently, socio-economic rights began to be less favored. In Dandridge v. Williams,42 the case involved a Maryland law that appeared to place an arbitrary limit on welfare grants. The law was nonetheless upheld over vigorous dissent. In the dissent of Justice Marshall, there was an insistence that the Maryland law produced a basic denial of equal treatment. ­Justice ­Marshall found support for the welfare rights of the petitioners in Article 25 of the Universal Declaration of Human Rights. 36

37 38 39 40 41 42

David Matas, Economic, Social and Cultural Rights and the Role of Lawyers: North American Perspectives, The Review of the International Commission of Jurists, No 55, (December 1995). Griffin v. Illinois, 351 u.s. 12 (1956). Gideon v. Wainwright, 372 u.s. 335 (1963). Boddie v. Connecticut, 401 u.s. 371 (1971). Shapiro v. Thompson, 394 u.s. 618 (1969). Goldberg v. Kelly, 397 u.s. 254 (1970). Dandridge v. Williams, 397 u.s. 471 (1970).

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A case, which solidified the drift to not recognize constitutional protections of socio-economic rights, came from a decision in 1973, San Antonio School District v. Rodriquez.43 The Nixon majority ruled that the Texas system of funding schools unequally was valid. The Rodriquez case effectually ended the Supreme Court’s exploration of social justice issues. The idea of giving constitutional importance to the plight of the poor may have been too radical for Republican conservatives on the Court. The case was decided by a five to four majority. Precisely what the real normative basis was for the Court’s ruling may be speculative. The case reflected an antipathy toward judicial activism. The Court attacked what it considered “judicial activism,” a position based upon the assumption that socio-economic interests were not reducible to legal rights but instead reflected goals, which were matters of policy and politics, rather than law. This would imply that expanding Article 3 powers into socioeconomic arenas compromised democratic values. According to the the Court, the proper role of an Article 3 court should be to focus on negative rather than affirmative rights. Affirmative rights implicated goals, policies, and politics. To this, Justices Marshall and Brennan dissented. They considered the majority decision to be a weakening of the Equal Protection principle. Justice Marshall noted that governmental assistance to the worst off was critical to the right to an education for children, citing to Article 25 of the udhr. This implied the idea of a constitutional principle providing for the freedom from desperate conditions.44 This approach was consistent with President Roosevelt’s understanding that certain conditions infringed basic constitutional rights. The proximity of those conditions to the rights expanded the right to cover those conditions. Since education “directly affects the ability of a child to exercise his First Amendment rights, both as a source and a receiver of information and ideas, discriminating educationally infringes First Amendment interests.”45 He added, “The exercise of the franchise was also connected to education. Thus, education was an essential step in providing the disadvantaged with the tools necessary to achieve economic self-sufficiency.” The most important developments regarding the prescription, application and enforcement of human socio-economic rights as the fundamental law within the system of municipal State law was reflected in the Constitution and practice in the Republic of South Africa. The Constitution was explicit about the identification of the relevant socio-economic rights which were prescribed in it. The following were the most important: 43 44 45

San Antonio School District v. Rodriquez, 411 u.s. 1 (1973). Dandridge v. Williams, u.s.c.t. (1970). San Antonio School District v. Rodriquez, 411 u.s. 1 (1973).

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26 Housing (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. 27 Health care, food, water and social security (1) Everyone has the right to have access to — (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.46 (3) No one may be refused emergency medical treatment.47 28 Children (1) Every child has the right — … (c) to basic nutrition, shelter, basic health care services and social services…48 29 Education (1) Everyone has the right — (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible.49 The central question which socio-economic rights, as fundamental law, presents was how amenable socio-economic rights were to the precise definition of rights within the authority structure of municipal tribunal. The generalized nature of such socio-economic rights was that they were formulated in terms that were molar rather than molecular. They appeared as directives of policy rather than law. The term ‘policy’ was often seen as a limitation on the scope 46 47 48 49

S. Afr. Const., ch. 2, § 26 (1996). Id., § 27. Id., § 28. Id., § 29.

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of the judicial role. The second important issue was the issue of the application of such rights. Problems that were legislatively framed normally incorporated a target community that included vast aggregates of people. A Court confronted with a problem of socio-economic rights implicating identified individuals or groups may be hesitant about declaring the law that in effect has more of a legislative than adjudicatory reach. This leads to the third problem, even if the law prescribed specific prescription and application, how does it fashion its remedy which may require a degree of enforcement that was not conventionally rooted in the normal functions of Courts of law. Even if a Court achieved the degree of precision in the prescription and application of fundamental socio-economic rights, that level of precision may break down when the Court considered giving efficacy and meaning to its pronouncement, from an institution that did not carry the institutional capacity or functional competence of a legislative architecture supplemented by the functions of ­executive/administrative enforcement. It is perhaps for these theoretical reasons that the u.s. Supreme Court exercised caution, perhaps excessively so, in its focus on negative rights and its avoidance of declaring judicial pronouncements and positive rights. The u.s. Constitution was not as explicit about the inclusion of socio-economic rights and generated an ambiguity without the specific textual guidance of the reach of its process. In contrast, the text of the South African Constitution was specific about the inclusion of socioeconomic rights and nothing in the text restricted the specific prescription, application and enforcement exclusively to the legislative and administrative branches of government. The Constitutional Court of South Africa ventured much farther in providing a degree of judicial activism in the prescription, application and enforcement of socio-economic rights. Its jurisprudence contributed significantly to the concern that Courts cannot give a precise articulation from a juridical point of view to the prescription and application of socio-economic rights. However, having declared those rights, the Court was still confronted with what its pronouncements meant in actual practice and how far it may go in giving the rights it had created under the Constitution a meaning in socioeconomic practice. This latter issue gave rise to a great deal of academic commentary about what the next steps the Court might deploy in enhancing the ambit of judicial authority.50 The conceptual link of the rights enumerated in 50

See De Vos, P., Pious Wishes or Directly Enforceable Tights?: Social and Economic Rights in South Africa’s 1996 Constitution, South African Journal on Human Rights, 67–101, at 71 (1997); and Abramovich, V., Courses of Action in Economic, Social and Cultural Rights: Instruments and Allies,’ 2 International Journal on Human Rights 181–216, at 183 (2005);

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the South African Bill of Rights to the challenge of the role of the judiciary was reflected in the legal obligations expressed in such terms as ‘respect,’ ‘protect,’ ‘promote’ and ‘fulfil.’ It was widely accepted that the South African Costitution was a transformative Constitution. The Constitution was drafted in the shadow of the regime of apartheid. Apartheid was universally condemmed as a program and policy of racial domination and repression which reproduced deep structures of poverty and injustice. A new Constitution could not be crafted without taking into account the legacy of not only the political but the socio-economic injustices of apartheid. The creation of the new Constitution demanded a change in the way in which the judiciary would have to transform and understand its role under the new transformative Constitution. The judiciary would not be serving as an agent of the apartheid system but as an agent of social and political justice and transformation. This suggested the receptivity of the Judges to the broad construction of the judicial role in the prescription, application and enforcement of the new South African Constitution and its willingness to cut new pathways through the forest of socio-economic values as legal values. An important landmark decision of the South African Constitutional Court was the case of Government of the Republic of South Africa v. Grootboom.51 This case from an international perspective was one of the most important cases for establishing the jurisprudence of socio-economic rights. In this case, there was a community of squatters who had established an informal settlement with minimum shelter using plastic and leftover wood and other materials. This informal community lack sanitation and electrical services. Action was taken from local authorities to evict them from occupying the property. The Constitutional Court determined that the local authorities were in violation of the right to adequate housing in Article 26 of the Constitution. The Court determined that Article 26 required the State to develop and implement a coherent and coordinated housing program for those in most desperate need. The

51

Yigen, K., Enforcing Social Justice: Economic, and Social Rights in South Africa, 4 International Journal of Human Rights 13–29, at 21 (2002); see Swart, M., Left Out in the Cold? Crafting Constitutional Remedies for the Poorest of the Poor,’ 21 South African Journal on Human Rights 215–40 (2005); and Liebenberg, S., Basic Rights Claims: How Responsive is “Reasonableness Review”?, 5 Esr Review 7–11 (2005); see Pillay, K., Implementation of Grootboom: Implications for the Enforcement of Socio-Economic Rights,’ 2 Law, Democracy and Development 225–77 (2002); and Davis, D., Adjudicating the Socio-Economic rights in the South African Constitution: Towards “Deference Lite”?,’ 22 South African Journal on Human Rights 301–27 (2006). Government of the Republic of South Africa v. Grootboom, 2000 (11) bclr 1169 (cc); 2001 (1) sa 46 (cc) (Grootboom case).

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authorities failed to take reasonable measures to progressively realize the right to housing. The Court ordered the following: that the local authorities “device, fund, implement and supervised measures to provide relief to those in desperate need.” The immediate effect of the decision was that local authorities put into their budgets what was known as “a Grootboom allocation.” However, the decision could not depend solely on judicial enforcement. This is a matter that the South Africans are still working through. Central to this decision was its foundation in establishing the jurisprudential foundation for the justifiability of economic and social rights. The jurisprudence was complex. It relied on a reasonableness framework of guidance but was alert to the idea that some aspects of the remedy stage of its decision may require it to exercise a degree of judicial deference. However, the question of deference was contingent upon conditions not available to the Court when the decision was actually made. The case seemed to suggest that socio-economic rights fell within the framework of conventional conceptions of the judicial role and function. This was a major advance in legal theory. Another early case that came before the Constitutional Court on socioeconomic rights was the case of Thiagraj Soobramoney v Minister of Health (KwaZulu-Natal) concerning whether and, if so, how far the constitutional right to health care could cover a patient who had an irreversible medical condition and was in dire need of dialysis treatment.52 The hospital had a scarce resource of dialysis machines which could not meet the demands of those claiming access to it. It developed a procedure that would give priority to those patients who would benefit from the treatment compared to those whose benefits would be very temporary. The Court ruled that the constitution provided a right to health care but that right was a right that could only be vindicated in terms of a reasonableness standard. The hospital’s procedure of prioriticing access to its scarce dialysis machines was reasonable and Mr. Soobramoney was correspondingly not deprived of his constitutional right. In the case of Minister of Health v. Treatment Action Campaign, the Court ruled that the government was required to allow hiv-positive citizens access to drugs that held out promise of help to them.53 The Court ruled specifically that the government was under a legal obligation to take health rights seriously and adopt programs to facilitate the realization of this right. The effect of this decision was to direct attention to a democratic focus on rights that might be neglected in the ordinary course of politics. 52 53

Thiagraj Soobramoney v Minister of Health (KwaZulu-Natal), 1998 (1) sa 765 (cc) para. 8, (S. Afr.) Case cct 32/97 (Decided on 27 November 1997). Minister of Health v. Treatment Action Campaign, 2002 (5) sa 721 (cc) (tac case).

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The case law of the Constitutional Court of South Africa has served as an incentive to vindicate social justice through creative litigation strategies. One of the major areas of litigation has been concern with the right to housing. Litigation focused on evictions that were considered to be unlawful: The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (pie Act) or the Extension of Security of Tenure Act 62 of 1997(esta). In the leading case of The Occupiers of Chung Hua v Hoosein Mohamed and Others, 253 desperately impoverished men, women and children were evicted from the Chun Hua property.54 The owners using private security guards and policy sought to evict the occupiers of the property. The High Court held that the eviction was illegal. The Constitutional Court set aside an eviction in the case of Kabelo Betlane v Shelly Court cc.55 In the case of Residents of Chiawelo Flats v Eskom and City of Johannesburg, the Court determined that the cut-off of a basic service such as the supply of electricity was unlawful.56 The requirements of administrative justice required that the applicants be given adequate notice and the prospect of making representations concerning the situation. In addition to basic electrical service, there are legal developments in access to water and access to sanitation.57 The experience in the United States indicated that it was quite within the scope of the judicial function to provide constitutional protections for socioeconomic rights deemed to implicate fundamental constitutional concerns. The retreat from this position reflected the ascendance of a political ideology antithetical to socio-economic rights and the position of the poor. What this represents was a longstanding political concern in conservative circles that the Roosevelt New Deal and its legacy of socio-economic equity were permanent electoral nightmares for that political group. The politics of judicial appointments became a critical tool to begin to chip away at the institutions and expectations of the New Deal. Earlier in this section, we referred to Franklin Roosevelt’s concern that the New Deal was in turn inspired by the idea of a second Bill of Rights, a bill that would include socio-economic rights. The success of Roosevelt’s policies was best exemplified by the system of social security. The system of social security was so firmly embedded in the political and economic culture of the United States that support for it was often deemed to be stronger than support for 54 55 56 57

The Occupiers of Chung Hua v Hoosein Mohamed and Others. Kabelo Betlane v Shelly Court cc. Residents of Chiawelo Flats v Eskom and City of Johannesburg. See Director of Litigation’s Message at Socio-Economic Rights Institute of South Africa (seri); Annual Report 2010/2011.

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other well-established values in the Bill of Rights. Roosevelt saw a link between economic security and human freedom. He said, “Necessitous men are not free men.”58 Freedom, he believed, should not simply be a negative principle from governmental interference. On the contrary, freedom should also be “an opportunity to make a living—a living decent according to the standard of the time, a living which gives a man not only enough to live by, but something to live for.” According to Roosevelt, the imbalance of economic power meant that for many “life was no longer free” and liberty “was no longer real.” The concept of economic rights as a fundamental aspect of security required a commitment, which was “a fight for freedom in modern civilization.” Roosevelt distilled the core values and objectives of the New Deal as follows: • A chance for men and women to work in industry at decent wages and reasonable hours or to engage in farming at a decent return; • A chance for adequate recreation, better housing and sounder health; • A chance to make reasonable profit in business protected against monopolies and unfair competition, but organized so as to provide fair prices for the consuming public; • Planning and use of natural resources for the benefit of average men and women; • Security against the hardships of old age; • Security against unexpected or seasonal unemployment; • Security against new as well as old types of criminals; and • Security against war. The fundamental values of the New Deal were indicated in his four freedom speech to the Congress and which formed the foundation of the Atlantic Charter. The Atlantic Charter represented the war aims of the allies, which Roosevelt saw as of universal application for a new post-war world order. Roosevelt’s Four Freedoms are summarized as follows: 1. 2. 3.

58

The freedom of speech and expression, everywhere in the world. The freedom of every person to worship God in his own way, everywhere in the world. The freedom from want, which (translated into world terms) means economic distribution that will secure to every nation a healthy peacetime life for its inhabitants, everywhere in the world. John T. Woolley and Gerhard Peters, The American Presidency Project: Franklin D. Roosevelt State of the Union Message to Congress, January 11, 1944, Santa Barbara, ca. Available from World Wide Web: http://www.presidency.ucsb.edu/ws/?pid=16518.

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The freedom from fear, which (translated into world terms) means a worldwide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor, anywhere in the world.

The Four Freedoms were the core inspiration of the u.n. Charter and the International Bill of Rights. They became the central guidelines for the reform of the u.n. as well as the millennium goal objectives set by the u.n. for global economic justice. Roosevelt’s second Bill of Rights was largely a ­matter at the back of the ideological disputation in the United States between the ­Democrats still committed to the New Deal and the notion of a Republican alternative such as the contract with America. Taking the United States as a point of departure, the future of global economic justice will in some degree be influenced by the extent to which Roosevelt’s second Bill of Rights becomes part of the Democratic agenda and effective policies and practices are generated to implement it. iv

The United Nations and Global Apartheid

This section focuses on two of globalization’s principle outcomes. These are the problems of the political economy of globalization and the issue of socalled Global Apartheid. This first issue touches on the most widely used justification of globalization, namely, the flow of goods, services, capital and finance, as well as labor. The political economy of globalization has reached extraordinary levels, sustained partly by the immense technological changes in all phases of human communications. There is a global economy, with global priorities, stressing global economic inter-dependence. This economy has generated untold wealth exceeding anything in the past. This economy has generated a radical cleavage between the states and communities that monopolize much of the wealth and resources of the global economy as against an overwhelming population of deprived people whose position seems to worsen ceaselessly.59 The Report of the Secretary General of the United Nations, titled “In Larger Freedom: Towards Development, Security and Human Rights for All,” gave importance to the freedom from want, freedom from fear, the right to live in dignity, and the ways in which the un institutional architecture might be

59

See Winston P. Nagan, Law and Post-Apartheid South Africa, 12 Fordham Int’l L.J. 399–451 (1989).

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improved to respond to the central problems of our time.60 The Secretary General noted that one of the most important issues for the international community was the issue of global poverty. Global poverty contributed to pandemic diseases and compromised global health security. Poverty bred alienation, and this, in turn, fueled violent conflict and the desperation of terrorism. New forms of terrorism were conceptualized as apocalyptic forms of terrorism. The Secretary General noted the continued ubiquity of both low and high intensity conflict and the natural catastrophes that displace millions of people. The report stated that more than one billion people lived below the poverty line and subsisted on approximately one us dollar per day. Twenty thousand people died as a direct result of poverty each day.61 It is critical that the world community work toward the millennium development goals. The problem with the millennium goals, however, was that they challenged some of the most fundamental ideological issues concerning the roles of the state and the international community acting mainly through the United Nations to deliver a core minimum of defensible values incorporating economic and social justice rights. When u.s. President Franklin Roosevelt inserted freedom from want into the Atlantic Charter,62 it reflected his belief, drawn from the American experience, that civil and political rights were diminished if basic economic rights and social entitlements were absent.63 The New Deal captured this idea in an appealing and graphic metaphor: a chicken in every pot. It was quite natural for Roosevelt to insert this component into the war aims of the allies as a social justice entitlement for the post-war community.64 When the instruments based on the universal declaration were adopted, the most controversial one, in an economic context, was the International Covenant on Social, Cultural, and Economic Rights (icscer).65 It was vigorously

60

61 62 63 64 65

See Secretary General, In Larger Freedom: Towards Development, Security, and Human Rights for All, for Decision by Heads of State and Government (Sept. 2005), available at http://www.un.org/largerfreedom/executivesummary.pdf. Id. See The Atlantic Charter, u.s.-u.k., Aug. 14, 1941, available at http://usinfo.state.gov/usa/ infousa/facts/democrac/53.htm. See Franklin D. Roosevelt, u.s. President, Inaugural Address (Mar. 4, 1933). See Franklin D. Roosevelt, u.s. President, The Four Freedoms. Speech, Annual Message to Congress (Jan. 6, 1941), available at http://www.fdrlibrary.marist.edu/4free.html. International Covenant on Economic, Social and Cultural Rights, g.a. Res. 4 2200A (xxi), u.n. Doc. A/6316 (1966), available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm.

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contested whether such rights could be rights at all66 or merely goals.67 There was no binding obligation on states to vindicate them as an international mandate for it citizens.68 This issue remained highly charged and contested. South African jurisprudence has made an important contribution in determining the extent to which socio-economic constitutional rights fall within the competence of constitutional adjudication.69 However, it is imperative to locate the Millennium Declaration in its appropriate historic and ideological context. At the height of the decolonization process, a number of u.n.-inspired instruments were promulgated, which sought to give a stronger imprimatur of legal authority to the issue of global economic justice.70 Those instruments were, in part, influenced by the fact that colonial rule in most of the colonized world had been in some degree economically exploitive of the nations under colonial dominance. The important resolution concerning permanent sovereignty over natural resources was an effort to regress the appropriation of the resources of colonized nations in the interest of the colonial rulers.71 The icscer proved to be incredibly controversial because it suggested that there was an implicit equity, which could support a new state in its need or desire to appropriate property of the colonial rulers on the basis of such ­property. If the property was characterized as an intrinsic part of the state’s natural resources, it could be nationalized or otherwise defined by the new post-colonial elite.72 This covenant, in effect, touched on a central issue relating to the security of foreign investments. The icscer could be used in a just and equitable way and still lead to consequences that were far-reaching in the financial markets of the larger world community. If a state expropriated resources, even if it had justifiable grounds for doing so, it would be seen as a state hostile to foreign investment. The standards for taking the property met 66 67 68 69 70 71

72

See International Human Rights Treaties: Hearing before the S. Comm. on Foreign Rel., 96th Cong., 106 (1979) (statement of Phyllis Schlafly, lawyer, activist, and journalist). E.V.O. Dankwa & C. Flinterman, The Significance of the Limburg Principles, in International Law and Development 275, 277, Paul DeWaart, Paul Peters & Erik Denters eds., (1988). Id. See Danie Brand, Introduction to Socio-Economic Rights in the South African Constitution, 2 L. Democracy & Dev. 153 (1998). See u.n. Decolonization Instruments, available at http://www.un.org/issues/docs/d -decol.html. Permanent Sovereignty over Natural Resources, g.a. Res. 1803 (xvii), at 15, 17 u.n. gaor Supp. No. 17, u.n. Doc. A/5217 (1962), available at http://www.unhchr.ch/html/menu3/ b/c_natres.htm. Id.

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an ostensible public purpose but weakened the standard of compensation as well as the time frame for it.73 The approach outlined, supra, clearly challenged the traditional way in which international law protected foreign investment. The primary problem was that international rules protecting foreign investment worked on assumptions that did not take into account the special circumstances of the exploitative character of colonial rule. This became an important ideological objective for the newly independent de-colonized states. The process evolved into what was called a “new international economic order.” This was, in turn, sustained by the important view in the Declaration on the Economic Rights and Duties of States and the Declaration on the Right to Development. The de-colonized world and its allies, generally called the South, now confronted the former colonial powers and their allies, generally called the North.74 There were many arenas where such ideological conflicts were contested, e.g., the Convention on the Law of the Sea.75 It has been seen that the resources, such as the manganese nodules on the deep-sea ocean floor, have been accessible mainly to states that monopolize the technology of deep-sea ocean mining.76 The law of the sea could mandate a free enterprise approach to the ­common resources that are the heritage of all of humankind, or it could create a ­common enterprise of sharing, similar to the goals of global social democratic dispensation. The global forces antagonistic to the principles of New ­International ­Economic Order and its assertion of a fundamental right to development began to evolve in ways that sought to weaken the economic role of the United Nations in matters of global economic policy. One strategy essentially was to decouple international economic order from general international law and politics.77 As these conflicts evolved in the international community, it became apparent that the u.n. Charter system, general international law and ­ ­international economic order were becoming disengaged matters. A diminished u.n. influence meant that general international law and international economic order began to travel in parallel but complementary trajectories. ­Politics and economics are specialized matters, and their scientific and intellectual universes are both distinct and discrete. The major objectives of the u.n.

73 74 75 76 77

Id. See Garrett Nagle, Development and Under Development (1998). See Politics in the United Nations System 175, Lawrence S. Finkelstein ed., (1988). See Yuwen Li, Transfer of Technology for Sea-Bed Mining 1.2 (1994). See Jerzy Makarczyk, Principles of a New International Economic Order 166.67 (1988).

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Charter included matters of international peace and security.78 However, the u.n. Charter also suggested that peace and security were important bases for the achievement of other global world priorities, such as respect for the rule of law, human rights, global economic equity, development, and progress.79 If the mandate of general international law was unclear about the inter-­dependence of peace, political economy, and human rights, the key institutions of Western economic order sought to insulate players such as the International Monetary Fund and the World Bank from being contaminated both by world politics and general international law.80 In contrast, newly emancipated states were strident in defending their permanent sovereignty over their natural resources and sought to integrate a new economic global agenda.81 The North–South discourse and the New International Economic Order were meant to be the centerpieces of a new world order framework. The outcomes of these processes led to the creation of an organization of economically influential states, the Group of Eight (G8), which was expanded to the G20. This relatively informal organization of states has an immense influence on the state and direction of the global economy. These issues are discussed in section ix, infra. v

The Consequences of the Current Global Economic Order

The consequences of the state of global economic order was reflected in numbers.82 Every year 30 million people die of hunger,83 and 800 million people are starving or suffer acute malnutrition.84 Roughly one billion are underemployed or unemployed.85 The above figure may be contrasted with the fact that the richest 2% of adults in the world owned more than half of the global 78 79

80 81 82 83 84 85

See u.n. Charter art. 2, pmbl. Id. The same Preamble states: to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom. Ngaire Woods, The Globalizers: The imf, the World Bank, and their Borrowers 182 (2006). Nagan & Hammer, at 180. John Hooper, Pope’s Book Accuses Rich Nations of Robbery, The Guardian (London), Apr. 5, 2007, available at http://www.guardian.co.uk/globalisation/story/0,,2050253,00.html. See Global Policy World Hunger.Social and Economic Policy, available at www .globalpolicy.org/socecon/hunger/hungerindex.htm. See Conscious Alliance, Educate, www.consciousalliance.org/educate.htm. See ilo World Employment Report (1998.99), available at www.ilo.org/public/english/ bureau/inf/pr/1998/33.htm.

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household wealth.86 The richest 1 percent of adults owned 40% of the global assets, and the richest 10% accounted for 85% of the total world assets.87 On the other hand, the bottom half of the world adult population owned 1% of global assets.88 Every two minutes four people died from malaria.89 One in five people in the world survived on less than $1 a day.90 Another 1.5 billion lived on $1 to $2 a day.91 More than one billion people did not have access to safe water.92 About 2.6 billion people lacked access to improved sanitation.93 Some authorities held that approximately five hundred million people on the planet lived in relative comfort, which was in stark contrast to the billions of people in the world who struggled to survive and live. Even in the United States, 44.8 million people were deprived of medical health care or coverage94 and almost 40 million Americans live closed to or below the poverty line.95 Globalization, which produced a vast increase in the production of values, seemed to fail miserably in the distribution or sharing of those values. As the new millennium unfolded, statistics indicated that nearly 800 ­million people were illiterate.96 This fact illustrated that people basically were ­powerless. They were treated as economic commodities to be exploited by the powerful or as economic waste matter to be discarded by the market. The adverse effect that the global market caused did not just include illiteracy, but other areas including: demographics, the migration of people, issues of conflict, trade, aid, debt, and debt repayment. However, this new world order referred to as neo-liberal global economics was not solely to blame. The ­economic arrangements in China, India, Brazil, and other parts of Asia d­ emonstrated 86

87 88 89 90 91 92 93 94 95 96

See Worthwhile Canadian Initiative, Growth, available at http://worthwhile.typepad .com/worthwhile_canadian_initi/growth/index.htm. See also Richest 2% Hold Half the Worlds Assets, Fin. Times, Dec 5, 2006, http://www.ft.com/cms/s/41470ec0-845b-11db -87e0-0000779e2340.html. James Randerson, Worlds Richest 1% Own 40% of All Wealth, un Report Discovers, The Guardian (London), Dec. 6, 2006. Id. See Human Development Report 2005, The State of Human Development, ch. 1. Id. Id. Id. Id. u.s. Census Bureau, Newsroom, Mar. 23, 2007, http://www.census.gov/Press-Release/ www/releases/archives/health_care_insurance/009789.html. u.s. Census Bureau, Poverty: 2005 Highlights, available at http://www.census.gov/hhes/ www/poverty/poverty05/pov05hi.html. See Human Development Report 2005, Ch. 1: The State of Human Development, available at http://hdr.undp.org/reports/global/2005/pdf/HDR05_chapter_1.pdf.

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that each of these state-commanded economies were designated to benefit the elite who were not held accountable by government constraints for their actions. Neo-economic freedoms may vanish much like they did in the former Soviet Union, which transitioned from a communist state to a capitalist market. These problems included the mass concentration of wealth in actors well-placed in the former communist regime.97 Many of the dominant communist elite took a lion’s share of state-owned enterprises, essentially claiming it as their own property.98 In order for economic freedom to be preserved, public and private laws needed to be implemented and adhered to, in order to prevent a select few from destroying this freedom. The economic revolutions in India, China, and Brazil were successful because their populations implemented a strong legal framework that did not allow any individual to manipulate the market system. From a lawyer’s point of view, the central flaw in the philosophy of economic liberalization was the principle that liberalization of anything if unconstrained will result in a license for the liberalizer and oppression for the victim. A specific problem with socialist regimes was that the government can abuse its power of control. The concentration of power did not necessarily mean that everyone shares in it; such a belief was typified by the myth: dictatorship of the proletariat. In practice, the proletariats likely will be disempowered by the internal elites who manage the power of the state, according to their own interests. If we take a social democratic state where the power resided in both public and private sectors, a high level of disparity arose. Nonetheless, the power of the various groups, if reasonably well distributed, imposed certain checks and balances sufficient to sustain a reasonably transparent, responsible and accountable system. In a neo-liberal state, certain groups abhored government interference, except when the government acted in its interest. In this type of state, corporate culture staked a claim to legitimacy on the basis that state officials and state elites simply were inefficient. To generate economic 97

98

Vladimir Volkov & Julia Denenberg, Wealth & Poverty in Modern Russia, World Socialist, Mar. 11, 2005, http://www.wsws.org/articles/2005/mar2005/russ-m11.shtml. Twenty percent of the Russian population lives below the poverty line and the great majority of Russian families are teetering on the edge of poverty. Then there is the other Russia, Russia is ranked third in the world for the number of billionaires. The greatest part of shareholdings in the largest Russian enterprises can be found in the hands of this tiny social layer. There are more billionaires in Russia (36) than anywhere else in the world. The total assets of these thirty-six richest Russians amounts to $110 billion.24 percent of the country’s economic output. Id. Joseph Blasi et al., Kremlin Capitalism 33–36 (1996).

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efficiency, it was important to allocate as much power to economic enterprise as possible. Labor unions must be weakened because they represented a dysfunctional limit on the freedom of enterprise. Social spending, spending for education, health, and other public purposes were matters for which the state was an ineffectual distributor. Where possible, these matters must be privatized in order for these enterprises to be most efficiently run. The private arena did not need many rules; the master rule of enterprise was to generate productivity and profit, while stimulating the interest for invention and for economic expansion. The public’s fear of depreciation in social and political capital by such a process was seen as a necessary, but short-term, cost for the greater good of society. The states imperfection in its exercise of power recreated a need for a strong legal infrastructure that would help to foster the ideals of responsibility, transparency and change. It was not clear what standards governed decisionmaking inside major economic enterprises when its business cannot be on an optimal level. Whether power and authority, transparency and openness are invested solely in government or not, the problem of how power itself was controlled, regulated, appraised, and changed in the interest of the people will not be solved. From the drive to global privatization, the absence of regulation of the financial markets was a major factor in the current economic crisis. This crisis undermined neo-liberal political economy and enhanced the prospects of an economy based on social justice. vi

Severe Global Poverty and Human Rights

What severe poverty meant for those who experience it was: 1. a low life expectancy; 2. social exclusion and marginalization in society; 3. decapacitation by poor health; 4. social capability that was limited by illiteracy; 5. a marginalized and expluded social position that expropriated any claim to independence and made individuals completely dependent; 6. easy exploitation of ­functional slave labor due to their social dependence upon others; and 7. a mortality rate (directly due to severe poverty) in the region of 18 million deaths per year. Poverty accounted for 1/3 of all human deaths. To appreciate the scope of the death toll due to extreme poverty, the aggregate figure since the end of the Cold War numbered hundreds of millions. This number almost diminished the Holocaust as well as the aggregate deaths experienced in World War ii. People trapped in severe poverty constituted 44 percent of the world’s population. The statistic was 2.735 million people.

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This group consumed 1.3% of the world’s global product. The high income nations had 955 million people who consumed 81% of the global product.99 Although these statistics were staggering, they at least implied an element of optimism. It would take only 1% of the global product to be allocated to the poor to take them out of the severe poverty trap. Statistically reducing the global consumption of the conspicuous nations from 81% to 80% would appear not to require a massive sacrifice on the part of the “have” segment of humanity. There were other constraining factors which made an approach to the eradication of global extreme poverty difficult. The global approach to extreme poverty did not recognize a form of international obligation on the part of the “haves” to do something serious to alleviate global extreme poverty. The approach was viewed as a matter of altruistic, discretionary, beneficence rather than a matter of global obligation. There is an important role for the development of a coherent and clear human rights theory of socio-economic justice. According to Thomas Pogge,100 the situation of the global poor required us to understand how current institutions conspired to “harm the poor” as well as to consider the relevance of justice in terms of human rights. According to Pogge, “We are harming the global poor if and insofar as we collaborate in imposing an unjust global institutional order on them.” He added that the institutional order “foreseeablly perpetuates large scale human rights deficits that would be reasonably avoidable through feasible institutional modifications.” Pogge suggested the central challenges that confront changing the system as follows: Global institutional arrangements are causaly implicated in the reproduction of massive severe poverty. Governments of our affluent countries bear primary responsibility for these global arrangements and can foresee their detrimental effects. And many citizens of these affluent countries bear responsibility for global institutional arrangements that governments have negotiated in their names.101 To make a more precise case for the idea of a human rights obligation to ameliorate extreme poverty it is useful to begin with the human rights instruments. 99 World Bank, World Bank Development Report 2003. 100 World Poverty and Human Rights, 19 Ethics and International Affairs (2005). 101 Id.

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Other Aspects of Social Justice and Diversity

The public debate about affirmative action in the United States, although ­intricately related to social justice, appeared to focus on limiting a clear national discourse on socio-economic justice. This was the responsibility of the complexity of race relations and the role of the courts in seeking to prohibit race-based discrimination as fundamental law. This meant that the courts have been uneasy about the appropriateness of affirmative action. In some judicial circles, it was viewed as a form of racial discrimination rather than a strategy of social justice. The discourse of the courts and administrative practice often moved from the rationale of social justice behind affirmative action to the idea that the constitutional justification must rest on diversity. This attenuated the relationship of social justice to racial prejudice and further attenuated its ­connection to socio-economic justice. As a matter of political theory, the term ‘diversity’ obscured more than it possibly revealed. The term holds that race may be an element of diversity and, as such, it was a factor that may lawfully be considered in the allocation of social or educational goods. The reference to race as diversity was not the same thing as a reference to race within the context of prejudice. Special protections of law to the victims and the potential victims of racial stereotyping supported by the animus of prejudice and the power base of social control or dominance may be justified. The justification of intervention as designed to ameliorate social conflict based on racial stratification might be seen. The idea that social peace be sustainable peace might be justified. That racial prejudice not simply be prohibited or proscribed, but that continuing policies and interventions on behalf of the target group might facilitate the emergence of transcendent identifications that broaden symbols of who is included in the “we” and displace the symbols of ethnic or racial rigidity based on the identification by racial pedigree of we and the other. What does diversity have to do with social conflict or social justice? ­Diversity, in effect, was constructed by a plurality of the Supreme Court as a substitute for the principle of affirmative action.102 The principle of affirmative action and its vindication in law was more complex than the negative principle of ­non-discrimination as a legal norm. The principle of non-­discrimination or ­non-prejudice would be justified by the simple proposition that every human being was entitled to a measure of equal respect and that prejudice or invidiously motivated discriminations destroyed those values. A ­ ffirmative action worked on the principle, well-accepted in international law, that levels 102 University of Cal. v. Bakke, 438 u.s. 265, 311–15 (1978).

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of social and/or racial or other forms of stratification were often institutionalized ­matters and could not easily be remedied without some form of ­affirmative ­collective intervention. Such intervention required a public or moral justification. The precise justification for affirmative social interventions might be ­predicated upon the principle that social peace was a good thing and that deprivations which entrenched hierarchy and stratification reproduced social conflict to the detriment of the common good of the society as a whole. This principle could be extended to include the perspective that a society that neglected vast segments of its population and reduced their opportunities in life to the most minimal levels of participation in the social matrix of values necessary for the most minimal level of dignity was a society to be prohibited. This must be done by active social, collective, or possibly governmental intervention. This entailed a joining of issues on the values behind the dominant ideologies of the emergent millennium. The ideologies of social democracy, liberal democracy or the basic ideals of New Deal democracy were committed to the principle that social justice was a political and juridical good and that the goods and values of a defensible social order should be optimally produced and widely distributed. If the freedoms of the market or the political marketplace cannot affect a fairer ­balance between the production and distribution, forms of intervention may be necessary, although the forms of intervention may be complex arrangements between the institutions of government, labor, capital and civil society. At the heart of a society opposed to social democracy was a juxtaposition of a society structurally resembling a pyramid in which members of society monopolized the upper tenth of any and all values. The social democratic geometrical figure resembled the structure of an onion or a turnip in which a vaster aggregate of people shared the middle, upper middle, and lower middle and only a small category occupied the top and bottom portions. These illustrations showed that the ideological debate can often be obscured and depreciated by the juridical debate. The development of juridical science and symbols often reshaped the discourse about the value issues at stake in ways that carried less illumination and greater complexity, and perhaps a greater capacity for social mischief. The first point to note was that the concept of affirmative action as a juridical construct carried both a strength and a weakness. Its strength lay in the fact that it empirically referenced a target population of deprivation. That population was disproportionately represented at the bottom of the social pyramid or the social turnip. It recognized that in certain circumstances race, social stratification, social dominance and

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deprivation were remarkably reflected in race relations. An important indicator of how to organize social strategies for the improvement of the element of social justice dominated by the socio-political dynamic of racial prejudice was given. Rules that targeted racial prejudice, dominance, and invidious discrimination facilitated the alleviation of injustice and the stigmatization of vulnerable groups. The analytical focus of several Supreme Court justices in race-relation cases was in many ways astigmatic. These justices did not differentiate between labels or markers based on group identification for the purposes of enhancing legitimate claims to social justice on the one hand and distinctions animated by brute, naked prejudice whose objective was to deprive and stigmatize the social position of the subjugated group. The Albanian Minorities case, decided by the pcij in 1927, had absolutely no problem analytically or practically in making precisely this kind of distinction.103 The approach of the Supreme Court in Yick Wo v. Hopkins104 may be more compatible with the practical approach to understanding racism. In Yick Wo, Justice Mathews reviewed certain San Francisco ordinances, which, although neutral on their face, indicated that whatever the manifest intent of the ordinances, they represented state action “so unequal and oppressive as to amount to a practical denial… of…equal protection of the laws….”105 The Court used the explicit language of practical denial. In words that resonated with contemporary meanings, Justice Mathews continued: Through the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered…with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.106 The stress on the practical, the factual, the evil eye, the facts of an “unequal hand” showed a remarkable capacity of the Court to distinguish between a beneficent social policy and invidious prejudice. Yick Wo took a functional approach to the role of the Court in supervising race-relations.

103 Minority schools in Albania. Advisory opinion of the permanent Court of International Justice 1935 p.c.i.j. (Series A/B) No. 64. 104 Yick Wo v. Hopkins, 118 u.s. 356 (1886). 105 Id., at 373. 106 Id., at 373–74.

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Later cases retreated from the Yick Wo approach. Washington v. Davis107 restricted the “evil eye” and “unequal hand” theory of Justice Mathews. However, Justice White conceded that a differential racial impact ‘solely,’ that is without more, was insufficient to sustain a constitutional transgression.108 Yick Wo clearly meant or included more than the term ‘solely’ implied. A deep and important issue about the nature of racism was rooted in the judicial assumptions of Yick Wo. These ideas reflected the way in which racism may be triggered and the external manifestation of its expression. An ostensibly neutral ordinance which sought to prescribe brick buildings might be seen in context to mean the targeting of the livelihood of a discrete and insular minority. That minority may in the context know exactly that the ­ordinance was meant to be economic discrimination animated by racial prejudice. ­Racism often emerged from the private motives of personality types predisposed to prejudice. It became socially relevant when those private prejudiceprone motives were displaced on public objects. This meant the acquisition and control of privilege and property for the dominant group. That group was capable of ‘displacing’ its racist pathology of deprivation, stigmatization, prejudice and, in the worst cases, genocide on the dominated group. Finally, there was the crucial tricky matter of packaging the malady: racism was rationalized as being in the ‘public interest.’ This meant that racist communication was not always of the grotesque and crude variety. It came in coded communications whose meanings must be teased out of context, and indirect methods of investigation and analysis. Imperialist, colonialist racism came packaged as the “white man’s burden” or the dominant classes’ “manifest destiny.” In more contemporary contexts such as South Africa’s apartheid, the scheme of racial domination was packaged as “separate development.” Possibly the worst if not most dastardly example of rationalization was indicated in front of the Auschwitz death camp: “work,” it read, brought “freedom.” This was literally true, because those fit for slave labor were worked to death and, given the horror of Auschwitz, death could actually be a form of liberation. In the contemporary United States, race was a longstanding instrument of political manipulation. Playing the race card was a hallmark of certain political factions. Ostensibly neutral words often conveyed racial meanings to c­ ertain target groups. To campaign on the issue of crime was a coded symbol that ­culturally among certain whites identified crime with race and personal insecurity. The issue of “no new taxes” and the coded phrase that accompanied it, that we read the “lips” of the communicator, meant no social spending for the 107 Washington v. Davis, 426 u.s. 229 (1976). 108 Id., at 239.

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underclass. The code can be reversed quite deftly when a social policy such as affirmative action was argued to be racial discrimination, thus inverting the role of victimizer and victim. A substantial element of racism was generated by unconscious pathologies and there was a measure of uncomfortable truth in the principle of insight that “vice was ignorance.” If further academic license was to be drawn from Dean Kronman’s defense of moral philosophy, it was in the element of extremism which held that an unexamined life was not worth living. If the term ‘unexamined’ was roughly analogous to the terms ‘unconscious’ or even ‘pre-­conscious,’ then we may conclude that an unexamined life driven by unconscious prejudices was a potentially lethal life from the point of view of the victim who wanted life without deprivations based on “otherness.” The rules of affirmative action sought to ensure that one moved from the absence of stigmatization and dominance to at least reasonable access to the basic values implied in an idea of social justice. The former principle was more amenable to juridical interventions because it vindicated a principle of negative freedom and equality. It essentially told a state what it must not do. It may not touch the question of prejudice and discrimination beyond the state. If one joined the issue with a discourse about the scope of government, one saw that the bigger the government, the greater the area of social control it determined and the greater the scope of a court’s capacity to police sanctioned ­discrimination will be. However, if the focus was on minimum government, then there was much less that the government regulated and more that was regulated by the market or the civil society, and less scope for a court to intervene to prohibit invidious discrimination. If the antipathy to racial prejudice was deeply rooted, then social strategies to develop a concept of racial justice may be quite useful. But it should be understood that the concept of racial justice was an extremely limited form of social justice from a social democratic perspective. The larger question emerges. When the Republicans created affirmative action what exactly animated them? While the Republicans were opposed to the New Deal and its social democratic animating principles, they were moved nevertheless to do something about the extreme forms of deprivation based on race. Affirmative action may be seen as a conservative strategic adjustment. Affirmative action was far more limited than a full-blown commitment to a theory of social justice and flexible social upward mobility. The original Republican support for affirmative action could have been motivated by the crudeness of playing a race card in electoral politics. Working class whites could now believe that their lower class status was a function of reverse discrimination. The political value of attacking the limited notion

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of social justice encased in the principle of affirmative action obscured the debate that working class whites who were socially and economically deprived might expect a form of social concern that was tied to the democratic culture of social justice. This was not to equate the social deprivations animated by prejudice and class-based prejudices or the imperfections of bourgeois democracy. The central point was that a commitment to racial justice should not be construed to mean a disparagement with regard to social justice for others in society who by birth, circumstance or bad luck are stuck at the bottom of the society. The mutation of affirmative action by the invention of the concept of diversity so narrowed whatever pretensions to social justice reposed in the theory of affirmative action that one saw a constitutional strategy with a sugar coat that simply removed from discourse the watered down version of social justice encapsulated in the affirmative action principle. Diversity, as represented in constitutional jurisprudence, made issues of social justice or racial justice irrelevant to higher education. Diversity in effect made a very different claim. This claim was that educationally we are enriched by diversity. The education value was the primary basis for the normative component or value of the diversity idea. A Markets, Values, and Morality Social justice required a lens of inquiry that valued social realism. One needed to examine this idea in the light of the law and economics approach. One of the important problems posed by “law and” models was that by taking a selective slice of social organization, the consequences of legal or policy decisionmaking interventions may be astigmatic since these partial cognitive and methodological procedures were faced with the dilemma of too much exclusion, or if they become too inclusive, it was because they took in too much and eviscerated the coherence their approach brought to legal analysis. Managing a legal context for legal inquiry was a complex business. Those who emphasized a law and economics approach confronted this dilemma. One of the key concerns was the issue of how much economic reductionism public policy could absorb without significant distortion. This issue emerged in the form of whether a law and economics approach could digest certain non-economic values. At the back of the economic foundations of the law model, there was a testable generalized model of social organization. If this model were expressed, it would look something like this: human beings purposefully seek to maximize wealth through institutions based on material and technological resources. The basic thrust of this model was that people maximized wealth to make more wealth. It was possible that they maximized

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wealth for other reasons. Perhaps they wanted power. Perhaps they wanted to maximize their affective experiences or improve their professional or educational opportunities, health and well being. Maybe they needed wealth to promote God. These and other objectives deeply influenced what wealth they sought to maximize, how to maximize it and where to draw the line. It may be suggested that these other non-economic values may be used to generate wealth. One may use power to leverage wealth, skill, education, social position or even ­religion. The conception of values, i.e., what was desired, may be much broader then the scheme of value assumptions implicit in the model of the social ­process implied in forms of legal economic inquiry. Values and the p ­ rocesses they include suggested that the foundations of political/social economy were more complex than implied in this model. This insight suggested that the very idea of contextuality, its inclusivity, its systematic and its amenability to effective mapping onto legal/policy processes remained vital and controverted. It was an important challenge to how policy makers were educated and how effectively social/economic realism may be successfully brought into the processes of policy inquiry and intervention.109 viii

Human Rights and Conventional Law

Notwithstanding the rejection by the United States of certain of the policy assumptions behind the udhr, much of the document’s substance acquired a distinctive legal imprimatur by the adoption of the Convention on the ­Prevention and the Punishment of the Crime of Genocide (1948), the Refugee Convention (1951), the International Covenant on Civil and Political Rights (1966), 109 This was an issue that had an interesting parallel in human rights law. Article 17(1) of the Universal Declaration of Human Rights holds that, “Everyone has a right to own property.” See g.a. Res. 217 (iii), u.n. Doc. A/810, at 71 (1948). Was this an unlimited universal right? Of course not. Article 17(2) held that “no one should be arbitrarily deprived of his property.” What did this mean? Did the term ‘arbitrarily’ refer to all the other rights in the Declaration in the sense that property could be limited if limitation was to preserve the other rights in the instrument? Can one know what property meant without knowing the content and structure of its limitation? Did the same principle apply to “wealth maximization?” There was a great deal of acceptance of interdisciplinary perspectives in law and practice. But one might suggest that the systematic employment of these perspectives in both education and practice was not a goal that was presently realized. The methodological objective was to move from “law and” to an inclusive interdisciplinary, “law is” paradigm.

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and the International Covenant on Social, Cultural, and Economic Rights (1966), as well as narrower but equally important treaties such as the C ­ onvention on the Elimination of All Forms of Racial Discrimination (1966), the Convention on the Elimination of All Forms of Discrimination Against Women (1980), the Convention on the Rights of the Child (1989), and the ­Convention That ­Outlaws Torture and Other Forms of Cruel, Unusual and Degrading Treatment. These developments influenced theorists to talk about an international constitutional system based on the u.n. Charter and consummated by a juridically enforceable Bill of International Human Rights. In practice, the regional codes of human rights developing throughout Europe and Latin America were narrower and less controversial in terms of defining the scope of the judicial role within the legal culture of human rights. These codes created a vast body of case law dealing with the prescription, application and enforcement of regional human rights. They do not, however, encompass the entirety of the International Bill of Rights, leaving residual areas of unresolved juridical quality vis-à-vis, for example, conventional legal culture. The resulting residuum of human rights representing a significant quanta of the rights recognized in the International Bill of Rights do not fit easily into a conventional juridical framework. The nature of these unsettled rights remained uncertain and raised the question: can they be characterized as rights rather than political goals or policies? A survey of rights articulated in the udhr revealed a number of conventional rights with parallels in conventional law, particularly those addressed in Articles 1 through 21. The focus of the udhr in Articles 22 through 26 turned to economic, social, and cultural rights, topics that ordinarily found their way into the public discourse as social and ideological policies or goals of the state. The conventional gloss on Article 28 ascribed to the general provision a focus on collective or solidarity rights relating to issues of peace and environmental justice. Such rights inherently entangled the juridical with the political and the legislative. Examining the contentious underpinnings of certain udhr-articulated rights provides a useful avenue by which to approach the current theoretical problems that implicate human rights. Two salient issues emerge from the fog: first, does society need both a political and jurisprudential theory that serves as a justification for human rights? If so, is that justification purely normative or a combination of normative and political indicators? The second issue provided less stress on justification and, instead, focused on human rights as a field of inquiry. The appropriate theory to advance is a theory of inquiry about human rights. Such an approach would inquire into the context of human rights and the problems generated by that context; the problems and challenges

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generated by organized community responses to these problems in a global context still characterized by weak central authority; the ability to predict both the problems themselves and the efficacy of community responses at all levels to those human rights problems; and to generate ideas and insights into the improvement of responses to human rights issues in the common interest of the global community, i.e., global civil society and socio-economic justice. A Global Civil Society and Socio-Economic Justice The salience of the communications revolution was its importance for the development and networking capacity of global civil society. The emergence of important forces within global civil society was significant for the general issue of global social justice and the relationship between the structure of global debt in the poorest nations of the world as a factor that reinforced economic and social injustice. Among the most important of these developments was the World Social Forum. The Forum explored alternative economic and social arrangements to the policies of neo-liberalism. The forum met annually in different parts of the world and inspired the creation of many regional fora around the world. Another important institution of global salience was the Jubilee 2000 movement, which targeted the nature of debts of the poorest countries of the world. It was strong in the promotion of the idea that the debts in the poorest countries need to be cancelled. The servicing of these debts required payments that states were incapable of meeting, and to the extent that states serviced these debts, they came at the price of essential social services. The Jubilee 2000 led movement a more careful understanding of how these debts came to be debts. This resurrected an important discourse about whether the circumstances under which the debts were incurred and later assigned to the state did not breach fundamental legal and moral standards. This gave the concept of odious debt a new meaning for our time. The Jubilee movement coincided with the publication of John Perkins’ book, The Confessions of an Economic Hit Man.110 Perkins’ central point was that the borrowing for projects usually involved fictitious or grotesquely overblown initiatives which did nothing for the gdp of the state and would not sustain the debt. The debt, essentially, fed private players with an assumption that the ultimate responsible entity would be the state. At the back of the framework of debt development are the exposures in Naomi Klein’s book, The Shock Doctrine.111 According to Klein, the use of military or ecological crises permited the penetration of a 110 John Perkins, Confessions of an Economic Hit Man (2004). 111 Naomi Klein, The Shock Doctrine (2008).

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society and its reorganization without democratic participation in the interest of private, foreign capital. The challenge generated by the legal architecture of the debt crisis had important precedents. When the United States took over Cuba, it canceled the Cuban debt to Spain on the basis that the debt burden “was imposed upon the people of Cuba without their consent and by force of arms.”112 Taft, a u.s. Supreme Court Justice and arbitrator in a famous decision involving Costa Rica, held that the Royal Bank of Canada’s loan to the previous dictator had “no legitimate use,” so that the claim for payment “must fail.”113 More modern ­challenges involved the debts incurred by the apartheid state from Western banks. These funds were designed to aid the maintenance of the system of apartheid. The claim of these interests was that the law of state succession required that the post-apartheid regime pay for these debts. These debts were incurred in the face of the international campaign to impose economic ­sanctions on the apartheid regime. Chomsky presented a sharp insight into the ideological and sociological implications of debt. According to Chomsky, The debt is a social and ideological construct, not a simple economic fact. Furthermore, as understood long ago, liberalization of capital flow serves as a powerful weapon against social justice and democracy. Recent policy decisions are choices by the powerful, based on perceived self-interest, not mysterious “economic laws.” Technical devices to alleviate their worst effects were proposed years ago, but have been dismissed by powerful interests that benefit. And the institutions that design the national and global systems are no more exempt from the need to demonstrate their legitimacy than predecessors that have thankfully been dismantled.114 The Jubilee 2000 movement had an impact on the G-8. However, the concessions given by leaders were grudging and were looked at purely from the p ­ erspective of creditor interests rather than the consequences of those ­interests for economic order or economic justice. Among the developments in civil society that served to undermine the activism of Jubilee 2000 was the development of secretive private companies incorporated in tax havens that purchased Third World debt for a pittance of its paper value and then sued

112 Noam Chomsky, Jubilee 2000, at http://www.chomsky.info/articles/19980515.htm. 113 Id. 114 Id.

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the debtor nation for the full amount of the debt, essentially, vulture fund companies. The question of the importance of an economic bill of rights of global reach became important as an instrument of global normative guidance for influencing economic decision-making of global importance. It is still unclear what the guiding principles are for the G-8/G-20. An explicit adoption of a global approach to socio-economic justice will help in sustaining the political pressure on this organization and others. This section concludes by making reference to four dominant theories that implicate social justice. The first of these was the “Social Development” approach. In practice, there was too little of this and much of it came after the fact. It was a theory that had to be more firmly grounded in the processes of both activism and decision-making. An alternative was the “Modernization” theory. This theory saw development in terms of the neo-liberal formula and viewed the state as a threat to privatization. This formula came with the political baggage of the “Shock and Awe” doctrine. Finally, there was the “Dependency” theory, which had the virtue of stressing the factors which conspired to sustain underdeveloped deprivation. There was a kind of fatalism implicit in this theory. There was the experience of the fourth prototype of development created in the Vicos project in Peru. This project was driven by the anthropologist Alan Holmberg and the political scientist Harold Lasswell. The idea was to transfer a wide-range of decision-making skills and competences to the community, including the community’s capacity to manage its resources as well as to engage in enterprisory conduct. The project was highly criticized from the left and the right. From the left, it was argued that ultimately the project underestimated the power of reaction inside the state to block it. From the right, it was argued that it was imperialist to provide a framework of values derived from the udhr as the foundation of the transfer of decision-making skills. The government did close down the Vicos project, but enough skills had been transferred that the village continued to be an example of successful development based on widespread respect and socioeconomic equity. ix

The G8/G20 and Its Impact on the New International Order

The most visible expression of the triumph of the counter-revolution against the New International Economic Order perspective and its commitment to human rights development was the emergence of a coalition of economically dominant or influential powers of the G8. The G8 seemed to function as a type

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of de facto international economic Security Council.115 It had a legal architecture and an immense influence on the international community. ­However, its inner workings and the living law of the G8 process of norm-setting remains non-transparent.116 Critical global policies that affected the lives and wellbeing of billions of people emerged from the G8’s decision-making process. In the aftermath of the transformation of South Africa, President Nelson Mandela attended a G8 meeting.117 It was his hope and expectation that the promises to give South Africa the kind of financial assistance necessary for its transformations to a democracy would be honored. As President Mandela graphically suggested: [T]he leaders of the G8 came to the meeting with all the pens and papers, but the pens had no ink. As long as poverty, injustice and gross inequality persist in our world, none of us can truly rest…. The steps that are needed from the developed nations are clear. The first is ensuring trade justice…. The second is an end to the debt crisis for the poorest countries. The third is to deliver much more aid and make sure it is of the highest quality…. But not to do this would be a crime against humanity, against which I ask all humanity now to rise up.118 This experience indicated disillusionment about the predictability and reliability of G8 undertakings. It is important to note that the G8 itself worked on a model of neo-liberal economic and political perspectives that were reflected in the forces of globalization, the concept of emerging markets and an implicit political culture which sought to separate law and politics from economics.119 The fact that the problems of economic equity were still matters of critical global concern suggested that the focus of attention of many states was on the G8 itself. This was a new field of conflict. The new battleground was the requirement that globalization and its neo-liberal animating principles have a human face, a face that had a political and juridical side to it. Former Prime Minister Tony Blair insisted that the G8 take a more expansive approach to the problem of global poverty, a matter that was tied to the issue of global 115 New Perspectives On Global Governance 83, Michele Fratianni et al., eds., (2005). 116 See The New Economic Diplomacy: Decision-Making And Negotiation In International Economic Relations, Nicholas Bayne, Stephen Woolcock & Colin Budd eds., (2003). 117 Africa to Miss Key Poverty Goals, bbc News, Jan. 17, 2005, available at http://news.bbc .co.uk/1/hi/world/africa/4180595.stm. 118 k/2/hi/uk_news/politics/4232603.stm. 119 David Harvey, A Brief history of Neo-liberalism 66 (2005).

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debt repayments.120 Global poverty, which was an institutional part of the new global economic order, was characterized as a form of economic apartheid.121 Whatever perspective one took on the state of world economic order, a great deal of the structure and process of how this order actually works, what its known generating qualities are, how it impacts upon war and peace, prosperity and poverty suggest a critical but necessary focus for the future of legal education and professionalism. The G8 was expanded so that it is now a G-20 organization.122 The meetings excluded over one hundred nation-states who were not members of the G-20. These members must find their voice in the representative fora of the United Nations. The United Nations took the initiative to organize a Conference on the World Financial and Economic Crisis and its impact on development from June 24 to 26th, 2009.123 At the meeting, some representatives raised the ­question of the G-20’s role as a self-selected club outside of the framework of u.n. discourse and decision making. This raised the question of the G-20’s political legitimacy and its role as a formulator of possibly legally-binding ­economic policies in international law. The G-20 developed a consensus about avoiding protectionism. However, the World Bank noted that since the last G-20 meeting, members have undertaken protectionism measures. Developing states were concerned that these measures might discriminate against them. Many advanced economies were not included in this form of discrimination, but poor countries were. The outcome document of the un Conference based its conclusions and recommendations on the u.n. Charter, in particular, the key purpose of the Charter to “achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character,” and, “to be a center for harmonizing the actions of nations in the attainment of these common ends.” The Report explicitly maintained that this Conference was part of the collective effort towards economic recovery. A central feature of the report was the stress it placed on “the importance of the role of the United Nations in economic issues.” It stressed the point that developing countries were blameless in this economic and financial crisis but were severely affected by it. It 120 Aid for Africa: G8 Debt Relief is a Positive Step, Star Trib. (Minneapolis, Minn.), July 2, 2005, at 20A. 121 Alternatives to Economic Globalization 33, John Cavanagh et al. eds., (2002). 122 Joseph E. Stiglitz, A Real Cure for the Global Economic Crackup 11–14, The Nation (July 13, 2009). 123 Conference on the World Financial and Economic Crisis and Its Impact on Development, un Doc A/Conf.214/3 (22 June 2009).

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drew attention to the fact that economic and social progress achieved globally in recent years was being threatened. This included international-agreed development goals, including the Millennium development goals. The Report drew attention to the human side of this economic crisis, its impact on the poor and the vulnerable, especially women and children, who “suffer and die of hunger, malnutrition, and preventable or curable diseases.” The Report stressed that “women also face greater income insecurity and increased burdens of family care.” These human costs had serious developmental consequences for human security. The Report called for “an equitable global recovery [which] requires the full participation of all countries in shaping the appropriate responses.” The Report called for policies that would provide the financial resources for the poorest of the world’s developing economies. It called for improved regulation and monitoring and a reform of the financial and economic system and ­architecture. There was a call for giving the United Nations a higher profile role in plotting the way forward. x

The Millennium Declaration and the Reform of the United Nations

The test of progress was not whether more was added to the abundance of those who had much. It was whether enough was provided for those who had too little.124 The privatization animus of globalization in the international ­economic order was one of the factors that generated strong support for a more equitable economic world order. As the millennium approached, a global consensus emerged for the United Nations to spearhead a humanitarian initiative to capitalize on a symbolic moment, which could be given a constructive gloss. The result was the Millennium Declaration, touching on some of the most important questions of elementary economic justice for the deprived segment of humanity.125 The Declaration was of critical importance because it represented the articulation of specific objectives with the expectation that these goals would be given a concrete measure of support and a realistic timeline to succeed. The goals represented issues about which there could be no quibbling as to their moral salience, political importance or economic feasibility.126 The importance of the Declaration was its ability to crystallize the central issues of global 124 President Franklin D. Roosevelt, Second Inaugural Address (Jan. 20, 1937). 125 United Nations Millenium Declaration, g.a. Res. 55/2, u.n. gaor, 55th Sess., u.n. Doc. A/RES/55/2 (Sept. 8, 2000). 126 Id.

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justice in a clear and effective manner. Success will require sustained action. It took time to train the teachers, nurses and engineers; to build the roads, schools and hospitals; to grow the small and large businesses able to create the jobs and income needed.127 The specific millennium goals in the Declaration were: Goal 1: Achieve Universal Primary Education Goal 2: Promote Gender Equality and Empower Women Goal 3: Reduce Child Mortality Goal 4: Improve Maternal Health Goal 5: Combat hiv/aids, Malaria and other diseases Goal 6: Ensure Environmental Sustainability Goal 7: Develop a Global Partnership for Development128 The report of the Secretary General, In Larger Freedom, stressed getting back to the fundamental values, which fueled the creation of The Atlantic Charter. Two critical issues were the issues of freedom from want which had a direct connection to the Millennium Declaration and freedom from fear regarding global security and conflict management. The problem with these initiatives was that one of the most important powers in the world community, the United States, had experienced a change of government. The new government, led by President George W. Bush, was highly skeptical of international law. The former ambassador to the United Nations, John Bolton, maintained early on that the United States should be exempt from international law.129 A similar perspective was indicated by the former Secretary of State, Condoleezza Rice. In order to undermine both the 127 Press Release, Secretary General, Millenium Development Goals Have Unprecedented Political Support, Secretary-General Says at London Event, u.n. Doc. SG/SM/9984 DEV/2527 (June 7, 2005), available at http://www.un.org/News/Press/docs/2005/sgsm9984.doc.htm. 128 See United Nations Millenium Declaration, g.a. Res. 55/2, u.n. Doc. A/RES/55/2 (Sept. 8, 2000). 129 See Nomination of John R. Bolton: Hearing Before the S. Comm. on Foreign Relations, 109th Cong. 1 (2005) (statement of John R. Bolton, u.n. Ambassador of the United States). It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so, because over the long term, the goal of those who think that international law really means anything are those who want to constrict the United States. Id. See also, Peter J. Spiro, The New Sovereigntists: American Exceptionalism and Its False Prophets, Foreign Aff., Nov./Dec. 2000, available at http:// www.foreignaffairs.org/20001101facomment932/peter-j-spiro/the-new-sovereigntists -american-exceptionalism-and-its-false-prophets.html.

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millennium goals and the reform of the u.n. agenda, the Bush administration presented at the last minute a list of at least 750 changes.130 This could not have been considered seriously at the diplomatic level and it became clear that the purpose of this vast body of amendments simply was to make the u.n. reform process an illusion. Ambassador Bolton stated that “there is no such thing as the United Nations. There is only the international community, which can only be led by the only remaining superpower, which is the United States.”131 Because the millennium goals were tied to u.n. reform and u.n. reform generated a complex and difficult debate about what the necessary changes must be, the realization of the goals were circumscribed by efforts to amend the u.n. Charter. As the United States acted to obstruct the necessary reforms rather than leading in commanding new institutional features, the international community failed to address these pressing issues. xi

Human Rights and the Problem of Rights

The second problem with the udhr was in describing the nature of the rights codified within it. Clearly some of the rights were relatively easily understood in terms of conventional legal culture, but other rights were not. The term ‘right’ itself was not unproblematic. Philosophers stated that a right was an entitlement. What, then, was an ‘entitlement?’ The tautological answer, of course, was an entitlement was a right. Apart from the complexity of using the term ‘right’ in a philosophical sense, a political sense or a juridical sense, there was the question of whether the rights-based terminology carried too much implicit confusion or ambiguity. In technical jurisprudence, the term right covered a significant number of distinguishable legal relations. Thus, a right could imply a legal power, a privilege, immunity, or a disability. A right in the strict sense clearly implied a relation to a duty owed. Additionally, scholars have expressed concern about the limits of rights in the sense that it served as a limitation on appropriate inquiry into the nature of the interests and values that were at stake in actual human choice.

130 See Winston P. Nagan & Craig Hammer, The New Bush National Security Doctrine and the Rule of Law, 22 Berkeley J. Int’l L. 375 (2004); Winston P. Nagan & Craig Hammer, Patriotism, Nationalism and the War on Terror: A Mild Plea in Avoidance, 56 Fla. L. Rev. 933, 948 (2004). 131 Roland Watson, Bush Deploys Hawk as New un Envoy, Times Online (London), Mar. 8, 2005, available at http://www.timesonline.co.uk/article/0,,11069-1515816,00.html.

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Professor Sunstein was notable in this area of inquiry, raising concerns about the rigidity of rights-based formulas and the intimacy of rights-based terminology.132 He drew attention to an assumption inherent in rights-based discourse regarding the relationship between the legal culture of rights and excessive individualism, noting the flaws of this assumption and making a case for the unreality of such “excessive individualism.” Sunstein connected this with the notion that rights invariably were complemented by the discourse of responsibility and obligation. What needed to be clarified and what was buried in notions of right and responsibility were the assumptions that a rights-based discourse stressed values as the inalienable, the absolute, the universal, the eternal, the ahistorical, and equal dignity. This was distinguished from the ideas of socially-constructed rights, given and taken, qualified, contingent, context-dependent, particular, culturally specific, historicist, evolving and rights open to change based on utility and effective power.133 The technical argument that only negative rights were unambiguously enforceable was undermined by a series of cases decided by the Constitutional Court of South Africa. The South African Constitution explicitly codified socioeconomic rights in Articles 26 and 27. These included the right to housing, healthcare, food and water and social security. In the case of Soobramoney v. Minister of Health,134 the Court ruled that there was a judicially enforceable constitutional right to health, notwithstanding that the petitioner had been reasonably deprived of access to a dialysis machine. In the case of Government of South Africa v. Grootboom,135 the Court upheld the right to housing, relying in part on the International Covenant on Civil and Political Rights as well as the work of the u.n. Committee on Economic, Social and Cultural Rights. In the context of the aids crisis, that court took a pro-active stance upholding the claim of an ngo (Treatment Action Campaign v. Minister of Health).136 This case involved a challenge to the government’s policy of restricting hiv-infected pregnant women’s access to the drug Nevirapine. These cases provided concrete expressions of the extent to which socio-economic rights may be amenable to juridical clarification and appropriate application. From a functional point of view, the distillation of the critical values behind the so-called rights provided the inquirer with a more useful tool of explanation and analysis as a guide to human rights decision making. 132 133 134 135 136

Cass R. Sunstein, Rights and Their Critics, 70 Notre Dame L. Rev. 727 (1995). See Steiner, Alston & Goodman, International Human Rights in Context 490 (2007). cct 32/97, 27 November 1997. cct 11/00, 4 October 2000. cct 8/02, 5 July 2002.

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A Universality, or Universalizability, as Human Rights Issues The first problem was a matter of the terminology used in the udhr. The ­specific issue was with the term, ‘universal.’ If the rights proclaimed were ­universal, then the critical question was whether these rights held for all situations or whether they were rights which contradicted themselves within the Declaration. If one could technically reduce the udhr to conventionally understood value-priorities such as the right to life, liberty, association and property, one would discover that these rights had well-understood limitations within the context of moral philosophy. The term, ‘universal,’ viewed either politically or juridically, did not generate confidence or currency. The term should be understood as a meditation on the degree to which the values behind the rights in the udhr were in fact “universalizable.” This meant that these values were given a priority of deference in political and legal decision making. However, they must be ultimately reconciled with the other rights and values that were competing for priority. The right to life was limited by the principles of self-defense and the principles of just war. The right to liberty was constrained by the notion that liberty was not a license to disparage the rights of others. The right to association may be limited by nationality and immigration status. Moreover, the right may be limited in the sense that society prohibits the association of outlaws, terrorists or criminal cartels. The right to property was normally limited by the power of the state to tax or to take with just compensation. These limits suggested that the idea of human rights as universal was more complex and required further levels of theorizing. One of those approaches reduced the udhr to eight values: power, wealth, respect, enlightenment, health, well-being, affection and ­rectitude. These values in the aggregate and, if optimally produced and distributed, came close to the universal ideal of human dignity that human rights, taken as a whole, was meant to enhance. The question of socio-economic rights challenged an assumption of universality and provided a distinctive challenge for the question of universalizability. B The udhr and the Authority of Human Rights A second issue relating to the status of the udhr concerned the fact that the udhr was developed under the authority of the United Nations and the United Nations, in turn, fell under the authority of the u.n. Charter. The Charter itself rooted its authority in the peoples of the world community. The Preamble of the Charter read as follows: We the Peoples of the United Nations Determined to save succeeding generations of the scourge of war, which twice in our lifetime has brought

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untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, and of nations large and small, and to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained and to promote social progress and better standards of life in larger freedom.137 The term, ‘human rights,’ which appeared in the Charter but was not defined in it, may be understood as having been extrapolated upon in the political decision to adopt the udhr. If this is so, it becomes critical to inquire into the juridical currency of the udhr as not only a political decision of the ­General Assembly but one carrying a distinctive form of a very special “resolution,” namely, a declaration. The political decision of the General Assembly was in fact an extrapolation of a pre-existing but undefined legal obligation in the u.n. Charter. Does the political decision of the General Assembly then carry some measure of juridical efficacy because it was an extrapolation of the ­specific terms that appear ubiquitously in the u.n. Charter and may in fact be seen as a major value premise of the Charter itself? Recall that the Charter’s Preamble talks of being a document of the peoples of the world and not of the states. Human rights are rights against the state and are quintessentially ­people’s rights. The udhr itself clarified the concept of legitimacy and ­authority. In Article 21.3, the following was stipulated: “The will of the people shall be the basis of authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal sufferage…” Regardless of the technical legal status of the udhr, it had a profound ­resonance and impact on global expectations about the protection and priority to be given to fundamental human rights. The udhr inspired the adoption of its values in post-war constitution making. The u.n. Charter and udhr influenced new forms of constitutional thinking, and these forms have influenced the development of regional compacts and national constitutions. The normative foundations of the international system provided normative guidance for new forms of constitution making. The important themes in these guidelines suggested that the creation and maintenance of the institutions of governance must meet certain general normative standards of responsibility, accountability and transparency. They should reflect a priority to the values of openness, participatory access, responsibility, effectiveness and coherence. Just as the values articulated in the u.n. Charter make clear that it was not 137 United Nations Charter, Preamble.

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value-free, the influence of the u.n. Charter on modern constitutionalism generated a constitutional culture that was not value-free. Instead, modern constitutionalism was replete with human rights value commitments. In the Namibia case in 1971, the icj concluded that the udhr or many of its critical provisions had already achieved the status of customary international law and the Court could use the udhr as one of the foundations of its decision to affirm the termination of the mandate of South Africa over Namibia. The main human rights treaties, which were listed supra, may be seen as specific extrapolations of the udhr. These extrapolations came in the form of ­treaties and were conventional international law. The state parties to these treaties were in fact bound by them. The development of the treaty-based regime was an indication that the post-war world under the u.n. Charter was still a sovereignty-dominated world and, as such, an obligation with a weak technical juridical imprimatur such as the udhr needed the development of a treaty-based regime to impose specific, juridically binding obligations on state parties. It was easier to bind a state to an international obligation to which the state had formally consented to in the form of a treaty obligation. C Human Rights and Peace High intensity conflicts and breaches of international peace and security were frequently a condition and a consequence of social injustice and human rights deprivation. A central characteristic of human rights was that it represented a significant change in the tradition of international law, where there was a limited obligation to protect the alien from the denial of justice. Human rights law broadened the scope of individual protection to include non-aliens and citizens and subjects of sovereign states. This meant that human rights limited sovereign state power and imposed international obligations on states to citizens and non-citizens alike. Human rights represented a significant constraint on the power of the sovereign state imposed by the international community. But it was also an element of empowerment in terms of the protections given to the individual. A contemporary illustration was the United Nations’ Optional Protocol to the Torture Convention. Under the Optional Protocol, an International Committee may demand access to any place within a state where it believes there is a possibility that a prisoner or detainee is being tortured. The debates around the Optional Protocol were concerned with the extent to which states sacrificed sovereignty over sensitive issues of security and policing under the mandate relating to the prohibition of torture and the obligation to cooperate in facilitating that objective. The Charter and the udhr recognized that the violation of human rights was a condition of social conflict. When the violation of human rights became

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systematic and repressive, there was the recognition that there will be social consequences in which the victimized target groups will react. The Preamble to the udhr stated the following: “Whereas it is essential, if man is 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.” It was intuitively accepted that human rights, if honored, promoted social stability and the avoidance of social conflict, including avoidance of high intensity conflicts. Conflicts within states often involved minority groups or vulnerable groups who may be exploited and victimized by the governing elite. It was in such situations that the difficult problems of ethnic conflicts arose. These forms of conflict were often unrestrained, leading to action, reaction and counter-reaction. In the context of Africa, there was the genocide in Rwanda, where the Hutu elite orchestrated a campaign of genocide for the elimination of the Tutsi minority. In southeastern Europe, the conflict which had distinctive ethnographic features gave the world community such terms as ‘ethnic cleansing.’ Conflict itself was a major generator of the most important and far reaching human rights violations. Human rights organizations which were not necessarily specialized peace groups found it impossible to effectually discharge their human rights monitoring and recommendations without taking into account issues of peace and the conditions of conflict. Still, the central questions remain: what is peace, what are human rights and what is the relationship between the two? From an international law point of view, the inheritance of the international community was one in which there were no legal limitations to what sovereigns could do in promoting their interests through war or other forms of arbitrary coercion. The twentieth century witnessed important strides toward changing the situation, particularly in the aftermath of World Wars i and ii. The effort was one that focused on the outlawing of war by states. The u.n. Charter was the latest formal effort to move significantly in that direction. The Charter had provisions for collective security, but the maintenance of this institution was precarious given the effective power and ideological conflicts which exemplified the existing conditions of world order. The second important innovation in the Charter was the effort to outlaw aggression in Article 2(4). Article 2(4) protected the territorial integrity and political independence of a state from attack by another. This Article must be read in the light of Article 51, which preserved the inherent right to self-defense of a state if it was attacked or, more controversially, if it considered that it may be the target of an imminent attack. This led to the idea that an attack on the sovereignty of a state was impermissible and the target state had a right of

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self-defense ­permitting it to deploy necessary and proportionate coercion. The right to peace was constitutionally qualified by principles of permissible and impermissible coercion. The difficulty of reconciling these ideas was compounded by the fact that the initial decision about permissible self-defense was a decentralized, sovereign decision. This meant that collective security took a back seat to self-defense as permissible coercion. However, central to the idea of peace in the Charter were the broader values of the Charter relating to the obligation to cooperate on issues of human rights, the rule of law and international peace and security. A distinction was often made in modern international law between the critical importance of minimum order and optimal order. Minimal order involved the ability to restrain the use of coercion, in particular arbitrary coercion. Minimal order was considered a critical factor in developing a viable social process which normalized the production and exchange of values. The normalizing of the production and distribution of values meant that the social process, sustained by minimum order, engaged in value distributions that moved the social dynamics away from the minimal toward an optimal expectation. It could be hypothesized that the more effective the production and the distribution of the basic values in society were, the more the culture of human rights strengthened values such as the right to peace. This, in turn, enhanced the expectations of the human rights culture overall. There was a clear recognition that the interrelationship of peace and human rights was not simply a matter of interdependence but of identity of processes. It was John F. Kennedy who posited that “peace, in the last analysis, [was] basically a matter of human rights.” It was generally conceded that a core interdependence existed between peace and human rights. A clearer and more discriminating approach to this insight may be attributed to His Highness the Dalai Lama: Peace, in the absence of war, is of little value to someone who is dying of cold or hunger. It will not remove the pain of torture on a prisoner of consequence. It does not comfort those who have lost loved ones in floods caused by senseless deforestation in a neighboring country. Peace can only last where human rights are respected, where people are fed and where individuals and nations are free. Peace is an essential condition for the delivery of socio-economic justice and socio-economic justice is a critical condition for the avoidance of social conflict and the maintenance of peace. To sustain peace, there is the necessity for a measure of positive sentiment, empathy and compassion. These values are

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values reflected in the salience of affection. Socio-economic justice and peace are both furthered by a strong and self-conscious commitment to the ultimate shaping and sharing of all values, including wealth and affection, which is ­sustained by empathy and compassion, and which generates the foundation of an identification based upon the universality of solidarity rooted in human dignity.

chapter 14

Intellectual Property and Human Rights This chapter deals with matters that do not conventionally find a place in either the literature of human rights or of international intellectual property law. These two disciplines have evolved largely independent of each other. This chapter seeks to show that intellectual property and its protections under international law may have significant impact on certain human rights values, such as the right to life and the right to reasonable access to healthcare therapies. This chapter touches on the human rights dimension of the human right to property: how it used to be interpreted and construed so as to further the fundamental policies behind human rights. This requires a more discriminating method of contextualizing the right to property as a human right in the context of other human rights values and priorities. It is convenient to embark on this approach using a case study involving conflicts between vested interest groups and states over the priority to be given to the protection of the patentholders’ claims and the claims of the community for reasonable access to the patent. The case study used comes from the context of the global aids crisis and, in particular, the responses to that crisis in the context of a state seeking to provide reasonable access to aids therapies. This conflict emerges as well in the context of the phenomenon known as globalization. In this context, there is a broader awareness of the importance of socio-economic rights as human rights. Under the u.n. Charter system, general international law and international economic order have traveled in parallel, but not always complementary, trajectories. Politics and economics are specialized matters, and their scientific and intellectual universes are both distinct and discrete. The u.n. Charter’s major purposes are primarily matters of international peace and security. However, the u.n. Charter also contains a hidden assumption that peace and security are important bases for the achievement of other global world priorities, such as respect for the rule of law, human rights, global economic equity, development and progress. If the mandate of general international law was unclear about the interdependence of peace, political economy and human rights, the key institutions of Western economic order sought to insulate players such as the International Monetary Fund and the World Bank from being contaminated by both world politics and general international law. In contrast, newly emancipated states were strident in defending their permanent sovereignty over their natural resources and sought to integrate a new economic

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_016

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global agenda. Labeled the North–South Discourse and rooted in general international law, this novel economic agenda was the centerpiece of a new world order framework. The demise of the u.s.s.r. weakened the model of international economic order as the forces of globalism, emerging markets and the political culture, which separated law and politics from economic ordering, gained ascendance. The new battleground became the requirement that globalism and its neoliberal animating principles have a human face; a face that had a political and juridical side to it. As the aids crisis affected development and human rights issues, this condition has surfaced explicitly. Not only did this problem concern general international law and the world order, it also impeled re-examination of global economic ordering in light of the u.n. Charter’s broader mandates. A fortiori, it was true that there are strong tendencies to insulate trade law in international law and intellectual property law, particularly from the broader values of global, constitutional and public order.1 When the economic consequences of globalization amounted to a process of political and economic ordering, a particular statistic stands out. Over the past thirty years, the disparity between the richest and poorest parts of the planet has doubled.2 The poorest one-fifth of the planet received 1.4% of the global income; the richest one-fifth of the planet receives 85% of the world’s income.3 This widening gap significantly exacerbated the problem of the practical realization of the economic, social and cultural rights, which are part of the International Bill of Rights4 and a vital component of the a­ spiration to universal dignity in the promise of human rights for all. According to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997): It is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, states are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights.5 1 See generally James Thuo Gathii, Rights, Patents, Markets and the Global aids Pandemic, 14 Fla. J. Int’l L. 261 (2002); Shubha Ghosh, Pills, Patents, and Power: State Creation of Gray Markets as a Limit on Patent Rights, 14 Fla. J. Int’l L. 217 (2002). 2 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, § i(1), Jan. 22–26, 1997. 3 Id. 4 The International Bill of Rights consists of three international agreements: (1) Universal Declaration of Human Rights (udhr); (2) International Covenant on Civil and Political Rights (ccpr); and (3) International Covenant on Economic, Social, and Cultural Rights. 5 Maastricht Guidelines, at § i (4).

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These economic, social, and cultural rights are thought to include obligations that the state respect (no arbitrary deprivations), protect (secure them as existent rights), and fulfill them in terms of reasonable, attainable expectations.6 Health care and property interests are also a part of the idea of socio-economic entitlements as human rights priorities.7 International intellectual property law, when serving as a complement to these socio-economic norms, can facilitate the effective realization of these rights. Once conceived in terms of special versus common interest standards, and construed apart from the strictures of human rights law and basic morality, intellectual property law may functionally serve only the few, causing detriment to the many. The aids crisis of sub-Saharan Africa has served as the lightening rod for a broader point of conflict between the haves of the developed societies and the have-nots of the underdeveloped world. The aids crisis is a health care crisis. According to the findings of the United Nations and the World Health ­Organization (who), twenty-eight million people currently have aids in ­sub-Saharan Africa, where it is the leading cause of death.8 In 2001 alone, 3.4 million sub-Saharan Africans were infected with hiv/aids, while an estimated 2.3 million died of aids in the same region.9 These figures illustrate the world’s gravest aids epidemic.10 This high death rate was no mystery. Widespread personal and public impoverishment or regional poverty made it virtually impossible for individual patients to afford aids drugs and states did not have sufficient public resources to provide drug therapy as a public health obligation. South Africa, a c­ ountry that has experienced an astonishing political and juridical transformation, found itself facing a health crisis as the aids epidemic infected millions of its newly enfranchised citizens. As South Africa considered its public health ­options, the United States watched the evolution of South Africa’s aids policy with growing apprehension verging on outright hostility. Because Section 15(C) of the South Africa Medicines Act11 permitted the South African Minister of

6 7 8 9

10 11

See id., at § ii (6). See id., at § ii (7). aids Epidemic Update—Dec. 2001, Joint u.n. Programme on Hiv/aids (unaids) and the World Health Organization. Id., at 14. This statistic is a gross estimate because many aids deaths in Africa are not reported. Moreover, deaths caused by aids-related opportunistic diseases, such as malaria and tuberculosis, are rarely reported as having been associated with aids. Id. S. Afr. Medicines and Related Substances Control Act No. 101 of 1965, Amendment No. 70, Section 15(C) (1997). (hereinafter Section 15(C) of the S. Afr. Medicines Act); See also infra text accompanying note 34.

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Health to take measures to protect the public health, the u.s. congressional and executive branches reacted by designating South Africa a Section 301 Priority Watch State.12 Actions by the United States and interested pharmaceutical corporations implied that South Africa was in violation of international intellectual property law. Two issues not specifically addressed were: 1. 2.

12

Whether the United States would consider the South African legislation permitting the Minister to authorize parallel imports13 of certain pharmaceutical drugs a violation of international law; and Whether the Minister’s broad power to authorize either parallel imports or compulsory licensing14 of essential pharmaceutical drugs would be a violation of international law.15

Press Release, Office of the u.s. Trade Representative, u.s.t.r. Announces Results of Special 301 Annual Review (Apr. 30, 1999) (placing South Africa on the United States’s Special 301 Watch List, because it was infringing on trips). However, in December 1999, the u.s. Trade Representative formally announced that it was removing South Africa from the Special 301 Watch List after the countries had reached an understanding whereby South Africa reaffirmed its obligations under trips, and the United States agreed to help address South Africa’s health issues. Press Release, Office of the u.s. Trade Representative, The Protection of Intellectual Property and Health Policy (Dec. 1, 1999). 13 The aids Law Project defines “parallel imports” as “importing a drug or product from another country where it is sold cheaper than in the local market with the permission of the patent holder.” aids Law Project, We Can Use Compulsory Licensing and Parallel Imports: A South African Case Study, available at http://www.hri.ca (hereinafter aids Law Project). 14 “Compulsory licensing refers to an order by a court or government body that allows any person or the government to use a patent legally without permission from the patent holder in the public interest.” Id. Basically, compulsory licensing is used and warranted to broaden access to intellectual property in order to advance legitimate public interests. However, because international intellectual property rights are created in the public interest via state law, it is only logical that they be limited by state law also adopted in the public interest. The Paris Convention for the Protection of Industrial Property clearly holds that, “Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work.” Paris Convention for the Protection of Industrial Property, July 14, 1967, art. 5(2), 21 u.s.t. 1538, 828 u.n.t.s. 305 [hereinafter Paris Convention]. trips provides for compulsory licensing, but restricts its use. trips, infra note 19, art. 31. nafta also permits compulsory licensing, although it appears to limit the state more than trips. See North American Free Trade Agreement, Dec. 17, 1992, art. 1709, 107 Stat. 2057, 32 i.l.m. 289 (hereinafter nafta). 15 “Compulsory licensing and parallel imports are tools that must be considered by all ­governments, generic manufacturers, and health activists to promote access to essential medicines.” aids Law Project, supra note 13.

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These issues were not only important for the specific matter of hiv/aids drugs. In a broader sense, they questioned whether other essential drugs, available in generic form or not, as a result of international norms governing parallel imports and compulsory licensing practices, might undermine the economic foundations of intellectual property law itself. Even more importantly, these issues raised questions about the relationship of intellectual property law to international human rights law and to international law in general. The problem, as it related to South Africa, also implicated important domestic law issues as current litigation indicated,16 such as the constitutional basis of a­ dministrative justice,17 the nature and scope of the property clause of the South African C ­ onstitution18 and how far and to what extent that clause may be conditioned by the right to health, as well as by general human rights standards. The ­challenge that aids in a developing society posed was extraordinarily rich in both complexity and potential for clarifying the meaning and scope of the relevant law in ways that reconciled contending interests, and yet elucidated the common concern of the larger international community. This chapter examines the question of access to patented medicines in international law. It analyzes the extent to which international agreements may lawfully limit affordable versions of these medicines that may be available through parallel imports or compulsory licensing procedures. It considers the concept of intellectual property rights from a national and international perspective to determine how these rights must be sensitive to matters of ­national sovereignty when extraordinary, life-threatening diseases afflict societies in catastrophic ways. This chapter suggests that viewing property including i­ ntellectual property as a human right requires that its scope be delimited

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Pharm. Mfrs. Ass’n v. President of the Republic of S. Afr., No. 4183/98 (Transvaal Provincial Div., filed Feb. 18, 1998) (whereby forty-two global pharmaceutical corporations brought suit against South Africa in an attempt to prevent the country’s granting of compulsory licenses on their aids medications via Section 15(C)). Constitution of the Republic of South Africa, 1996. Ch. ii, § 33. (hereinafter South A ­ frican Constitution) (Just Administrative Action): Everyone has the right to administrative ­action that is lawful, reasonable and procedurally fair. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. National legislation must be enacted to give effects to these rights, and must: a. provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; b. impose a duty on the state to give effect to the rights in subsections (1) and (2); and c. promote an efficient administration. Id., at Ch. ii, § 25. The property clause of South Africa’s Constitution (market driven and induced compensation; willing seller-willing buyer) has always been in the interests of the historically advantaged, and necessarily disadvantaging the poor.

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and understood in the context of other human rights. Property and human rights should be understood as complementary, rather than antagonistic ideas. This chapter reviews the Agreement on Trade-Related Aspects of Intellectual Property Rights (trips)19 in light of the contemporary standards of construction and interpretation applicable to agreements of international human rights law. i

aids and World Public Order—The Relevant Context

aids is a disease of pandemic proportions. There is, as yet, no cure for it and the best that science can offer is that its symptoms will be sufficiently suppressed in order for the patient to lead a relatively normal life. aids medicines are expensive and their regiments are somewhat complex. The most important population fact about aids is that it is a catastrophic plague often analogized to the Black Death in medieval Europe. The disease is unevenly distributed worldwide and bears a strong correlation to poverty and underdevelopment. It is estimated that close to 1.3 billion people on the planet live on less than one u.s. dollar per day.20 On the other hand, the developed, prosperous, mainly Western democracies, hold 20% of the Earth’s population, and consume 80% of the world’s resources.21 These figures would probably be mirrored in the context of the consumption of medical goods. Studies estimate that every three seconds a child dies of diseases rooted in endemic poverty.22 Approximately, thirteen million people die annually from infectious diseases, many of which are effectually Third World diseases.23 Because they are Third World diseases, they do not represent a lucrative market for global pharmaceutical corporations to invest the necessary resources to secure their control or elimination. A report in the Bangkok Post stated, “The production of drugs for diseases like African sleeping sickness has been stopped because 19

20

21 22 23

Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, art. 31, Legal Instruments—Results of the Uruguay Round vol. 31, 33 i.l.m. 81 (1994). (hereinafter trips). World Health Organization, Report on Infectious Diseases: Removing Obstacles to Healthy Development, Ch. 1, WHO/CDS/99.1 (1999) (hereinafter who); See also Select Comm. on Int’l Dev., Seventh Report, 1999, Minutes of Evidence, Mar. 23, 1999, at #338. See Earth Summit +5, u.n. gaor, Special Sess., at “Consumption,” u.n. Doc. DPI/SD/1910 (1997). unicef, State of the World’s Children 2000 (2000). who, supra note 20.

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it is a major problem for people in developing countries, who are not a major source of revenue for pharmaceutical business.”24 Other notorious diseases have similarly fallen into the pharmaceutical ­vacuum of inaction. For instance, malaria, elephantiasis, dengue fever, and others, ravage Third World countries, but the unprofitability of producing cures and vaccines has discouraged any appropriate, therapeutic, medical actions. This raises a complex question about the conceptual justification of why the patent holders’ exclusive right to property is almost exclusively protected. It is because of the assumed policy that the incentive of such protection will stimulate greater research and therapeutic benefits for the public in the long run. However, when we come to the issue of aids, the figures are absolutely alarming. Currently, forty million people live with hiv, a disease that is proven to be highly infectious.25 When this fact is considered, the conceptual justification for the patent holder’s exclusive protection weakens and possibly breaks down because the incentive to innovate while denying public access to the innovation has no therapeutic benefit for the world community at large. aids is no respecter of territorial boundaries and it is in the national interest of every state to pursue all possible measures to arrest the spread of aids through education and help the victims of aids in leading relatively normal lives. This not only makes medical and economic sense, but is also the politically wise policy. Moreover, subsidiary infections like tuberculosis are highly contagious and carry the added risk of drug resistant strains that do not respect territorial boundaries as well. Statistics indicate that sub-Saharan Africa accounts for twenty-eight million of the earth’s aids patients.26 Since the region represents one of the poorest areas of the world, the impact of aids is catastrophic. Although ­efforts are made at community-wide education,27 access to aids medications in the ­current economic structure is derisory. In South Africa, within a short period, millions of citizens have been infected with aids and estimates indicate that the loss of these human resources will increase poverty, potentially causing the South African economy to lose approximately twenty percent of its gdp ­within twenty years.28 This does not take into account that under current

24 25 26 27 28

The High Costs of Free Trade, Bangkok Post, Feb. 12, 2000. unaids Update, supra note 8, at 1. Id., at 2. For example, in Uganda slogans like “Zero Grazing” and more focused forms of public and civic education have helped bring some degree of control over the spread of aids. See unaids Update.t, at 7.

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pricing mechanisms affordable aids drugs are simply not available to those South African citizens who need them. The problem that aids presented for South Africa is paradigmatic of the aids pandemic’s impact on other underdeveloped or emerging market ­economies globally. Within South Africa, twenty percent of the adult population and twenty percent of pregnant woman have tested hiv-positive with the black population experiencing the brunt of this plague.29 South Africa has the world’s fastest growing hiv infection rate.30 It is important to examine how South Africa has sought to respond to the aids crisis and whether its ­response is consistent with its responsibilities, obligations and rights under international law. The most important element of conflict in regards to South Africa’s bilateral relationship with the United States lies in the scope of patent protection under general and specific international law and under relevant treaty law. These are matters of great controversy and the legal issues they encompass are complex with the stakes being extraordinarily high. ii

South Africa Responds to the aids Crisis

There are essentially two ways in which states might respond to the issue of access to aids drugs on an affordable basis. These strategies are well known in patent law and are variously described as compulsory licensing and parallel imports. Both schemes are technically permissible under trips and related international intellectual property instruments,31 but neither are unqualified. South African legislation empowers its Minister of Health to use both parallel imports and compulsory licensing to protect the public health. In 1997, South Africa amended its basic statute regulating medicines, the South African Medicines and Related Substances Control Act No. 101 of 1965. The amendment to this act, specifically Section l5(C), was viewed with alarm by pharmaceutical multinationals. These multinational special interests brought pressure on the u.s. administration to provide a vigorous and effective response to the threat 29

30 31

See South Africa: Epidemiological Fact Sheets on hiv/aids and Sexually Transmitted Infections—2000 Update (revised), Joint u.n. Programme on hiv/aids (unaids) and the World Health Organization, at 3–4. Patrick Bond, Globalization, Pharmaceutical Pricing and South African Health Policy: Managing Confrontation with u.s. Firms and Politicians, 29 Int’l J. of Health Servs. 1, n.4 (1999). trips, supra note 19, arts. 6, 28, 31; Paris Convention, supra note 14, arts. A.1, 2; nafta, supra note 19, art. 1709.

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that Section 15(C) posed. Because the legal battle lines have been drawn around Section 15(C), that section is reproduced in full as follows: Section 15(C) The minister may prescribe conditions for the supply of more affordable medicines in certain circumstances so as to protect the health of the public, and in particular may— 1. notwithstanding anything to the contrary contained in the Patents Act, 1978 (Act. No. 57 of 1978), determine that the rights with regard to any medicine under a patent granted in the Republic shall not extend to acts in respect of such medicine which has been put onto the market by the owner of the medicine, or with his or her consent; prescribe the conditions on which any medicine which is identical in composition, meets the same quality standard and is intended to have the same proprietary name as that of another medicine already registered in the Republic, but which is imported by a person other than the person who is the holder of the registration certificate of the medicine already registered and which originates from any site of manufacture of the original manufacturer as approved by the council in the prescribed manner, may be imported; 2. prescribe the registration procedure for, as well as the use of, the medicine referred to in paragraph (b).32 In December, 1997, forty-two pharmaceutical corporations joined the South African Pharmaceutical Manufacturers Association and filed a lawsuit in the High Court of South Africa.33 Claiming that Section 15(C) violated South African intellectual property law, the South African Constitution, and trips, the plaintiffs sought an interdict34 to prevent the Minister of Health from implementing Section 15(C).35 Although the suit was put on hold for a short period while the parties sought a settlement, it ultimately resumed when the settlement attempt failed.36 32 33 34 35 36

Section 15(C) of the S. Afr. Medicines Act, supra note 11. Pharm. Mfrs. Ass’n v. President of the Republic of S. Afr., No. 4183/98 (Transvaal Provincial Div., filed Feb. 18, 1998). An interdict is roughly equivalent to an injunction. Pharm. Mfrs. Ass’n, No. 4183/98. However, on April 19, 2000, facing immense international pressure, the pharmaceutical corporations dropped their lawsuit against South Africa. Drug Firms Drop Their Attack on sa Law, Star (S. Afr.), Apr. 19, 2001, at 1; Andrew Pollack, Defensive Drug Industry: Fueling Clash over Patents, n.y. Times, Apr. 20, 2001, at A6; Ann Simmons & Bruce Japsen,

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To persuade South Africa to repeal the legislation, the u.s. government responded vigorously involving the u.s. executive branch, the u.s. Trade Representative, the u.s. Patent and Trademark Office and the u.s. Congress. The u.s. Trade Representative stated in her report on this matter: We call on the Government of South Africa to bring its [intellectual property rights] regime into full compliance with trips before the January 1, 2000 deadline … and clarify that the powers granted in the Medicines Act are consistent with its international obligations and will not be used to weaken or abrogate pharmaceutical patent protection.37 The u.s. Trade Representative indicated that in its view the act “appear[ed] to grant the Health Minister ill-defined authority to issue compulsory licenses, authorized parallel imports, and potentially otherwise abrogate patent rights.”38 On June 25, 1999, former Vice-President Al Gore appeared to take the sting out of the u.s. trade policy regarding access to affordable, essential medicines in impoverished nations. Addressing South Africa, the Vice-President declared, “I support South Africa’s efforts to enhance health care for its people—­ including efforts to engage in compulsory licensing and parallel importing of pharmaceuticals—so long as they were done in a way consistent with international agreements.”39 But this concession must be given a stricter level of scrutiny. The central point of the concession was substantially related to the u.s. Trade Representative’s constructions of the relevant trips provisions. ­Indeed, public interest groups charitably considered u.s. interpretations as controversial. However, a closer reading of the relevant international agreements clearly demonstrated that the United States had gone beyond Justice Story’s evanescent view of property distinctions, which are difficult to discern in the patent context. The first and most unambiguous point was that, on their face, parallel ­imports were generally not prohibited by trips.40 There were two relevant articles: Articles 28 and 6. Article 28 held that the patent owner had exclusive

37 38 39 40

Firms Clear Way for Cheaper aids Drugs; S. Africa Patent Suit Dropped, Chicago Tribune, Apr. 20, 2001, at 4. u.s.t.r. Announces Results of Special 301 Annual Review 1999. Id. Letter from Al Gore, Vice-President, United States, to James E. Clyburn, Chairman, Congressional Black Caucus, u.s. House of Representatives (June 25, 1999). trips, supra note 19, art. 28.

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rights to import a product into a country.41 But the term exclusive was subject to Article 6.42 Exclusivity was conditioned on Article 6. Under Article 6, if a patent was sold and a country deemed the selling to be exhaustive of exclusivity (the first sale principle), then the state’s decision to resort to parallel imports was not subject to sanctions under the World Trade Organization (wto) agreement or the wto’s dispute resolution institutions.43 Parallel imports were licit under trips. They were valid under domestic u.s. patent law and were common practice in the European Union. If the United States sought to impose some form of bilateral sanctioning against South Africa, it must make its case under general international law and not under the lex specialis of international intellectual property law. The other area of legal dispute related to the issue of compulsory licensing. From the perspective of the pharmaceutical corporations, a state’s ability, under both domestic and international law, to issue a compulsory license for a patent to a third party was a major loophole in the international protection of patent rights. Such compulsory licensing conflicted with the notion of exclusivity covering patent holders’ ostensible property interests.44 According to the u.s. Patent and Trademark Office, Article 31 of trips must be narrowly construed or it will effectively undermine the international security of patentholder interests. Representing the u.s. Patent and Trademark Office, Lois Boland stated that the practice of compulsory licensing must be strictly limited to situations of market failure, or when the state has officially declared a state of emergency.45 Only these circumstances qualified as exceptional and made a state’s use of compulsory licensing lawful in international law.46 Boland claimed that, under trips (Article 31), invoking the power of compulsory licensure required an “authorization” that “shall be considered on its individual merits.”47 This latter 41 42 43 44

45 46 47

Id., art. 28(1)(a). Id. Id. art. 6. Taking intellectual property in international law is usually done lawfully by fair use exclusions and compulsory licenses. However, when used to place and expand restrictions on the patent holder, such exceptions to the Western ideology of private property in international law become points of trade tension and conflict. These mechanisms test the limits of a state’s public interests on the one hand, and the scope of private ownership rights in intellectual property on the other. u.s. Pat. and Trademark Off. Rep. Lois Boland, Presentation at an ngo meeting in Geneva (Mar. 26, 1999). Id. Id.; See also trips, supra note 19, at art. 31(a).

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principle was a more plausible argument in the context of South Africa’s internal regime, which required that the exercise of administrative competence be accompanied by supporting reasons. Having conceded this point, it was unclear whether this standard was fully defined in practice under trips, or whether it must be evaluated and appraised under general international law standards. Under Article 31, a state has the competence to issue licenses of patents to third parties.48 In normal practice, the state will establish standards for patent owners to obtain royalties. Clearly, South Africa and most states in the health care context will routinely do this. In South Africa, the setting of reasonable royalties would find support in the new constitution’s property clause.49 Furthermore, Article 31 provided other safeguards to protect patent owners’ interests.50 However, wto rules permit the sovereign a very broad measure of discretion in issuing compulsory licenses. According to the wto, member states are not constrained on the reasons with which they may grant a license without the patent holder’s authorization. In actuality, only the member state’s choice of procedure is regulated. Nevertheless, the position, as expressed by the u.s. Patent and ­Trademark Office, did not represent u.s. practice. Examples given by critics of the u.s. ­position was the Clean Air Act51 which included compulsory licensing provisions and compulsory licensing patents concerning nuclear energy.52 ­European practice did not support this position.53 Moreover, to give its people access to hiv/aids drugs, Brazil frequently employed the compulsory ­licensing technique.54 It was a sufficient comment on the u.s. position that President ­William Clinton’s Executive Order let the United States off the hook 48 49 50 51 52 53 54

trips, supra note 19, art. 31. South African Constitution, supra note 17, at Ch. ii, § 25. trips, supra note 19, art. 31(b-j). Clean Air Act, 42 u.s.c.s. § 7608 (2001). See 42 u.s.c.s. § 2183 (2001). Eur. Parl. Stmt., Access to Medicines for aids Patients in the Third World, Mar. 15, 2001 (2001). In 1998, Brazil began a national program to fight aids by using compulsory licensing to make affordable, generic aids drugs. Tina Rosenberg, Look at Brazil, n.y. Times, Jan. 28, 2001, § 6 (Magazine), at 28. Consequently, today Brazil has managed to stabilize its aids epidemic and cut its national aids death rate by fifty percent. Id., at 29. Although the United States had launched a patent complaint against Brazil and its use of compulsory licensing in the wto, it ultimately dropped its suit and agreed to settle. Barbara Crossette, u.s. Drops Case Over aids Drugs in Brazil, n.y. Times, June 26, 2001, at A4; u.s. Backs Down from Lawsuit against Brazil at wto, O Globo (Brazil), June 26, 2001, at 1.

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on a hypocritical, unpopular construction of the lex specialis of intellectual property in this matter.55 Although President Bush sought a review of Clinton’s executive order under pressure from the pharmaceutical corporations, he too found that retreating to a legally defensible posture, as was implicit in Clinton’s Executive Order, was in the national interest of the United States. Apparently, the u.s. Trade Representative and the u.s. Patent and Trademark Office lost the bureaucratic battle at the bar of public opinion. Were he still alive, M.K. Gandhi would doubtless find solace in the verity of one of his pearls of wisdom, namely, that there is more than enough for everybody’s needs, but there simply is not enough for everybody’s greed. South African Action and Relevant International Law Standards (General and Particular) Section 15(C) of the South Africa Medicines Act has two distinguishable parts. The first part gave the Minister plenary power to prescribe conditions for the supply of affordable medicines.56 The purpose of this authority was to protect the public health. The preamble clause concluded with the wording “in particular,”57 although it was unclear whether the term referred exclusively to this ministerial power or merely to illustrate possible forms of exercising it. Following the text of Section 15(C), the phrase “in particular” essentially designated a scheme of parallel imports. In parts (a) and (b), Section 15(C) simply recited the conventional terms and understandings that made parallel import exceptions to the exclusive character of patent rights.58 To the extent that Section 15(C) was the subject of litigation in the Pretoria High Court, it appeared that the lawfulness of parallel imports under that section was what was contested. However, the preamble passage could be read so as to not exclude other forms of action by which legitimate exceptions to patent rights might be made. This could include the other widely acknowledged exception, namely, compulsory licensing. Compulsory licensing was a power already prescribed in current South African legislation.59 The international law arguments for parallel import or compulsory licensing exceptions involve similar indicators of reasonableness relating to the interpretation of the relevant trips provisions and general principles of international law. Although

A

55 56 57 58 59

Executive Order No. 13155, 65 Fed. Reg. 305,201 (2000). The order was titled “Access to hiv/aids Pharmaceuticals and Medical Technologies.” Section 15(C) of the S. Afr. Medicines Act, supra note 11. Id. Id. at (b), (c). S. Afr. Patents Act No. 57 of 1978, arts. 4, 56 (1978).

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these two concepts are markedly different, they essentially have a comparable juridical consequence in that they may be construed as exceptions to the general norm of protecting ownership in a patent. One of the key restrictions on parallel imports was found in the process of contract formation itself. It was a standard practice that the contract of sale for the purchase of a patentable widget may come with a condition that it not be transferred to another country. This limitation found support in a maxim of ancient Roman law: Nemo plus juris ad alium transfere potest quam ipse haberet.60 Thus, the main constraint on parallel imports was essentially a standard, contractual stipulation that what was put in State A’s stream of commerce subject to the condition that it cannot be exported to State B, where it will be sold at a lower price. The operative assumption was that the patent holder, or his licensee, was actually selling the product in State B for a higher price. The critical legal question was whether the parallel imports provision of Section 15(C) fell within the Article 28 framework of trips, and indirectly in Article 30 and Article 31 of the same treaty. Even though Section 15(C) seemed to be inelegantly drafted, on its face, it was consistent with trips. There were two grounds where trips clearly permited a difference. First, Article 30 clearly permited an exception to the regime for protecting the patent holder’s rights.61 Second, Article 31 provided a narrow basis within which the exception might be used and permited a variance in the context of national emergencies or in situations of “extreme urgency.”62 Using terms such as, to “protect the health of the public,”63 Section 15(C) was broader than Article 31 of trips. At the very least, this implied that in national emergencies or situations of extreme urgency, the Minister of Health would clearly be acting under the meaning of Article 31 in exercising the right to protect the public health. By any standard, South Africa’s aids epidemic epitomized a public health crisis. Therefore, Section 15(C), which authorized the procedures of parallel imports in paragraphs (a), (b), and (c) would be in compliance with trips.64 However, this did not mean that the South African Parliament may not revisit Section 15(C) later, and redraft it for a tighter fit into trips. Of course, this was the narrow version of the exception, and the broader question was whether the power to protect public health would go beyond 60 61 62 63 64

“No one can transfer to another more authority than he himself has.” Dig. 50.17.54 (Ulpian, Ad Edictum 46). trips, supra note 19, art. 30. Id. art. 31(b). Section 15(C) of the S. Afr. Medicines Act, supra note 11. Id.

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“the case of a national emergency or other circumstances of extreme urgency....”65 For instance, if South Africa faced a declared, serious health ­crisis that did not reach the pandemic dimensions of the aids epidemic, would ­Article 31 of trips grant its Minister of Health the power to protect the p ­ ublic health at the expense of the patent holder’s right to property? It seemed, that the power of the Minister of Health did indeed extend to the concept of a ­serious health crisis that would require him to protect the public health. As a technical matter, in such a context, parallel imports would essentially have to abrogate the contractual rights stipulated in the original contract of sale, bringing us to the possible value of private international law principles. This scenario suggested that the axioms of private international law, which generally gave preference to the sanctity of contracts, would have to be limited by recognized legal principles to ensure that the Minister of Health acted reasonably and not arbitrarily. One of the main concepts drawn by analogy from private international law was the understanding that public policy (ordre publique) may trump the normal operation of a private international law rule such as the lex validates, or the proper law of the contract.66 In effect, given 65

trips, supra note 19, art. 31(b). However, this question was partially answered during a wto meeting in Doha, Qatar. Expanding the rights of developing countries to grant compulsory licenses for drugs needed to combat their aids epidemics, the wto “recognize[d] the gravity of the health problems afflicting many developing and least-developed countries,” and “affirm[ed] that the [trips] Agreement can and should be interpreted and implemented in a manner supportive of wto Members’ rights to protect public health and, in particular, to promote access to medicines for all.” Declaration on the trips Agreement and Public Health, wto Ministerial Conference, 4th Sess., at 1, 4, WT/MIN(01)/DEC/2 (2001). Specifically, the wto broadened the compulsory licensing conditions of trips’ Article 31, declaring that, Each member has the right to determine what constitutes a national emergency or ­other circumstances of extreme emergency, it being understood that public health crises, i­ncluding those relating to hiv/aids, tuberculosis, malaria and other epidemics, can ­represent a national emergency or other circumstances of extreme emergency. Id., at 5(c); See also Paul Blustein, Getting wto’s Attention; Activists, Developing Nations Make Gains, Wash. Post, Nov. 16, 2001, at E01; Joseph Kahn, Nations Back Freer Trade, Hoping to Aid Global Growth, n.y. Times, Nov. 15, 2001, at A30; Frances Williams, Declaration on Patent Rules Cheers Developing Nations, fin. Times (London), Nov. 15, 2001, at 11 (reporting that the wto clearly stated the rights of poor countries “to override patents in the interests of public health”). 66 This concept of law is commonly called the “public policy exception” or the “public interest exception,” and it may be defined as “the principle that a person should not be allowed to do anything that would tend to injure the public at large.” Black’S Law Dictionary 1245, 7th ed., (1999); See also Mertz v. Mertz, 271 n.y. 466 (1936); Loucks v. Standard Oil Co., 224 n.y. 99 (1918).

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sufficient grounds based on the public policy interest and in order to protect public health, the Minister of Health may decline to honor the normal rule. If the Minister of Health invoked the private international law exception based on public policy to block the assertion of contract rights, the use of such legal power would indicate that the Minister of Health was acting reasonably from a public international law perspective. Perhaps this was a novel use of the private international law doctrine to lawfully support the Minister’s claim under public international law that in certain situations a contractual limitation on the parallel importing of certain drugs conflicts with public policy. This idea built on the notion that there was a residual rule of international law rooted in reason which mediated between states’ claims in making and applying international law. Therefore, from an international law point of view, the use of a public policy analogy drawn from private international law was based on the assumption that the Minister’s construction of Section 15(C), in light of trips, passed a test of interpretive reasonableness as seen from the perspective of an objective third party appraiser since the public policy exception was a reasonable exercise of a legal power. Formulated by Professor H.A. Smith, the standard of reasonable construction and interpretation of international law read: The law of nations, which is neither enacted nor interpreted by any visible authority universally recognized, professes to be the application of reason to international conduct. From this it follows that any claim which is admittedly reasonable may fairly be presumed to be in accord with law, and the burden of proving that it is contrary to the law should lie on the state which opposes the claim.67 67

H.A. Smith, the Law and Custom of the Sea 20 (1950). The rules relating to the operations of treaties are set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Vienna Convention on the Law of Treaties, May 23, 1969, arts. 31, 32, 1155 u.n.t.s. 331. The General Rule of Interpretation stipulates: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: Any agreement relating to the treay which was made between all the parties in connection with the conclusion of the treaty; Any instrument which was made by onor more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. There shall be taken into account, together with the context: Any subse quent agree ment between the parties regarding the interpretation of the treaty or the application of its provisions; Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its

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It should be noted that the exceptions conferred in Article 30 should not “­unreasonably conflict with a normal exploitation of the patent…” and “not unreasonably prejudice the legitimate interests of the patent owner…”68 ­Additionally, one must also take into account the legitimate interests of third parties. Of course, meeting a reasonableness standard here would make the Minister’s action lawful under trips. In other words, the Minster of Health must ensure that the protection of health, security, and safety was reasonable while also considering the relevant, competing interests. From an international, constitutional perspective, the reasonable exercise of such ministerial powers may be viewed as one of the inherent functions of sovereign competence and international responsibility. The leading case in international law was the S.S. Lotus (France vs. Turkey) case.69 In the Lotus case, the Permanent Court of International Justice held that limitations on state sovereignty could not be presumed in international law in circumstances less critical to public order and safety.70 When given an interpretive gloss and applied to Section 15(C), the Lotus case held that in the absence of clear and unambiguous language in a treaty, the treaty cannot be construed so as to restrict the state’s concern for public order, security, health, and safety.71 Therefore, from an international law point of view, Section 15(C) carried an imprimatur of presumptive reasonableness unless specific language in a treaty or other concrete source of international law circumscribed or limited that presumption. This traditional international law standard was strengthened when recourse was had to the u.n. Charter itself. For example, there was an analogy in the law of self- defense, Article 51, that a state had an inherent right to defend its public order and security.72 Although normally invoked in the context of armed or potential armed conflicts, via analogy, this provision can certainly be used to support the reasonableness of a state’s claim to protect its public health and security. Finally, reference may be made to Article 2(7) of the u.n. Charter which leaves domestic matters, such as health and security, to be determined by the sovereign state itself unless explicitly limited by treaty or custom.73 It is true that trips and related agreements modify the scope

68 69 70 71 72 73

interpretation; Any relevant rules of international law applicable in the relations between the parties. A special meeting shall be given to a term if it is established that the parties so intended. Id., art. 31. trips, supra note 19, art. 30. S.S. Lotus (France v. Turkey), 1927 p.c.i.j. (ser. A) No. 10, at 18 (Sept. 7). Id. See id. u.n. Charter art., 51. Id., art. 2, at 7.

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of sovereignty over intellectual property, but the crucial issue is whether the exceptions which limit central features of sovereignty can easily be overridden without good justification. General international law and its standards of construction and interpretation provided the Minister of Health with strong legal support, ensuring that action under Section 15(C) complied with international law. However, this did not address the particular question of whether the actions of the Minister of Health to specify exact conditions under which the trips exception might be exercised actually met the standard of reasonableness required by international law. It would seem that outside of instances of national emergencies or extreme urgencies, the non-commercial use of parallel imports must meet a higher standard of justification, for in the absence of such reasoning, it would be difficult to protect the interests of the patent holder. Moreover, such practices could conceivably be seen as sanctioning unlimited use and unjustifiable taking of the rights of the patent holder. Indeed, Article 31(c-j) made it clear that there were standards that must be met to determine what was reasonable and unreasonable in certain contexts.74 As indicated earlier, in terms of law, what was reasonable must conform to the constitutional basis of the system, which was built on the state’s sovereign equality.75 But it must also account for other, more general, standards of international law as critical indicators of what was and what was not reasonable. For example, there were human rights standards and policies reflected in both treaty-based law and customary international law that were clearly implicated in drawing the judicial line between the rights of the patent holder and the obligation of the Minister of Health to protect the public health. The aids epidemic in South Africa threatens the right to life. Found almost universally in every major human rights instrument, the right to life is a standard human right. It is written in the udhr76 and the ccpr,77 as well as within all regional covenants on human rights.78 The state’s obligation is not exactly clear in regards to the protection of life as a positive rather than a negative 74 75 76 77 78

trips, supra note 19, art. 31(c-j). See u.n. Charter, art. 2, at 1. See Universal Declaration of Human Rights, g.a. Res. 217A, u.n. gaor, 3d Sess., Pt. I, Res., at 71, u.n. Doc. A/810 (1948). See International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 u.n.t.s. 171. See generally American Declaration of the Rights and Duties of Man, Mar. 30–May 2, 1948, o.a.s. Res. XXX, o.a.s. Off. Rec. OEA/Ser.L/V/I.4 Rev. (1965) (hereinafter American Declaration); European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 u.n.t.s. 221 hereinafter European Convention); American Convention on Human Rights, Nov. 22, 1969, 1114 u.n.t.s. 123 (hereinafter American

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right. However, the policy supporting the right to life suggests that the state should do what it reasonably can to protect the life, health, and security of its citizens. Sometimes it is hard to specifically pin down what the positive aspect of the human right to life actually encompasses because global conditions vary. Nevertheless, what can be said with some confidence is that when acting reasonably to protect the right to life as a component of its responsible sovereign prerogative, the state may be complying with the general obligation imposed by international law and its own internal law that it does what it can to secure that right. Accordingly, when the right to life is so construed, the Minister’s construction of the exceptions under Articles 30 and 31 of trips was strengthened. Even if we assume that in the context of the human right to reasonable health care the right to life must be seen as an example of international soft law, the right to life is still an important indicator as to what counts as reasonable or unreasonable conduct under trips. South African case law added another dimension to this inquiry. In Soobramoney v. Minister of Health (KwaZulu-Natal), the Appellant demanded access to a dialysis machine in a state hospital.79 The Appellant argued that without access to the machine he would die.80 The South African Constitutional Court determined that the hospital’s procedures for allocating access priorities to the machine were reasonable and found that Soobramoney did not have an absolute claim, but one of reasonable access.81 In justifying the juridical quality of the constitutional test, Justice Chaskalson said, We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These ­conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.82

79 80 81 82

Convention); African Charter on Human and Peoples’ Rights, June 26, 1981, o.a.u. Doc. CAB/LEG/67/3 Rev. 5 (hereinafter African Charter). Soobramoney v. Minister of Health (KwaZulu-Natal), 1998(1) sa 765 (cc) at 1. Id. Id., at 22–36. Id., at 8.

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The hospital’s allocation of a scarce resource was neither arbitrary nor unreasonable. One final indicator of whether a state is acting reasonably in the protection of public health may be found by using statistics to figure how much of its gnp a state can rationally afford to allocate towards the delivery of health care services. This could certainly be a factor in determining whether a state is acting reasonably in invoking the power to appropriate compulsory licenses or implement a parallel imports policy. However, the numbers and statistics in sub-Saharan Africa and elsewhere would make such a demonstration unnecessary because aids drugs were simply beyond the means of the overwhelming majority of patients, even when patent holders allowed massive price cuts. B Obligations beyond Treaty Law The use of parallel imports and compulsory licensing in order to provide access to cost effective medical therapies must be put in the larger context of the global economic order. From the perspective of the United States, the abuse of patent, trademark and copyright entitlements affects the efficiency and fairness of the world’s trading market. The experience of widespread fraud made both manufacturers and technology exporting countries sensitive to what is perceived as the theft of intellectual property (often with state support). But the reaction to countries like India, Thailand, Brazil, and possibly South Africa, producing and distributing cheap generic drugs is regarded as more than a simple response supported by humane considerations to a health crisis. Rather, it is seen as a loophole or slippery slope. The manufacturers and technology-exporting countries believe that if aids is the bridgehead, theft-driven invasion forces will soon follow. C The Relationship between South Africa and the United States The South African-U.S. relationship is a vital case study of conflicting perspectives. South Africa’s efforts to provide serious medical response for its aids victims required action and Section 15(C) of the South Africa Medicines Act was the outcome. This prompted the global pharmaceutical lobby to prod the United States into taking a tough stand on the Section 15(C) bridgehead. The stage was set for a major economic showdown between a vulnerable African state and the world’s only superpower. On the surface, it appeared that Section 15(C) was simply a violation of an international treaty obligation. South Africa seemed to be technically and formally wrong, and it was a potential violator. However, more careful scrutiny of the u.s. position would reveal that the situation was less juridical than it was political. u.s. congressional legislation mandating that the u.s. executive branch ­attempt to negotiate a repeal of Section 15(C) illustrated the most important

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reaction. In the absence of an appropriate response by the South African government, the legislation decreed that South Africa be subject to a form of economic sanctions. Domestic pressures on the Clinton administration were escalating and widespread commentary defended the lawfulness of ­Section 15(C) under trips. But, ultimately, the Clinton administration retreated on this matter. Although the South African government did not rescind the legislation, it arrived at a garbled, face-saving understanding with the Clinton administration that eliminated the need for economic sanctions targeted at South Africa. It should be understood that a great deal of the conflict was driven by the power of the pharmaceutical industry. Even u.s. officials later admitted that while taking into account the problems regarding patent ownership, hardly any attention was paid to the public health implications of the u.s. trade policy’s support for the pharmaceutical industry.83 Responding belatedly, the pharmaceutical industry attempted to supply a reduced form of access to its products on a limited basis. But it remains unclear whether the scope of the aids problem itself rendered this conciliatory move a sufficient basis to remove governmental policies from the exceptions provided in trips. One of the issues highlighted by the u.s. effort to suggest that because trips represented only a minimal standard relating to the respect for patent rights in international law implied that there was a broader standard of protection of property rights under international law. This suggested that the concept of property under u.s. law may be the base for residual property or ownership rights as understood in the United States.84 A further legal implication would be that this residual, u.s. property concept would also have extraterritorial reach, permitting the United States to sanction states who violate defined property rights, regardless of technical compliance with trips via parallel imports or compulsory licensing. This represented a different legal question. The problem was significant as an issue of law because if it can be resolved by legal means, it may limit the pressures for political tensions and coercive economic initiatives that undermine the principle of cooperative sovereignty in international law. In order for the United States to unilaterally impose sanctions on states using compulsory licensing or parallel imports outside of trips, the United States must essentially demonstrate that the property interests in securing the patent holder’s ostensible entitlements were permissible under general international 83 Rosenberg, supra note 54, at 52. 84 The implication that property rights are protected by a broader standard of protection under international law also creates conflicts within the Erie Doctrine and constitutional law.

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law. The Lotus case’s principle, that in a decentralized system a state may project its law as far as it can without infringing upon another state’s law, was an important legal concept. However, when the projection of that state’s law clashed with another state’s law, the matter fell within the class of problems known as conflicts of jurisdiction.85 Ultimately, the international law standard that the United States generally adopted was reflected in the Restatement of Foreign Relations Law.86 Sections 402 and 403 stated the bases of jurisdiction and referred to the so-called Jurisdictional Rule of Reason, respectively.87 The essence of the Jurisdictional Rule of Reason was to determine whether the exercise of extraterritorial jurisdiction may actually be limited when its 85

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The United States addresses conflicts of jurisdiction via the Jurisdictional Rule of Reason, which is stated in § 403 of the Restatement: Even when one of the bases for jurisdiction under § 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable. Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate: (a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; (b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect; (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted; (d) the existence of justified expectations that might be protected or hurt by the regulation; (e) the importance of the regulation to the international political, legal, or economic system; (f) the extent to which the regulation is consistent with the traditions of the international system; (g) the extent to which another state may have an interest in regulating the activity; and (h) the likelihood of conflict with regulation by another state. (3) When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state’s interest in exercising jurisdiction, in light of all the relevant factors, Subsection (2); a state should defer to the other state if that state’s interest is clearly greater. Restatement (Third) of Foreign Relations Law of the United States § 403 (1987) (hereinafter Restatement (Third)); See also S.S. § 403 (1987); See also S.S. Lotus (France v. Turkey), 1927 p.c.i.j. (ser. A) No. 10, at 18 (Sept. 7); Timberlane Lumber Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 472 u.s. 1032 (1985); Am. Banana Co. v. United Fruit Co., 213 u.s. 347 (1909); United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945); See generally, Christopher L. Blakesley et al., The International Legal System 134–66 (5th ed. 2001); Ian Brownlie, Principles of Public International Law 262–67 (1966). Restatement (Third), supra note 85, at Introduction. Id. at §§ 402, 403.

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purported use was unreasonable. The first and most important criticism of the u.s. position was that it may, in effect, be reading its domestic concept of patent property as if it were a universal datum. However, the patent statute’s definition of property may be theoretically obsolete. The nature of patents did not follow the u.s. Restatement’s view that the notion of property was in fact relational. Moreover, the u.s. position did not acknowledge that the complex web of relationships which constituted property in terms of jural opposites and correlatives was a view affirmed by the u.s. Supreme Court in Shaffer v. Heitner.88 Considering the kinds of claims to patent rights that infringed on the cultural patrimony of others, it would stand to ­reason that a more flexible conception of property from an international point of view was simply more appropriate, as indicated in the Bellagio ­Declaration.89 The second objection related to the human rights and theoretical implications of the nature of property itself. iii

The Nature of Property as Intellectual Property

In order to explore the implications, supra, the sources of property entitlement in u.s. law must be explored. There are two primary sources of intellectual property rights in the United States. The founding fathers and drafters of the u.s. Constitution understood the value of intellectual property for an emerging, mercantilist political economy. Its control and regulation was given a specific federal imprimatur in Art. i, Section 8 of the u.s. Constitution: “The Congress shall have power … [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”90 This provision implied a right to property delimited by science and useful arts, and stated that the right was exclusive for limited times. However, it was unclear what actually the core, conceptual basis was of this right. Consequently, legislative action was required. 88

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Shaffer v. Heitner, 433 u.s. 186 (1977); cf. the Restatement’s definition of judicial jurisdiction: “the phrase ‘judicial jurisdiction over a thing,’ is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.” Restatement (Second) of Conflict of Laws, Ch. 3, topic 2, Title A, § 56 Introductory Note (1971). The Bellagio Declaration from the 1993 Rockefeller Conference “Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era,” Mar. 11, 1993, (hereinafter Bellagio Declaration)]. u.s. Const. art. i, § 8, cl. 8.

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The first u.s. Patent Act was promulgated in 1790, and during the following 200 years it was rarely amended.91 Today, the u.s. Patent Act is codified in Title 35 of the u.s. Code Service .92 However, Section 101 of the u.s. Patent Act did not provide a clear or sophisticated conception of the nature of the property interests that required protection under the statute or the constitutional predicate which presumably inspired it.93 According to Section 101, “Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”94 The critical analyst may wish to know whether there is a federal concept of property inherently exclusive and distinctive to Article i, Section  8, and if so, how it is identified and given effect. Clearly, this may be important, as the concept of property in Article i, Section 8 was one that was federal and must therefore transcend the particular concepts of property in the federal union’s individual, sovereign states. Furthermore, to the extent that a coherent concept of property can be discerned in the u.s. Patent Act, there may be an issue as to whether this standard met the implicit requirement of Article 1, Section 8. The key interpretative element of what property might represent in these ­instruments must also confront the possible extraterritorial reach of the property definitions in the u.s. Patent Act and the u.s. Constitution. The existence of a cluster of international instruments regulating international property suggested that the reach of both constitutional and statutory rules were to be limited by territorial considerations. In other words, in the ­absence of an explicit, international agreement giving u.s. commercial interests property rights on the international plain, there can be no reliance on the extraterritorial constructions of u.s. law. With this view, one may conclude that u.s. conceptions of property in Article 1, Section  8 and the u.s. Patent Act were territorially limited. If the United States were to predicate intellectual property takings and related compensatory issues on purely domestic sources of law, it may have to assume that there is a residual, international law, common concept of property which included intellectual property. The United States would have to accept that this further property construct was entitled to extraterritorial protection from arbitrary or discriminatory takings. Finally, the 91

92 93 94

In fact, the u.s. Patent Act has only been amended in 1793, 1836, and 1952. u.s. Patent Act of 1793, Ch. 11, 1 Stat. 318 (1793); u.s. Patent Act of 1836, Ch. 357, 5 Stat. 117 (1836); u.s. Patent Act of 1952, Ch. 950, 66 Stat. 792 (1952). u.s. Patent Act, 35 u.s.c.s. § 101 (2001). Id. Id.

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United States may also claim that there was a broader, international law, public interest standard to which it was entitled and that provided a juridical basis for seeking the protection of its nationals. Insisting on this international/u.s. concept of the property right combined the property right with all the benefits and burdens of general international law. Of greater and more immediate concern were the asserted justifications for the protection of patent interests as property. From u.s. literature, there appeared to be two theories that supported the concept of property as a legally protected interest. First, the pragmatic or utilitarian premise worked on the assumption that protection provided an incentive for future inventive creativity. Thus, the pragmatic or utilitarian form of property protection rewarded initiative as an implicit contract. The second incentive was based on property as a natural right. As a natural right, property would presumably be unlimited by territorial restraints. Although natural law was sometimes seen as unfashionable, the secular version of natural law was reflected in the fundamental precepts of the u.n. Charter, as well as in the International Bill of Rights.95 Juxtaposing the u.s. centered view with a cross-cultural perspective on property may be useful. From a cross-cultural, international perspective, intellectual property law reflected many contrasts and tensions, although the conflicts were played out in the very technical arena of draftsmanship, as well as in the interpretation of relevant legal standards. Perhaps the most concrete expression of these concerns was reflected in the Bellagio Declaration of 1993.96 ­According to the drafters of this Declaration, “Contemporary intellectual property law is constructed around the notion of the author, the individual, solitary and original creator, and it is for this figure that its protections are reserved.”97 This specific view represented one particular version of the nature of property, despite its potential, theoretical problems. Nonetheless, ideologically, it was strongly promoted by Western, capitalist-oriented democracies on the basis that private property was one of the surest vehicles toward economic growth and prosperity. The Bellagio Declaration stated that there were other ways of managing interests besides the particular ideological gloss reflected in the first view. On this topic, the Declaration reads, “Those who do not fit this model—custodians of tribal culture and medical knowledge, collectives practicing traditional artistic and musical forms, or peasant cultivators of valuable seed varieties,

95 96 97

International Bill of Rights, supra note 4. Bellagio Declaration, supra note 89. Id.

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for example—are denied intellectual property protection.”98 Apart from the general question of cultural patrimony, which is communitarian in tenor and private in patrimony, there were the specific issues of how the control of private patrimony might impact fundamental human rights issues. Theoretical Aspects of Property Relevant to the Interpretation of Intellectual Property Entitlements in International Law Generally, the concept of property has been viewed as a construct or creature of the sovereign. Lawyers do not only determine whether a property right existed, but they also sought to discover what the extent of its reach meant for litigants who were required to consult the sources of national law. This idea was a serviceable notion when political authority was defined by the imperium exercised over territory and could determine matters of dominium within the territorial framework. The connection between imperium and dominium provided juridical architecture meant to manage a very basic, psycho-sociological fact. In the real world, there were things of value. Consequently, because human beings often appropriated things of value, the psycho-social issue, namely, this res is mine and that res is yours,99 became the foundation for one of the most elemental of human associations, the relationship of human beings with each other through things. In moving things from the corporeal to the incorporeal and from the incorporeal to things styled intellectual property, a legal system will be seriously challenged to determine exactly what the new forms of property are, the circumstances under which they are created, and the extent of the rights thus created. When these forms of property are used in the vast flow of production and exchange across state and national lines, the basic comprehension of why some things are mine and some things are yours will require greater skills and insights into the nature of what property is, not from a national perspective, but from a multinational, multicultural and even global point of view. Provoking conflicts between different cultures represented by distinct sovereignties with diverse property traditions, the problems of property can emerge in various ways. One significant issue which has a deep impact upon the idea that certain property forms are exclusively mine and not yours illustrates the concept that property is really only property when ingenuity and intellect combine in its appropriation and exploitation. Ingenuity in this sense A

98 99

Id. Translated from Latin, a res is a thing. More specifically, a res is “an object, interest, or status, as opposed to a person.” Black’S Law Dictionary 1307 (7th ed. 1999).

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is thought to be an individual attribute, not a characteristic necessarily shared with others. On the other hand, there are those who see the notion of the individual as an ineluctable relationship with others who constitute the community of the past, present and future. In this view, the individual’s ingenuity is not wholly atomized and completely distinct from the history and circumstance of the community that produced and nurtured her. Although individuals may ingeniously improve upon the intellectual product of the culture, their own ideas of property, indeed, the very perception of property, is that it is a construct in relation to others and the political system which constitutes the community. Sometimes these divergent stances stress the theory that one form of social organization is individualistic, while the other is communitarian. But, it is difficult to imagine any society that is not both individualistic and communitarian. In actuality, individualism and communitarianism are elements of the framework of social process. Characterized by patterns of both collaboration and conflict, this framework of social process determines where to draw the line, when to draw the line, and what normative standards encased in the phrase ‘common interest’ must guide the line drawing. B Human Rights and the Idea of Property Like other legal precepts, the concept of intellectual property may, in Holmesian terms, be labeled the skin of a real living thought. Because living thoughts are not exactly limited, the connection between living thoughts, ideas of property, and ownership makes these juridical constructs incredibly expansive and complex. When mapped onto operating legal systems, this insight discerns several overlapping, but nonetheless discrete, conceptions of property and interest. For instance, there is the notion of property in the common law or civil law system, the theory of property as affected by constitutional development, the view of property in multi-state law, and the perception of property in ­comparative, international, and for our purposes, human rights law. To some extent, these concepts all correspond with the psychological ­reality which by law or right holds that this res is mine and that res is yours. When law intervenes in the process to protect what is yours and what is mine, the tendency to reify rights and duties relating to things means that these rights and duties become abstracted from operative reality. Of course, law wishes to conserve entitlements in the form of rights and, in doing so, it runs into the paradox of intellectual property. From an observer’s perspective, intellectual property stretches as far as the human, inventive imagination extends. Thus, the logical paradox is that all is property or all is non-property. More realistically, from a legal perspective, property is a cluster of complex, conditional,

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relational interests which are recognized as differing from one legal culture to another. Indeed, it is a paradox that the common law idea of ownership and property is almost disinterested, analytically,in title. But this common law perception is more practically and theoretically concerned with both the nuanced expression and the differentiation of protectable interests regarding things in their relations with others. Perhaps it is for this reason that the Restatement adopted an essentially Hohfeldian concept of property. Hohfeld’s scheme of correlatives and opposites of a jural nature are essentially jural interests. Thus, Charles Donohue, Jr., notes with blunt realism, “a thing cannot bring or defend a lawsuit.”100 Property, in the form of legal interests, begins in the interstices of the human imagination and is transmitted into a cluster of juridically recognizable, relational interests by public or social intervention. Thus, intellectual property, as property, is created in the human imagination and finds juridical expression in the relational context of the social process itself. In this sense, the term ‘intellectual property’ conditions, defines, mutates and evolves novel forms of interest which are subsequently protected as property. Consequently, a reasonable prediction of the future may be that property, rather than being inherently vested or reified, will in fact only constrain its forms and interests when human associations cease themselves. This provides the ultimate constraint on property, intellectual or otherwise. Putting human capacity at the center of intellectual property is an indirect means of putting human rights concerns at the heart of the radiating relationships of interests and public concern generated by the structure and process of intellectual property itself. C Human Rights Aspects of Intellectual Property Intellectual capital is an economic and cultural resource. Property is an evolving, mutating institution. The interaction in the social process between resources and institutions is meant, in the best of circumstances, to facilitate the production and distribution of desired goods and services so that production and distribution are an optimal social consequence. How successful this process actually is becomes the benchmark of how just, fair or workable a particular society is. Of course, there are many important human rights interests tied to the ­issues of property: housing, food, security, water, sanitation, health, employment, communications and often life itself. The Special Rapporteur on The 100 Charles Donohue, Jr., The Future of the Concept of Property Predicted from Its Past, in Nomos xxii, Yearbook of the American Society for Political and Legal Philosophy 28, 30, J. Roland Pennock & John W. Chapman eds., (1980).

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New International Economic Order and the Promotion of Human Rights: Realization of Economic, Social, and Cultural Rights, in examining the landresources issue, suggested that land/property reform was “central to the realization of human rights.”101 The Special Rapporteur recognized that, “no question is more central to power relations within society or to issues of equality and income distribution than land.”102 Many ideas concerning land or resource ­issues have relevance to intellectual property and human rights development issues. The Special Rapporteur’s assessment of the human rights dimension of land reform builds upon a wide variety of international instruments ­dealing with the topic. In the u.n. Declaration on Social Progress and Development, Article 17(d) indicated the importance of appropriate supervision for the “utilization of land in the interests of society.”103 Article 18(b) suggested that a democratic society included a commitment to land reform to achieve the objectives of “social justice and economic development.”104 Substituting intellectual property for the terms ‘land’ and ‘property’ echoed the same policy conclusions concerning the relationship of material and intellectual resources to human rights and development. The concept of a right to property, from a constitutional and even a customary international law perspective, often avoids defining the nature of property. These areas of law implicitly assume there is a relevant thing in law called a res or property. In human rights law, the interpretative gloss on the notion of property does not endorse the idea that one has a right to property, rather it is that one should not be arbitrarily deprived of the right. Therefore, the meaning of property is in part contingent upon the rules of natural justice, what forms of national and international processes are due, whether rights are relationally determined by unfair discriminations, and whether other basic freedoms or human rights are actually implicated in the right to property notion. The relational nature of human interests in valued things has often been seen as implicating a major divide between systems of social organization based on individualistic precepts and those based on shared or collectivist precepts. At the fundamental level, there is an irreconcilable conflict between 101 Report of the Special Rapporteur on the New International Economic Order and the Promotion of Human Rights: Realization of Economic, Social and Cultural Rights, escor, u.n.c.h.r., 42d Sess., Agenda Item 7, at at 121, u.n. Doc. E/CN.4/Sub.2/1990/19 (1990) (hereinafter Report of the Special Rapporteur). 102 Id. 103 Declaration on Social Progress and Development, g.a. Res. 2542 (xxiv), u.n. gaor, 24th Sess., Supp. No. 30, at art. 17(d), u.n. Doc. A/7630 (1969). 104 Id., art. 18(b).

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the individual and the community, a dualist outlook deeply ingrained in Western ideas of moral and legal order. In international law, this dualism expresses itself in the degree to which foreign economic rights or entitlements are protected by law, and whether permanent sovereignty over matters of vital sociopolitical salience in the public interest are to be secured. Moreover, the profound international impact of intellectual property claims and entitlements has in turn given added importance and complexity to this classical problem. The various human rights instruments provided further normative guidance, although the definition and scope of the concept of property and entitlements was disputed to some degree. The udhr referred specifically to property. Article 17 held that, “Everyone has the right to own property…”105 and that, “No one shall be arbitrarily deprived of his property.”106 In contrast, the Protocol to the European Convention on Human Rights and Fundamental Freedoms did not use the word ‘property’ in terms reflective of the udhr’s Article 17. Indeed, it did not specify a right to acquire property at all. But, it is worth quoting the relevant part of this provision: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest … The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest … .107 The provision did not add up to a human right to ownership. Rather, it assumes possessory rights.108 Article 21 of the American Convention on Human Rights held that everyone has the “right to the use and enjoyment of his property,” but that this interest may be subordinated in the common interest:109 it indicated that the dispossession of property entitled the person deprived to have “just compensation.”110 The American Declaration on the Rights and Duties of Man anticipated the relationship of property to second generation human rights. Article xxiii 105 udhr, supra note 76, art. 17(1). 106 Id., art. 17(2). 107 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, May 18, 1954, art. 1, 213 u.n.t.s. 262. 108 Possessory rights consist of a property interest conditioned by regulation in the public interest. 109 American Convention, supra note 78, art. 21(1). 110 Id., art. 21(2).

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stated that: “Every person has a right to own such private property as meets the ­essential needs of decent living and helps to maintain the dignity of the individual and of the home.”111 The Report of the Special Rapporteur on the New International Economic Order and the Promotion of Human Rights ­concluded that Article xxiii, more than any other human rights-property provision, “­approaches the issue of property from the perspective of a necessary entitlement to fulfil the needs of decent living and dignity.”112 Article 17 of the udhr is both controversial and ambiguous.113 Must this Article’s prescription be read in conjunction with the other udhr provisions, including the economic, social and cultural entitlements, as well as the developing human right to development? Or must it be read disjunctively, in isolation, standing alone without the interpretive guidance of the udhr’s other provisions? What, in any event, is property for the purpose of the udhr or human rights in general? If the right to property is read disjunctively, standing apart from the udhr’s other provisions, the following consequence might occur. Because property has a close affinity with effective power and is by itself an important base of power, an unqualified right to property could disparage the other rights in the udhr. Consequently, the definition of property in Article 17 must be read in light of all the other provisions in the udhr. The meaning of the right to ­property cannot be read disjunctively; it must be derived from the relevant context, i.e., the communal environment within which all the other enumerated rights function. The scope of the right will then be a variable one, subject to interpretative standards and intellectual dexterity, but it will be guided by the overriding goal values implicit in the concept of human dignity. Relating the human right to property, the trend in prescription has retreated from the bland literalism that might be used to construe this provision. The European Convention focused on possessory interests in property.114 In contrast, the American Convention focused on use and enjoyment interests in property.115 The American Declaration, which is the instrument most consistent with the evolving understanding of the so-called human right to property, constrained the human rights property interest to the realization of economic, social and cultural rights, or in contemporary terms, a right to development at

111 112 113 114 115

American Declaration, supra note 78, art. xxiii. Report of the Special Rapporteur, supra note 101, at 132. See udhr, supra note 76, art. 17. See generally, European Convention, supra note 78. American Convention, supra note 78, art. 21.

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least in terms of basic needs or interest.116 But the deeper meaning of property in this context is that it must be construed relationally, specifically in connection to other human rights values. Relationally and contextually, the general property right in human rights law does not entrench a right to property ­independent of other human rights standards. The scope of this right is highly challenged in international human rights law. However, its relational and ­contextual limits provide powerful normative guidance to interpretations of the reach of trips provisions, as well as to understandings of the state’s scope of reasonable prescription to either extra-territorially secure its property interests or protect its health, security and related human rights concerns. iv

The Right to Health Care

The question of whether Section 15(C) and its related provisions might find international support requires a reasonable exercise of the prescriptive competence of the Republic of South Africa. From an international perspective, South Africa must not only explore the scope of human rights on the right to property under general international law, it must also determine whether the right to health, as found in the International Bill of Rights and other international instruments, supports the principle that the delegation of power to the Minister of Health allows protecting the public’s health by making necessary medicines affordable and available. The international literature on the right to health or health care is vast and unsettled. According to Theo Van Boven, health care in human rights terms means, 1. a declaration that the right to health is a basic human right; 2. that there is an expectation that there will be a prescription of standards aimed at meeting the health needs of specific groups; and 3. that there is the application of a prescription as the vehicle for concrete implementation.117 But this may be too simplistic and avoids giving a more coherent definition of the scope of the right or the nature of the obligations the human right to health care entails. In Ruth Roemer’s study, The Right to Health Care, there is the suggestion that health care itself is relational.118 Thus, the right to health care is said to include “protective environmental services, prevention and health promotion, [and] 116 American Declaration, supra note 80, art. xxiii. 117 Theo Van Boven, Lecture at the u.n. Workshop on The Right to Health (1979). 118 See Ruth Roemer, The Right to Health Care, in The Right to Health in the Americas 17, Hernan Fuenzalida-Puelma & Susan Scholle Connor eds., (1989).

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therapeutic services …” as well as “related actions in sanitation, environmental engineering, housing,… and social welfare … .”119 When health care is an objective demand that is sought, it depends on other basic values to secure its realization. These values may include power, wealth, skill, enlightenment, solidarity and caring, commitment to respect, and a system of moral or spiritual rectitude that appreciates dignity. But regardless of these values, health care is a codified human right, as illustrated in Article 25 of the udhr: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of … sickness [and] disability.120 Because the right is tied to social policy, it is often thought that this is not a right at all, but a policy objective. Hence, it has no trumping power, as would be inherent in a real right. However, this provision can be used to justify the reasonableness of national legislation and administrative action seeking to give the right juridical effect. The Preamble of the who Constitution contains stronger language and at least implicit normative guidance for its application. The relevant part reads as follows: “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”121 Mentioning the “highest attainable standard,” the who Preamble implied that the attainable is what can be reasonably secured. Moreover, this was qualified by the notion that the right was fundamental. The highest, or best, attainable standard was indicated in the International Covenant on Economic, Social and Cultural Rights, Article 12(1),122 The Convention on the Rights of the Child, Article 24(1),123 and the African Charter on Human and Peoples’ Rights, Article 16.124 Additional references were found in the International C ­ onvention on 119 120 121 122

Id. udhr, supra note 76, art. 25(1). World Health Organization Constitution Preamble. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 12(1), 993 u.n.t.s. 3. 123 Convention on the Rights of the Child, Nov. 20, 1989, art. 24(1), g.a. Res. 44/25 (Annex), u.n. gaor, 44th Sess., Supp. No. 49, at 166, u.n. Doc. A/Res/44/49 (1990). 124 African Charter, supra note 78, art. 16.

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the Elimination of all Forms of Racial Discrimination, Article 5(e),125 the Convention on the Elimination of all Forms of Discrimination Against Women, Article 12(1),126 and the American Declaration of the Rights of Duties of Man, Article xi.127 As earlier indicated, in Soobramoney, the President of the South African Constitutional Court held that there was a juridically enforceable right to health care under the new South African Constitution, but that in the ­reasonable allocation of scarce medical resources, the right would be correspondingly delimited.128 This case supported the highest reasonably ascertainable standard of the who’s Preamble as well. The South African Constitution legitimized a right to health care. Section 27(3) of the 1996 South African Constitution provided that, “No one may be refused emergency medical treatment.”129 Section 11, which has extremely significant implications for the nation’s health policy held that, “Everyone has the right to life.”130 A major purpose of the new constitutional dispensation in South Africa was to establish a society based on democratic values, social justice and fundamental human rights. Section 27(2) held that the state jurists take reasonable legislative and non-legislative measures for the progressive realizing of, inter alia, the right to “health care.”131 Specifically, Section 27(1)(a) implemented a right of access to health care services.132 v

Conclusion

General international law, including human rights law, provides a standard by which problems falling outside the lex specialis regime of intellectual property treaty law may be judged. Interpretive questions involving normative ambiguity may be answered by recourse to general principles of international law, including human rights law. But the implications of international law are broader and force elemental reexamination of fundamental institutions, such 125 See International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, art. 5(e), 660 u.n.t.s. 195. 126 See Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, art. 12(1), 1249 u.n.t.s. 13. 127 See American Declaration, supra note 78, art. xi. 128 Soobramoney v. Minister of Health, supra note 79 at 22–36. 129 South African Constitution, supra note 17, at Ch. ii, § 27(3). 130 Id., at Ch. ii, § 11. 131 Id., at Ch. ii, § 27(2). 132 Id., at Ch. ii, § 27(1)(a).

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as property, and how those might be construed to complement, rather than undermine, the primary goals of world order. Intellectual property entitlements cannot be insulated from the larger ­discourse about the nature of property itself. A central feature of the epistemology of property is that it presupposes a social context that in turn implies a complex web of relational interests. These interests and relational ties operate in the local and global dimensions of law and the social process. Consequently, the meaning of property is in part context dependent. What the human rights focus provides is a window into just how far-reaching and challenging this web of relational interests actually is. A similar complexity attends the accepted datum that human rights are in fact complicated, interdetermining and interdependent processes. The reality of human rights is defined by social interaction which encompasses complex webs of relationships. At a normative level of analysis, there is an insistence in the interpretation of human rights instruments as comprehensive and indivisible. The right to life and the right to health care certainly ­present such a challenge. However, what is clear is that the interpretation of the relevant international standards in the lex specialis, the treaty-based ­regime, does not, by any means, exhaust the scope of defining international obligations in international intellectual property law. If it did, the state of world order would be in poorer shape than it currently is.

chapter 15

Truth, Reconciliation and the Fragility of Heroic Activism Chapter 15 examines the human rights principle that a society that disparages human rights essentially provides justification for revolution. This chapter ­explores the connection between morality, human decision-making, and choice in the context of revolution and reaction. This chapter focuses on real life experience with the fragility of the heroic revolutionary protagonist. It ­tentatively explores the issue of truth and possible reconciliation in the aftermath of revolutionary betrayal. i

Reflections on Human Rights and Revolution

The themes in this Chapter title have long been a part of the life of the coauthor, Winston P. Nagan. He was born and raised in South Africa. His generation was one that had the full rigor of the apartheid system inflicted on them. As a youngster, he witnessed the Gandhian inspired protests against unjust laws and the courageous commitment of people of all races to the principles of non-violent passive resistance. He saw the gradual construction of a fullblown police garrison, national security state designed to secure the apartheid regime and its policies of herrenvolkism and racial supremacy. He frequently witnessed gross human rights abuses, while indefinite detention, torture, and repression became a routine part of the apparatus of governance by the Pretoria authorities. He saw the reluctant change in the strategies of the black political parties from passive to coercive resistance including the selective use of military strategies. He witnessed the processes of human rights abuse and the processes of both revolution and reaction in sharp relief. In his adult life experience, he had direct and indirect exposure both practically and academically to the twin themes of revolution and human rights. This Chapter suggests that how we “look” and “think” about human rights and revolution holds importance to the enlightenment we draw from observation and inquiry. The distinctive emphasis is the interrelations among decision and revolution, decision and human rights and decision and the public order. The notion of decision implies choice. In this context, there are choices about revolution or counter-revolution, choices about human rights or the © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_017

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deprivation of human rights, and, more precisely, choices about the delivery or non-delivery of human dignity. Decision or choice-making about social process and the conceptions of public order implicit in it imply interventions whose purpose, in a general sense, is the allocation of the good and bad things in life, the allocation of the weal and the woe or the allocation of values. These values are infected with human rights salience. Human beings are moral agents and responsible for what they do, or not do. Individuals must ultimately accept responsibility for the value consequences of their choice-making or for the kind of public order that they defend or promote. The system that we should want to promote or defend is a system of public order committed in general to the principle of human dignity and human rights in the most comprehensive sense in which the phrases are capable of being defined. There is spirited debate in academic circles about the content of the human dignity principle and how it may be objectively justified. We must be willing to “postulate” rather than “justify” this precept. We should prefer a public ­order that optimizes the production and distribution, the shaping, and the sharing of all demanded values: power, wealth, respect, affection, well-being and health, rectitude or belief-system values and enlightenment or education ­system ­values. This is a functional shorthand for drawing reference to the dominant values in the Universal Declaration of Human Rights. ii

Problems of Revolution, Human Rights and Public Order

The notion of revolution has to do with change. From the perspective of public order, it usually signifies change, possibly rapid, fundamental change. Change may include the use of coercive modalities of action. The interrelations among notions of revolution, change and human rights suggest several questions. Are revolutionary modes of action ever appropriate to secure a public order of human dignity? What measure of human indignity must be witnessed before revolution is justified either legally or morally? What is the precise interplay between revolutionary means and idealistic ends? Even if revolutionary coercion is justified, how does the use of revolutionary violence condition the nature of the public order that is to come? If one acquires power by force, what role will force play in maintaining a new elite in power? Can genuine revolutionary change only be achieved by coercive violence, the use of the military instrument? Or can it be achieved by persuasive modalities of action, civil disobedience, passive non-violent resistance or mass democratic action? What does international law say about the use of revolutionary violence? What do

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major world power players say about revolutionary violence? What, after all, do we mean by revolution and human rights? The right to revolution and human rights find recent historical expression in the Atlantic Charter as well as in the practice of the allies in the conduct of World War ii. President Franklin Roosevelt explained the war aims of the allies in the Atlantic Charter. He stated that the objectives of the Atlantic Charter were a [v]ision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation. That kind of world is the very antithesis of the so-called new order of tyranny which the dictators seek to create with the crash of a bomb.... This nation has placed its destiny in the hands and heads and hearts of its millions of free men and women; and its faith in freedom under the guidance of God. Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights or keep them. Our strength is in our unity of purpose.1 What are today called movements of national liberation were initially spawned in the occupied territories of Nazi Germany and were considered entirely appropriate and deserving of allied support. President Roosevelt’s view of revolution may have been restrained in the light of our constitutional law practice. Professor Jordan Paust, for example, traces the legal constitutional character of permissible revolutionary violence. According to Paust, “numerous cases either affirm or are consistent with a distinction between permissible forms of violence approved by authority of the people and unlawful violence, especially ‘violence engaged contrary to the will of the people.’”2 When the u.n. Charter was drafted, it created a complex decisional challenge for future generations. Since the Nazi’s had been defeated and the system of independent states restored to its prior balance, it was thought that the state system should be protected from unauthorized coercion directed at the states’ territorial integrity and political independence. One element of Charter law and policy was clearly statist, but the Charter process was confronted with two other weighty issues: human rights and claims to self-determination. The idea that both self-determination and human rights might be viewed as matters of 1 Louis Sohn and Thomas Buergenthal, International Protection of Human Rights 306–07 (1973). 2 Jordan Paust, The Human Right to Participate in Armed Revolution and Related Forms of Social Violence: Testing the Limits of Permissibility, 32 Emory Law Journal 545–81 (1983).

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international constitutional concern suggests a tension in the charter system; a tension that seeks to conserve the state, to make the state accountable and, if necessary, to secure its demise, mutation or change at the altar of the right to self-determination. Mediating among claims for state protection, individual protection from state abuse and fundamental change in the state itself poses an ongoing challenge for decision. Perhaps there has been no more potent force for destabilizing or changing public order in the post-World War ii period than the processes of revolutionary nationalism. South Africa provided the clearest example of a state under siege for policies and practices that were incompatible with the u.n. Charter ideas of self-determination and the obligation to respect human rights. The u.n. Charter process sets out precepts and ideas about the preservation of the state system, and, at the same time, the document talks about “we the peoples” of the United Nations and refers to the right of self-determination. In effect, this legitimates a claim by counter elites for change in the global constitutional design. The Universal Declaration of Human Rights states in its preamble that “it is essential, if man is 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.”3 In 1970, the General Assembly of the u.n. issued a Declaration on Principles of International Law Concerning Friendly Relations. The title of this important document might suggest a consolidation of the statist status quo. However, the Declaration gave a ringing endorsement of the right to claim for change. The Declaration provided in pertinent part as follows: By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter....4 The implications of this right are indeed far-reaching, since the Declaration imposed duties that required

3 Universal Declaration of Human Rights, g.a. Res. 217 (iii) A, u.n. Doc. A/RES/217(iii) ­(December 10, 1948), Preamble. 4 Declaration on Principles of International Law Concerning Friendly Relations, g.a. Res. 26/25 (xxv) October 24, 1970.

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Every state … to refrain from any forcible action which deprives peoples … of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of self-determination, such peoples are entitled to seek and to receive the support in accordance with the purposes and principles of the Charter.5 This challenges the conventional wisdom that the states’ compact with international society is not a compact to commit suicide! The state traditionally had the right to defend itself; the venerable right to self-defense. In the context of South Africa, liberation movements like the South West African People’s Organization (swapo) and the African National Congress (anc) claimed rights, the gist of which was reflected in the just quoted provisions of the Declaration on Friendly Relations, which articulated boldly that these low-level conflict incursions into the “target” state were not an “armed attack” within the meaning of the u.n. Charter. Correspondingly, South Africa could not attack anc bases in the surrounding frontline states under the self-defense standard of conventional international law. The elite response to revolutionary incursions by attacking bases in the frontline states was stated by the apartheid authorities as follows: South Africa will not tolerate activities endangering our security … we will not hesitate to take whatever action may be appropriate for defense and security of our own people and for the elimination of terrorist elements who are intent on sowing death and destruction in our country and our region. We will not allow ourselves to be attacked with impunity. We shall take whatever steps are appropriate to defend ourselves.... South Africa represented in a microcosm a larger problem for international decision-making. These decisions involved mediating between claims for change, including change by coercive, violent means, and claims for stability that secured the territorial integrity and independence of the particular state. In 1948, the Nationalist Party came into power in South Africa. It came to power in an election that largely precluded the non-white sections of the population. Its program and policy were encapsulated in a word, a neologism that was to gain international notoriety: apartheid. The ruling Nationalist Party began to institutionalize a radical program of policies whose roots were concededly to be found in the National Socialist 5 Id.

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policies of Nazi Germany and the fascist policies of Mussolini’s Italy. The fundamental idea behind the apartheid scheme was the idea of white supremacy or racial herrenvolkism. The critical policy problem was how to secure and enhance it for the indefinite future. The critical policy solution lay in the policies and programs of white control and racial separatism. The apartheid program began to be implemented with a vast edifice of ­legislation and an enormous bureaucratic structure to man the apartheid ­administrative state. To organize the population base on rigid racial lines, the state enacted the Population Registration Act, which mandated that every human being in South Africa be assigned a racial identity from which all rights, powers, privileges, immunities and disabilities would flow. The state enacted laws to geographically and spatially divide the country into “group” racial areas and racially “exclusive” tribal areas called “bantustans.” The forced physical removal of people within cities to “group areas” and millions from the cities to the “Bantustan” grounds represents one of the most colossal experiments in social engineering ever attempted by a state since World War ii. To ensure compliance with the dictates of the apartheid machine, the state took direct control of education for blacks. It instituted a massive arsenal of security laws and policies to secure the extinction and repression of those who disagreed with its policies and had the temerity to say so, and worse, to even attempt to do something about it. The evolution of a national security garrison state followed almost inexorably from the radical nature of apartheid. The apartheid process generated sustained patterns of resistance to it. The government of India, one of the first major Third World powers to become a full-fledged member of the United Nations, took the issue of apartheid to the United Nations. The basis for India’s action was that these policies were targeted, inter alia, at the Indian minority in South Africa. Starting out as a matter of international concern about the human rights violations against ­Indian South Africans, the United Nations broadened its interests to include the whole problem of apartheid since the entire edifice was designed to violate the human rights of all people of color. Initially, the United Nations sought to promote dialogue and conciliation among interested countries and South Africa. These consultative efforts came to naught as South Africa steadfastly maintained that the treatment of its black population was a matter of domestic internal sovereignty and not an international matter. As the state began to close off all avenues for dissent and political expression among the apartheid victims, the strategies of the now banned black political parties began to change. The historical legacy had been the legacy of Gandhi. The core strategy was that of passive, non-violent resistance to unjust laws and governmental oppression.

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With the outlawing of the anc and the Pan African Congress (pac) in the early 1960s, together with a level of Pan African state violence not before experienced by black resisters, the black political parties sought to model themselves on the movements of revolutionary violence that sought the overthrow of colonialism. The anc became a movement of national liberation seeking to mobilize all available strategies, including the strategies of violence, to secure the demise of the apartheid regime. At the international level, the decisional responses of core players was a cautious process of de-legitimatization of the Pretoria authorities and an even more cautious enhancing of the legitimacy of the struggle against apartheid South Africa. The complex interplay between the elites and counter-elites in South Africa, the agencies of formal international decision, i.e., the u.n., o.a.u., World Court, and the major power-players in the international system such as the u.s.s.r. and the u.s.a. were decisional factors in the complex drama in South Africa. The status quo white elite constructed an entity close to a renegade state: the apartheid state. This state was unrestrained in its use of violence inside South Africa and the region. The death toll was itself staggering, and the evidence of human rights abuse was of epidemic proportions. The reaction of the South African liberation movement was harder to appreciate. Their political inheritance was the tradition of passive, non-violent resistance to unjust laws and governmental oppression of Gandhi, Albert Luthuli, and, more recently, Bishop Desmond Tutu. Yet, the liberation movements were frequent targets of criticism for using the tactics of insurrectionary violence. In the face of extreme status quo violence, human rights abuse, e.g., the Sharpeville massacre of 1960 and the banning of the prime black political organizations, black leadership made the decision to go underground and model themselves as movements of national liberation committed to the use of both coercive and persuasive strategies to advance the cause of “liberation.” Few, if any, sectors of the international community challenged the “legality” of armed struggle to achieve liberation in South Africa. The issue was not law in the strict sense. Operationally, international law tolerated a grey area of coercion by elites and counter-elites and responsibility for the results of violence. The non-violent methods of protest of the United Democratic Front (udf) and the mass democratic movement in South Africa had a restorative, mass appeal to South Africa’s oppressed people and a moral impact on the policies and practices of at least some elements of the white ruling caste. Perhaps the most cruel dilemma facing those who struggle for human rights in a context where a state is a notorious human rights abuser and where that state is unrestrained in its use of violence against its opponents, is this: do human rights proponents have a legal and a moral obligation to at least use a proportion of violence

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necessary to defend themselves? Do the oppressed have a right of self-defense from state human rights abuse? To what extent should counter-elites forgo the right of self-defense for the even higher moral precept that the oppressed are themselves transformed by the suffering of struggle? Does true struggle against injustice transforms both victim and interlocutor? Did Gandhi, Luthuli, and King set a standard too lofty in their protest to man’s conscience that violent solutions to human problems are obscene and degrading? As we make an inventory of the cost of reactionary and revolutionary violence, do we discover somewhat cynically that leopards only change their spots when they move from one spot to another? The ‘true’ realists were the Kings, Luthulis, Gandhis and Tutus of the world because they saw more clearly than most that violence is generally a high-cost non-solution to difficult problems of co-existence, peace and justice. Implicit in the message of Gandhi, King, Luthuli and Tutu is a message about the integrity of the struggle as well as the integrity of the objectives of the struggle for justice, respect and dignity. A further implication in this perspective is a message of restoration and hope in the capacity for moral growth in the human species and a pervasive optimism that a public order committed to the dignity of man is not a hopeless idea. With the benefit of hindsight and wisdom of historical experience, the analysis raises some important and provocative questions and issues: 1. does human rights law as well as general international law place limits on the use of state power and violence against a polity’s own citizens? 2. does the use of revolutionary violence generate the promise of a better world or a better South ­Africa? 3. in a world of changing conditions and trends, is it the height of ­folly to demand “no change” whatever the human cost or demand ­“immediate change” whatever the price to humanitarian values? 4. does the evolution of passive resistance and mass democratic non-violent resistance restore the moral character of the very process of struggle for dignity and respect? 5. the normative guidance that modern human rights processes give to revolutionary change is indispensable if the interplay of both revolutionary means and ends are seen as dynamic but vital challenges to the persons of authority who hold our well-being and respect in the decisional palms of their hands. While there are structural forces in the social process that make change difficult to achieve by decisional interventions, a great deal of change or nonchange is indeed a function of decisional intervention. An awareness of this issue enhances the sense of responsibility on the part of those who welcome change and work for a public order of human dignity. The case of South Africa represented the twin issues of human rights abuses and the rights of those victims to use extra-constitutional methods to change the system. The victims

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of human rights violations claim a right to revolution. Complex issues of law, including international law, and policy are implicated. Decisions in response to the claims of the apartheid authorities and their antagonists left little room for a value-free neutrality. How we “look” and “think” about the ubiquity of decisions to intervene or not on the part of the pivotal actors poses a challenge to scholars and activists alike. This challenge arises because we cannot absolve ourselves of the key issues. What kind of public order do we want? What kind of public order do we defend? what kind of public order do we promote? What strategies are appropriate to secure answers to the above questions? iii

Personality and Dynamic Times

This Chapter deals in part with matters of personal experiences in political environments of extreme conflict where political activism is ubiquitous. The heroic ego as an activist is often an important figure during intense social and political conflict. The interplay between conflict, activism and the heroic ego from an interdisciplinary perspective is explored touching on matters of biography, literature, history and human rights. There is a concern that professionalism not be an impermeable armor which insulates it from the practical experience of working with human beings under stress and experiencing the volatile emotions and sentiments of political conflict which impact upon personal responsibility, professional identity and fundamental integrity. The theme of truth and reconciliation is a widely experienced political issue developed in situations of extreme conflict where the prospect of winning and losing is indeterminate. Leaders and activists vigorously asserting the values of change or reaction must confront the possibility that some change is inevitable, but not the way the way those who claim change imagine it. Similarly, those who defend reaction have to accept the fact that reaction cannot endure without change, but precisely what that change is and how much reaction endures remains problematic. Those leaders who are deeply active in these forms of struggle, which may be very lethal, are often seen as heroic promoters of change and progressivism or heroic defenders of reaction and the status quo. In each case, the activists are power-centered personalities and represent the activist’s heroic ego. An examination of many heroic leaders discloses flaws and disappointments. Historians have difficulty discerning real fact from manufactured fact. Modern efforts to understand the political psychology of the heroic activist may be seen as a cynical exercise in deconstructing the myth of heroism itself. What is accepted is that the heroic activist is often identified with the

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power-conditioned personality. Some personality types are drawn to power for complex personal and psycho-analytical reasons. This suggests an innate skepticism of political heroism. Harold Lasswell’s classical description of the political personality is described as implicating the private motives of the actor displaced on public objects and rationalized as being in the public interest.6 There is, perhaps, no more skeptical appraisal of the activist grappling heroically in arenas of conflict to secure the values of the public interest. The actor is fundamentally driven by private motives. Private motives using public objects for highly subjective purposes is made problematic by the inevitable process of covering up those motives by rationalizations in the public interest. To expose these kinds of psychoanalytical truths certainly puts a damper on situations as crass as the cult of the celebrity, but also raises the specter of skepticism with regard to ostensibly heroic action that is as truthful and altruistic. The harder the truth, the tougher will be the capacity for reconciliation. Activist heroics are both admired and feared. This dilemma confronts us as society tries to manage the problems of personality, power, conflict and reconciliation. This Chapter deals with the specific case of the fragility of a heroic ego and the problems it poses for the concept of truth and the power of reconciliation. It reminds us of the complexity of human rights advocacy. iv

Notions of Truth and Disclosure

In Granta 78: Bad Company, a literary journal, the intellectual class was treated to an odd, but nonetheless interesting version of a claim from an ostensibly heroic ego to truth and hopeful reconciliation from a South African political activist.7 This interesting version of heroism, truth and the reconciliation process was indicated in the publication of the remorseful confessions of the South African political activist, Adrian Leftwich. Leftwich was an organizer in the African Resistance Movement (arm) in the early 1960’s in South Africa. The arm made its presence known at precisely the time of the arrest of the major African National Congress (anc) leadership. The organization succeeded in a number of operations of bloodless sabotage. However, one of its operations led to the death of an elderly woman from myocardial complications. One of the arm’s operatives, John Harris, a school teacher, was subsequently arrested, convicted, sentenced to death and executed for the death of 6 Harold D. Lasswell and Myers S. Mcdougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy, Vol. 1, 591–709 (1992). 7 The Granta, No. 78, 9 (2002).

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an elderly woman far from the site of a bomb blast. Leftwich, who was a significant figure in the arm, was arrested and, with unseemly haste, disclosed information to the security police. Leftwich, the heroic activist, had a deeply fragile psychological interior. This resulted in the arrest, trial, conviction and sentencing of a number of arm operatives, many of whom had been recruited by Leftwich. After giving evidence against his former compatriots, Leftwich was released by the South African authorities. During the trial, the judge described him in zoological terms: genus Rattus. Upon his release, Leftwich left South Africa for England, where he established himself as an academic in political studies. Since his departure, South Africa’s transformation brought political adversaries together in a common political society. To sustain this kind of society, an accounting for the past and forgiveness was part of the new ideological and political order of the transformed South Africa. In Leftwich’s narrative, I Gave the Names, he tells us that “it has taken me a long time to look at what happened and try to come to terms with it, but now that the obscenity of apartheid has been formally buried, perhaps it is time to do so.”8 Leftwich, the heroic activist, is a good candidate for the testing of political truth, reconciliation and procedence. The ideological justifications for concepts such as political truth, reconciliation and heroism carry an assumption of moral simplicity. The moral simplicity of disclosure permits a society to move forward by conspicuously displaying a new spirit of cooperative understanding and political accommodation, based in part on the truth of disclosure. In practice, however, these transformational processes are problematic and often fraught with ambiguity, paradox and a sense that a morally absolute agenda of transformation is unattainable. Confession, forgiveness and the possibility of political renewal each involves a complex of individual and highly personalized moral assessments and accommodations within the larger political culture of society. Often, these assessments and accommodations are replete with the most visceral and emotive symbols borne of political experience. It is out of these experiences that large scale, collective judgments of significant moral import emerge, which must ostensibly sustain a better political future for the affected society. However, the public narratives of these experiences reveal a great deal about the personal frailties of individuals in arenas of social conflict. These stories give a rare but realistic view of the inner workings of political and social relations, including their capacity to reach the raw depth of moral failure. Leftwich’s story is a disclosure. It is a complex and interesting account of personal morality implicating large scale political and social values. The Leftwich tale implicates 8 The Granta, No. 78, 9 (2002).

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latent claims of both private and collective morality and their effects on betrayers, victims and victimizers. A Literary Precedents and Leftwich It is useful to look more generally at the concept of truth in issues of political transformation. A central function of practical lawyering is the search for the truth. Lawyers confidently proclaim the truth or falsity of evidence garnered from the rituals and practices of legal drama. Most lawyers know that a legal truth can only approximate the real truth and, indeed, a legal truth might be a social untruth. The procedures for establishing legal truths may vary with the skill of the advocates, the judge, the jurors and the witnesses. These factors suggest that the public policies based on legal truths may themselves be quite fragile. Important experiments with truth in classical literature have generated universal appeal, although precisely how literature reproduces the creative version of the truth is often a matter of literary insight and criticism at its sharpest. From the point of view of a poet, William Butler Yeats stresses the problem of knowing truth because of the difficulty of sorting out “the dancer from the dance” in his poem, Among School Children. This implies a recognition of the imperfections of experience, the dancers from the ideals and the ideal dance. Understanding the relationship between the dancer and the dance is a central challenge and insight into the business of finding the durable, universal truth. Shakespearean scholars often see in MacBeth a detailed study of the truth of the pathology of authoritarianism. Hamlet’s own confrontation of right and wrong fractures the human personality and generates such self-absorption that one wonders whether there is a latent narcissism that ultimately obscures the critical assessment of the truth of right conduct. In Shakespeare’s Julius Caesar, Cassius tells Brutus that, as responsible statesmen, they are flawed: “The fault dear Brutus is not in our stars, but in ourselves, that we are underlings.” Shakespeare seems to be neither a determinist or an astrologer. What moved Cassius to inspire a conspiracy to kill Caesar? Was it an act of heroism? Was it a matter of heroic activism? Or was he moved by more base motives, such as personal envy or jealousy? Is Shakespeare really trying to suggest that Cassius as the conspirator and activist may in part be moved by a heroic ego? Perhaps the sense of heroic activism was frail or insufficiently strong, so it could not resist the temptations of baser human motives and opportunism. Cassuis’ success in his talk with Brutus brings Brutus into the conspiracy. Brutus expresses his heroic activism as a form of sacrifice. There is remorse for having to kill Caesar, but Caesar’s ambition contained the seed of political tyranny, and Caesar had to be sacrificed. Antony, Caesar’s close friend, declares Brutus to be the noblest

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of the conspirators and suggests to the crowd that only he acted from genuine heroic motives. Brutus was a noble, if mistaken, heroic activist. In our own, post-modern age, we may well question whether Caesar’s ambition was really ambition, or as Antony says, the ambition to establish tyranny should have been made of sterner stuff. If Brutus’ reasons for killing Caesar are not quite heroic, and not quite base, was Brutus himself a victim of an exaggerated heroic ego? Was the killing of Caesar an act of misplaced heroic activism? The truths of this kind give insight into the psychological inner workings and the turmoil of human beings grappling with the moral dilemmas and responsibilities which they confront from time to time. Shakespeare’s genius is the mastery of human complexity, which seems to transcend any form of historic or cultural particularity. A leading international lawyer draws a similar conclusion with the clash of values in defining the future of international law. One of the central issues for an international lawyer role, says Professor Falk, is the management of complexity. In contemporary literature, there is an interesting struggle with a certain kind of essential psycho-sociological truth believed to be embedded in human nature. For example, in Conrad’s novel, Heart of Darkness, Marlowe discovers a critical truth about human beings, but realizes that it is virtually impossible to effectively make it meaningful as a message to the larger community. Marlowe, of course, discovered the particular truth in Africa, the Congo to be precise. The truth that Marlowe discovered he received from Kurtz, a man who went to Africa to bring the benefit of civilization to the natives. The truth that emerges is embedded in the nature of Kurtz’s descent into his own heart of darkness. He believes that the natives are brutes and ought to be exterminated. There is a complex relationship between Kurtz and his victims, although his victims rarely seem to emerge as human beings. They come through as a sort of abstraction. As Kurtz and Marlowe make their way out of the jungle, the truth becomes clearer to Marlowe, the not quite disengaged observer. Kurtz gives a damning self-appraisal. In this context, there is a loose analogy between Granta and Marlowe and another between Kurtz and Leftwich. Leftwich speaks to Granta about his betrayal of friends and his weakness as a political leader under pressure. Granta is obviously the medium; and the question is exactly who is Leftwich addressing through Granta? Is he addressing himself? Is the message essentially designed for Leftwich to come to terms with himself? Does he confess to achieve some form of hubris? Is he addressing some particular audience, and, if so, for what purpose? Is he being didactic or is he searching for sympathy? Is he providing a deeper insight of universal import, touching on the fragility of the generalized heroic ego? When Kurtz, in his delirium, gives his judgment of himself,

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“Oh, the horror! The horror!” who exactly is he addressing? Is he addressing himself? Is this an overt signal of internal turmoil, touching the unconscious, the ego, and the super-ego? Is he giving a message to Marlowe, the medium? Perhaps Marlowe may be understood to represent a priest-confessor figure? Or is Kurtz really addressing God? In this latter sense, Kurtz might be seen to recognize that his human frailty is universal. There is a universal heart of darkness. One might consider whether Kurtz’s famous lines suggest that he is talking about himself and us, or he is he talking for himself and for us. There is, of course, political irony in the pronouncement of Kurtz’s demise. It is the other, one of Kurtz’s brutes, who makes the telling statement: “Mr. Kurtz, he dead.” Mr. Leftwich is not dead; he is, of course, alive. It should be parenthetically noted that Leftwich’s medium, Granta, acknowledges editorially in running this particular issue that it sought to experience human conduct implicating “the lowest of the low.” It may be that using a journal of literary import in this way permits us to understand more adequately the depths of human skullduggery. This may be a function shared in some degree by the institutionalization of truth and reconciliation processes in the political and legal sphere. This aside ought not of course to obscure the nature of the conduct of Leftwich. Comparing Mr. Leftwich to one of the key characters in the Heart of Darkness, it may be obvious that Mr. Leftwich is no Kurtz. It cannot be said that his experiment with the truth in Granta captures the sense of heroism or depth of self-appraisal of those words that Conrad put in the mouth of Kurtz. One does get a sense that Leftwich is aware of the price of his own weakness for himself and his ego. Those he betrayed seem like Kurtz’s victims, vague abstractions. Perhaps Leftwich’s victims were analogous to Kurtz’s brutes and were, in some degree, expendable. Truth, in awareness and moral sensibility, is indeed a difficult matter and literature, like law, can only scratch the surface of the heart of darkness. It cannot often tell us how dark the heart actually is and what shades of light, however modest, might redeem it. The Leftwich confession falls short of a coherent claim to forgiveness based on full disclosure. His remembering is selective and does not seem to be the credible truth necessary for political reconciliation and forgiveness. It ought not, however, be forgotten that in an age of catastrophe and mega-death, the search for a political and moral formula to end lethal, high-intensity conflicts and politically transform society to secure peace and enhance rule of law restraints on the abuse or misuse of power is both difficult and necessary. Leftwich’s confession is rooted in the conflicts to transform South Africa and oppose apartheid. There are lessons to be drawn from the South African transformation, in particular, about the nature of truth, political morality and personal

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responsibility, and, more importantly, the exposure of the belly of the beast from the “inside.” These are not abstract matters for many persons who were involved in the struggle to end apartheid. Often, opposition to apartheid led us to support other causes and victims only remotely related to the South African conflict. The rejection of apartheid required an articulate sense of moral and political responsibility. The rejection of apartheid by its opponents and their willingness to challenge it and risk their lives is the substance of heroism. That heroism carries the risk of human fragility, as well as the important concern that one must account at the end of the day, as Kurtz did, for one’s own heart of darkness. Leftwich’s confession is part of the story of South Africa’s descending trail to the status of a police state that followed the Sharpeville Massacre of 1960. After Sharpeville, the state began to enact laws which permitted extended and unlimited periods of detention of enemies or potential enemies of the regime. The detention laws were packaged as merely temporary derogations from the rule of law. Soon, the temporary became a permanent form of governance. The human side was obvious to all. Even if one intentionally did not want to come to terms with the truth, one could not sustain a credible claim to ignorance. Leftwich’s story gives a personalized view of events implicated in the struggle against apartheid that can, at times, be quite abstract and obscure the human dimension with all of its strengths, frailties, and disappointments. When and how one is personally affected by the instances of tragedy is often a random experience and is not necessarily part of a coherent historical narrative. Many years after the mysterious murder of a close friend, Griffiths ­Mxenge, Nagan happened to be reading a book in the Netherlands titled, Inside the Belly of the Beast. The book contained direct confessions of death squad­ operatives and, in great specificity, the murder of Mxenge. The narrative indicated in graphic detail the kinds of knives used, the techniques employed to plunge these knives into a victim’s body, and the twisting and thrusting of the knife to destroy the victim’s organs and sever the spinal column. Nagan knew that Mxenge had been murdered approximately six months after they renewed their friendship (Nagan had been in exile for twenty years). Nagan knew that his wife, Victoria, had been murdered as well. However, the actual details of his execution left him numb. He vividly imagined the horrific circumstances of Mxenge’s death with incessant recollections of the fact that his friend was a compassionate man incapable of malice, a man of incredible generosity and sensibility. To have read the clinical details of his execution and know the fate of a college roommate, compatriot and friend left Nagan with haunting memories and tested the subjective limits of truth and forgiveness on his part.

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Perhaps it is the nature of personality to idealize good relationships and bonds of affective solidarity. This comes at a price when etched in memory and consciousness there is the image of brutality in extreme form. It is in quiet moments that tranquility is easily disturbed by symbols of atrocity, stored in an unforgiving memory. It is said that we humans possess our thoughts. Our thoughts, which are often experienced as signs and symbols, possess us. Nagan was troubled by the fact that the vivid and particularized version of the truth had an indecency, at least as truth in this form. Nagan was not only troubled by the details of his execution, he was also disquieted that the clinical detail embodied in the form of reporting the truth might itself disparage the memory and the dignity of his friend. Are the details associated with the truth as clinical as those associated with the brutal execution of a friend? Is this form of truth worth publishing? Perhaps there is a point where the real truth in its unvarnished detail might corrupt moral experience. Do stories like this sell books or teach moral lessons, or is such a distinction at all possible? In the mid-1990’s, Nagan happened to be in Cape Town when a security police operative was giving testimony before the Truth and Reconciliation Commission. The security police operative was a Mr. Benzion. The man had a reputation as a champion torturer, a man who was sure to break any victim. Mr. Benzion never had the experience of an unbroken victim. Indeed, Mr. Benzion was called in when other torturers failed to break the victim. Thirty minutes was all that he apparently required. How did Mr. Benzion know that his victim was close to breaking under torture? When the victim lost bowel control, the point at which the mind loses all control over the body (the victim was usually naked), is apparently the optimal point to get the victim to disclose the sought after information. This is disgusting “truth.” Should we be satisfied with a generalized statement of the truth and secure a sense of public decency rather than a version that is possibly obscene? As will be evident, the problems of truth and reconciliation are complex and even the forms of communication implicate subliminal values that compromise decency while enhancing the “truth.” Returning to the Leftwich Granta version of truth, betrayal, and reconciliation, Nagan was uncertain why Leftwich chose to make his confession or perhaps the correct phrase should be his second confession in a literary journal, the target audience of which is only remotely interested in the specific nature of the process that led to the transformation of South Africa. Leftwich could have chosen a more effective forum to discuss the specific problems of assigning responsibility for grave human rights violations and finding a mechanism to provide justice for the victims or their surviving relatives. This initiative would have made an important contribution to the transformation of South Africa, which would allow political enemies to live together in a state with

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common national boundaries. It would have been prudent for Leftwich to target his remarks directly at the political society which most influenced his conduct. Had he done that, it would have required him to have at least given a written submission to the trc. He would have been in no danger of being prosecuted or forced to apply for amnesty. The Nationalist Party had already given him amnesty in the early 1960’s. His testimony about the arm and his role in it would have added greatly to enlarging the stock of historical truth about the role and contribution of certain liberal intellectuals to the struggle against apartheid. B Interactions with Leftwich When Nagan met Leftwich in early 1962, he was serving as president of the National Union of South African Students (nusas). He later became an apparently critical operative in an organization called the African Resistance Movement. He came to the University of Fort Hare to gain support for nusas among the black students of South Africa. Fort Hare was principally a university for blacks. nusas had been banned from Fort Hare and membership in nusas by Fort Hare students was prohibited and could have resulted in expulsion from the university. Leftwich visited Fort Hare with the vice president of nusas, C.J. “Jonty” Driver. It took a great deal of courage for the nusas leadership to run the gauntlet of Security Branch operatives, police cordons, and the vast array of security police spies. With the anc under severe pressure and its leaders underground, the nusas initiative was important to the situation at Fort Hare because it permitted the student leadership to reconnect with forces committed to the broader struggle against apartheid. By the time Driver became president of nusas, the union itself became a target of government harassment and intimidation. Leftwich’s role in nusas was a significant move in opposition to South African apartheid in the early 1960’s. Then Minster of Justice, John Vorster, described nusas as a “cancer” which he sought to remove from South Africa’s body politic. From 1962 to 1963, Nagan gravitated to a leadership position on the Fort Hare campus. Nagan was inducted into the anc, which was a very dangerous undertaking at the time because the anc was a banned organization and proof of membership carried a sentence of three years at hard labor. Nagan worked closely with nusas and served as the nusas link with the Fort Hare resistance. Among the leading figures in the Fort Hare resistance were Griffiths Mxenge, Templeton Mdlalana, Steven Gawe, Seretse Choabi, and Chris Hani. Mxenge was later brutally murdered, Chaobi died in exile, and Chris Hani, an earlier leader of the anc at Fort Hare was later murdered during the period of transition in 1993.

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The first time Nagan heard that a new and more determined resistance organization was being created was at the annual congress of nusas in June of 1963. The conference was held on the campus of the University of Witwatersand in Johannesburg. Nagan had been involved in producing a controversial resolution to the congress of nusas. A meeting of the heads of Commonwealth universities was being planned and was to be held in London. South African university heads had been invited to attend. Since 1960, South African universities were, by state mandate, racially segregated pursuant to The Extension of University Education Act. Nagan drafted a resolution stating that nusas condemned the presence of South African University heads at the Commonwealth conference in London on the basis that they represented universities that were racially segregated and fell short of the concept of a proper university. The resolution was circulated and, because of its controversial nature, created a significant cadre of opponents within nusas. Nagan was able to secure the support for this resolution of Gavin Williams, who was the representative to nusas from Stellenbosch University. The merger of Stellenbosch and Fort Hare certainly raised eyebrows in liberal circles. Williams and Nagan were typecast as a kind of left-wing cabal in nusas. Spike Dekeller approached both Gavin and Nagan during one of the plenary sessions. Dekeller indicated that a new organization was being created and that it might interest us. Nagan cannot say that there was an explicit effort to recruit them, but the communication was sufficiently clear in the climate of the time that we expected a follow-up. It turned out that Dekeller was a member of the arm. When it fell apart, he was arrested and sentenced to a term of imprisonment. In the meanwhile, Nagan’s concerns for the validation of apartheid in the British Commonwealth and other arenas of high education consumed a great deal of effort. Nagan forgot about the Dekeller approach until reminded of it by Gavin Williams, who was a politics don at St. Peter’s College, Oxford University. The motion was tabled and no further action was taken on it. Nagan returned to Fort Hare later that month. Between July and November of 1963, the situation at Fort Hare became critical. The security police virtually camped in the university. Vast numbers of students and some faculty were detained, and detention often included beatings and torture. Nagan’s private concerns were tied to the fact that he was a member of the anc and tied to a cell. If cell members broke, Nagan would be arrested. Nagan was less worried about nusas, which in some ways was a cover. nusas was not banned, although it was prohibited on the Fort Hare campus. Nagan’s real concern was the fact that he was writing reports on detentions, beatings, torture and other activities of the security police, often identifying

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the security operatives by name. He assumed the name of John Delaney and sent his reports to the editor of the Evening Post, the newspaper with the largest circulation then in South Africa. The editor of the Evening Post was the courageous John Sutherland. Sutherland’s nom de plume was Mrs. van de Merwe. Nagan would write to Mrs. van de Merwe under the name of John Delaney and send the commentary to a post office box in King William’s Town. The reports would appear in the Evening Post. The security police were infuriated that the outside world could get the details of what they were doing at Fort Hare. Nagan knew this because one of the students who had been severely beaten had been questioned persistently because they were searching for the person who was getting the embarrassing information of police repression out to the press. Because Nagan was in the business of trying to survive physically and take seriously the final examinations for his degree, he had completely forgotten about the Dekeller approach or the new organization which he hinted was being created. Templeton Mdlalana and Nagan were invited to the nusas executive meeting in Cape Town in December 1963. It was a difficult trip and, on one occasion, Mdlalana was almost put off the train by a racist conductor. At a party organized in the home of Libby Robb, Mdlalana and Nagan met a number of figures in the South African Liberal Party, including the past Chief Justice of South Africa, Albert van de Sandt Centlivres, as well as the author Alan Paton. Leftwich was by now only a shadowy presence in nusas, but he came to the party and cornered Mdlalana and Nagan. The initial point he made was unpromising. He said that the elegant home of the Robbs would not be tolerated in the “new” South Africa. In fact, he thought that the house would make a nice kindergarten for underprivileged children. This was so transparent that both Mdlalana and Nagan were offended. It was not only a slight at our intellect, but it was also a thoroughly ungracious way for a guest to comport himself in the home of his host. Leftwich then left to refresh his drink, comforted by the knowledge that he had given us the kind of bait that only an unthinking person would swallow. While he was away, we discussed the fact that Leftwich never failed to impress us with his shallowness and lack of credibility. When Leftwich returned, having given us time to swallow the bait, he said that he was in need of compatriots who were serious about changing South Africa. He mentioned that he believed we were the kind of activists who would fit very neatly into the serious organization that he and his other colleagues were in the process of creating. Since we did not trust Leftwich, we simply told him the truth. We were affiliated with another serious organization and could not be involved in his operation. Nagan remembered that Adrian’s face could become flushed at the slightest provocation. His attempted seduction had failed and he turned to leave

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with a defiant disdain of mortals less committed than he. His face, as expected, flushed with color. Nagan heard from another individual at the party who was associated with nusas that Leftwich was busily telling others that Nagan and Mdlalana were gutless and uncommitted. In retrospect, Nagan imagined that his visceral dislike of Leftwich saved his life, for he was not an immediate target of the South African Special Branch. Many of Nagan’s friends were not so fortunate. Sadly, Leftwich, who was a chief recruiter, seduced some of them. Despite his involvement in the arm, the narrative cannot begin and end with the tragic story of Mr. Leftwich’s personal remorse. Leftwich’s character is certainly more complicated in the context of the struggle than in the context of his post-struggle remorse. With regard to Leftwich’s political personality, there were cues about his political motives, his manipulation of public objects of struggle, and the almost bombastic justifications that he sought to express through his exuberant volubility. For example, Leftwich acknowledged that what drove him was his desire to compete with those he viewed as competition in the leadership and intellectual sphere. He stated that he “tried to be superior to other men with whom [he] felt himself to be in competition.” We might describe these insights as representing his private motives in the political sphere. He displaced these motives in the form of a radical new liberalism sympathetic to African socialism, but somehow rooted in classical liberal values. When it came to expression of these views in the political sphere, Leftwich admitted that he was given to bombast. For example, this is what he wrote regarding the African Resistance Movement: “arm does not only talk, arm acts…arm would prefer to avoid bloodshed and terrorism…but let it be known that if we are forced to respond to personal violence, we shall do so.” The fact that so many had reservations about him because of the transparency of his political views was something he might have sensed. This could explain his drift to the left and a style of rhetoric which might be called radical bombast. Many questions remain unanswered and Leftwich could certainly have given a clearer account of the identities of those who inspired arm and their sources of funding, The history of the arm cannot be effectively explored without appreciating the role of the non-communist left and the progressive liberals in South Africa. arm was an outgrowth or mutation of an organization known as the National Committee of Liberation (ncl). Two of its key operatives, Monty and Myrtle Berman, were communists who were expelled from the South African Communist Party. They and other progressives began organizing an alternative left-oriented non-communist opposition group with connections to black leaders who were critical of the anc. A person on the left expelled from the communist movement would have virtually no political

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future in the South African struggle. One of the mysterious figures whose name was consistently connected with arm was a person named Watson. Watson was apparently of quintessentially British stock and, Nagan was told, spoke in the style of the British upper class. Nagan had heard that it was Watson who provided the technical training to arm operatives in the use of explosive devices and the funding for this training came from Watson’s sources. It is disputed among exiles whether Watson left South Africa immediately before Leftwich’s arrest or shortly thereafter. Nagan’s recollection from colleagues at the time, which has been supported by Templeton Mdlalana, is that they heard that Watson left South Africa just prior to Leftwich’s arrest. If this can be substantiated, then the official story that the liberals involved in the arm were a group of bumbling, stupid, incompetent pseudo-revolutionaries being manipulated by a foreign intelligence operative would gain some credence. If Watson left shortly after Leftwich’s arrest, that assertion is weakened, although leaving after Leftwich’s arrest would provide a better cover for an intelligence operative than leaving prior to his arrest. This is still a point of controversy. The fact that Leftwich had all the incriminating evidence so easily accessible to even the most routine Security Branch investigation itself raises interesting questions about whether a man of Leftwich’s obvious intelligence could be so stupid. Perhaps there was a deep psychological need in Leftwich to experience the thrill of betrayal or perhaps there is a simple explanation which might emerge if there were a full and proper disclosure of the truth. One can only speculate about the vague trails and personalities implicated in the arm fiasco. It is possible that with the anc and the pac on the ropes, and the knowledge that the liberal youth of South Africa could be a serious force in giving coherence to the opposition to apartheid, that in the estimation of external powers, these misguided liberals were probably expendable. The question is could the supply of clandestine materials to arm be done purely as a domestic operation by a few liberals? There are disputes about the sources of some of the funding of the arm. P. Swanepoel believes this funding came from Western intelligence sources. Geoffrey Bing wrote, “I know personally of a case where some 50,000 pounds was paid to an individual to arrange for the escape from South Africa of political leaders on the run.” It is possible that direct and indirect funding could have come from multiple sources, including intelligence sources. Watson still remains a mystery figure. He was a British military figure. He apparently was registered as an undergraduate at the University of Cape Town when he became involved in the arm. According to an archivist, “Watson apparently had fantasies about being the Lawrence of South Africa…his rooms were adorned with a number of posters of his hero…[and] he also had a strong

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penchant for violence which might kill.” Watson was trained in the use of arms and explosives. It hardly seems that we can explain away his role as that of a well-trained British military figure with a strong desire for an undergraduate education, a Lawrence of Arabia complex and a desire to free the black people of South Africa. The arm could not have been organized without some form of external influence, and the search for external influences poses yet another question. Was Watson an operative of Western or British intelligence? Leftwich could have been more forthcoming about the answers to these questions. If the Western or British liberal establishments betrayed the youth of the South African liberal establishment, surely truth and reconciliation is required not only in South Africa, but also in the West, including the United Kingdom. That Western intelligence was deeply implicated in the South African struggle is not surprising. Credible evidence exists that Nelson Mandela himself was betrayed to the Special Branch by the cia. Although the cia has not admitted this, it has resolutely refused to comment when American journalists have put queries to it. Those journalists would not have engaged in this line of inquiry had they not reasonably believed that u.s. intelligence worked more closely with South African Intelligence operatives than the extent to which u.s. officials have admitted. During the Ronald Reagan administration, cia Chief William J. Casey spent vast amounts of time in Pretoria. The link between the u.s. government and the apartheid establishment paradoxically accelerated the passage of the American sanctions bill in 1986. Unfortunately, using Granta as a forum for Leftwich’s version of the truth raises the question of how much truth was ultimately omitted from the exercise. The old common lawyers had an expression they used when a litigant would plead a statement that was technically true, but contextually false. Apparently, Leftwich seems to have given us what these common lawyers call a “negative pregnant.” His search for forgiveness will continue to be elusive while the full narrative remains undisclosed. C Political Transformation Leftwich’s story, in its personal form, is part of the story of the victories and the failures in the transformation of South Africa to a democratic state. It is, in a larger sense, a particularized narrative of a more inclusive global movement confronting the problems, prospects, victories and tragedies that accompany the transformation of states involved in patterns of lethal, violent political conflict. It would be of value if the story of Leftwich and the arm were put into the larger perspective of the struggle for transformation, for truth and reconciliation not only in South Africa, but also in the larger scale of issues.

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Escalating patterns of lethal and violent political conflict preceded the transformation of South Africa from a racial oligarchy to a democratic rule of law. In 1967, the American journal, Ramparts, disclosed that the cia discretely funded the United States National Students Association (usnsa). usnsa certainly provided assistance to nusas during the time of Leftwich’s presidency. It is now generally known that the international student movement of the time was heavily funded and infiltrated by intelligence agencies of the Cold War hegemons. The cia and other Western intelligence groups probably funded the International Student Conference (isc). The kgb and other communist intelligence groups probably funded the International Union of Students (ius). The Cold War produced an expanded role for intelligence functions into the heart of civil society. In this, South Africa’s transformation was not unique. Other states had experienced high intensity patterns of violent political conflict and found mechanisms for transformation from the culture of violence to the promise of an improved political future. The impact of violent social conflict on social process suggests four realistic possibilities. The first is that the conflict continues, gets worse and each new incident becomes a new cause for continued escalating violence. The second is that the conflict diminishes because of the destruction of human and material resources, a type of mutually secured destruction. The third is that one side wins and the other loses. The new order may be worse or better. The fourth is that no clear winner is declared, but continuance involves losses for those who politically benefited from the conflict. Various forms of accounting are part of the elements of transformation to democracy. It is this fourth option that has been used in different cultural and regional contacts with success, but not of the unqualified variety. South Africa experienced what many independent commentators call a miracle of transformation. It is useful to assay the context of conflict in South Africa leading to the processes of transformation. South Africa experienced escalating patterns of resistance to the apartheid state and a correspondingly increased reaction by the state to the demands of resistance movements such as the anc. By the 1960’s a police state had been rapidly created and the arsenal of weapons of repression became an intrinsic part of the legal and political culture of apartheid. Apartheid evolved into a process of racial domination and political subjugation of all non-white, i.e., black peoples. The policy and practice was supported by the power of a garrison state. By the 1980’s the national security state was integrating vast institutions of white society, and certain Civil Cooperation Bureaus had been created to totally mobilize white society against the threatened black onslaught. The practical effects on society were widespread repression, murder, gross human rights violations and the emergence

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of shadowy death squads. South Africa developed a nuclear arsenal and there is evidence of experimentation with lethal chemical weapons, some of which were to solve the racial problem with injections into blacks, making them lose their pigmentation and become white. In the view of critical commentators, South Africa represented the potential worse case scenario of ethnic conflict. This view anticipated enhanced levels of high intensity, violent conflict and a depreciation of human rights and humanitarian values. The liberation movements resisted this classification and insisted that the enemy was not the white race but rather the proponents and managers of the apartheid state. As President P.W. Botha constructed the architecture of the new national security state to confront what he called the “total onslaught,” intelligence and military operatives inside the state saw these moves as high cost postponements of the inevitable conflict between black and white, unless another approach could be found. Afrikaner intellectuals came to the same conclusion. The emergence of glasnost and perestroika in the u.s.s.r. and the u.s. sanctions against South Africa encouraged these perspectives. Belatedly, Afrikaner authorities found Nelson Mandela, who was still in custody, to be not an ogre, but a man of integrity, a non-racist and a man of honor. A process of complex and difficult negotiations followed and was helped considerably by releasing the tensions and fears of the cold war as well as the aid of international and, later, u.s. economic sanctions. These negotiations did not constrain conflict and death squad and mass murder atrocities continued. Negotiations to a new political order were from the outset complicated, since the old regime would want to limit its exposure and responsibility for the shameful past including death squad activity. A negotiated transfer to a new political order could not have happened without a form of negotiated amnesty and some recognition of the claims for justice about the past. The central fact concerning the transformation of South Africa is that historically the anti-apartheid movement was always prepared to negotiate the transformation of South Africa to a state of normal political development identified with democratic rule of law values. Notwithstanding the escalating scale of the conflict between the defenders of apartheid and its opponents, a significant element of the anti-apartheid leadership was distributed between those still in prison and those on the outside. There was Mandela and the other Robben Island prisoners, the newly emerging leadership loosely identified with the Mass Democratic Movement, the udf and the labor movement, and the leadership in exile, which was charged with the campaign of national liberation by force if necessary. The fact that Mandela was in the custody of the apartheid authorities meant that the Afrikaners always had a channel of communication to Mandela and other imprisoned anc leaders. They could

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as well have communicated more effectively should they have chosen to do so with the democratic and labor movements internally. These channels of communication were useful in keeping the option of a negotiated solution to the problem at least a possibility, although in the early 1980’s this seemed to be fairly remote. The democracy movement in Latin America had great influence on the thinking about political transformations in states and contexts in which there was high intensity conflict and significant levels of human rights and humanitarian deprivations. The experimentation in Latin America with finding a balance between the problem of a power stalemate and the need for transformation sharpened the perception that authoritarians who exercised power brutally would not yield their power unless they were granted some form of immunity from accountability if they conceded the claims of their democratic opponents. On the other hand, democrats committed to the restraints of the rule of law would have difficulty validating democracy if there were to be clear immunity and the concession of non-accountability for the heinous acts of the prior regime. Different formulae were presented and discussed to facilitate processes of peaceful transformation and the extent to which some form of amnesty might be given in order to create a new political order based on democratic principles and the rule of law. In many ways, Latin America became the testing ground for human rights and human dignity as Cold War-inspired policies and interventions drove nations and peoples to unprecedented depths of depravity. The generals who controlled Guatemala were engaged in a war against the indigenous Indians. Hundreds of thousands were killed. Conservative diplomats viewed the Guatemalan military as the worst of the worst. Forms of human depravity included immersing people, naked, into baths of human excrement. In El Salvador, the military orchestrated the rape and murder of a number of Catholic nuns, who were executed in cold blood. In Nicaragua, the state produced a famous torturer, who gained distinction as an expert in the blowtorch method of interrogation. The man would use a blowtorch on the victim and skillfully stop at the precise moment to prevent the victim from passing out. Other parts of Latin America specialized in undermining efforts to abolish the death penalty with extra-judicial executions. Still other countries created new forms of human rights violations, as the concept of a disappearance became a recognized violation of human rights. In parts of Latin America, victims were drugged, taken onto helicopters, had their bellies slit, and were dropped into the ocean. Human rights organizations agonized about how much truth the concerned public could take. In some parts of Latin America, the relatives of the disappeared are still demanding a public reckoning for those disappeared

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as a minimal measure of justice. The Latin American experience with truth and reconciliation suffers from several drawbacks. Questions have arisen as to whether the mechanisms created in various states to facilitate transition did not undermine the legitimacy of the successor democratic regimes and did not sacrifice too much truth in order to secure a speedy transformation. Most forms of transition in Latin America were top-down models because these models were crafted by the elites and counter-elites involved in the struggle to transform or prevent the transformation of those societies. Had the question of immunity been a matter of popular referendum, there might have been difficulty in securing the consent or ratification of the victims to the forms of amnesty that were ultimately employed. On the other hand, if the legitimacy of the process of creating democracy was somewhat tarnished, it could also be said that the dread of continued social conflict was certainly an influence on Latin American amnesty procedures. Both internal and external evaluators critically reviewed the procedures used in the Latin American context. For example, the Argentinean Truth Commission had only weak powers to persuade the armed and security forces to come forward with the necessary information and evidence. Those forces were very reluctant to cooperate with the commission and often refused to reply to written questions or permit inspections of military facilities. Among the drawbacks was the decision to exclude the names of those who were responsible directly or indirectly for gross human rights violations in the commission’s report. Rather, the commission submitted a list of names in confidence to President Raúl Alfonsin. It was then left to him to determine what further action, if any, the government would undertake. No action was taken, notwithstanding that the list of names was leaked to the press, and those names soon became public knowledge. The Latin American experiment was a top-down affair because its structure and process was the product of a small group of leaders and negotiators which lacked the validating imprimatur of a widespread civil society public discourse. Its other weaknesses included fixed time limits, weak powers for compelling witnesses and the divorce of truth from specific individual ­responsibility. This suggested that the concept of truth was weak, but the reconciliation basis, such as it was for reconstituting the state, was strongly e­ mphasized. The critical question is did enough truth emerge to assign personal responsibility so that amnesty would be rationally tied to actual ­perpetrators and represent an accurate form of historical accountability? These weaknesses and others generated a more searching analysis and ­discussion of the nature and form of the truth and reconciliation process for proceeding to a democracy.

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The Truth and Reconciliation Process in South Africa

On July 19, 1995, the Parliament, created by the interim constitution of South Africa, created the legislation for a Truth and Reconciliation Commission (trc), which included committees on human rights violations, amnesty and reparation and rehabilitation. While the trc process in South Africa cannot be seen as unqualified success, it was a significant improvement on the experience in Latin America and other contexts. They learned to avoid some of the more glaring weaknesses associated with other forms of truth and reconciliation. A salient element in the process of creating the trc was that it originated in a democratically elected parliament. Additionally, there was significant international and national consultation and extensive public debate in the opinion forming institutions of the country. Thus, the process, whatever its technical shortcomings, obtained a strong imprimatur of legitimacy. The South African experience was significantly different in the sense that in important ways it was more of a bottom- up process. Included in the universe of law makers were the voters, many of whom had been victims of apartheid repression. The goals of the trc Act included the dimension of public discourse as one of the indicators of the legitimacy of the Act. The Act was sensitive to the broader contexts within which leaders of the political culture of violence associated with apartheid were negotiating with the political culture of resistance about the very processes of apartheid depredations. These processes were structured in terms of a negotiating framework in which there would be no absolutism, but rather a series of compromises about important values. The discourse took place with a concern for fundamental ideas of justice as well as the mandate of international law. The leadership of anti-apartheid interests came with high standards of ethical and religious commitment. At the practical level, the entire exercise was to further and “to achieve unity and morally acceptable reconciliation, … [It was] necessary that the truth about gross violations of human rights … be established by an official investigation unit using fair procedures; fully and unreservedly acknowledged by the perpetrators; made known to the public, together with the identity of the planners, perpetrators, and victims.” One of the central challenges posed by the trc process was the question of whether, in substituting the technique of the trc for the technique of formal criminal prosecution, one is in effect sacrificing the integrity of justice and the foundation of the rule of law. This issue came before the Constitutional Court of South Africa when the trc was challenged by victims and survivors on the basis that it not only violated the South African Constitution, but also violated the peremptory principles of international law.

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The committee on human rights violations could secure a complete record from an alleged perpetrator of human rights abuses of his involvement in the violations. If a person’s story were complete, then he could apply for amnesty if he could prove that the activity in question was done with a political motive. The standard might indeed be a real one. The question, however, was whether granting an amnesty is a violation of jus cogens principles of international human rights and humanitarian law. The South African Constitutional Court held that the principle of necessity in effect permitted an avoidance of the ostensible mandate of international law. This position acknowledged that the right to peace and self-determination were peremptory principles of international law and the right to democracy, which is conceptually related to the principle of self-determination, carries a strong human rights juridical pedigree. These rights had to be balanced against the rights compromised by the perpetrators of violations of humanitarian law. The task of the court was to mediate between two compelling normative priorities in international law. A broader view of sanctions would demonstrate that there were multiple ­rational sanctioning objectives that were being secured by the trc process and that the process was a reasonable response to the accommodation of ­ostensibly conflicting basic values in international law. The trc process in South Africa is not without its limitations. As extensive as the trc revelations were, the government destroyed a great deal of the documentation that had recorded the depravity that drove apartheid. Sadly, even documentation that had been in the possession of Judge Richard J. Goldstone relating to the death squads somehow disappeared while in his custody. Judge Goldstone apparently assumed that the government would be unhappy about securing the documents relating to intelligence depravities on the basis that it would constitute an inappropriate fishing expedition. According to recent authorities reviewing the work of the Goldstone investigators, the Goldstone investigators blundered in on what was a large part of the motor and memory of the machine of apartheid repression. South Africa, certainly in the last decade of apartheid rule, had been a military, not a police-run state. Yet, until what became known as the “Goldstone raid,” there had never been any public mention of a unit bearing the clumsy dcc title, let alone the fact that it housed tens of thousands of files. Secure in its secrecy, the dcc had apparently not destroyed the records of deeds done, operations underway, authorizations given, payments made and the lists of names of assassins, blackmailers, collaborators and current or potential “targets.” Lawyer Torie Pretorius was at the head of the unit that stumbled on the dcc headquarters. He telephoned Richard Goldstone to report that the unit was inside what was a major clandestine department of Military

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Intelligence. What should they do? While Goldstone realized the importance of the find, he was also aware of the conditions at the time. He was not about to rock any boats or cause any undue disturbance. Since the investigation that had led Pretorius and his unit to the dcc headquarters concerned only a former policeman and freelance assassin, Ferdi Barnard, Richard Goldstone restricted inquiries to that subject. “I had no doubt that our presence would not be tolerated for very long,” he noted later. Adopting a legalistic response, he decreed that the powers given to him by the De Klerk government did not allow him to indulge in “a fishing expedition.” It would, he felt, have been “a misuse of those powers and could have been interdicted by a court.” So, Torie Pretorius requested any files the dcc might hold relating to Ferdi Barnard. Three files were produced and transferred to Goldstone’s office. The filing cabinets and the computer disks in the dcc office were left untouched and unexamined. They promptly disappeared. “I don’t know what happened to them.” Goldstone noted blithely several years later. Unfortunately, another weakness of the trc process was the claim by judges that testifying before the committee would compromise the independence of the judiciary. Since apartheid law was one of the pillars of the system of repression, the issue of judicial amnesia looms large in the public mind, and the truth about the role of law in the apartheid state remains unexplored. Additionally, the trc was not able to bring in high level government officials and compel their testimony. This tests the ultimate efficacy of the truth generated by the commission. The members of the notorious secret society, the Broederbond Society, were not compelled to testify before the Committee. A great deal of the history of apartheid’s repressive policies and practices cannot be objectively determined since the Broederbond was a shadow government behind the Nationalist Party. Notwithstanding these limitations, the procedure in effect encouraged people to come forward and give their personal story. This resulted in a rush to the committee from lower level apartheid operatives. A great deal of disgusting South African history was put before the public, often under the full glare of television lights and a national audience captivated by what could be done in the name of governmental authority while reaching such abysmal levels of depravity. The South African process was more comprehensive than its predecessors and played an important role in accommodating the critical values necessary for the transformation to democracy.9 Nevertheless, the longer-term effect of the process still has to be understood. 9 See generally Terry Bell and Dumisa Ntsebeza, Unfinished Business: South Africa, Apartheid and Truth (2001).

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vi Conclusion The lessons that emerge from the South African experience should not be forgotten. The South African conflict was of such high intensity that took an enormous toll on the South African population. It was a conflict with all the nasty potential of a protracted, indefinite race war. The apartheid state had marshaled a massive arsenal of conventional weapons, as well as weapons of mass destruction. It had reorganized the state into the model of a classical national security state. It created parallel institutions of repression that connected the state to multiple levels of civil society. It created so called civil cooperation bureaus whose function was to make the working of a national security state under permanent emergency structures more complete and effective. The prospects for a political solution, much less a transformation to the rule of the majority, were very grim indeed. It is a tribute to the tenacity and will of political leadership and the emergence of a peace consciousness that permitted the parties to retreat from the possibility of a racial holocaust by constructing a new South Africa based on freedom, justice and equity. The trc scheme was mandated by the interim Constitution. It crafted an ideology of forgiveness and reconciliation. Whether these ideologies compromised liberation ideologies or obscured international legal standards is still a matter of controversy as are other matters about its timing, process and objectives. Was it a success or a failure? What did it accomplish? Was it a vindication or a weakening of international legal order? Does it hold deeper lessons for understanding the complex interdependence between peace and essential dignity? The Universal Declaration of Human Rights makes the central point in its preamble that it is essential “if man is 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[.]”10 The trc was a political creation. Its human dimension does not mean that truth is absolute truth or that reconciliation is absolute. It is rather a concession to political truth and practical accommodation. Like all human institutions, its collective meaning cannot be absolute. The fringes of its truth will be ambiguous, uneasy compromises with distasteful things. The question is how does an individual like Leftwich fit within this framework of practical truth and accommodation? Perhaps there is further insight from Conrad in his insightful description of European gunboat diplomacy in Africa. A European warship is engaged in the futile exercise of “firing into a continent.” Its effect is captured in two riveting words: “pop, pop.” Perhaps, it is Conrad who has given 10

Universal Declaration of Human Rights, g.a. Res. 217 (iii) A, u.n. Doc. A/RES/217(iii) (December 10, 1948).

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us the ultimate comment on the arm fiasco. On the personal level, the moral appraisal of Leftwich, however distasteful a betrayer may be, cannot fit into Conrad’s notion that the heavens do not fall for such a trifle. The challenge of the being and becoming of our moral sensibility is to not only confront our own heart of darkness, but transcend it. Leftwich’s confession left a great deal to be desired. Leftwich’s selective and censored version of the truth seemed to make him a less promising candidate for political accommodation. Perhaps living in England did not mandate an obligation or sense of importance to accommodate or reconcile with his South African past. There was, however, a deeper weakness of character which Leftwich failed to scrutinize. This omission seemed to tragically strengthen the depth of his moral failure. Leftwich, the dancer, apparently did not figur out the dance. Activism is critical for change. It is vitally important that activists themselves consider the Socratic maxim, ‘know thyself.’ Activism may be more tempered and constructive should such a caution be taken seriously. The ego in Freudian terms mediates between powerful unconscious drives as well as the drives which form the super-ego or the sense of altruism. Personality is complex and heroic egos are similarly complex and often unpredictable.

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Transitional Justice: The Moral Foundations of Trials and Commissions in Social and Political Transformation This Chapter has two primary themes. The first theme seeks to address the ­general question of war crimes trials versus truth and reconciliation approaches to transitional justice. This first theme requires a careful appraisal of the moral and juridical foundations of war crimes tribunals and truth and reconciliation commissions. The discussion ineluctably leads to a discussion of the moral foundations of peace and the value implications of transitional justice. The second theme focuses on the South African experience with truth and reconciliation and provides an appraisal of both trial and Truth and ­Reconciliation Commission (trc) processes as components of international and national justice. This Chapter has nine parts. Part i introduces the theme of transitional ­justice in the context of peace, change and moral order. The context of change is tied to the idea of novelty or “the emergent,” and suggests that both war crimes trials and truth and reconciliation commissions are effectually paradigm shifts in the structure and process of international justice and law. Part ii examines the changing character of conflict in the last century of the last ­millennium and the challenges posed for making peace and developing strategies for progressive social change. Part iii gives a critical view of the nature of the Nuremburg experience and the fragility of its connection to the concept of justice in the form of punishment. Part iv examines the complex moral underpinnings of the concept of peace itself and its particular relationship to the ­anthropomorphic processes of reciprocal antagonism and tolerance. This section concludes that the concept of peace is supported by principles of practical reason and moral expedience and that more is normatively needed because the form of peace required is the form which inter-determines constructive humane values. Part v provides an introduction to and a comparative overview of South Africa’s truth and reconciliation process. Part vi explores with more precision the South African experience with transitional justice. Part vii provides an appraisal of the South African experience and, in particular, compares and contrasts the dynamic of trials with the unique dynamic of the trc process. Part viii examines the problem of historical truth, responsibility and the short and long term consequences of a historical record that is

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compromised. Part ix examines the standards used for granting amnesty as well as the grudging approach to compensation for the victims. i

Transition, Change and Justice

The theme of this section is transitional justice. Simple as these terms appear, they implicate much that is complex. For example, the term ‘justice’ encompasses meanings that are elusive in the language of jurisprudence and moral philosophy. The word ‘transitional’ is similarly complex. It is often a synonym for the difficult idea of accounting for change in both the natural world and the world of human relations. Transition, as a synonym for understanding change, is also fraught with complexity. The context in which the notion of transitional justice is used is that of human relationships involved in high intensity levels of conflict, seeking the mechanisms of establishing peace, maintaining peace and finding a justifiable moral process to guide transition. There is the imperative of connecting the peace process with the higher ideals of justice and human dignity, recognizing that peace, dignity and justice are interdependent issues. The The Institutes of Justinian noted that, “justice is the constant and ­perpetual wish to render everyone his due.”1 There is something constant and perpetual suggested in the term ‘justice’ itself. The concept of justice as constant and perpetual represents an idealization of the normative aspect of ­justice. The practical world is in a state of constant flux. Justice derives its meaning from the world of normative communication. At the same time, justice must be given practical empirical reference in social relations characterized by the demand for transition, such as concepts of social change and flux. The philosopher, Alfred North Whitehead, considered the implications of nature constantly reproducing the new or the novel.2 He saw inherent in the natural world the idea of the emergent. It is difficult to apply the Whiteheadian idea of the emergent, a nuanced version of the idea of change, in nature to the science of human relations that implicates the demand for justice. One of the salient characteristics of change in society is that it is often an outcome of human conflict. There is a relationship between conflict, change (empirical idea), and the idea of justice (a normative precept). There is difficulty in understanding social change in terms of conflicts of human values and norms as well as their connection to material conditions. Pragmatic philosophy has 1 See The Institutes of Justinian, B. Moyle, trans., 3rd ed. (1896). 2 See Alfred North Whitehead, Process and Reality. Gifford Lectures delivered in the University of Edinburgh during the Session (1927–28).

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sought to grapple with the problem of fact and norm and their interrelationships. Human conflicts which may be described as social facts are conflicts about contestations for basic values, i.e., the values of power, respect and, more generally, justice. The concept of change and transition has directly influential explanations of change in modern science roughly analogous to Whitehead’s insight of ­emergents from the natural world. The philosopher of science, Thomas Kuhn, in his book, The Structure of Scientific Revolutions, suggested an important technique for understanding scientific change. According to Kuhn, the methods and animation of ideas of science are visualized in terms of paradigms.3 ­Normal science represents a paradigm. A paradigm shift represents the emergence of new methods and animation of ideas that render the normal as no longer tenable. Scientific change is a matter of changing the scientific paradigm itself. Change influences thought in ubiquitous ways and challenges the simplistic idealization of justice in the practical world of human conflict and collaboration. Kuhn’s theory of paradigm shift has been applied to other areas of inquiry including jurisprudence. In practical international law, it could be argued that when the principle of universal jurisdiction was developed and applied in the war crimes trials after World War ii, there was already a significant shift in the nature of the paradigm of international justice and its relationship to international peace and security. Universal jurisdiction was a major paradigm shift in the structure and process of modern international law. The development of emergent mechanisms of transitional justice, e.g., the South African Truth and Reconciliation Process, provided the possibility of a new and novel paradigm shift in the institutional mechanisms seeking to ­establish and secure peace as well as provide a defensible basis for the moral order of political society. It is possible that none of these emerging paradigms relating to peace, security and justice are close to the Justinian ideal of justice as a perpetual and constant intervention. Neither war crimes tribunals nor Truth and Reconciliation Commissions represent the ideal of justice in any absolute sense. They are imperfect mechanisms invented to respond to near intractable problems of enormous magnitude. They are imperfect, a point of deference to practical reason and, in some measure, moral expedience. Conflicts, Transition, Trials and Truth and Reconciliation Commissions The modernization of conflict has brought together the fallibility of human decision-making in sharp contrast to the growth of industrialization, the mass production of weapons, delivery systems and the concentration of power

A

3 See generally Thomas Kuhn, The Structure of Scientific Revolutions (1962).

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through the use of modern communications and administrative technologies. A world that has become more civilized has become more lethal. The modern period has given us two very dangerous forms of conflict: a. conventional war with high intensity violence and b. non-conventional war with high intensity patterns of violence. In all of these conflicts, there is the prospect that, at some point, the key actors recognize that no benefits are to be had from the continuation of conflict and yet the social forces driven by contentious ideological perspectives make peace elusive. Decision makers confront the problem of how to terminate the conflict and somehow move to an improved prospect for the society affected. There are possibly two scenarios. First, there is conventional state-to-state war in which the result is either victory or defeat. The way the victors approach the celebration of victory may determine whether the conflict shall end or endure. The other scenario, more representative of contemporary history, represents asymmetrical, direct and indirect conflicts between states, hegemons and other non-state actors. The first scenario draws lessons from World War i. The peace process of Versailles in 1919 that followed the war virtually ensured the renewal of European war in the future. The peace process, which was to provide an end to extreme coercion and violence as well as to secure transition to something better for the allied and central European powers, fell short of a reasonable approximation to the constant and perpetual demand of justice. Many complex high intensity conflicts in our time have their roots in the failure of the World War i peace settlement.4 World War i and World War ii provided important insights and lessons into the transformation of social process in the aftermath of major conflict. After World War i, unreasonable reparations were a form of justice as retribution in which the German people endured immense suffering and corresponding anger. At the end of World War ii and the defeat of Nazi Germany, the question emerged as to the character of the peace process as a measure to ensure a peace that would endure. A part of the new order envisioned for Germany and the rest of the world community was the experimentation with a different version of justice. This version was not a matter of the constant and the perpetual, but rather of justice as a transitional stratagem for the improvement of the human prospect. What emerged was the Nuremberg process, which lifted the veil from the concepts of sovereign and state.5 The Nuremberg process, for the first time in modern European history, provoked the expectation of responsibility, 4 See David Fromkin, A Peace to End all Peace (2001). 5 See Joseph E. Persico, Nuremberg: Infamy on Trial (1995).

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transparency and accountability for state conduct. The issue of truth was to be specifically tied to personal responsibility. The Nuremberg process managed, despite its criminal law character, to introduce the durable implicit version of amnesty as a method of dispute resolution. By insisting on individual responsibility and rejecting collective guilt and sanction, the German population at large received a form of collective amnesty, while those personally responsible for war crimes were prosecuted. This process was important for the post-war reconstruction of Germany as a democracy. One of the principle outcomes of the conflict after World War ii was a renewed effort to establish a stronger institutional basis for international peace and security, recognizing the interdependence between peace, social progress and human rights. The United Nations Charter was the major outcome of the most lethal war in human memory. The u.n. Charter explicitly outlawed forms of state to state aggression in Article 2.4. The u.n. Charter as a global constitution makes international peace and security a major purpose of its critical value objectives. However, forms of conflict began to change and the new forms of conflict challenged both international law and the moral foundations of world order. The new forms of non-state as well as state to state conflict were supported by two prime conditions. First, there were two clear super powers, each with the capacity to completely destroy the other using weapons of mass destruction.6 Second, there was immense global and social transformation that accompanied the twin processes of decolonization and self-determination. The problems of weapons of mass destruction and the processes of global ­transformation were both justified by powerful ideological perspectives. The superpowers preferred to confront themselves indirectly defining spheres of ideological primacy and security interests. The hegemons confronted each other in far flung corners of the world, usually far from their own national turf. As the new millennium approached, the closing days of the Cold War perspectives and the international community was confronted with the residue of local and regional problems that had been sustained by hegemonic forces holding deep commitments to particular ideological identifications. Whatever the particular or localized character of conflicts was, it was in the interest of the critical contestants to present their conflicts as implicating Cold War interests in order to ensure super power backing for one side or the other. Two prime examples were the Arab-Israeli conflict and the conflict in Southern

6 See Ronald E. Powaski, The Cold War: The United States and the Soviet Union, 1917–1971 (1998).

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Africa.7 These conflicts were regional conflicts packaged as conflicts of global contestation. In defense of ideological truths, local and regional conflicts had an endless quality to them. When conflict is sustained by powerful ideological symbols, there seems to be little room for durable or sustainable peace processes. When ideology provides a powerful justification for the validation of conflict, there is a strong possibility that the conflict will endure. What often passes for peace making is a lull between periods of intense conflict. The Israeli-Palestinian cease fire, with or without intervention, became a strategic adjustment for the next round of conflict. Peace remained elusive, while contestants had access to resources which allowed them to maintain conflicts whatever the cost. Conflicts fed by external powers between domestic and alien interests embodied a certain interminable quality to violence and conflict. Conflicts frequently generated atrocities as states seeking to suppress revolutionaries engaged in torture, death squads, human rights atrocities and repression. Revolutionaries feeling the brunt of repression came to see their adversaries as class enemies who needed to be eliminated. The perspectives and operations of violence intensified as contestants frequently used indiscriminate methods for destroying each other. The specialists in violence often became central players in conflicts and the specialization in violence became a condition for sustaining conflict itself. The ideological justifications for conflict were increasingly transparent as the agents and conditions of violence became the dominant cultural force. Mass murder, genocide, atrocities and outrageous conduct were unable to hide behind the ideological gloss of capitalism or socialism. Both ideologies tried to claim a monopoly on the route to freedom, equality and justice. Local elites needed outside support to continue the revolution or to suppress it, all in the name of a higher ideology. Implicit in understanding the role of the specialists in violence in nonconventional lethal high intensity conflict is the question: what psychologically drives the specialist in violence to continue and maintain the pattern of conflict? Is there something deeper than ideological justification? The political scientist, Harold Lasswell, suggested a key insight to the problem of justice and defensible transitions. According to Lasswell, the violence prone specialist was in reality displacing private motives, including personal pathologies on public objects, and rationalizing it as being in the public interest. Violent and ­atrocious conduct done from an ideological or political motive or criminal pathological conditioned motivation would become an integral component of

7 See Ran Greenstein, Genealogies of Conflict: Class, Identity, and State in Palestine/Israel and South Africa (1995).

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the process of political transition as well as the authority foundations of a new political dispensation. For ordinary people caught up in the struggle of global hegemons and ­local elites and counter-elites dependent upon external force and influence, the situation became terrible. The practical problem with escalating patterns of high intensity violence was that even if the power broker desired to end it, what kind of political culture would actually be inherited, and what kind of accounting would be demanded of those who committed atrocities? The situation did not represent the kind of new beginning implicit in the de-­ Nazification of Germany after World War ii. It did not represent a symbolic trial in which the defeated leaders would be made accountable to the law for the entire world to see and exact individual justice and responsibility on those the victors had convicted. Without the prospect of clear victory or defeat, the concept of transitional justice as tied to peace and the promise of an improved human prospect would prove challenging indeed. When the term ‘justice’ is prefixed with the term ‘transitional,’ justice as a perpetual idea is compromised and justice as a moral constant is challenged by the imperative of moral relativity and practical reason. B War Crimes Trials and Transitional Justice The Nuremberg Tribunal was a response to a problem that had not been considered by the allied powers.8 It created expectations that seemed to move beyond the normal expectations of the elites who controlled and regulated sovereign states. The first hint of the Nazi leadership possibly being tried in court was influenced by a statement made by Joseph Stalin as he considered the prospect of running from Moscow or staying in the city in the dark days of 1941.9 One has to be cautious of Stalin’s concept of a trial, as it is quite difficult to dissociate Stalin’s version of a trial from the notion of a theatrical experience. The Stalin idea of a trial was to first establish guilt under torture, then to have a forum in which the defendant would plead guilty and apologize, after which the defendant would be slaughtered like an animal in one of the infamous nkvd jails.10 Later, when the scope of Nazi atrocity became more apparent, there were thoughts that the idea of a war crimes trial was really not what was required since public opinion demanded more. Stalin actually thought that one way to manage this issue was to execute 50,000 of the s.s., which by Russian standards 8 9 10

See Yves Begbeder, Judging War Criminals: The Politics of International Justice (1999). See David Irving, Nuremberg: The Last Battle (1996). See Alexander Wessberg, The Accused (1951).

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was by no means an excessive number. In fact, it might even have been considered humane by Stalinist standards. Winston Churchill was much more humanistic than Stalin. Churchill thought that some show of slaughter would be necessary but he saw this as more symbolic in nature. The critical question then would be, how many of the s.s. would have to be shot to make a symbolic point? Churchill thought that 5,000 would be enough. Curiously, Franklin Roosevelt in the u.s. gave very little thought to the business of transitional justice, so the task was left to Henry Stimson.11 Stimson promoted the idea that what was needed from allied victory to political transition for Germany and the larger world community, were war crimes trials done in the name of the world community. There was something quite fragile about the actual establishment of the Nuremburg tribunal as a dispenser of international justice and morality. It was almost fortuitous that the tribunal came into being given the disinterest of Roosevelt, the British antagonism to such a trial and Stalin’s view that political trials were really theatrical events. Although the jurisprudence and the moral understandings generated by the Nuremburg experience was critical for the consolidation of humane values in world order, as well as the promotion of the rule of law as a matter of global importance, it should not be forgotten that the roots of Nuremburg had fortuitous elements to them, and a certain fragility in the placement of its moral markers. Nuremburg represented ultimately a good deal more than some of its parts. C The Moral Complexity of Peace Making One of the central concerns about war crimes trials has been the question of whether they were consistent with some conception of international justice. The nineteenth century English international lawyer, T.E. Holland, suggested that international law was indeed the vanishing point of jurisprudence. On the assumption that jurisprudence must hold to some patina of the idea of justice, the obvious challenge would be whether international law in the positivist sense that Holland had in mind meant that there can be no necessary relationship between what was traditionally called international law and justice? The most elemental rules of international law are the rules of reprisal and retortion, i.e., aspects of retaliation, in the law of war. When the Nazis mistakenly bombed London, Churchill ordered the raf to bomb Berlin. The bombing of London intensified and spread to other British cities like Coventry. The British Bomber command retaliated. The British bombing of Cologne and Dresden was a sad reminder of the principle of reciprocity as a form of retribution.12 Is retaliation moral? Is the 11 12

See David F. Schmitz, Henry L. Stimson: The First Wise Man (2000). See Sir Arthur Harris, Bomber Offensive (2005).

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morality tied to the principle of retributive justice, i.e., an eye for an eye? The rule of retribution/retaliation supports the expectation that A’s aggressive conduct directed at B will result in B retaliating against A. Thus, the expectation of retaliation constrains A’s conduct to forms of action consistent with the rules of the law of war. If an act of aggression is to be met with an act of retaliation in the form of self-defense, a core ingredient of the morality of peace may be seen within this expectation. It is a principle of moral expedience and practical reason. This principle was affirmed by the South African case, Azanian Peoples Organization v. The President of the Republic of South Africa,13 where the court upheld the constitutionality of the Truth and Reconciliation Commission Act on the basis of peace as a necessity. A central principle behind the moral foundations of international peace and security qualifies as one of expediency, i.e., self-defense. Implicit in selfdefense is the validation of the use of coercion as a form of retaliation. Therefore, it is important to clarify the moral foundations of peace itself. The first insight, seemingly unexceptional, is the idea that peace in an unqualified sense can be morally reprehensible, such as the peace of the concentration camp, death camp or the desert. The moral foundation of peace must be qualified by something more defensible. This suggests the peace one seeks to promote and defend is a peace that improves, rather than depreciates, the other moral assumptions about the defense of social organization. When peace is compromised so that other basic values are compromised, the interdependence of peace and other basic human values is what is deemed to be central to moral order. The traditional manner in which individuals and society manage the problem of power and its exercise of aggression or other form of unauthorized violence is the sequential validation of the prospect of self-defense. The self-defense principle is related to the deeper principle of reciprocal tolerances. These principles of reciprocity and tolerance underlie all human interaction. The exercise of coercion or violence against another is constrained or limited by the expectation of reciprocity. The issue of peace and how it is compromised is deeply influenced by the principle of reciprocal retaliation or tolerance. The expectation of retaliation maintains peace because the cost of the breach is a realistic expectation. The foundation of peace is informed by a principle of moral expediency about the management of power relationships. The principles of self-defense and retaliation or retribution embody a principle of moral realism. An effective way to constrain the abuse of power is the expectation of reciprocal abuse. The expectation of reciprocated action is that 13

See Mahamod, D.P., Azanian Peoples Organisation (azapo) and Others v President of the Republic of South Africa and Others. Constitutional Law Reports 8, no. bclr 1015 (cc) (1996), bclr 1015 (cc).

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it restrains the will to attack in the first place. It is better to prevent war than try to restrain the abuse of morality during the conduct of war. This principle of moral expediency is an important component of the moral architecture of the Nuremburg war crimes trials in the sense that it carries a non-symmetrical, more symbolic aspect of reciprocity. Those who commit war crimes will be subject to accounting later. The form of accounting may not be an eye for an eye, but it may provide some degree of justice in war crimes trials. The maintenance of peace is not a moral constant or perpetual absolute but rather a moral expedient which often needs further qualification to give it the quality of a defensible moral principle. This idea is extremely important when one considers the strategies of transition from situations of conflict, whether they be conventional or internal wars with high intensity violence and coercion. Those vested with decision-making authority must inevitably confront the problem if they are to make peace. Peace must be a qualified peace as a morally expedient notion. The first principle that emerges from Nuremburg is that although the Nazi leaders were tried, executed and not subject to any impunity from a juridical reckoning, the practical outcome of the Nuremburg trials had to be a form of imperfect justice and the punishment would not fit the magnitude of the crimes. There is an element of the expedience in the Nuremberg war trials process. It would have been morally repugnant to simply shoot six million Nazis to establish the principle that the distribution of retribution as a principle of justice would thus be satisfied. The act of making a few Nazi leaders symbolically responsible for the holocaust and the atrocities of the total aggressive war policy of the Nazis could never meet any criterion of justice through punishment. It cannot be said that the constant and perpetual Justinian ideal of justice owed to the victims is one that is attainable or justifiable in the real world. Certainly an accounting in a public trial is important, but it cannot be complete. Other factors come into play in order to determine whether as a total community response to the circumstances enough has been done to secure a number of important but limited sanctioning objectives. These sanctioning objectives must comply with human rights and humanitarian law in order to promote peace and self-determination while not sacrificing the right to sanction those whom have grossly violated humanitarian and human rights law. These include such matters as prevention, deterrence, restoration, rehabilitation, reconstruction and correction.14 The correct appraisal of the Nuremberg 14

Richard Ahrens & Harold D. Lasswell, In Defense of Public Order: The Emerging Field of Sanction Law (1961).

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trials or other efforts at international justice for the prosecution of war crimes must meet a broader definition of rationale sanctioning objectives. These objectives include the prospect of interventions that are both positive and negative. They incorporate a concern for the social consequences and public policy implications of this particular form of legal/political intervention. An actual trial process will only approximate these rational sanctioning markers. But, it is possible to generate deeper insights into the morality, efficacy, and indeed, the concept of justice, using these more comprehensive guidelines. The war crimes trials after World War ii were a significant institutional innovation in the development of international justice. The Truth and Reconciliation Commission processes are similar in their novelty to a form of a community dispute settlement.15 These processes have some characteristics that resemble trials as well as other innovative mechanisms, which enhance the complex positive/negative characteristics of a broader rationale sanctioning policy. A summary appraisal follows of the lawfulness of the South African Truth and Reconciliation process in the light of these broader and explicit criteria. What follows is a summary of that appraisal: Prevention

Deterrence Restoration

Rehabilitation

15

Shaming as a sanction ultimately serves as a particular prophylaxis for the society as a whole when personal responsibility is ascribed to the individual through the act of truth telling. By personalizing responsibility, accountability and shame, the particular perpetrators are sanctioned communally by a significant loss of place in society. The recognition of personal accountability and ­providing monetary compensation cannot fully restore the victim’s sense of dignity. Nevertheless, the victimizer’s recognition of personal accountability and repentance thereof, has a chance of achieving some level of social restoration. Monetary compensation may also provide some tangible sense of ­collective concern for restoration Through the recognition and accountability of the victim’s suffering, the perpetrators may have the ­capacity to move to a form of rehabilitation.

See Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (2002).

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Reconstruction

Correction

The entire exercise of the truth and reconciliation process forms part of the reconstruction of the society towards the culture of “ubuntu”. (African human dignity) The transparency of the process has the ability to correct the political and legal choices of the society so as to ensure that such atrocities do not recur.

All of these principles of a rational sanctioning policy will be relevant to an appraisal and justification of war crimes trials and trc’s, but their precise configuration must inevitably be context dependant. South Africa’s Truth and Reconciliation Process in Comparative Perspective Escalating patterns of violent political conflict preceded the transformation of South Africa from a racial oligarchy to a democratic, rule of law governed state.16 In this, South Africa was not unique. Other states experienced high ­intensity patterns of violent political conflict and found mechanisms for transformation from the culture of violence to the promise of an improved political future. The impact of violent conflict on social process generates several possible scenarios. Four of the predominant resulting scenarios that are especially relevant to transitional justice are summarized: D

Scenario 1—Conflict continues and each new incident becomes a new cause for continued escalating violence (seemingly endless conflict, Israel-Palestine). Scenario 2—Conflict diminishes because of the destruction of human and material resources, a kind of mutually secured destruction (failed states, Somalia, Sierra Leone). Scenario 3—One side wins and the other loses (this happens, not ­frequently). The new order may be worse or better. (Vietnam). Scenario 4—No clear winner, but continuance involves losses for those who politically benefited from the conflict. Various forms of accounting are part of the transformation to something else, hopefully democracy. (South Africa, Latin America, Eastern Europe).

16

See Negotiating Justice: A New Constitution for South Africa, Marilyn D. Newitt & Mervyn Bennun, eds., (1995).

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Of these, the fourth scenario has been most frequently developed within the framework of transitional justice in different cultural and regional contacts (Latin America, Eastern Europe) and this development has been met with some qualified success. South Africa experienced what many independent commentators called a miracle of transformation. Perhaps the hand of divine providence had a part to play in its transformation to democracy. But the hand of man too was critical to the entire process of transformation. It may be useful to assay the context of conflict in South Africa leading to the processes of transformation. South Africa experienced escalating patterns of resistance to the apartheid state and correspondingly increased reaction by the state to the demands of resistance movements such as the African National Congress. By the 1960’s a police state was rapidly created and the arsenal of weapons of repression ­became an intrinsic part of the legal and political culture of apartheid. Apartheid evolved into a process of racial domination and political subjugation of all black citizens. The policy and practice was supported by the power of a contemporary “garrison” state. By the 1980s, the national security state was integrating vast institutions of white society, and Civil Cooperation Bureaus had been created to totally mobilize white society against the threatened black “total” onslaught. The practical effects for society were widespread repression, murder, gross human rights violations and the emergence of shadowy death squads.17 South Africa developed a nuclear arsenal and there is evidence of experimentation with lethal chemical weapons, some of which were to solve the racial problem with injections into blacks, making them lose their pigmentation and become “white.”18 In the view of critical commentators, South Africa represented a potential worse case scenario of “ethnic conflict.” This, in effect, anticipated enhanced levels of high intensity, violent conflict and a correspondingly a depreciation of human rights and humanitarian values. Generally, the liberation movements resisted such classification, insisting that the enemy was not the ‘white’ race but rather the proponents and managers of the apartheid state. As President P.W. Botha constructed the architecture of the new national ­security state to confront what he called the total onslaught. Intelligence and military operatives inside the state saw these moves as high cost postponements 17 18

See Nancy L. Clark & William H. Worger, South Africa: The Rise and Fall of Apartheid (2004). See Helen E. Purkitt & Stephen F. Burgess, South Africa’s Weapons of Mass Destruction (2005).

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of the inevitable conflict between blacks and whites, unless another approach could be found. Afrikaner intellectuals were coming to the same conclusion. The emergence of glasnost and perestroika in the u.s.s.r. and the United States sanctions against South Africa certainly fed these perspectives.19 Belatedly, Afrikaner authorities found Mandela still in custody and not an ogre, but a man of integrity, a non-racist, and a man of honor.20 A process of complex and difficult negotiations followed and was helped considerably by releasing the tensions and fears of the cold war and with the aid of international, and later United States, economic sanctions. These negotiations did not constrain conflict and indeed death squad and mass murder atrocities continued. Negotiations to a new political order were complicated since the old regime would want to limit its exposure and responsibility for the shameful past including death squad activity. A negotiated transfer to a new political order could not have happened without some form of negotiated amnesty and some recognition of the claims for justice about the past.21 The central fact concerning the transformation of South Africa is that historically the anti-apartheid movement was always prepared to negotiate the transformation of South Africa to a state of normal political development identified with democratic rule of law-inspired values. Notwithstanding the escalating scale of the conflict between the defenders of apartheid and its opponents, a significant element of the anti-apartheid leadership was distributed between those still in prison and those on the outside. For example, there was Mandela and the other Robben Island prisoners, the newly emerging leadership loosely identified with the Mass Democratic Movement, the United Democratic Front, the labor movement, and of course, the leadership in exile which was charged with the campaign of national liberation by force if necessary. The fact that Nelson Mandela was in the custody of the Pretoria authorities meant that the Afrikaners always had a channel of communication to Mandela and the other imprisoned African National Congress (anc) leaders. They could as well have communicated more effectively should they have chosen to do so with the democratic and labor movements internally. It would seem that these channels of communication were useful in keeping the option of a negotiated solution to the problem at least a possibility although in the early 1980’s this seemed to be remote.

19 20 21

See Ed A. Hewett, Milestones in Glasnost and Perestroyka, Victor H. Winston, ed., (1991). See Anthony Samson, Mandela: An Authorized Biography (2000). See Allister Sparks, Beyond the Miracle: Inside the New South Africa (2003).

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E Transitional Justice South African Style On July 19, 1995, the Parliament, constituted under the interim constitution of South Africa, promulgated the legislation for a Truth and Reconciliation Commission, which included a committee on human rights violations, a committee on amnesty and a committee on reparation and rehabilitation.22 While the Truth and Reconciliation Commission process in South Africa cannot be seen as unqualified success, it was a significant improvement on the experience in Latin America and other contexts. This is not to say that the South Africans did not learn a great deal from other experiments in peace, justice and transformation. They learned to avoid some of the more glaring weaknesses associated with other forms of truth and reconciliation. Most importantly, a salient element in the process of creating the Truth and Reconciliation Commission was that it came from a democratically elected parliament.23 Second, there was significant international and national consultation and extensive public debate in the opinion-forming institutions of the country. Thus the process, whatever its technical shortcomings, carried an imprimatur of legitimacy. The South African experience was significantly different to others in the sense that in important ways it was more a bottom up process. Included in the universe of law-makers were the voters many of who had themselves been ­victims of apartheid repression. The goals of the Truth and Reconciliation Commission Act included the dimension of public discourse as one of the indicators of the legitimacy of the Act. The Act was sensitive to the broader contexts within which leaders of the political culture of violence associated with apartheid were negotiating with the political culture of resistance about the very processes of apartheid deprecations. These processes structured themselves in terms of a negotiating framework in which there would be no absolutism, but a series of compromises about important values. The discourse took place with a concern for fundamental ideas of justice as well as the mandate of international law. In addition, the leadership of anti-apartheid interests came with high standards of ethical and religious commitment. At the practical level the entire exercise was: to achieve unity and morally acceptable reconciliation … [It was] ­ ecessary that the truth about gross violations of human rights … be: n 22 23

See Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (2001). See Heinz Klug, Constituting Democracy: Law, Globalism and South Africa’s Political ­Reconstruction (2001).

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e­ stablished by an official investigation unit using fair procedures; fully and unreservedly acknowledged by the perpetrators; made known to the public, together with the identity of the planners, perpetrators, and victims.24 One of the central challenges posed by the Truth and Reconciliation Commission process was the question of whether in substituting the technique of the Truth and Reconciliation Commission for the technique of formal criminal prosecution one is sacrificing the integrity of justice and the foundation of the rule of law.25 The short answer is that there are limits to the truth that can be garnered from the ordinary prosecutorial process. By formulating the issues in a narrow criminal law paradigm, the truth may emerge, but in such a way that it may distort an effective narrative necessary for the public’s appreciation of a realistic sense of the past and of the allocation of responsibility for it. This issue came before the Constitutional Court of South Africa because the Truth and Reconciliation Commission was challenged by victims and survivors on the basis that it not only violated the South African Constitution, but it violated peremptory principles of international law.26 The committee on human rights violations could secure a complete record from a human rights violator of his involvement in these violations. If the person’s story was complete, he could apply for amnesty if he could prove that the activity was done with a political motive. This standard might be a real one, but the question would be whether in granting amnesty, notwithstanding whatever standard is legislated, is not amnesty a violation of ius cogens principles of international human rights and humanitarian law.27 The South African Constitutional Court held that the principle of necessity permitted an avoidance of the mandate of international law. Co-author, Nagan, provided a defense of the South African’s Constitutional Court’s decision on a broader juridical basis. This basis simply acknowledged that the rights to peace and self-determination were peremptory principles of international law and the right to democracy, which was conceptually related to the principle of self-determination, carried a strong human rights juridical 24 25 26 27

See Graeme Codrington, Discussion of the Truth and Reconciliation Commission in South Africa, in the light of Christian Evangelical Theology. See Zenzile Khoisan, Jakaranda Time: An Investigator’s View of South Africa’s Truth and Reconciliation Commission (2001). See After the trc: Reflections on Truth and Reconciliation in South Africa, Wilmot James & Linda van de Vijver, eds., (2000). See International Law, the International Court of Justice and Nuclear Weapons, Philippe Sands & De Chazournes Laurence Boisson, eds., (1999).

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pedigree. These rights would have to be balanced against the rights compromised by the perpetrators of grave violations of humanitarian law. The task of the court was to mediate between two compelling normative priorities in international law. A broader view of sanctions would demonstrate that there were multiple rational sanctioning objectives that were being secured by the Truth and Reconciliation Commission process and the process was from an international law point of view, a reasonable response to the accommodation of conflicting basic values in international law. F An Appraisal of Transitional Justice In attempting a broad moral appraisal of the South African Truth and Reconciliation process, it is important to recognize from the beginning the false standard that war crimes trials approach to the transformation of South ­Africa would have solved the problem of granting improvident impunity from ­responsibility. The fact is war crimes trials are selective, expensive and can provide only a restricted slice of the inner workings of governmental abuse and oppression. Although great efforts were made to try the Nazi and Japanese leadership, vast numbers of people escaped the net of actual prosecution.28 In effect, they enjoyed defacto impunity. So it cannot be said that trials are invariably a solution to the complex issues of transitional justice. Dr. Wouter Basson, an operative of the Nationalist Government Security Establishment, refused to come forward and testify fully for amnesty.29 He faced a full judicial reckoning. His case demonstrated the limitations and imperfections of courtroom proceedings used to attack any notion of impunity for alleged crimes against humanity. Dr. Basson carried the terrible nickname, Dr. Death. The state charged him in a 270 page indictment with 67 criminal offenses. These offenses alleged to have occurred when he was working on a government project, titled Project Coast.30 The government presented a strong case led by an experienced team of prosecutors. Basson brought in a team of experienced legal defenders. The judge in Pretoria High Court, Judge Willie Hartzenberg, was an Afrikaner who had held judicial office under the prior regime and still remained in office. Just how fair and impartial the proceedings were raised concerns, at least in

28 29 30

See Dickson A. Mungazi, In the Footsteps of Masters: Desmond M. Tutu and Abel T. ­Muzorewa (2000). See Osei Boateng, Did This Man ‘Kill Blacks Big Time’? New African No.401:16–22 (November 2001) (special report on the trial of Dr. Wouter Basson). See C. Gould & P. Folb, Project Coast: Apartheid’s Chemican and Biological Warfare ­Programm 231–40 United Nations Publications unidir (December, 2002).

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the press.31 According to one press account, evidence dealing with theft and fraud in which financial documents were presented led the judge to explain, “that he was bored to death.” The prosecutor was apparently so “enraged by the judges behavior” and the “apparent bias” that he delegated much of the case to another prosecution attorney. The trial produced 200 witnesses. Basson himself spent 40 days on the stand giving testimony. The judge ultimately ruled that all of the charges against him had to be dropped. Indeed, the judge rejected the testimony of 153 witnesses for the prosecution. The trial lasted 20 months, and the cost of the hearing, including Basson’s legal fees, amounted to 20 million rand. Although the trial revealed that the government was involved in drugs, used poison to destroy its enemies, and other chemicals were often used on governmental opponents, the record was highly convoluted and contentious. These kinds of revelations came out and were disputed. In reality, the revelations were rejected as fact by the judge for the purpose of not convicting the defendant. The judge ultimately ruled that all of the charges against be dropped. Dr. Basson went on the world speaker circuit lecturing on cardiology, biological warfare, and stress management. His medical practice focused on heart surgery. This was of course a domestic trial. It highlighted the problems of using trials as a mechanism of transitional justice. In this trial, the historical facts were mangled, and a clear picture of what was done in the name of security, science and medicine remained obscure. The chain of responsibility, the importance of transparency, compromise and accountability suggested that trial mechanism are not necessarily a panacea for transitional justice. This does not mean that trials are not important. It only means that in international or domestic law and international and national relations, the methods of seeking the constitutional objectives of the national and international community must rely on many creative methods for managing disputes including the use of judicial settlement. It must use a combination of those methods tailored to specific cases. The methods employed by the Truth and Reconciliation innovations must be evaluated in a more pragmatic manner. The critical question is was the South African Truth and Reconciliation ­experiment a success? The most difficult problem for any form of accounting for the political past is obtaining all the facts. Nuremberg provided a ­lesson, although there are specific reasons why Nuremberg as a trial cannot be ­over-generalized. The Nazis were defeated and a huge body of documentary evidence was obtained. The trial of the Nazi leadership permitted a court of law to judicially sanction fact-finding pertinent to the inner workings of the 31

See Anthony C. LoBaido, South Africa’s War Crimes, The Secrets of Project Coast (2000).

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Nazi system. Nuremberg was essentially a trial by documentation. Its lasting legacy is the documentation of atrocity that it produced. Normally, trials involving individuals will be much more restricted. The question remains whether enough truth came out of the Truth and Reconciliation process to indicate that the historical record was effectively brought out in order to be part of the historical memory of society. In terms of statistical reality, the volume of business generated by the trc was sufficient to create expectations that the truth would emerge, responsibility would be assigned and the victims would be taken care of. In total, 21,000 victim statements were taken, 7,112 applications were submitted for amnesty and 849 applications were granted.32 The procedure encouraged people to come forward and give their personal story. This resulted in a rush to the committee from lower level apartheid operatives. A great deal of disgusting South African history was put before the public, often under the full glare of tv lights and a national audience was captivated by what could be done in the name of governmental authority and yet reach such abysmal levels of depravity. Impunity was given to the perpetrators of human rights abuses as it was thought that South Africa could not handle the onslaught of large scale persecutions for human rights violations during apartheid. In the beginning stages of the Truth and Reconciliation Commission, many in the courts including prosecutors, judges and the police system were remnants of the old regime still sympathetic to the perpetrators. Since the proceedings about Truth and Reconciliation in South Africa were held during a period coinciding with the creation of a new democratic constitution, the hearings, vividly televised, riveted the larger South African target audience. A large quantum of truth was publicly documented and visually transmitted. South Africa was a nation riveted to the insights of its immediate past, witnessing directly with first hand participants what took place inside an authoritarian state. From the point of view of influencing public opinion that there was a reckoning, the South African process was undoubtedly a success. South Africans wanted to get the process over with as quickly as possible. No one wanted a multi-generational reckoning. From a South African perspective, enough was disclosed to permit opinion formation in the direction of a negative validation of the new dispensation. The historical issue was that there was still a great deal that was not disclosed. How would this non-disclosure influence long-term political development? It was known that major collections 32

See Rosemary Nagy, Reconciliation and the Private/Public Distinction (Paper prepared for delivery at the 2001 Annual Meeting of the American Political Science Association, 2004).

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of files were destroyed, including those of military intelligence, and that high level apartheid officials refused to participate in the process. Whether the Truth and Reconciliation Commission established a sufficiently credible historical memory about the cost or whether the demand for procedence and a reconciliation made the past “another country” is a question only the future can answer. G Problems with the Completeness of the Historical Record It cannot be said that the Truth and Reconciliation Commission produced a complete record of the past. There are several issues about the historical accounting that are troublesome. The most obvious concerns are that the leadership of three of the major political parties did everything possible to avoid giving testimony to the trc. The Nationalist Party leadership essentially tried to avoid the trc process.33 President De Klerk himself felt that he was treated with such insufficient dignity that he failed to participate within it. There was much that could have been revealed about the party leadership and its connections to the secret societies that supported it. Lessons from the nature and inner-workings of the state at the height of its commitment to apartheid values are not seen or learned. Only glimpses of how decisions were actually made within the inner structure of the apartheid elite were revealed. The Inkatha Freedom Party declined to participate effectively in the trc process.34 There was sufficient evidence that Inkatha was an integral participant in the violence of Natal during the 1980’s and the early 1990’s. How Inkatha was structured and organized, who managed its campaign of violence and what its ties were to the Nationalist government and its institutions of national security remain unknown. The anc was the major antagonist of the state. The anc had the problem of managing an army of national liberation and maintaining security and discipline for its operations. The anc was involved in a mutiny and admitted that torture was used against those antagonistic to its mission. It is alleged that executions took place in order to maintain security and discipline. In defense of the anc, it was a movement of national liberation and simply could not have had the structure of organized state authority to maintain discipline within its ranks. However, it should be born in mind that the action taken against anc freedom fighters may have been arbitrary and capricious. The result was that those who were innocent victims received no psychological or material rehabilitation. If there were innocent victims, they could have well qualified as 33 34

See Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (2002). Id.

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heroes against the struggle of apartheid. Those who extra-judicially executed included patriots. Their historical contribution and their families required an appropriate form of accounting. The anc could maintain that the struggle against apartheid was a legitimate struggle against a policy, practice and an ideology that was deemed to be a crime against humanity. Unfortunately, a clarification of these complexities remained elusive. A matter of even deeper concern is the fact that neither the anc nor the trc assigned responsibility for the violation of human rights in the camps of the movement. But it is the anc and its leaders who now run the South African state. A fact that has moderated the position of the anc’s leadership is the fact that the traditional leadership led by Mandela had absolutely no role in any human rights violations. H Amnesty Standards and Concerns for Reparations With regard to the question of amnesty for those who came forward to testify, the practical problem is that in form it is defensible, but in application it is more problematic. The central principle is that a person who has come forward and testified fully could apply for amnesty. That person would have to demonstrate that the conduct was done with a political objective.35 In South Africa, the racial diversity of the state means that in the most basic human interactions a racial factor will be present. This is not to say that the standard used is standardless. However, there are simply too many cases in which the implication of the word ‘race’ makes the most indefensible conduct meet the amnesty test. The test should have been formally about the political foundations of ­asserted racial conduct. Racial hatred is not politics, it is pathology. If pathology is a basis for amnesty, then that should be spelled out and it should meet a test of medical acceptability. We might recall Lasswell’s famous ­description of the political personality: the person displacing ‘private’ motives on public objects and rationalizing it in the “public interest.”36 This particular approach could have given a more discriminating sense of whether the particular person seeking amnesty was driven by a genuine political motive or was displacing private motives, including private pathological motives, in the commission of human rights crimes. During the Boipotang Massacre, a Inkatha party operative murdered a eight month old baby and its mother and was granted amnesty because the offense was considered to have a political objective based on his statement, “A snake gives birth to a snake.” Apparently, this meant that if the baby’s mother was a political enemy, so then was the child. The question is whether one should read 35 36

Id. See Harold D. Lasswell, Psychopathology and Politics (1977).

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into the concept of a political objective some element of reasonableness. It is possible that conduct like this is not political but pathological, and, if e­ xcuses are to be found, they should be medical rather than legal or within the process of an amnesty proceeding. Such conduct is not a politically “reasonable” objective. Since the record of giving amnesty will be part of the historical record, the standardless quality of the test of amnesty and the cases in which it has been actually granted are a terrible moral basis on which to reconcile a society for a future based on human dignity. One of the areas in which the trc process could have been highly effective was the area of reparations.37 However, the approach of the state to reparations has quite simply been grudging. A central component of justice would have been the humane principle of doing something concrete for the victims. However, the state appears to be concerned that the human cost suffered by the victims of the apartheid in their struggle for freedom is apparently too costly for the new anc black bourgeois class. ii Conclusions The trc process did something extremely important. The entire process read into the new political dispensation two critical principles: forgiveness and reconciliation.38 To a large extent, these principles derive their credibility from the persona of the two towering figures of South African liberation: Nelson Mandela and Bishop Desmond Tutu. These concepts were absolutely critical in the difficult days leading to transition, constitution-making and the first real democratic elections in South Africa. The consolidation of democratic gains was directly attributable to the trc process and the critical leadership in the country at the time of transformation. In the short term, given a restricted meaning to the term ‘transition,’ the trc process was an unqualified success. In comparative perspective, the South African process was more comprehensive and more thought through than its predecessors, and it played an important role in accommodating critical values necessary to transformation and the legitimization of democracy. The long term effect of the process still has to be understood. The South African conflict was a high intensity conflict, which took an enormous human toll. It was a conflict with all the nasty potentials of a protracted, indefinite race war. The state had marshaled a massive armory of conventional weapons and weapons of mass destruction. It had reorganized the state into the model of a classical, garrison, national security state and had 37 38

See Allister Sparks, Beyond the Miracle: Inside the New South Africa (2004). See Desmond Tutu, No Future without Forgiveness (2000).

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created parallel institutions of repression connecting the state with multiple levels of civil society. In particular, it had created civil cooperation bureaus whose function was to make more complete and effective the working of a ­national security state under permanent emergency strictures. The prospects for a political solution, much less a transformation to the rule of the majority, were very grim. It is a tribute to the tenacity and will of political leadership and the emergence of a peace consciousness that permitted the parties to retreat from the possibility of a racial holocaust to the construction of a new South Africa based on freedom, justice and equality. The problems concerning the major political parties coming forward and the difficulties and expenses of trials to follow the trc process raise another concern. If the record was sufficient to facilitate transition, is it sufficient to sustain a long term commitment to democracy, the rule of law and a non-racial society? It is possible that in a complex and diverse society like South Africa an incomplete historical memory will fade and the virus of some version of ethnic fascism will once more raise its ugly head. Fascism has never been confined to a particular cultural reality. Africa, since independence, has had to contend with the virus of fascism destroying its promise of an African Renaissance. Truth and Reconciliation Commissions and trials embody social accountability and expediency but they cannot approximate an ideal concept of justice. An important discourse implicates the jurisprudential and moral foundations of war crimes trials and truth and reconciliation commissions. The ­discourse sometimes poses the question that a truth and reconciliation procedure is one that grants impunity for human rights crimes and crimes against ­humanity. A truth and reconciliation procedure is antithetical to any articulate idea of justice. The practical problem with the impunity thesis is that international tribunals have never been able to investigate, apprehend, prosecute, try, convict and punish all the perpetrators of human rights and humanitarian law crimes anywhere. Their own process seems often to be selective and symbolic. These are not unimportant, but they cannot represent the idealization of sanctions as punishment, as justice. International tribunals have a role to play as a complement to national fora and as a complement to many other institutions of national and international decision-making. The South African experience with truth and reconciliation is an improvement on several other models, but it cannot provide a complete framework of sanctions as punishment as ­justice. The melancholy fact is that the world is and justice is similarly imperfect and yet a critical aspiration for social progress and an improved ­human ­prospect continues. This is a struggle that will doubtless continue as we seek to consolidate the gains of international solidarity and creatively invent new institutions to affirm the dignity of man and the core interdependence of peace and ­human rights.

chapter 17

Peace, Justice and Transition in Colombia Chapter 17 provides a case-specific study of the experience of Colombia with transformational justice seeking to bridge the gap between theory and practice of revolutionary or transitional justice implicated in amnesty and truth and reconciliation procedures. This case study indicates that not all forms of transitional justice work in a saliatory fashion. The fundamental theme of this chapter is transitional justice. The concept emerged from the indeterminate nature of many post-war internal national conflicts. These conflicts were often sponsored by the super powers who dominated the Cold War world. As the Cold War began to recede, these conflicts came to be seen in terms of genuine interest and concerns or as implicating ­irrational concerns and often, as in the case of Colombia, the broader ­influence of organized crime cartels. A reconstruction of the foundations of conflict in Colombia is provided and a review of the shifting justifications and alliances that have given it an unending challenge for peace and political development. In Colombia there is the question of violence as an essential consequence and condition. Colombia represents a complex challenge for national, regional and international policy-making about how to contain the violence with sufficient efficacy and coherence to permit the strengthening of a democratic rule of law-based dispensation. The chapter seeks to provide a more coherent description and justification of the emergence of the diverse paradigms of transitional justice. The Colombian experience is reviewed from a comparative and international law ­perspective. It provides a critique of Colombia’s criminal justice model and suggests that the sanctioning objectives inherent in transitional justice cannot be accommodated in a system which provides deference to the criminal justice mode as a foundation for peace and justice in Colombia. The chapter provides the broad outlines of a more informed comparative and i­nternational ­appraisal of modern approaches to transitional justice. There is recognition that each specific situation has many distinctive and unique elements which challenge the efficacy and application of the diverse approaches to this ­problem. ­Colombia, it is suggested, has a system that requires significant modifications to respond to the problems confronting the state.

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Historical Background

To be familiar with Colombia is to be familiar with the extreme and unremitting violence that has characterized a nation long beset by social and economic problems, fairly characterized as a form of high intensity conflict. The v­ iolence in Colombia is not viewed as a pure domestic matter falling within the exclusive sovereign competence of the state. The level, intensity and duration of the violence makes it in the technical language of the u.n. Charter a threat to hemispheric and international peace and security. The hemispheric and international concerns with Colombia’s internal violent conflicts are ­matters of deep international jurisdictional concern. Ultimately, instances of high intensity violence have a radiating effect and soon other states and communities tend to be caught up in the contagion and surrounding circumstances. The issue in Colombia is a vital one for the people of Colombia, for the people of the hemisphere and the global community. Colombia has adopted a law to deal with transitional justice from violence to peace and proper social and political development. That law, popularly known as the Justice and Peace Law, codifies a complex procedure.1 The procedure is designed to establish a level of contained tension between contending parties in ongoing conflict. It is designed to demobilize the main groups in the conflict. It is hoped that this initial move will limit the radiating effects of ­continued violence, and at the same time, encourage the development of political transformation to consolidate the state’s democratic compact. The Justice and Peace Law is a legislative and administrative initiative ­intended to codify and establish the expectations for transition from violence to cease fire and from cease fire to contained tension in which the expectations of all the parties is a sustainable peace and transitional justice. The relevant law, Law 975, was enacted by the Colombian Congress on June 22, 2005, and promulgated by the President the following month. The plain meaning of the law as well as its internal constitutional problems remain matters of juridical concern. A partial response to these issues was decree Number 4360 that sought to clarify by regulation certain aspects of Law 975. Law 975 subsequently clarified and refined by constitutional court intervention is known as the Justice and Peace Law. It is appropriate to consider the background context of the Justice and Peace Law in order to appreciate its strengths and limitations as an instrument of transitional justice. 1 Justice and Peace Law of 2005, Law 975/05.

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The Justice and Peace Law seeks to provide the assignment of responsibility and accountability for grave human rights violations. The law seeks to secure some measure of justice for the community and the state. The idea of justice suggests that the procedure is designed to strengthen the moral foundations of the state such that the transition to a normal political order is founded on the idea of justice itself. This idea of justice is a powerful ideological justification behind both the law and state. If a state establishes its authoritative foundations on the idea of justice, it significantly improves its foundations and a­ uthority, and enhances the legitimacy of the state itself. Normally much of this is symbolically found in the constitution of the state. In Columbia, the Constitution has not been entirely effective in consolidating peace and s­ tability. The Justice and Peace Law represents a way of reaffirming these constitutional ­ideals. The law is meant to be a working law requiring juridical and administrative action to make it real. The Justice and Peace Law is a very i­mportant addendum to the authority foundations of the state and its legitimacy in the eyes of its own people. The danger of such an initiative is that it has to be seen to work and to work with transparent efficacy. If it fails, its failure may well represent an attack on the essential authority and legitimacy foundations of the state itself. There is much that is at stake in how this law is to be given operational effect and modified to ensure that it is a working system and not simply a legal or constitutive decoration. Implicit in the Justice and Peace Law is that this law, if properly implemented and modified, will in fact be a critical process that changes the paradigm of state and society in Colombia. The further expectation is political reconciliation between those who sought to exterminate each other. The foundations of state and society in the aftermath of this law and its process should trigger political recognition. A great deal will turn on what is meant by justice, interest in peace and stability and the transcendence of a common identity of all contending parties. These objectives are designed to ensure that citizenship in Colombia is not simply an empty legal form. It is meant to be a right and ­expectation, which generates feelings of positive sentiment, affect and ­solidarity based on a common identity, and a common recognition that all ­Colombians are entitled to security, dignity and respect. The Colombian experience is approached by taking into account some of the specific conditions in Colombia and then examining the Colombian ­experience using comparative and international jurisprudence. Colombia’s Justice and Peace Law is part of an emerging political and juridical paradigm that seeks to integrate peace, human rights and humanitarian law in the ­re-invention of state and society. This approach to political and juridical transition is experimental and unfolding. Although every specific case has many

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unique elements, there are points for valuable contrast and comparison. This means that we can learn much from unfolding international and comparative experience and practice. That experience has normally had to strategically and tactically design a process, usually some version of amnesty or forgiveness, for conduct resulting in grave violations of human rights and humanitarian law, jus cogens values. These preemptory norms may have to be reconciled with another jus cogens value, viz., the preemptory status of peace and security in the international community. Reconciling the relationship between peace and human rights under law requires a complex dynamic in situations that are often highly complex and not easily comparable to each other. There is a pressing need for some degree of innovation reconciling justice, dignity, peace and transparency to permit ­societies to proceed along the lines of democratic promise and inclusive dignity. The multiple versions of transitional justice represent a search for a new and critical paradigm of justice in situations of transition from conflict to peace to humane governance and development. ii

Background to the Conflict in Colombia

The plague of violence troubling Colombia is nothing more than a continuation of a period in the nation’s history known as “La Violencia.” The era, roughly from 1948 to 1958, was one of civil conflict whereby supporters of the Colombian Liberal Party and the Colombian Conservative Party opposed each other. The modern roots of the conflict emerged from efforts to resolve conflicts within the major parties by the use of violence and political killings. When the conservatives took power, they sought to consolidate the conservative oligarchic agenda by targeting state violence against the compasinos. This triggered cycles of violence as groups sought to defend themselves generating even greater violent responses. It was during La Violencia that Colombia first witnessed the birth of organized extra-governmental paramilitary groups and guerilla units. These units would be the precursors of the primary rebel groups: the Revolutionary Armed Forces of Colombia (farc) and the National ­Liberation Army (eln), and the numerous paramilitary groups legally authorized and equipped by the Colombian military pursuant to Law 482 of 2 Law 48 allowed for the creation of self-defense militias by private citizens for the purposes of protecting their properties and lives, an activity which was thus recognized as a right, and was therefore eligible to receive aid and guidance from the Defense Ministry and the Colombian Military.

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1968 to fight the rebels and other organized groups. The development of these ­paramilitary groups would have far reaching consequences, as paramilitarism has become one of the parties most responsible for continuing human rights violations in Colombia. According to Human Rights Watch, and other human rights organizations, paramilitary groups and the United Self-Defense Forces of Colombia (auc) in particular are considered responsible for 70 to 75% of identifiable political murders in Colombia.3 Such activity, however, is not limited to politically motivated murders alone. In 2005, some of the largest caches of cocaine and a few of its corresponding processing labs were seized by the Colombian military and police, in areas of paramilitary influence or under their protection. Fueled by the activities of both paramilitary and guerilla organizations, ­however, Colombia has become known for its illicit drug production, kidnappings and murder rate. Colombia has had one of the the highest murder rates in the world at 62 murders per 100,000 people.4 Between 1992 and 1999, 5,181 kidnappings, two-thirds of the worlds reported, occurred in Colombia.5 According to Arturo Alape the statistics concerning the outcomes of ­violence, e.g., assassinations, social cleansing, extra judicial executions and murder, d­ isappearances and massacres, in 1997 reached a kind of apogee. ­Consider the following: In the first 11 months of 1997, 23,532 people were killed—an average of 70 people murdered each day. With a total of 185 politically motivated massacres in 1997 alone, Colombia has been singled out by international human rights groups as one of the worst violators of human rights on the planet. According to the human rights organization, Colombian Commission of Jurists (ccj), paramilitary groups were responsible for 76 percent of the human rights violations committed in 1997, while the guerrillas were blamed for 17 percent and the armed forces for seven percent. Politically motivated massacres and social cleansing are not the only tragic consequences of the conflict: Colombia is currently the global leader in kidnappings with 1,658 cases in 1998; it is estimated that more than 1,500 people have “disappeared” for political reasons over the past decade, and more than one million internally displaced who have been forced from their homes by the violence.6 3 Paramilitarism has also become associated with several of the major drug lords that operate the illegal drug trade. 4 http://www.nationmaster.com/red/country/co-colombia/cri-crime&all=1. 5 Id. 6 Cited in report by Gary Leach, Colombia.Journal.online, 6 (May 1999).

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In 2002, Alvaro Uribe was elected President on the promise of applying military pressure on paramilitary and guerilla groups. During his presidency the murder rate has decreased significantly to 39 murders per 100,000 people; bringing it down below the level of South Africa. In 2005 only 800 kidnappings were reported, (73% less than in 2002) of which 35% were rescued in the same year. This improvement in security indicators may be attributable to the enactment of Decree 128 by the Colombian government in 2003 and the Justice and Peace Law in 2005. Decree 128 grants legal and economic benefits to members of armed groups who have demobilized. These benefits include “pardons, conditional suspension of the execution of a sentence, a cessation of procedure, a resolution of preclusion of the investigation or a resolution of dismissal”.7 The aim of the Justice and Peace Law is to facilitate this demobilization by granting significantly reduced prison sentences to members of illegal armed groups under investigation who agree to demobilize. Although most of the beneficiaries were expected to be paramilitaries, as of the end of 2005 the law had reportedly only been applied to approximately 30 alleged farc prisoners. Largely due to the problem of impunity, very few members of illegal armed groups were under investigation for human rights offences. As of 2007, the estimated 30,000 paramilitaries who have demobilized have benefited largely from de facto amnesties granted under Decree 128. Despite such overtly impressive numbers, the demobilization process has been extensively criticized as lacking in effective mechanisms for justice and in its inability to ensure that paramilitary members actually cease violent activities. iii

The Tradition of Violence in Colombia and Political Transition

High intensity violence has characterized the political culture and social ­milieu of Colombia. Prior to the current phase of violence, critics of Colombia described one of the long periods of high intensity conflict as simply the period of La Violencia. What this conclusion implied was that violence, whatever its initial cause, seemed to carry a momentum of its own. It carried the assumption that if La Violencia was inexplicable, then how could the government, its allies, or stakeholders intervene in a context that defied rational ­explanation. This argument is an important one and finds its currency in the context of ethnic conflict. A central assumption behind the issue of ethnic conflict is 7 http://www.amnestyusa.org.

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that groups within a state engage in patterns of violence. Violent activity is designed to target people having nothing to do with the conflicts themselves. The innocent are victims and serve as targets of atrocity and extermination. They are victims simply because they carry a culturally understood badge of identity. In Colombia, there is social cleansing. The social cleansing seems to be partly driven by greed.: drive the compasinos off their land by terrorism, massacre and appropriate their property. From the perspective of the international community, there is the acknowledgement that transitional justice confronts resistance when the pressures to intervene compromise the interests of those with a vested stake in it. There will be opposition to international intervention to support non-violent alternatives to intersectional conflict. The fundamental reason generally given is that intervention will not help and the best course is abstention until the parties stop the bloodletting. The assumptions behind this reasoning carry the dangerous idea that mass atrocities simply happen and that human agency cannot be held responsible, nor can justice be done. Colombia is a complex society. It is segmented and carries powerful symbols of identity that are better understood inside the country than through outside observation. The central fact remains that violence is fueled by ability to lump enemies or potential enemies into symbolic brackets, and regardless of the actual status of the persons, those persons will invariably be a target of violence. What is central to the success and continuation of such violence is the fact that the decision makers who order, control, aid and abet such activity are real people. They are the ones whose decisions result in killings, kidnappings, disappearances, torture and other forms of cruel, degrading treatment and punishment. These activities are fueled by the desire for greed, profit and control over the weak, the vulnerable and the helpless. All social differences in any community may be exploited by groups efficiently organized and supplied with resources to promote and defend their particular interests and agendas, be they ideological or material greed. Many conflicts such as those typical of the Colombia experience are in part sustained by many different influences, agendas and values. In the context of the Cold War, it would often be important for a group seeking the support of the United States to posture itself ideologically as a defender of the free-market society. Similarly, those in the position adverse to such an alliance and outlook may posture themselves as the defenders of social justice, equality, and the vision of a new socialist man or woman. If groups can present themselves as instruments not so much of national salvation, but as instruments of benefit to great power interests, then such groups can sustain their activities with unlimited resources from the great powers.

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As the Cold War was almost over, George Bush Sr. talked about a kinder and gentler world. It is possible that no one in Colombia heard him or apparently in Washington. In 1990 President Bush, announced his Andean initiative for economic and military assistance to Colombia, Peru and Bolivia. The allocation was in the region of 2.2 billion usd. Sadly, two thirds of the aid was to be allocated to military and police uses. Economic and social development was a nominal interest. It should be noted that it was clear that there was a complex, but obvious alliance between segments of the officer corps: the police units, on the one hand, and crime cartels on the other. u.s. aid fueled objectives completely antithetical to the reproduction of a kinder and gentler Colombia. These objectives were completely at variance with the fundamental national interest of the United States. According to Human Rights Watch, the Andean initiative resulted in little or no action on the drug problem. It was rather an effort to explain the drug problem implicitly as a Cold War problem though the Soviet Union was no longer in the picture. In the post-Cold War period, many conflicts around the world continued regardless of the ideologies that fueled the Cold War. Since these ideologies were no longer clearly the justification or driving force of the contending social forces in conflict, the question arises as to what was the real reason that conflict continued. Understanding why conflicts endure without clear ideological justifications or even minimally transparent rationales may provide important insights into the nature of contemporary conflict and violence itself. Such insights suggest practical ideas about conflict resolution, i.e., ideas about what is possible and practically achievable in the form of peace and justice initiatives. Such knowledge may provide a basis for constraining and limiting the scope of social violence, and working toward a society that makes peace a virtue and human dignity a vital priority. Colombia has antagonists who continue conflict with each other. There is an organized crime aspect which is partly distinctive but whose activity shades into the aggregations on the right and the left. The political aggregations on the right seem to reflect a residue of the Cold War anti-communism. The political aggregations of the left are committed to the tactics of its opponents which target vast numbers of people who simply happen to be in the cross fires. The Colombian problem is distinctive, but it carries another level of complexity. That level of complexity involves powerful criminal cartels. This third factor makes the question of peace and transformation difficult because any calculation of the political and legal culture makes the criminal cartel an outsider. The criminal group is not qualified to share power, govern or influence governance under international law. At least the assumptions behind governance in the international system are that sovereignty derives

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its authority from the people and not from organized crime or totalitarian dictatorship. iv

Analyzing the Violence

One of the central insights into the character of personalities who are skilled in violence and promote and deploy violence is that such actors seek to rationalize it that they are representing the public interest. Ideology is a powerful justification for human behavior and often a powerful tool in the motivation of people to commit human rights atrocities. In the middle Ages, persons justified the torture and murder of women by calling them witches and ­burning them alive. Such was the fate of Joan of Arc. To the Nazis, their ideology was one of racial herrenvolkism, which meant that as a part of a superior race, they had the right to exterminate inferior races (Untermenchen). Powerful ­ideologies or religious perspectives serve as justifications for violence. Religion or ideology does not, however, require men to act out of socio-pathological motives. Justification in the form of religion or ideology or an allied belief system may obscure the real reasons which drive the individual actor to order acts of atrocity or to do them himself. Either way, there is a social pathology behind the violence itself. Conflicts frequently generate atrocities as states seeking to suppress revolutionaries engage in torture, death squads, human rights atrocity and repression. Revolutionaries feeling the brunt of repression came to see their adversaries as class enemies who needed to be eliminated. This insight raises an important question, which has emerged in different forms in other transitional justice approaches. Often the condition of the granting of amnesty rests on two fundamental principles. First, some version of truth must emerge. The violator of human rights must be willing to provide a narrative of all he knows. Second, in order to get an amnesty dispensation, the perpetrator must also have acted from a political motive. The political motive imputes a certain ideological justification that is meant to limit amnesty to actors who were acting politically and not from motives identified with ordinary criminal behavior. In a context where criminal cartels may fuel conflict for profits, the conduct of those falling under the umbrella of the criminal cartel, the paramilitary or guerilla group creates an extremely difficult distinction to maintain. Understanding conflict and violence in Colombia may not be easily explained in terms of the political or ideological motivation. There may be many instances that are relevant in which acts of violence are only remotely connected to a political agenda. Such acts may be a part of a political agenda such

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as a revenge killing. Other forms of violence may be driven by power-centered players who recognize that controlling the state is a pathway to gratification of one’s latent desire for power and control. Still other acts of violence may simply be the promotion of greed and self worth. Conflict by itself is not a good or a bad thing. Conflict in the form of competition is good for competing in a democracy for political office. It is good in the context of competing in a competitive market. It is the form of conflict and the possible pathology of the actor that is the most serious and difficult problem. This problem is by no means exclusive to Colombia. It is a global problem. In a nuclear age, it may be a problem for all of us. When unauthorized violence intensifies, it appears that the specialists in violence tend to become the central actors in conflict. They have a stake in the violence and its continuation. They derive self-esteem and gratification from such outcomes. Specialization in violence becomes a condition for sustaining the conflict itself. Violence is continued for the sake of violence itself. The ideological justifications for conflict were increasingly unbelievable as the agents and conditions of violence became the dominant cultural force in the society. This generalized statement may apply to Colombia as it may well apply to other conflicts, which continue in the aftermath of the Cold War. Mass murder, genocide, ethnic cleansing, atrocities, and other outrageous conduct should not hide behind the ideological gloss of capitalism, socialism or religious ideals. If the above analysis is correct, then peace and justice procedures must be more thorough, extensive and intensive about the people who are being demobilized and who ultimately may be given an amnesty and benefits of the process. The political scientist, Harold Lasswell, suggested a key insight to the problem of justice and defensible transitions. According to Lasswell, the violence prone specialist, such as a political actor, was in reality displacing private motives, including personal pathologies on public objects, and rationalizing it as being in the public interest. The importance of this insight is that violent conduct done from an ideological motive or criminal motivation, is an integral component of the process of political transition. La Violencia is not purely Colombian; it is a global problem. In the examination of transitional justice, the very significant social pathology inherent in the violence prone actor, be that actor a Field Marshall in the Army, a guerilla leader, or a common thug on the street must be accounted for. Further explanation of the importance of organized crime in the context and difficulties of political transition and transformational justice must be provided. One of the important factors in the background to the justice and peace in Colombia is the problem of organized crime. Organized crime is an important factor in

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conflict although it is not adequately understood. The u.n. has developed the instruments that seek to better control and regulate organized crime because of the specific recognition that organized crime is a transnational problem and not a purely local issue. This insight will help in clarifying a more effective approach to justice and peace in Colombia. v

Organized Crime in Global Contexts

The historically territorial nature of criminal law had a close correspondence with the principles of judicial and political sovereignty. Sovereignty directly conditioned the reach and efficacy of criminal law with territorial limitations. This undermined the efficacy of the state to control and regulate crimes having trans-state or transnational character. From the international perspective, the global system is still largely a constitutionally state-centered system. That system has limited the power of organized global society to control and regulate crimes of the magnitude represented by transnational organized criminal syndicates and gangs. It provides a loophole in the global system of law and public order. It is a dangerous loophole because it tolerates a juridical and political vacuum within which organized crime can thrive. The success of transnational organized crime means that vast amounts of ill-gotten proceeds are outside the reach of organized political authority. These proceeds are bases of power and resources for the support of organized transnational crime. They permit it to become globally institutionalized, become competitive for power and become a threat to states large and small. Organized crime represents an alternative normative order which supports brute force over law, order and civility. Transnational organized crime is not simply anti-social, apolitical and economically exploitive, it is much more. Traditionally, crime is a socially deviant aberration. Organized law enforcement must simply be effective in the detection, apprehension, prosecution, trial, conviction and punishment of the perpetrator. The perpetrator is often randomly created. Even when working in groups, the deviance is ad hoc, occasional, and a threat to public order and civic freedom. When crime gravitates from the occasional, isolated and random experience to systematic organization, it is a particularly dangerous threat to the world order. Organized crime in many states including Colombia has the capacity to marshal vast resources such as capital, functionaries and instruments of violence. Organized crime may influence state, society and public order not in a ­random and anecdotal manner. Its role in society becomes systematic and sustainable. Organized cartels may gravitate from simple criminal deviance to the

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challenge of an alternative structure of normative priority. Law, authority and legitimacy may be challenged by a “non-law” scenario of social anarchy. It may actually promote the values of a negative utopia, where force is the rule, and legal authority is extinguished. If all the social forces cannot be brought under the umbrella of justice for the victims, then an alternative even worse than La Violencia may be imagined. The crime cartels would be a threat to the sovereignty of the state, a threat to democratic entitlement and the foundations of political authority in the state. Large and powerful states may be more capable of limiting the power of organized crime. Smaller states like Colombia are more vulnerable to the assaults and challenges of organized crime cartels. Some sovereign states will be politically vulnerable to the penetration of cartels of organized crime syndicates. Some states may be drug controlled or subject to levels of penetration and corruption The characteristics of the challenge of organized crime to the sovereignty and independence of the sovereign state are that its power rests on the unrestrained use of force, intimidation and coercion. Its reach may corrupt the vital social process of the state such as business, governance, family, education, l­ abor, law, and possibly religious affirmation. The threat organized crime presents to sovereignty, self-determination, independence, good governance and democratic values is serious. The threat of organized crime is often unconstrained by territorial or political boundaries. Political and juridical s­ overeignty may be limited by the restraints inherent in sovereignty itself. Territorial boundaries crucial to sovereign law enforcement may be a hindrance to the control of systematic, institutionalized crime, sustained by bases of power that are rooted in violence. Organized crime threatens the constitutional foundation of world order; it is a threat to the rule of law and to the idea of law itself. The problem in Colombia with its radiating implications is a hemispheric and global problem as well as a problem critical to the people of Colombia. vi

The Typologies of Conflict that Mandate Truth and Justice Transitional Paradigms

The political, geographic and economic space between sovereign nation states has long been seen as an arena where organized crime can function without an effective process of control and policing. The transnational aspects of the crime cartels can readily fill the spaces between sovereigns to continue activities. Many states have experienced high intensity patterns of violent political conflict and found mechanisms of transformation from the culture of v­ iolence

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to the promise of an improved political future. The impact of violence on the social process generates several possible scenarios. The four predominant types relevant to transitional justice include circumstances where: 1. the ­conflict continues, gets worse, each new ‘incident’ becomes a new cause for continued escalating violence; 2. the conflict diminishes because of the destruction of human and material resources, a kind of mutually secured ­destruction; 3. one side wins and the other losses; and 4. there is no clear winner, but continuance involves losses for those who politically benefited from the conflict. ­Various forms of “accounting” are part of the elements of transforming to something else, hopefully democracy, e.g., South Africa, Latin America and Eastern Europe. It is this fourth option that has been used in different cultural and regional contacts with success, but success must be qualified. The Colombian problem is perhaps more distinctive than others because it must also account for the problem of the influence of the organized cartels on the nature of the conflict and the problems of transformation. vii

Clarifying the Ideas of Peace and Justice from an International Perspective

Those vested with decision making authority must confront the problem if they are to make peace. Peace must be a qualified peace, qualified as a morally expedient notion. By this, it is meant that any justice would necessarily be imperfect in that it would not fit the magnitude of the crimes. An example would be the Nuremberg war trials. It would have been morally repugnant to shoot 6,000,000 Nazis to establish that the distribution of retribution as a principle of justice would be satisfied. The act of making a few Nazi leaders symbolically responsible for the Holocaust and the atrocities of the total aggressive war ­policy of the Nazis could never meet any criterion of justice through punishment. Therefore, it cannot be said that the constant and perpetual Justinian ideal of justice owed to the victims is one that is attainable or justifiable in the real world. Our world has become more civilized and more lethal. This is the fate of many modernizing states. Colombia confronts the problem of how to terminate the violent conflict and move to an improved prospect for the society affected. In the context of World War i and World War ii there are important insights about the strategies of ending violent conflict and confronting the challenge of post-conflict transformation. After World War i, unreasonable reparations were a form of justice as retribution in which the German people endured immense suffering and

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corresponding anger. This was an indication of the limits of justice via reparation. At the end of World War ii, the question emerged as to the character of the peace process to ensure a peace that would endure. A part of the new order envisioned for Germany and the rest of the world community was the experimentation with a different aspect of justice: trials were the order of the day. The Nuremberg process lifted the veil from the concept of sovereign.8 The Nuremberg process provoked the expectation of responsibility, transparency and accountability for state conduct. The issue of truth was to be specifically tied to personal responsibility. The Nuremberg process managed, despite its criminal law character, to introduce the implicit version of amnesty as a method of dispute resolution. By insisting on individual responsibility and rejecting collective guilt and collective sanction, the German population at large received a form of collective amnesty, while those personally responsible for war crimes were prosecuted. This was important for the post-war reconstruction of Germany as a democracy. Here justice is very much tied to the narrative of the story and the story must be transparent. Penetrating the veil of the institution of the state, as the organizer of human atrocity and war, provides us with the central Nuremburg insight that behind the state or institution are the decision makers. By identifying them and their decision making process, the assignment of responsibility becomes possible, the possibility of an accounting become an imperative, and transparency into the inner recesses of governments and power groups becomes the corner stone of truth, justice and reconciliation. One of the principle outcomes of the conflict after World War ii was a renewed effort to establish a stronger institutional basis for international peace and security, recognizing the interdependence between peace, social progress and human rights. The adoption of the u.n. Charter, an instrument with critical constitutional characteristics was the major outcome of the most lethal war in human memory. The Charter explicitly outlawed forms of state to state aggression in Article 2.4. The Charter as a global constitution makes international peace and security a major purpose of its critical value objectives. The Colombia peace process may have some elements of that nightmare of all conflicts, the conflict of the Israelis and Palestinians. At least in terms of duration, there is a parallel. The conflicts have generated peace initiatives and cease fires, which often become a strategic adjustment for the next round of conflict. The contestants have access to resources which allows them to maintain conflicts at staggering human cost. Conflicts fed by external powers or synergy between domestic and alien interests embody a certain quality to 8 See Joseph E. Persico, Nuremberg: Infamy on Trial (1995).

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­violence and conflict. Conflicts frequently generate atrocities as states seeking to suppress revolutionaries engage in torture, death squads, human rights atrocity and repression. Revolutionaries feeling the brunt of repression came to see their adversaries as class enemies who needed to be eliminated. The concepts of reparations and trials as indicators of justice from World War i and World War ii need to be carefully examined in the context of contemporary issues of peace and transformational justice. viii

The Criminal Model and Transformational Justice

The Nuremberg Tribunal was a remarkable response to a problem that had not been deeply considered by the allied powers.9 Nuremburg generated expectations beyond those of elites who control sovereign states at that time. The first hint of the Nazi leadership possibly being tried in court was influenced by a statement made by Stalin as he considered the prospect of running from Moscow or staying in the city in the dark days of 1941.10 One has to be cautious of Stalin’s concept of a trial, as it is quite difficult to dissociate Stalin’s version of a trial from the notion of a theatrical experience. Stalin’s idea of a trial was to establish guilt initially under torture, then to have a forum in which the defendant would plead guilty and apologize, after which the defendant would be slaughtered like an animal in one of the infamous nkvd jails.12 When the scope of Nazi atrocity became more apparent, there were thoughts that the idea of a war crimes trial was not required since public opinion demanded more. Stalin actually thought that one way to manage this matter was to execute 50,000 of the s.s., which by Russian standards was by no means an excessive number. It might even have been considered humane by Stalinist standards. Churchill was much more humanistic than Stalin. Churchill thought that some show of slaughter would be necessary but he saw this as more symbolic in nature. The critical question then would be how many of the s.s. would have to be shot to make a symbolic point. Churchill thought that 5,000 would do the trick. Curiously, Roosevelt in the u.s. gave very little thought to the business of transitional justice, so the task was left to Henry Stimson.11 Stimson promoted the notion that what was needed from an allied victory to a political transition for Germany and the larger world community were war crimes trials done in the 9 10 11

See Yves Begbeder, Judging War Criminals: The Politics of International Justice (1999). See David Irving, Nuremberg: The Last Battle (1996). See David F. Schmitz, Henry L. Stimson: The First Wise Man (2000).

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name of the world community. There is something quite fragile about the actual establishment of the Nuremburg tribunal as a dispenser of international justice and morality. It was almost fortuitous that the tribunal came into being given the disinterest of Roosevelt, the British antagonism and Stalin’s view that political trials are really a theatrical event. The jurisprudence and the moral understandings generated by the Nuremburg experience have been critical for the consolidation of humane values. It was an important affirmation of the rule of law as a matter of global importance. Nuremburg represented ultimately a good deal more than the sum of its parts. This background may seem to be something of a digression but the central point is that Nuremburg was something of an accident. The central focus of Nuremburg was to avoid the problems created by the reparations demands on Germany after World War i. Second, given the gravity of the crimes done by the regime, the question that emerged was whether there was some punishment that could fit the crime. The trial in some ways salvaged the German nation and its sense of self-respect. Rather than a vast purge of the population as retribution, the trial assigned responsibility individually and not collectively. This was critical for peace. The trial model satisfied an important symbolic aspect of justice and accountability but it took years to develop a consensus on internationally prosecuting war crimes and crimes against humanity. ix

The Moral Complexity of Peace making

A central principle behind the moral foundations of international peace and security qualifies as one of expediency, the principle of self-defense. Implicit in self-defense is the validation of the use of coercion as a form of retaliation or as a form of retorsion. It is important to clarify the moral foundations of peace itself. The first insight, seemingly unexceptional, is the idea that peace in an unqualified sense can be morally reprehensible, such as the peace of the concentration camp, death camp or the desert. The moral foundation of peace must be qualified by something more defensible. This suggests the peace one seeks to promote and defend is a peace that improves, rather than depreciates, the other moral assumptions about the defense of social organization. The traditional manner in which individuals and society manage the problem of power and its exercise of aggression or some other form of unauthorized violence is the sequential validation of the prospect of self-defense. The self-defense principle is related to the deeper principle of reciprocal tolerances. These principles of reciprocity and tolerance underlie all human

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interaction. The exercise of coercion or violence is constrained or limited by the expectation of reciprocity. The issue of how peace is compromised is ­influenced by the principle of reciprocal retaliation or reciprocal tolerance. The expectation of retaliation seems to maintain peace because the cost of the breach is a realistic expectation. The foundation of peace is informed by a principle of moral expediency about the management of power relationships. The principles of self-defense, retaliation, retribution or retorsion embody a principle of moral realism: an effective way to constrain the abuse of power is the expectation of reciprocal abuse. The logic of the expectation of reciprocated action is that it restrains the will to attack in the first place. It is better to prevent war than try to restrain the abuse of morality during the conduct of war. This principle of moral expediency is an important component of the moral architecture of the Nuremburg experience of war crimes trials in the sense that although the reckoning is sequential, it carries a non-symmetrical and more symbolic aspect of reciprocity. Those who commit war crimes will be subject to a form of accounting later. The form of accounting may not be an eye for an eye, but it nonetheless may provide some degree of justice in war crimes trials. The maintenance of peace is not a moral constant or perpetual absolute but rather a moral expedient which often needs further qualification to give it the quality of a defensible moral principle. This idea is extremely important when one considers the strategies of transition from situations of conflict, whether they are conventional or internal wars with high intensity violence and coercion. Those vested with decision making authority must inevitably confront the problem if they are to make peace. Peace must be a qualified peace as a ­morally expedient notion. The first principle that emerges from Nuremburg illustrates that although the Nazi leaders were tried, executed and not subject to any impunity from a juridical reckoning, the necessary practical outcome of the Nuremburg Trials had to be a form of imperfect justice, i.e., the punishment would not fit the crimes. There is an element of the expedience in the Nuremberg war trials process. An accounting in a public trial is important, but it cannot be complete. Other factors come into play in order to determine whether, as a total community response to the circumstances, enough has been done to secure a number of ­important but limited sanctioning objectives. These sanctioning objectives must comply with human rights and humanitarian law in order to promote peace and self-determination while not sacrificing the right to sanction those whom have grossly violated humanitarian and human rights law. These ­include such matters as prevention, deterrence, restoration, ­rehabilitation,

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r­ econstruction and correction. The correct appraisal of the Nuremberg trials or other efforts at international justice for the prosecution of war crimes must meet a broader definition of rationale sanctioning objectives. These objectives include the prospect of interventions that are both positive and negative. They incorporate a concern for the social consequences and public policy implications of this particular form of legal and political intervention. An actual trial process will only approximate these sanctioning m ­ arkers. It is possible to generate deeper insights into the morality, efficacy and the concept of justice ­using these more comprehensive guidelines. The war crimes trials after World War ii were a significant institutional innovation in the development of international justice. The Truth and Reconciliation Commission processes are similar in their novelty to a form of a community dispute settlement.12 The u.n. Charter provides a non-exhaustive checklist of techniques for managing conflict. These include negotiation, ­inquiry, mediation, conciliation, arbitration, judicial settlement as well as ­resort to regional agencies or arrangements, or other peaceful means of their own choice. The approval of this last, open-ended category suggests that truth, justice and reconciliation models are in general appropriate and lawful under the Charter. However, the specific forms of the model must still meet an international law test to determine whether the model is reconcilable with the principle of international legality. x

Latin America

The conflicts which arose in Latin America during the height of the Cold War mirrored the anti-colonial struggles of Africa and Asia. At the same time, Latin American political experience had been considerably different to the colonial experience of the Africans and Asians. The Latin Americans had been able to establish freedom from colonial rule early in their history. Since the United States is geographically proximate to this region, the Americas were viewed as falling within the sphere of its influence. The most concrete expression of this perspective was the Monroe Doctrine, with its assumption that the European colonial powers had no business meddling in the internal affairs of Latin American countries. The extension of the Monroe Doctrine into the period of the Cold War provided a structural precondition for a heightened form of conflict. Revolutionary movements were often seen as surrogates for the 12

See Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (2002).

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e­ xpansion of communist imperialism into the American sphere of influence. This had especially important fallout within the political structures of Latin American countries. Tendencies towards military dictatorships or authoritarian forms of governance were supported by the American strategic interest in keeping communism out of its sphere of influence. Even more importantly, authoritarian dictatorships sought to validate themselves by claiming that, in fighting the war against communism, they were acting for freedom. In Argentina, the wars were popularly designated as ‘dirty wars’ which ­required ‘dirty methods’ to contain them. In Guatemala, the war, although ostensibly described as a war against communism, became a war against the indigenous Indian Guatemalans. In Colombia, the conflict became so convoluted that the entire period was described quite simply as La Violencia. The conflicts in Peru, Bolivia and El Salvador had similar characteristics of ideological ­justification for human rights abuse by the state and retaliation in kind from non-state movements of national liberation. As these conflicts continued, patterns of intervention involving local, regional and international i­nitiatives began to emerge. Those who thought they were most vulnerable to charges of being responsible for gross human rights violations found an obstacle in the prospect that peace might generate some form of direct personal liability. For these groups, any commitment to peace would have to come with some commitment to amnesty. For those seeking to resolve the conflict who felt themselves to be victims of human rights abuse, the concern was whether it was possible to have peace and democracy at the expense of fundamental justice and accountability. There were other concerns. Would amnesty promote reconciliation and peace? Would legal accountability and prosecutions abort the peace processes and escalate conflicts to a new level of intensity? Can the truth prevent the repetition of such excesses by all parties or would it serve only to exacerbate the effects of gross human rights violations in the continuation of conflict? The experience of Latin America was a test of the limits of conflict resolution, the limits of reconciliation, the limits of transparent truth and the ­limitations that inhere in the establishment of democratic societies. During the 1970’s, the Argentinean state experienced many difficulties. It operated as a functionally closed economy and experienced high levels of trade union activism. There was violent resistance to the regime from dissident groups. In 1976, the military seized power in a coup d’état. Military rule led to a decline in many sectors of the state including economic performance and respect for human rights. As resistance to the military junta increased, state-sanctioned repression increased radically. The Argentinean invasion of the Falkland Islands and the reaction of the United Kingdom resulted in a defeat for the military junta.

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The defeat generated tensions within the junta, as well as dissonance within all the branches of the armed forces. These internal conflicts weakened the hold of the military over Argentinean society and spurred the army to negotiate a transition with the democratic opposition. The negotiations paved the way for the elections of 1983, in which President Raul Alfonsin of the Radical Party was elected. Alfonsin solemnly promised that the new democratic government would demand a form of justice for the gross human rights violations attributable to the military junta.13 Gross human rights violations, including extra-judicial executions, were well documented during the 1970’s and the early 1980’s by reputable non-­ governmental human rights organizations.14 These early reports noted that the military junta was directly or indirectly involved in most of these human rights violations. In 1983, President Alfonsin established the National Commission on Disappeared Persons (Comision Nacional para la Desaparicion de Personas). As the commission began its work, controversy emerged about the extent of the human rights violations that had occurred. This included in particular the number of “disappeared.” To illustrate, the Argentine Permanent Assembly on Human Rights (Asamblea Permanente por los Derechos Humanos) claimed that the number of victims of gross human rights abuse was estimated to be 6,500 from 1976 to 1979. Amnesty International, however, claimed that the ­aggregate number was actually in the region of 15,000.15 The commission released its final report in 1985 in which it accepted a disputed figure of 8,960 cases of gross human rights abuse from 1976 to 1983.16 The final report was called Nunca Mas, Never Again. In the final chapter of the report, an effort was made to ascribe significant responsibility for the 13

See Catalina Smulovitz Argentina, reprinted in The Healing of a Nation?, Alex Boraine and Janet Levy, eds., 56–65 (1995). 14 Among others, two important human rights organisations turned their files over to the commission: The Center of Legal and Social Studies (Centro de Estudios Legales y Sociales) and The Argentine Permanent Assembly on Human Rights (Asamblea Permanente por los Derechos Humanos). Their documentation contained information on 6,500 cases of disappearances and proved extremely valuable to the commission. Further information was collected from the relatives of the disappeared, who went to the commission’s offices to relate their stories. The commission made it clear that it estimated that there were still many more victims of disappearances whose families never came forward with information. 15 See Amnesty International, Argentina: The Military Juntas and Human Rights: Report of the Trial of the Former Junta Members (1987). 16 The u.s. government report to Congress in 1977 on the state of human rights in Argentina found that some 2,000 people were killed between 1973 and 1976.

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repression in Argentina to the United States. In doing so, the report minimized the role of the Argentinean government in the disappearances prior to 1976. The Argentinean truth commission was by no means an unqualified success.17 The commission had only weak powers to persuade the armed and security forces to come forward with the necessary information and evidence. They were very reluctant to co-operate with the commission, often refusing to reply to written questions and sometimes refusing to permit inspections of military establishments. Among the drawbacks was the decision not to include the names of those who were responsible directly or indirectly for gross human rights violations in the commission’s final report. Rather, the commission ­submitted a list of names, in confidence, to President Alfonsin for him to determine what further action would be undertaken by the government. No action was taken, notwithstanding that the list of names was leaked to the press and became public knowledge. The Argentinean truth commission has not generally been viewed as an unqualified success. The scope of the commission’s review of human rights abuse, the period for investigation,18 and the nature of the procedures relating to the ascription of responsibility all had serious shortcomings. The positions of both the victims and the victimizers remain in a state of controlled tension. However, it is a form of tension that could well form the basis of another round of major domestic conflict. It does not represent an ideal model of conflict resolution. The reluctance to ascribe responsibility or to take some form of governmental action against conduct violating basic standards of humanity and dignity might be seen as significantly weakening the normative constraints of the rule of law inside Argentina and regional and general international law.19 There are other important illustrations of amnesty-based transitional mechanisms in Latin America. These include Bolivia, El Salvador and Chile. The g­ eneral consensus is that these responses were unsatisfactory. The way in  which the situation in Chile was dealt with internally resulted in legal 17 18

19

See generally, Americas Watch Truth and Partial Justice in Argentina: An Update (1991). The Argentinian truth commission focused mostly on the fate of the disappeared and worked only for about nine months investigating human rights abuses which occurred within seven years. Amnesty International and Human Rights Watch have issued strong statements demanding individual accountability for serious human rights violations. The United Nations General Assembly did the same in the case of disappearances and summary executions. See Declaration on the Protection of All Persons from Enforced Disappearance, g.a. Res. 47/133, u.n. Doc. A/RES/47/133, (December 18, 1992). See also Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, ecosoc Res. 1989/65, ecosoc Off. Rec. 1989, Supp. No. 1 (1990).

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a­ ction against former President Pinochet in Spain, the United Kingdom and Chile itself. What are the major lessons to be learned from truth and reconciliation ­processes in Latin America? Every truth commission is vulnerable to the political context in which it functions. Tremendous pressures may be put on any truth commission by political interests. Some of the ways to constrain a truth commission are circumscribing its mandate, weakening its structure, ­suppressing political support, withholding or withdrawing resources and limiting access to information. A truth commission working in a hostile environment is likely to produce only a moderately strong or even weak final report and is rarely capable of taking on politically sensitive cases. xi

Truth and Reconciliation in South Africa

From an international perspective, the goals set for the Commission indicated a commitment to true reconciliation by renouncing vengeance on the abusers and restoring the dignity of the victims and providing them with justice and reparations. The main goal of the Commission was to investigate, record and publicly disclose the information about the past human rights violations, slowly developing a culture of human rights in which it is possible to forgive without amnesia. The Commission’s process would contribute to the promotion of national unity and reconciliation. Its objectives were to conduct investigations and hold hearings in order to establish a full picture of the gross ­violations of human rights that were committed. The Commission was to grant amnesty to persons who made a full disclosure of all the relevant facts and disclose the fate or whereabouts of victims, restore their dignity and recommend reparation measures. All of the proceedings were documented to recommend a course of action which would prevent the occurrence of similar gross violations of human rights in the future. The South African Truth and Reconciliation Commission legislation created a distinctive structure for managing ‘transitional’ justice which combined ­elements of administrative justice as well as processes that included juridical and quasi-juridical elements. Consistent with the objectives of the Commission, three separate committees were to work within the Commission: the Human Rights Violations Committee, the Reparation and Rehabilitation Committee and the Amnesty Committee. The main task of the Human Rights Violations Committee was to investigate the gross violations of human rights which occurred between March 1, 1960 and

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May 9, 1995. An investigating unit was established to help the ­Committee to exercise its powers of investigation, granted to the Commission in Chapters vi and vii of the trc Act. The Committee was to establish the identity of the victims, their fate and whereabouts, the nature and extent of the harm they suffered, and whether the human rights violations in a particular case were planned by any organization or whether they were the actions of an individual. Once victims were identified, they were referred to the Reparation and Rehabilitation Committee. The principal goal of this Committee was to restore the dignity of the victims of human rights violations by granting these victims an opportunity to relate their own accounts of their suffering and recommending what reparation measures might be afforded to them. South Africa’s economic obligations in the aftermath of transformation placed limitations on the funds available for compensatory justice under the trc process. The Committee was charged with formulating policy proposals and recommendations in order to ensure that similar atrocities would not be perpetrated in the future and that survivors could begin the process of healing. The main task of the Amnesty Committee was to grant amnesty. Anyone could apply for amnesty for any act, omission, or offense associated with a political objective and committed between a specified time frame. A person wanting amnesty had to apply for it and be willing to provide the Committee with full disclosure of all relevant facts. If an amnesty is granted, a perpetrator could be free from prosecution for the particular offence. Decisions granting amnesty were to be published officially by the government. The South African Truth and Reconciliation Law was challenged on the basis that it was incompatible with the new South African Constitution and incompatible with international legal obligations of the state. The core of the Commission’s work was in organizing public hearings concerning human rights violations. The Commission allowed the country and the world to hear the accounts of those who caused suffering, as well as their ­victims. However, the Commission organized hearings aimed at understanding the broader context within which atrocities occurred. Political organizations, the media, the civil servants and other representatives from the private sector participated in this spectacle of reconciliation by evaluating, explaining, defending, condemning and contextualizing their roles in the past. The impact of the Commission increased because of the establishment of a Reconciliation Register and through the encouragement of anyone who wished to freely express their thoughts. This forum existed in the form of the access provided to it by all the Commission’s offices and by the facilities of the Internet. It proved to be so helpful that some churches have expressed the interest in carrying

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f­orward this kind of action into the future. The comparable concept of the public being heard or listened to was used by the South African ngo Coalition and some churches when they jointly organized countrywide public debates on poverty. There were many distinctive aspects of the South African trc process. First, there was an incentive on the part of perpetrators of gross violations of human rights to come forward and testify. There was always the possibility that human rights violator might unfairly ascribe human rights violations to others. Human rights perpetrators came forward to provide their version of the story first. Second, the proceedings were often held on live television meaning that the confessions and testimony were generated with maximum transparency giving the whole nation a feeling of involvement. Third, there was the overall ideology that full disclosure, amnesty, accounting and subsequent reparations were all based on the idea of forgiveness. The Chairman of the trc Committee, Archbishop Desmond Tutu, provided the spiritual leadership and credibility to make this process work. It was not a perfect process and its legality was challenged before the South African Constitutional Court. xii

The Colombian Justice and Peace Law

This law focuses on the prosecutorial trial aspect of the process and leaves ­undeveloped the concept of truth. Without truth, it is very difficult to develop a proper narrative, and, without a proper narrative, the entire conflict is surrounded in a veil of obscurity. Without truth there can be no reconciliation and forgiveness. Colombia had several disappointing initiatives targeted at reducing the scale of violence and working toward the incentive of amnesty as a vehicle to reduce violence. The problem with these initiatives was the complicated porousness between state officials, paramilitary operatives and the sense that amnesty generated impunity creating an expectation that amnesty from the state was really a tacit acceptance of violent practices. This generated the expectation that those given amnesty may repeat their outrageous conduct and practices. The Justice and Peace Law was greeted with skepticism by many human rights groups. The government’s conduct seemed to give credence to these concerns. The u.n. High Commissioner has an office in Colombia to monitor events there. The High Commissioner has made multiple recommendations concerning the national human rights action plan and for the increased protection

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of the defenders of human rights. He has made recommendations considering the particular forms of human rights abuse and recommended that the peace and justice legislation be made more congruent with human rights values, including the rights of victims to know the truth, the rights of victims to justice and reparation. The current government tried to limit the mandate of the ­Office of the u.n. Commissioner in Colombia and its monitoring role. Problems about the Justice and Peace Law and the political will to give it full effect remain. A central feature of Law 975 deals with the question of the individual and collective demobilization of the armed segments of the society. Since the line between the paramilitaries, the military and the police is sometimes permeable in practice, this law is not an easy standard to implement. The victimizers are entitled to benefits under the law. In order to receive the benefits, i.e.,  lighter penalties, they must meet certain requirements and be certified by the ­judiciary working with other governmental agencies. The duties implicated here are not obvious or easy to understand. The victimizers must qualify to protect their benefits. The government must aggressively police compliance and eligibility requirements. The state agencies would seem to be in an adverse role in developing the standards of how precisely to apply these criteria to the victimizer given the gravity of the ostensible activity for which leniency is sought. If there is infiltration of state services, there maybe questions as to what influences condition those who voluntarily come forward through the government. An obvious point of contrast between this model and the South African model is that the South African model was meant to be independent of the government. The complicated problem of negotiating with armed groups and demobilizing them and a full appreciation of the procedure by which this is done might provide a better understanding of what happens after the names are acquired by the government and forwarded to the general prosecutor’s office. Two issues that stand out are the ‘front loading’ of the process. What the community needs is the full story. The criteria are useful guides for the development of the narrative but the practical problem is that the story will be largely anecdotal, incomplete and society may learn very little. On the other hand, the threshold procedure is really designed to get at the individual narrative and its radiating ties and influences. This means that the individual has no self-accounting let alone individuated accounting through the structures of the prosecutorial system. The practical problem with the trial model for truth is that trials are meant to be narrowly focused. The prosecutor in formulating the trials strategy needs a narrow focus to secure a conviction. The defendant wants as little as possible out as well. The more information about him that

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comes out, the more vulnerable he will be to conviction. These two ideas raise the limits of the trial approach to transitional justice. xiii

Justice, Peace, and International Legal Standards: Rethinking Sanctions

This chapter concludes with reference to the technical question of whether the procedure in Law 975 as modified is consistent with international human rights standards. Both the Inter-American Commission and the Inter-­American Court have addressed this issue. The focus has been on the imprescriptable nature of international law in this context. The other imprescriptable right is the right to peace and security which is a right of jus cogens stature. In the Azanian Peoples case, the South African Court suggested that notwithstanding human rights and humanitarian law, the trc Statute was dictated by the principle of necessity. The issues raised are juridically important to Colombia and to the development of inter-American human rights law. In the Azanian Peoples case, the issues extend beyond the boundaries of South Africa’s specific concerns with conflict resolution and its methods of political and legal transformation. The court considered the Latin American experience, referring in particular to Argentina, Chile, and El Salvador.20 The court concluded as follows with regard to the lessons of comparative international practice: What emerges from the experience of these and other countries that have ended periods of authoritarian and abusive rule, is that there is no single or uniform international practice in relation to amnesty. Decisions of states in transition, taken with a view to assisting such transition, are quite different from acts of a state covering up its own crimes by granting itself immunity. In the former case, it is not a question of the governmental agents responsible for the violations indemnifying themselves, but rather, one of a constitutional compact being entered into by all sides, with former victims being well-represented, as part of an ongoing process to develop constitutional democracy and prevent a repetition of the abuses.21

20 21

Azanian Peoples Organization v President of the Republic of South Africa 1996 (4) sa 671 (cc) at para. 22 and 23. Id., at para. 24.

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The central fact of importance to the international lawyer is that the Court could discern “no single or uniform international practice in relation to amnesty.”22 The significance of this is to recognize that state practice is, in ­reality, very ­different to what formal treaty obligations, or other sources of international law, might prescribe.23 The Court directly addressed the question of whether the Geneva Convention of 1949, including the relevant protocols, applied to the South African situation. But, the line of reasoning relating to the juridical implications of international practice was not effectively pursued by the Court. These are precisely the important international law matters that should have been explored by the Court as they relate to the ambit of national sovereignty and the reach of international obligations under international law. The exact juridical status of international law in the context of the South ­African legal system can now be brought under scrutiny. Those forces committed to the liberation of South Africa sought to expand the scope of international 22 23

Id. The Constitutional Court recognised that the negotiators of the Interim Constitution, as well as Parliament, had several choices as to how to draft an amnesty law. The Court said that [t]hey could have chosen to insist that a comprehensive amnesty manifestly involved an inequality of sacrifice between the victims and the perpetrators of invasions into the fundamental rights of such victims and their families, and that, for this reason, the terms of the amnesty should leave in tact the claim which some of these victims might have been able to pursue against those responsible for authorising, permitting or colluding in such acts, or they could have decided that this course would impede the pace, effectiveness and objectives of the transition with consequences substantially prejudicial for the people of country facing, for the first time, the real prospect of enjoying, in the future, some human rights so unfairly denied to the generations that preceded them… They could conceivably have chosen to differentiate between the wrongful acts committed in defence of the order and those committed in the resistance of it, or they could have chosen a comprehensive form of amnesty which did not make this distinction. See Azanian Peoples Organisation v President of the Republic of South Africa 1996 (4) sa 671 (cc) 698. The Constitutional Court concluded that the Parliament was entitled to make all the choices it did. Thus, neither the decision of Parliament to indemnify amnesty recipients against both criminal and civil liability, nor the decision to make all political acts eligible for amnesty regardless of the political affiliation of the actor, could be seen as illegal or inappropriate. There exists an objection on moral grounds to Parliament’s decision to indemnify the state against civil liability arising out of such acts, even when the state is the only potential source of financial compensation for a particular victim or group of victims. But no legal grounds for such an objection exist.

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juridical concern over the struggle against apartheid. Correspondingly, those forces who defended apartheid sought to maximise its insulation by giving an expansive interpretation to the domestic jurisdiction/sovereignty concept of art 2(7) of the u.n. Charter. The Constitution of South Africa provides in Section 231(4) the following: [T]he rules of customary international law binding on the Republic, shall unless inconsistent with this Constitution or an Act of Parliament, form part of the law of the Republic. It is submitted that, while the statement of law that an act of Parliament can trump the rules of customary international law is true, it avoids certain central difficulties, such as a. what is the customary international law and b. what are the standards used to construe that law. The Constitution itself provides some guidelines about the interpretation of international law in general. In Section 35(1), the Constitution stipulates as follows: In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law. Section 35(1) expressly enacts a standard which creates a presumption in f­ avor of the domestic courts applying the rules of customary international law. The specific textual language uses the mandatory term “shall” qualified by the terms “unless inconsistent.” This suggests that one who wishes to demonstrate the inconsistency of a rule of customary international law with the Constitution or an act of parliament carries the onus of doing so. Section 35(1) ­provides specific normative guidance to the interpretation of international law by ­mandating the court to apply the values inherent in ‘an open and democratic society based on freedom and equality.’ The court is directed by the term “shall” to consider ‘public international law’, where applicable.24 What do these terms mean with regard to the 24

Mahomed DP describes the constitutional obligation to account for international law by suggesting that “the court is directed only to ‘have regard’ to public international law” (see Id., para. 27). However, the text of Art 35(1) provides a prefix to the ‘have regard’ language, and that prefix is the word ‘shall … have regard.’ This suggests that the Justice has provided

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application of international law based on treaty or custom? Since the specific grant of amnesty presupposes the presence of some form of criminal sanction, the first principle to guide interpretation must be to recognize the decentralized character of the prosecution/enforcement obligation under international law. States are charged not with mechanical enforcement but with “reasonable” ­enforcement. This is obvious from the fact that prosecutorial systems of ­sovereign states vary enormously. Every prosecutorial system comes with some form of prosecutorial discretion. This means that the practical prosecutor, from an international legal perspective, would have to exercise the inherent discretion in his office in order to comply with the criminal justice expectations. This may mean that the prosecutor would have to take into account a wide variety of sanctioning objectives in order to determine whether to proceed and how to proceed. The rational sanctioning goals that could be relevant may be reflected in legislation designed to promote truth, accountability and amnesty and may include prevention, deterrence, restoration, rehabilitation, reconstruction and correction. Section 35(1) is vitally important for determining the criteria for determining whether the trc Act, taken as a whole, is consistent with international legal obligations. The criteria, which include the reference to both civil and political rights in terms of liberty, life and respect as well as the reference to democratic values, should be read in the light of Article 6(5) of Protocol ii of the Geneva Convention of 1949: [a]t the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained. The reference in Section 35(1) to a democratic society alludes to the idea of democracy as a human right, as well as to the principle of self-determination. The mention of ‘the end of hostilities’ in the Geneva Convention introduces the issue of conflict management, but more particularly, the ius cogens ­human right to peace.25 The problem that the rational interpreter must c­onfront

25

a much weakened construction of the constitutional text itself in this context. The term ‘only’ seems to stress a much higher sense of discretion, whereas the term ‘shall’ considerably lessens that construction with regard to the application of the international law. A similar view was expressed by Kader Asmal and the other authors of the book Reconciliation Through Truth, when they concluded that South Africa’s amnesty process did not violate international law. The major argument they used was that there exists ‘the

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in ­construing the relevant international law is the following: the truth and ­reconciliation process, as a whole must promote the values of peace and self-­ determined democracy and seek to provide some form of reasonable sanctions for gross human rights violations. The historically accepted standard for ­mediating between conflicting normative values in international law has been that articulated by Smith: The law of nations which is neither enacted nor interpreted by any visible authority universally recognized, professes to be the application of reason to international conduct. From this it follows that any claim which is admittedly reasonable may fairly be presumed to be in accordance with law, and the b­ urden of proving that it is contrary to law should lie on the state which ­opposes the claim.26 This principle of reasonableness then would have to be applied by the court to determine whether the scope of the international obligation to prosecute is in fact being reasonably met by the standards in the trc Act. The Azanian Peoples case was correctly decided, but the reasoning regarding the status of international law and municipal law may be amplified. The fundamental argument of the South African Constitutional Court was that the transformation to democracy would not have happened without the commitment to the truth, amnesty and reconciliation process. The manner in which to evaluate the truth and reconciliation process was as follows: it was true that

26

diversity of approaches’ nations have followed when settling their past. They claimed that nothing in international law obliges a nation to prosecute human rights violators when doing so would risk ‘reducing the body politic to ashes’. See Kader Asmal, Ronald Suresh Roberts, Louise Asmal, Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance,2nd edition, 20 (1999). It is, however, possible to argue that, although there had been a real danger of the conflict escalating into civil war in 1993 if the resistance movement had not agreed to some form of amnesty, the decision of Parliament in June 1995 to pass a rather broad amnesty law was not based on the political situation or other pressures existing at that time in the country. One may even allege that the current decisions of the Amnesty Committee, releasing clear human rights violators from jail, are even less important for South Africa’s survival than the previous amnesties. One may then argue that these new amnesties are motivated more by concerns of political expediency than national reconciliation. It is in this light that the Constitutional Court’s judgments confirming that international law permits the broad amnesty provisions of trc Act are being questioned. See the quote of H.A. Smith’s principle as reprinted in Myres S. McDougal & Norbert A Schlei, The Hydrogen Bomb Tests in Perspective: Lawful Measures For Security, 64 Yale l.j. 648 at 648–63 and 682–88 (1955).

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actors operating within the apartheid framework violated peremptory norms of international human rights and humanitarian law. These principles were peremptory because they were ius cogens principles. It should, however, be ­remembered that a human right to peace was also a ius cogens principle, as were the human rights of the people to self-determination, independence and democracy. In effect, the judicial task of the South African Constitutional Court was to mediate between two jus cogens norms of international law. The tried and tested standard for mediating between these two normative standards was the principle of ‘reasonable construction and interpretation.’27 The fundamental question was whether the procedures envisioned in the trc Act constitute a reasonable response? The specific issue related to humanitarian and human rights law did not deal with punishment in the narrow sense, but dealt with sanctions in the broadest international sense. The question was whether the procedure of the Commission, taken as a whole, meet the obligations inherent in international law? Did it represent a reasonable strategy that promoted peace and self-determination and did not sacrifice the sanctioning objectives related to gross violations of humanitarian and human rights law? There are six recognized, interrelated sanctioning objectives in any rational sanctioning system. These are prevention, deterrence, restoration, rehabilitation, reconstruction and correction.28 1. 2. 3.

27 28

Prevention: the ascription of personal responsibility in the context of truth-telling carries a message involving shaming as a sanction and as a particular prophylaxis for the society as a whole. Deterrence: by personalizing responsibility, accountability and shame, the particular perpetrators are sanctioned communally by a significant loss of place in society. Restoration: accounting for the victims and providing some form of compensation cannot, ultimately, restore fully the victim’s sense of dignity. Nevertheless, monetary compensation provides some tangible sense of collective concern for restoration. Furthermore, the victimizer, by coming forward and being genuinely repentant, has a chance of some level of social restoration.

Id. The leading study on the issues of sanctions and punishment was carried out by Richard Ahrens and Harold D. Lasswell, In Defense of Public Order: The Emerging Field of Sanction Law (1961).

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Rehabilitation: By recognizing the suffering and accounting for it, the perpetrators have a capacity to move to a form of rehabilitation. Reconstruction: The entire exercise of the truth and reconciliation process forms part of the reconstruction of the society towards the culture of democracy and freedom Correction: The transparency of the process sharpens the political and legal choices as to how society could be corrected to ensure that such atrocities do not recur.29

xiv Conclusion In Colombia, the approach of the legislature has been too narrow in understanding the full scope of the concept of sanctions as outlined, supra. These sanctions provide the state with flexible tools that do not exclude using the prosecutorial and trial method of transitional justice. It is critical that these diverse sanctioning policies be better understood in their appropriate roles. It is true that the conventional criminal standards will loom large in the Colombian peace and reconciliation process. It is important that the balance be reasonably struck between the transparency and the assignment of responsibility, on one hand, and the specific questions of amnesty or leniency in punishment on the other. These should be more distinct when it comes to the issue of providing for reparations to victims. Reparations ultimately mean confronting the problem of socio-economic justice which it the root cause of the conflict in the first place.

29

Dianne Orentlicher in her article (see Dianne F. Orentlicher, Settling Accounts: The Duty to Pprosecute Human Rights Violations of a Prior Regime, 100 Yale l.j. 2537 (1991)) uses the concept of punishment outside of the concept of sanctioning objectives, refers to human rights standards without delineating the concept of interpretation to mediate between ostensibly conflicting norms and shows an inadequate understanding of the process of prosecution, and the elements of reasonably exercised discretion, as well as a lack of appreciation of the variability of the concept of punishment and/or sanction itself in a vastly differing world of cultural relativity, and where the enforcement of an international obligation is essentially a decentralized matter.

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Human Rights, Eco-Community Survival, Bio-Piracy and Indigenous Peoples This chapter focuses on the importance of the human rights of the indigenous peoples in the Amazon River Basin. Drawing on firsthand experiences representing an Amazonian indigenous tribe, the chapter deals in practical ­problems and their theoretical implications for effectively promoting and ­defending the fundamental human rights of indigenous peoples. The human rights issues confronting indigenous nations of the world community have not had the prominence of a central placement in the global agenda for the promotion and defense of human rights. There are approximately 350 million indigenous people spread around the world in every continent. Indigenous people are an identifiable, weakened, impoverished and at risk minority. As a minority, the human rights of indigenous people at the ­international level fell within the province of the International Labor Organization (ilo). The ilo produced important international treaties for the ­protection of certain aspects of indigenous life it considered crucial to the survival and well-being of indigenous nations. Nevertheless, the struggle for a comprehensive bill of rights for the protection and enhancement of the fundamental interests of indigenous people was an arduous and difficult issue. This is largely because the critical decision making fora of the u.n. are dominated by states and indigenous people have their essential status defined by state sovereignty. Sovereigns are therefore well represented in international fora and do what they must do to secure their state interests. Unfortunately, the problems of indigenous people worldwide are tied to state policy and the definition of state interests. Those interests do not necessarily represent the weakest or most vulnerable constituencies within the state. It has therefore become extremely ­important to balance narrow and destructive state interest relating to indigenous people with a capacity to mobilize international interests and influence to support the weakened position of domestic indigenous groups inside the state. We consider some contemporary issues that implicate the human rights of indigenous people touching on issues of climate change and protected a­ reas as well as carbon trading and its potential effects on indigenous interests. ­Focusing on the Shuar Nation of the Amazon, the chapter then explores issues that relate to the ownership of land, concessionary agreements and pollution, © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_020

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as well as issues of the protection of traditional knowledge and biopiracy. The chapter also provides a case study of conflicts relating to land interests in Peru and concludes by revisiting issues of climate change and its relationship to human rights and environmental rights. The chapter concludes by stressing the importance of participatory rights of indigenous nations in the defense of their patrimony. i

Selected Problems of Indigenous Rights and Conflicts in Latin America

On September 17, 2006, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous People. This instrument is one of the most important adopted by the international community through the un directly concerned with the promotion and protection of the fundamental rights of indigenous people globally. In general, the status and rights of indigenous nations within the states of Latin America represents a longstanding problem of conflict and tension within the state system. The central problem for the preservation and enhancement of the fundamental rights of indigenous people in Latin America is a problem that state policy, practice, inadvertence or negligence is a source of conflict because the state’s posture frequently represents a threat to indigenous fundamental rights including the right to survival. Thus, the problem relating to the status and interests of indigenous nations is primarily a problem of state sovereignty. If in the exercise of sovereign power, the policies and practices put the survival of indigenous peoples at stake, the question is what sources of political activism and legal representation can indigenous nations organize to preserve and protect their interests? The central problem of indigenous nations within nation states of Latin America is that they occupy marginal political space. Since they are politically marginal and poorly represented in addition to being resource starved, they cannot articulate and participate effectively in the political process that may define their existence as expedient to state policy. Given the marginalized position of indigenous nations in Latin American states, the effort to defend indigenous interests has given importance to the development of initiatives and international legal norms which seek to constrain the power of the state and enhance the power of indigenous nations. There are three principal international instruments of global and regional importance that serve as tools for improving the degree of protection to be given to fundamental rights of indigenous people. These are 1. the United

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­ ations Declaration on the Rights of Indigenous Peoples;1 2. the International N Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries;2 and 3. the Proposed American Declaration on the Rights of Indigenous Peoples,3 approved by the Inter-American Commission on ­Human Rights (1997); indirect human rights sources that have influenced the development of international law for the protection of indigenous rights: (i) the American Convention on Human Rights;4 (ii) the American ­Declaration on the Rights and Duties of Man; (iii) the udhr;5 (iv) the ­International ­Covenant on Civil and Political Rights;6 (v) the Convention that Outlaws Racial Discrimination; (vi) the International Labor ­Organization Supervisory System for Monitoring Compliance; and (vii) the Procedure and Practice of the InterAmerican Commission and the Inter-American Court of Human Rights. These basic documentary sources and institutions are supplemented by the creation of the Permanent Forum on Indigenous Issues within the u.n. System as well as the u.n. Working Group on Indigenous Populations and the Institution of the Office of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. This part of the chapter will focus on a particular community of indigenous peoples as a representative First Nation, in order to illustrate the human rights issues in context. a brief overview is provided of the Shuar culture, its spiritual heritage, and its political organization. Following this overview is a general ­discussion of the conflicts in the context of Latin America, which implicate the fundamental human rights of indigenous people. A The Shuar Nation of Ecuador One of our authors, Winston P. Nagan, serves as a political and legal advisor (juris consult) to the Shuar Nation Corporation and the International ­Federation of the Shuar (fisch). His pro bono involvement in this capacity 1 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/Res/61/295 (September 13, 2007). 2 International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries, C169 (1989) (hereinafter ilo Convention 169). 3 Proposed American Declaration on the Rights of Indigenous Peoples, Inter-American ­Commission on Human Rights (February 26, 1997). 4 American Convention on Human Rights, “Pact of San Jose, Costa Rica” (B-32), oas Treaty Series, No. 36, (November 22, 1969). 5 Universal Declaration of Human Rights, G.A. Res. 217 (iii) A, U.N. Doc. A/Res/217(iii) (­December 10, 1948). 6 International Covenant on Civil and Political Rights, G.A. Res. 2200A (xxi) (December 16, 1966).

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­primarily a­ ddresses legal strategies for obtaining satisfactory recognition of human rights on behalf of Shuar community. His advice is offered to obtain the goals and solve problems as the Shuar community members and leaders identify and describe them. To this end, he has initiated and helped draft the Bill of Fundamental Rights of the Shuar Nation; he assisted the Shuar in creating a modern corporate form (for the purpose of controlling their economic assets and resources); and he has filed a petition on the land rights of the Shuar before the Inter-American Commission on Human Rights. Nagan has also co-authored and jointly delivered outreach presentations with the Shuar leadership. In 2002, Nagan was initiated into the Shuar community as a member. The Shuar Nation (Shuar) is a First Nation of Ecuador.7 In the southeastern part of Ecuador, the territory over which the Shuar exercise autonomy is approximately the size of Portugal.8 Composed of more than 100,000 members, the Shuar are the second largest among indigenous Amazonian groups.9 Geographically protected by the Andean mountains and unnavigable rivers, the isolated community was able maintain its independence to withstand the assault of invaders until very recently.10 Thus, the Shuar were never conquered by the Spanish colonists.11 7

8

9 10 11

The term Shuar literally means “people.” Until recently, “external observers of the Shuar, including anthropologists and ethnographers, have referred to the Shuar as jívaros or jíbaros—terms which likely derive from the 16th century Spanish spelling of “shuar.” Juan Carlos Jintiach et al., The People of the Sacred Waterfalls: An Introduction to the Shuar of the Amazon, http://img9.custompublish.com/getfile.php/706201.699.tppvwyuvsq/Shuar&nb sp;seminar beskrivelse.pdf?return=www.riddu.no (last visited Mar. 2, 2010). The sovereign territory of the Shuar stretches across roughly 25,000 square miles of southeastern Ecuador, between the upper mountains of the Andes and the Amazonian lowlands, and between the Pastaza and Marañó Rivers. See Juan Carlos Jintiach et al., The People of the Sacred Waterfalls: An Introduction to the Shuar of the Amazon, http://img9. custompublish.com/getfile.php/706201.699.tppvwyuvsq/Shuar seminar bes krivelse.pdf?return=www.riddu.no (last visited Mar. 2, 2010). Id. Id. In the oral tradition of the Shuar, the Spanish came with some 30,000 troops and operatives; and the Shuar immediately killed 29,998 of them. The Shuar allowed the Captain General and the priest to live. As the history is told, the Captain General had invaded Shuar lands seeking gold. Thus, he was to get as much as he could consume: the Shuar poured molten gold down his throat until he succumbed to death. The priest was allowed to live for a special purpose as well: escorted safely out of the territory, it was his job to record for outsiders what had taken place, as the Shuar felt that his story would discourage further invasions. A similar narrative circa 1599 is recorded in the chronicles of 18th-century Ecuadorian Jesuit Juan de Velasco. See John Hemming & Royal Geographical Society (Great Britain), Change in the Amazon Basin 258 (1985).

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Nor are the Shuar a colonized First Nation.12 The Shuar inherit and maintain a strong martial tradition,13 which continues to inspire autonomy, resourcefulness, and skill at improvisation. The Shuar culture values strategic thinking, clarity of judgment in tactical and strategic terms, and a great deal of innovativeness in managing external forces seeking to steal what they have. The Shuar have excellent communications networks outside of the territory itself. They have a good sense of things that may threaten them from the state or from predatory interest groups. A central feature of the Shuar is its cultural capacity for decentralizing decision making authority. The elimination of Shuar leaders will not result in a nation left rudderless and incapable of defending its interests in the future. Through an exceptional capacity for self-preservation and militaristic savvy, they have retained physical control over their territory for over 5,000 years, protecting themselves and their physical environment form waves of colonizers and would-be exploiters. From an anthropological perspective, the colonial conquest of First Nations can be seen as a process that leads to the extinction of competence over decision making and governance. Consequently, the autonomy and independence of the Shuar may be a function of an uncolonized culture whose mind and capacity for choice has not been expropriated by the colonial master. The naturalistic element of Shamanism sees nature as a neutral force. It is a force that can be used for good or ill. As a representation of nature’s manifold surprises and challenges, the The Shuar make great pilots, mechanics and acquire such skills with relative ease. The moral and religious component of Shamanism sees nature as a resource and a tool for a deeper appreciation of man’s spiritual capacity. It also sees nature as a critical tool for facilitating the well-being of man. One aspect of the well-being Shamanic process is the role of the Shaman as a healer. The Shaman is meant to heal in ways that are material, psychological and spiritual. The Shaman inherit 5,000 years of tradition. This tradition is continuous and 12

13

See John Perkins & Shakaim Mariano Shakai Ijisam Chumpi, Spirit of the Shuar: Wisdom from the Last Unconquered People of the Amazon 101 (2001). “[E]ven today Shuar territory is governed primarily by the Shuar Federation. ‘You never see a policeman inside that huge area; it’s run very much as though it is a separate country outside the limits of Ecuadorian rule and also beyond the grasp of the United States and the United Nations.’” Id. See, e.g., Tahir Shah, Trail of Feathers: In Search of the Birdmen of Peru 247 (2001). “In ­traditional Shuar society every man, woman and child, was on constant guard, watching for raiding parties. The tsanta raids were their raison d’être. They proved a warrior’s bravery and the community’s superiority. Feuding kept the tribe strong and alert…. A visitor was always in fear of being butchered.”

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largely uncontaminated by colonial exploitation and misuse. One of its most important contemporary challenges is the traditional knowledge about healing using plant and other natural resources from the rain forest. The traditional knowledge and the environmental integrity are critical matters for Shuar identity. They are also critical matters for predatory global ­interests. Traditional knowledge is one of the most effective ways of getting at plants, fungi, amoeba, and other life forms, which may have medical commercial value. The cosmology of Shamanism is complex. Nagan’s knowledge of Shuar cosmology is gleaned from Ricardo who is the President of the Shamans Association of the Andes. He is a man of unusually generous temperament; he is in traditional terms a gifted healer. He is a repository of deep knowledge of both plant and plant combinations for medical and other purposes as well as how those combinations are complimented by the psychological and spiritual ­values of the Shuar. Among the many questions he put to me were these: what about your ego? My answer: my ego is not my God. His response: that is the correct answer. Ricardo posed this situation: “When I give you this initiation, I will know ­everything about you. You still do not have to do it.” My response: “Well, if you find out something that says I am an untruthful cad, perhaps you can put me on the next bus to Quito.” The Shaman use the ayahuasca for ceremonial, spiritual and healing purposes. In the Bhagavad-Gita, Lord Krishna makes reference to the Soma juice. In addition, Shamanism often involves fasting and a strict vegetarian diet. It is my sense that the way in which the ayahuasca is used is very different from groups outside who have been colonized and have not retained all of the components about how and under what circumstances and for what purposes the experience is undertaken. the Shuar Shamanism represents something of a pure form and is least contaminated by quirky, thrill-seeking, quick-fix baby boomers. Ricardo tells me that in fact he himself does not need to do the ayahuaska because he can get himself into the state in which he can experience a level of higher consciousness without it. Moreover, he can move into this state and out of it almost at will. He described this as his ability to master a technique. When he got to this level after years of training, fasting and solitude (what the Shuar would call meditation). When he reached a high level of consciousness and felt confident that he was closer to his inner ideal of spiritual connectivity, he found out just how infinite the road really is. No matter how high your human consciousness can evolve, it is only a fragment of the infinitude of the spiritual universe.

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A central theme in his healing leadership and training is the profound c­ ommitment to universal respect for all human beings. In fact, a proper Shaman will never use his immense psychological and spiritual power for negative or evil purposes. The temptations are always there even for spiritual evolved people and the struggle is always one of vigilance, critical testing and application. One of the points of convergence between Shamanism, as I have experienced it, and Hinduism is the concept of time. The Shamanic world assumes that we can move into the past, the present, and possibly even parallel worlds. This is similar to the cosmological tenets of Hinduism. Sometimes a Shamanic ceremony will have the Shaman direct one to see the future or indeed, to see the past. Ricardo himself mentioned that he had seen me many years ago in a vision. He could not make sense out of the vision. I looked like a Shuar, but I came from a very far place to help. The vision came back to him later. In an experiment with Shuar higher consciousness, I experienced the natural and somewhat frightening vision of the Jaguar, a natural force of power and testing in the Rain Forest. On my ultimate initiation, I was surprised that the Jaguar did not come. I then invited the Jaguar to come and he came. He did not come as aggressively as in the past and he came in a way that I should just notice him and that was it. Ricardo later told me that the Jaguar is an arch-type of the Shuar and that is it unusual for a non-Shuar to see the Jaguar at all, least of all to see the Jaguar multiple times. The major theft of Shuar traditional knowledge using the illusion of bioprospecting to protect biodiversity, which is simply biopiracy,14 is a theft not simply of what could possibly be deemed trade secret rights having economic value, it is also a theft of a very important component of the Shamanic traditions value to Shuar history and the living identity of the community as a whole. The Shuar people are distinctive in the Americas. They have a continuous history of autonomy of some 5,000 years. In contemporary times, the Shuar are 14

Graham Dutfield, the Herchel Smith Senior Research Fellow at Queen Mary, University of London, has adeptly characterized the term ‘biopiracy’ as describing “the ways that corporations [and government organizations] from the developed world claim ownership of, free ride on, or otherwise take unfair advantage of, the genetic resources and traditional knowledge and technologies of developing countries.” Graham Dutfield, What is ­Biopiracy, International Expert Workshop on Access to Genetic Resources and Benefit Sharing 1 (2005), available at http://www.canmexworkshop.com/documents/ papers/I.3.pdf.

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organized in a political entity called the Federacion Interprovincial de Centros Shuar (ficsh). The Shuar Federation is the First Nation indigenous people’s federation in Latin America. The ficsh was founded by the father of Juan Carlos Jintiach in 1964. The founder was influenced by the social and moral values of political transformation identified with his friend, Che Guevarra. However, he believed that the interests of the Shuar would be better served by functioning politically within the Ecuadorian state. Today, the ficsh is an effective governing body of the Shuar. The selection of the Directiva is done by direct election in a meeting of the Grand Assembly of the Shuar. The Directiva has considered several ways in which to develop the Shuar economically, culturally and politically. These include ways in which traditional cultural knowledge and other resources might be developed for the benefit of all the people as well as incidentally for the State of Ecuador. To this end, the Directiva proposed to the Grand Assembly the adoption of a Shuar Fundamental Bill of Rights. One of the purposes was to provide some clarity to the ambiguity surrounding the economic patrimony of the Shuar under Ecuadorian law. To further clarity this, the Directiva presented a proposal to the Grand Assembly for the creation of a Shuar Nation Corporation under Ecuadorian law and to invest that entity with all property rights of the Shuar. That entity is to be the commercial arm of the Nation. Property Rights and the Ecuadorian Constitution The Meaning of ‘Consultation’ Negotiations on consultation: The President of Ecuador represents that the land rights of the Shuar cannot be changed because these rights are defined by the civil law. Under the civil law the state owns what is beneath the ground, the Shuar have “grazing” rights. The Shuar respond. The Shuar maintain a political position that they are the owners of what is above and below the ground. What does consultation mean? The Shuar draft a Bill of Rights and define consultation in such a way as to give them a veto over any development unless they exercise shared control and shared benefits. Moreover, any such development must be eco-socially responsible. Bill of Rights adopted unanimously by Grand Assembly. Shuar seek clarification of the civil law. The opinion of the leading civil ­lawyer of our time, A.M. Honore of All Souls College, Oxford, holds that the Shuar own what is below the ground to the infernal depths of the earth and

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up above the ground to the heavens. Thus, their ownership of land could not be taken unless there is explicit legislative enactment to deprive them of their land rights. Research into Ecuadorian law indicates no such laws have ever been passed. The government now says that it is a constitutional provision that implicitly appropriates these rights. This is not a necessary interpretation. In fact, it runs against the civil law practice that one cannot implicitly destroy ownership rights. The preferred opinion is that the distinction of what is above and ­below the ground is trite at best. At worst, it is a lie in which legal scholars of  Latin America seem to have been in the business of aiding and abetting theft of the patrimony of Ecuador’s First Nation for the interests of the feudal ruling class.

Selected Problems of Indigenous Rights and Conflicts in Latin America In general, the status and rights of indigenous nations within the states of L­ atin America represents a longstanding problem of conflict and tension within the state system. The central problem for the preservation and enhancement of the fundamental rights of indigenous people in Latin America is in effect a problem that in general state policy and practice or state inadvertance or negligence is a source of conflict because the state’s posture frequently represents a threat to indigenous interests which fundamental rights include the right to survival which is often at stake. Thus, the problem relating to the status and interests of indigenous nations is in the first instance a problem of state sovereignty. If in the exercise of sovereign power, the policies and practices put the survival of indigenous peoples at stake, the question is—what sources of political mobilization social activism and legal representation can indigenous nations organize to preserve and protect their interests? The central problem of indigenous nations within nation states of Latin America is that they occupy marginal political space. Since they are politically marginal and poorly represented in addition to being resource starved, they cannot articulate and participate effectively domestically in the political process that may define their existence as expedient to state policy. Given the marginalized position of indigenous nations in Latin American states, the effort to defend indigenous interests has given importance to the development of global and regional initiatives and therefore the development of international legal norms that seek to constrain the power of the state and enhance the power of indigenous nations themselves.

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There are three principal international instruments of global and regional importance that serve as tools for improving the degree of protection to be given to fundamental rights of indigenous people. These are: • The United Nations Declaration on the Rights of Indigenous Peoples, ­General Assembly, 2007, ga 61/295 • International Labor Organization Convention (ilo) (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (1989) Entered into force 1991 • Proposed American Declaration on the Rights of Indigenous Peoples, ­approved by the Inter-American Commission on Human Rights (1997) In addition, there are indirect human rights sources that have influenced the development of international law for the protection of indigenous rights. These include: • • • • • •

The American Convention on Human Rights The American Declaration on the Rights and Duties of Man The Universal Declaration of Human Rights The International Covenant on Civil and Political Rights The Convention that Outlaws Racial Discrimination The International Labor Organization Supervisory System for Monitoring Compliance • The Procedure and Practice of the Inter-American Commission and the Inter-American Court of Human Rights These basic documentary sources and institutions are also supplemented by the creation of the Permanent Forum on Indigenous Issues within the un ­System as well as the un Working Group on Indigenous Populations and the Institution of the Office of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People Problems of Climate Change Effecting Indigenous Peoples’ Rights Climate change in Amazonia is one of the most critical factors shaping the state of the global environment. The terms, climate change, cover a wide range of human interests and values. The raw numbers belie their importance for the future of the human prospect. Just a few degrees of global warming may trigger a meltdown of the polar ice caps triggering vast changes in the climate and weather patterns, as well as, significant increase in the level of planets oceans.

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Climate change effectually means risking well being, health and more broadly, dangerous ecological change. This environmental change has consequences for human well being, health and indeed for life itself. Environmental degradation, conditioned by dangerous climate change demonstrates the interdependence of fundamental human values and environmental integrity. The Millennium Report of the former Secretary General Annan underscored on the clear interdependence of human rights and the environment. If the environment collapses, Human Rights, prospects collapse. This insight would appear to be a Universal warning for those who take human dignity seriously. However, those most immediately affected by dangerous climate change may be the weakest communities in the world. Moreover, the moral calculus of Human Rights victimization because of climate change will probably be immediate and catastrophic for the weakest populations. These nations include the indigenous First Nations of Amazonia. The results of temperature rise according to some predicted model suggests that if things remain as they are we will have an ice-free Arctic in 2040. Such an environmental event has not existed for almost a million years. Models that are more recent predict an ice-free Arctic by 2013. Environmental change is happening faster than some predicted models. Related to this aspect of Global Warming is the anticipated loss of glacier mass. It is predicted that this will have a dramatic effect on water resources, agriculture and biodiversity and would negatively affect 40% of the world’s population. Scientists also attribute a drought, fires, floods and extreme weather events to climate warming.15 For example, the depletion of ozone layer above Australia is causing skin cancer and other skin diseases to the Australians. Dangerous climate change will threaten access to resources necessary for ­survival itself: food security, access to water and basic health services. Because the weakest must bear the cost of the abuse of the environment by the strongest global interests, this compels us also to bring into focus human rights implications or impacts that require a discriminating moral calculation. The moral calculus becomes more poignant when it is suggested that a significant factor in dangerous climate change is unregulated industrial enterprise; e.g., food security is threatened by the monopolistic trend implicit in Global ­agri-business. States, which receive foreign assistance, must deregulate and permit global market forces to determine access and the pricing of food commodities. The weak states have no safety net touching food security. The weakest are at the mercy of impersonal global market forces. Conventional e­ nvironmental 15

See Plants and Climate Change: Which Future?. Botanic Gardens Conservation International, (May, 2008).

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law requires regulation. Conventional human rights law requires regulation. ­Ideologically driven versions of a theoretically pure market require no regulation. Thus, we see the clash of normative priority; to regulate or not to regulate is the critical question. How may these issues affect the indigenous people of the rain forest of Amazonia? Secretary General Ban Ki-moon has affirmed that nations least responsible for climate change suffer disproportionately from its environmental impact. The moral calculus we have presented involving the interdependence of the environment and Human Rights on the one hand and the power of a impersonal market forces on the other has raised the question about the precise normative priority of respect for the environment, Human Rights and more specifically the Human and environmental rights of indigenous communities. The recognition that environmental integrity is critical to the protection and promotion of Human Rights is at least implicit in several of the earlier Human Rights instruments. The Covenant on Economic, Social and Cultural Rights stipulates the Right to Adequate Standard of Living as well as the Highest Attainable Health Standard. The Covenant on Civil and Political Rights stipulates the Right to Life. The critical interests indigenous people have in the defense of environmental rights as human rights is that their social process makes the environment not an aspect or a commodity in its relation to the community. The environment is the basis of the community itself and not merely an aspect of it. The development of international norms that connect environmental rights to indigenous human rights are therefore critical. Human Rights and Environmental Rights The u.n. environmental instruments recognize the connection between human rights and environmental rights as follows: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears solemn responsibility to protect and ­improve the environment, for present and future generations…. For the purpose of Amazonia, the additional protocol to the American Convention on Human Rights specifically mentions environmental issues (­American Convention On Human Rights, 1988). The International Labor Organization Convention No.169, covers the rights of indigenous and tribal peoples in independent countries and specifically recognizes the fundamental principle that the land resources and environment are the basis of such communities.

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It stipulates that special measures shall be adopted to protect the environment of indigenous people consistent with freely expressed wishes (Art. 4). ilo Convention 169 also requires that planned development be preceded by an environmental impact assessment in co-operation with the people concerned (Art. 7 (3)). Moreover, Art.11 of the San Salvador Protocol stipulates the right to healthy environment and public services for all. It also stipulates the protection, promotion, preservation and environmental enhancement To the extent that indigenous people also enjoy the status of minorities, the Sub-Commission on the Prevention of Discrimination Against Minorities g­ enerated the Draft Declaration on Human Rights and the Environment showing that these themes are universal, interdependent and indivisible. This principle was also influential in the drafting the 1992 Rio Declaration on the environment and development. In 1994, the u.n. General Assembly affirmed in resolution 45/94, the environmental human rights connection. One of the most important human rights developments from the perspective of indigenous people of Amazonia was the unece Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.16 This Convention establishes the further link that transparency, accountability, and decision making are critical factors in fully recognizing human rights and environmental rights in the practical world of authoritative decision making. The central and critical principle, which is an important yardstick for the people of Amazonia, is the focus on environmental awareness as a tool of political empowerment for the people and a principle of accountability and responsibility at least on the part of the State.

Treaty-Based Environmental Developments on Climate Change Relevant to Indigenous Interests For the purpose of this presentation, the critical United Nations instrument on climate change is the 1994 United Nations framework Agreement on Climate Change. Its objectives are expressed in Art.2 as follows: The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would

16

United Nations Economic Commission for Europe, Convention on Access to Information, Ppublic Participation in Decision-making and Access to Justice in Environmental Matters (June 25, 1998). (hereinafter UNECE Convention).

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prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a period sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. The subsequent Convention to Combat Desertification was adopted in 1994. This Convention provides more specificity to the human rights issues that are inherent in environmental destruction. Currently 192 states are parties. This Convention is especially important to the custodians of the rain forest. One of the outcomes of global warming and dangerous climate change is desertification. This Convention focuses on the responsibility of the State, community participation and the important role of developed States. The significance of the integration of a human rights approach to this ­specific environmental threat lies in community participation and essential transparency. These developments would mean very little if they could not be given operational importance. Among these issues is the importance of ­advocacy driven by ecological and human rights perspectives. Advocacy in the abstract cannot be effective without resources. The absence of advocacy resources means that indigenous nations do not have the basis to advocate wise policies dealing with fundamental interests. Advocacy and interest articulation are critical ingredients for participation in the decision-making process concerning the interests of the indigenous ­nations in vital human rights and environmental values. One of the central weaknesses which have historically served to destroy the human rights and eco-system values of indigenous nations, is that their autonomous decision making processes are marginalized, repressed and resource starved. Wise policy which serves the interests of indigenous communities, must respect the popular institutions of indigenous nations. Because of the technical nature of environmental issues, the importance of science technology, knowledge generation and sharing are critical participatory tools for indigenous communities. Resource scarcity undermines the access to the full expression of this right, which is essentially a human right of political association and participation. The transfer of core resources and decision making skills comes under the category of capacity building that is critical for the protection of the rain forests and the communities who are living there. The poverty of indigenous communities literally means weakness, beyond even economic weaknesses. Threats to the rain forests carry the possibility of wide spread poverty and disempowerment. Additionally, the violation of land and ecological rights requires access

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to justice. Access to justice requires resources including technical and professional representation at all levels. Critical to the protection of the indigenous communities in human rights in Amazonia is the issue of land and resource assets related to land. The Shuar and other Amazonian communities have led Latin America in seeking to ­protect the rain forests. They have received no rewards, recognition or compensation. Rather they have been seen as a stumbling block to predatory interests seeking to destroy the rain forests, the larger eco-system including whole communities. Another critical issue is the wholesale of transfer of traditional technologies, in particular, traditional knowledge dealing with botanical assets of pharmacological, medical and scientific value. This transfer plunders via biopiracy and bio-prospecting takes the benefits from and gives no recognition to the cultural contribution of the indigenous people. Such appropriations hold economic values; but, more than that, they also represent a complete disrespect for traditional culture by taking and not giving any credit or due respect to the community from whom such knowledge is appropriated. It is worthy of note that the knowledge drawn from biodiversity and Shamanic insight would be destroyed by the effects of dangerous climate change. Dangerous climate change destroys biodiversity and may have untold impacts upon plant resources for human health related purposes. These two issues are, in important ways, connected to the specific problem of the protection of the rain forests and the threat of dangerous climate change. It would be useful to place the populations of Amazonia in to the Global context. Globally, 350 million people live in forest areas and 1.6 billion rely on the forest assets for their livelihood. Some 2 billion people are dependent on traditional medicines, which are harvested and developed. Indeed the World Health Organization (who) has stated that 80% of the global population relies for primary health on traditional medicine. Trade in traditional plants is estimated to be a $60 billion/year industry. Thus, the threat of climate change and deforestation will affect adversely the health needs of billions of people. The proposed strategies apart from the reduction in green house gases are to develop a global approach for plant conservation. This includes understanding, identifying and documenting plant diversity, developing conservation strategies, sustainable use of endangered species promoting educational awareness and capacity building in this field. These strategic proposals have impacts on indigenous nations who live in complex interdependencies with the forests. For any of these initiatives, the critical human rights issue is participation in decision making about these strategies and the human rights consequences for indigenous communities.

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Before there can be participation there must be cooperation and understanding about the process and outcomes of access, sustainability and benefits. In fact, past practice has used the concept of consultation to undermine participation. Participation as a right may be related to the word consultation. However, past practice does not necessarily confirm this. Participation must be supported by informed consent for access as well as benefit sharing, for the further use and exploitation of plant diversity important to commerce, science and medicine. A model proposed by the Shuar in their Bill of Rights may be a useful point of departure that provision is quoted as follows: ARTICLE 36—In order to protect the patrimony of the Shuar for this generation and for generations to come, it is solemnly declared that the sovereignty over the land of the Shuar belongs to the Shuar now and to the generations to come. All consultations affecting any rights contained in this Declaration must be performed through the authority of the Federation. Any agreement, contract, conveyance, sale, concession, license or any other form of agreement or understanding made pursuant to a consultation with the Federation shall be committed to writing and must in every particular conform to the rights declared in this instrument. Such document shall be a public record and available to the Federation and to any Shuar citizen upon request. Any agreement or understanding generated from any prior consultation at any time must now be renegotiated and involve a new consultation to ensure that such agreement or understanding is fully consistent with all the rights declared in this instrument. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive agreements. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned. Land Titles and Environmental Changes One of the suggestions that have emerged from the international system has been that states could declare in particular, land preserved and occupied by indigenous nations as “protected areas.” This on its face looks like a positive suggestion. However, if you have not clarified the nature of indigenous titles to the land in question, does the declaration of a protected area by the sovereign

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state implicity assigned to the state the sovereign powers of title over indigenous lands? In addition, the purpose of protected area status for indigenous lands is generally based on the principle that indigenous people have been successful in excluding predatory despoliation of their traditional lands. With the forest intact and its critical role in removing carbon from the atmosphere, the state is now in a position to engage in carbon trading based on the preservation of the forests and the non-exploitation of petroleum resources in indigenous areas. This in effect secures a form of property interests as a derivative of the preservation of the environment and the non-exploitation of carbon generating resources. Thus, the protected area provides an incentive to trade its carbon credits to polluting interests who would purchase those credits in order to increase their allowable pollution activity in terms of the release of carbon into the atmosphere. In this context, the critical question is—has the state in effect asserted a claim to land and resources of indigenous people by asserting its power to declare such territory to be protected areas? If so, when it is expedient or does not generate carbon credits of sufficient value, does the state now have the power to market other resources in these areas to satisfy the economic interests both inside and outside the state? Additionally, since the carbon credit is largely a function of the defense of traditional lands by indigenous people, do they receive any benefits from the cap and trade aspect of this process? There may as well be some disquiet about trading in pollution credits. Effectually, this trade confers—on one party at least—a right to pollute In a global environment, how is this process to be regulated so that the cap  and trade approach does not exacerbate climate warming? A non- or weakly-regulated global carbon trading market may well result in a catastrophic effect accelerating global warming and dangerous climate change. The ideological preference in the market for non-regulation may of course result in a catastrophic failure for the environment. If the right to pollute is only constrained by the market, then the issue of self-interest versus the common interest in the well-being of all is an issue at considerable risk of confusion, to say the least. It seems to me that a corporation that functions in a weakened climate of social and corporate responsibility may as a rational self-interested actor assume that if the right to pollute is more profitable than the right to constrain pollution it will chose the former. Moreover, a corporation may rationally calculate that the added cost of purchasing pollution credits is the cost that can be passed on to the consumer at least up to the point that it predicts a

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d­ epreciation of its market share. This, I suspect, is the big downside in general to this approach.

Developing Ecuadorian Policy: Declaring a Protected Area and Trading Control over Resources without Informed Consent of Indigenous Leadership The first issue is to declare such a policy means that the state assumes the right of access to the most valuable assets of the rain forest. However, this assumption must assume that the state has dominion over the traditional lands of the indigenous nations. This is a highly contentious claim. The legal validity of this claim at least with a respect to the land of the Shuar is currently pending before the Inter American Human Rights Commission. The basis of the claim of the Shuar nation is that the classical civil law gives them complete ownership of the land and resources in a territory. The civil law authority is explicitly found in the Corpus Juris Civilis, D. 1.1.1. The principle of the ownership of land is stated as indivisible, the owners owning down to the infernal depths of the earth and up to the stars. The civil law principle was completely upheld by the distinguished papal jurist, Victoria. His holiness solicited Victoria’s consultation on the land rights of indigenous people and Victoria strongly affirmed the adoption of the civil law principle as part of the church law as well. The development of law and practice in Ecuador through to the 1998 constitution protects the land rights of indigenous people although some deliberate legal ambiguity was introduced in order to mislead indigenous leaders concerning the scope and currency of their land rights. One aspect of this ambiguity has been the conduct of state bureaucrats to assume that state law, governed by the civil law, owns everything under the ground in Indigenous owned lands. That construction was incompatible with Ecuadorian law and Ecuadorian constitution; and it was inconsistent with Ecuador’s treaty obligations. In addition, the jurisprudence of Inter-American Court under the American Convention on Human Rights demonstrates that indigenous land rights are also protected as fundamental Human Rights in the Inter American System. A principle of Human Rights law relating to the rights of indigenous nations is the principle of informed consent and the right to participate in decisions that impact upon the fundamental rights of indigenous people. The right to participate is meaningless if there is disrespect for the institutions of governance of indigenous leaders who authoritatively represent the people. This is a process that has been cynically abused by both private interest groups and corrupt or incompetent government functionaries. This has been

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described as cynical because it is a complete corruption of the solemn undertaking that the state has committed itself to in international law. The state of Ecuador for example belatedly latched on to ilo Convention 169, in which the term consultation is used with regard to indigenous lands and interests. This term is used in the Convention only with regard to interest in Indian lands that have been lawfully appropriated by the state. It is preceded by a paragraph that clearly protects all interests in land whose ownership vests with the indigenous nations. The concept of a consultation is meant to communicate in good faith with the legitimate leadership with the indigenous communities. In the current context, the central point here is that, when a protected area is proclaimed without prior informed consent and without consultation that is meaningful, and when the non-exploitation of indigenous resources is a matter of value to be negotiated and traded in some version of the urban trade market, to whom do the benefits flow? If there is an agreement to give the government of Ecuador 240 million dollars a year not to explore and develop resources not owned by the government but by the indigenous nations, are these nations entitled to benefit sharing of these assets for internal development? A matter of even deeper concern is the notion that some indigenous nations will now experience a form of expropriation of the titles and interests in the eco-system by procedures that are non-transparent, lacking in accountability and demonstrate an ill-defined level of responsibility. Moreover, the lack of prior informed consent is an expropriation of the political authority of the legitimate indigenous leadership. Finally, such an approach is a fundamentally Human Rights denying approach.

The Law of Free Prior and Informed Consent: The Fundamental Right to Participate Among the most important developments of modern human rights law has been the right of self-determination. This right is sometimes expressed as being tied to independence. However, it is also a critical right of indigenous communities to seek a degree of self-determined authority and competence to protect and enhance their most fundamental values. In this context, the evolving of law of Human Rights stresses the right to participate in the decisionmaking processes that impact upon the survivability and essential dignity of indigenous nations. This right to participate in decision making also seeks to ensure that the elected and authorized leaders of indigenous communities are protected in the tasks of evolving their political and economic skills and transferring such competence to the people themselves.

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The ilo Convention 169 was one of the first treaties to recognize explicitly the right of indigenous peoples to participate in decision-making p ­ rocess— including their right to prior informed consent. Subsequently, other treaties, including, the Convention on the Elimination of All Forms of Racial Discrimination, the American Convention on Human Rights, and the American Declaration of Human Rights, have been interpreted as requiring recognition and implementation of the rights of indigenous peoples to free, prior, and informed consent in order to effectuate the substantive rights embodied by these treaties. The Committee interpreting the Convention on the Elimination of All Forms of Racial Discrimination has indicated in fact, “members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.” The Inter-American System of Human Rights has been particularly explicit about the need to secure the prior informed consent of indigenous peoples with respect to activities that may affect their lands and other natural resources even when the State has not recognized indigenous peoples’ property rights. Most recently, the un Declaration on the Rights of Indigenous Peoples strongly recognized the rights of indigenous peoples to control access to and manage their natural resources. For example, “States shall consult and cooperate in good faith with the indigenous peoples concerned … in order to obtain their free, prior and informed consent before adopting and implementing … measures that may affect them.” Additionally, “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights.” Furthermore, “Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development.” Clearly, international law requires respect for the rights of indigenous peoples to participate in decision-making processes not only at the project level, but also at the level of international decision-making. Decisions made in these international processes obviously will have far-reaching and profound impacts on decisions made at local levels and implications for many significant rights of indigenous peoples. This may be especially true of international negotiations convened under the auspices of u.n. bodies. The u.n. Declaration stipulated that, “The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues ­affecting them shall be established.”

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For all the aforementioned reasons, the current climate change negotiation must respect the right of indigenous peoples to free, prior, and informed consent. The decisions taken at the negotiations will have an impact on indigenous peoples, whose livelihoods, cultures and well-being depend on natural resources that are adversely impacted by climate change events. Consequently, their free prior informed consent must be obtained before final decisions affecting them are made. In the u.n. Climate Change Conference, which ended on December 12, 2009 in Poznan, Poland, the conference ignored the call of indigenous representatives for the setting up of a mechanism to permit indigenous representatives to make representations on future climate change negotiations. Indigenous leaders insisted that since they occupy fragile ecosystems, were immediately impacted by climate change and therefore should be given a voice in future climate negotiations. At the last minute the references to the full participation while working on statement aimed at reducing deforestation, the reference to indigenous participation was dropped from the text at the last minute at the insistence of the United States, Canada, Australia and New Zealand. The Chairperson of the Permanent Forum, Victoria Tauli-Corpuz, said that the draft text was shocking. She noted that the deletion of participation was spearheaded by the same four states that had voted against the u.n. Declaration on the Rights of Indigenous People. Thus, the question of free prior and informed consent and participation still experiences political obstacles at all levels apart from the unwillingness to recognize and support indigenous decision-making procedures as well as the respect for collective ownership and representation of indigenous interests. Access to financial resources as well as access to expert scientific resources, as well as effective legal representation, is critical to the effective representation of indigenous interests. Conflicts over Land Titles in Ecuador Ecuadorian law including its constitution does not make a claim that the state owns all indigenous lands or that the state is the sole owner of all interests under the soil. State practice and policy have encroached upon indigenous lands with policies that promoted a form of creeping colonization and by the administrative processes of distributing concessionary agreements for resource exploitation for foreign corporations. The Shuar have maintained that they have the ownership of the land and everything beneath the soil. The state has not directly responded to these claims but has acted as if it  has the rights of ownership. Informally the state has claimed these rights as  rights given it by the civil law tradition. The Shuar have challenged this

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j­uridically ­before the Inter-American Commission. As yet, a decision has not been given. The consequence of this cloud on Shuar title has been to make it impossible for the Shuar to engage in developmental activities that might cultivate entrepreneurial development and skills. The government itself seems uninterested in engaging the Shuar as a partner in a developmental initiative. In particular, the government has been interested in unilaterally and without consultation, selling concessionary agreements to foreign oil prospector. One of the major conflicts generated in the Shuar territory has been the spectacular pollution of the Rain Forest and the upper reaches of the Amazon River by irresponsible oil extracting procedures. The estimates suggest that the scope of pollution damage is four or five times greater than that of Exxon Valdez in Alaska. Additionally, there appears to be evidence that the distribution of the pollution has been regional beyond the borders of Ecuador. This means that states with borders to Ecuador such as Brazil or Colombia have in fact been impacted by the oil extractive practices of Texaco and Chevron. The victims filed a suit against Texaco in 1993 in Houston, Texas. Texaco fought to have the case dismissed or removed to Ecuador on the grounds of forum non-convenience. They succeeded. The plaintiffs, taking Texaco’s advice, filed the suit in Ecuador. A tough Ecuadorian judge was assigned the case. It seems that Chevron may be facing some 27 billion dollars in liability. Chevron has been using every conceivable political angle and public relations ploy to avoid the consequences of their conduct. In addition, Chevron has generated many strategies designed to delay the issuance of a judgment in Ecuador. Other oil companies have as well been issued concessionary agreements in the territories of the Shuar, although no extraction activity has taken place because of protests from indigenous people. In negotiations with indigenous people, the oil corporation lawyers were presented a copy of the Shuar Bill of Rights and in particular, their claims under Article 36 to both ownership and real consultation. This led the companies to withdraw, at least temporarily. Nevertheless, conflicts such as these will continue so long as the efforts to evade the rules of law that govern the rights of indigenous people do.

Problems of Biopiracy and the Theft of Traditional Knowledge in Ecuador One of the important issues on the agenda of climate change has been the recognition that is due to the traditional knowledge of indigenous people. Article 8j of the Biodiversity Convention stipulates both a right of access to traditional

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knowledge as well as an interest in benefit sharing for the indigenous people. This is a grudging recognition of the importance of traditional knowledge for modern pharmaceutical research. The Shuar of Ecuador are involved in a classic conflict about bio-piracy and the property dimensions of their traditional knowledge. This requires a careful case study of how bio-pirates actually work, who funds them and what happens to the product of their biopiracy and what legal remedies indigenous people may have to the protection of their traditional knowledge. In the case of the Shuar bioprospectors secreted themselves into a small village, unknown to the leadership. The bioprospectors claimed that they were there for humanitarian reasons. They wanted to educate the children in the ­village. They then used the children to collect plants based on information from parents of Shaman After they collected close to 600 items together with the uses of such plants, they submitted a report to the us government and to a botanical garden. That report was put onto the register of the National Cancer Institute and made available only to the top pharmaceutical corporations. In this exercise there was no benefit sharing, and no transparency concerning which p ­ harmaceuticals were using this information to develop products for the market. This form of biopiracy continues today and scholars are working on theories of international and human rights law to secure the interests in the value of traditional knowledge. The last issue that we take up is the issue of land rights, human rights and informed consent in Peru. Recently Peru signed the us Peru Trade Promotion Agreement. To implement the agreement, the President sought fast track ­authorization to enact legislation by executive decree. These powers were given the President by the Peruvian Congress. Ninety-nine legislative decrees were enacted. The most controversial of the decrees was Decree 1015 later modified 1073. This Decree was essentially a decree of expropriation of the lands of indigenous people and the allocation of resources on these lands to foreign corporations. According to the President “We have to understand that there are resources like oil, gas and timber, that don’t only belong to the people who had the fortune to be born there because that would mean more than half of Peru’s territory would belong to a few thousand people.” The fast track Decrees had a direct impact on the indigenous nations of Peru. The most important of these Decrees was the expropriation of communally owned lands and the allocation of research exploitation rights to foreign corporations. The problem with the fast track Decrees is that they were ­incompatible with pre-exisiting Peruvian law and the Peruvian constitution. The president refused to hear the concerns of indigenous leaders.

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From the perspective of indigenous leaders, the decrees violated both ­ eruvian and international law and the government refused to hear them. P They therefore engaged in acts of non-violence resistance and protests. The government responded with a propaganda attack declaring the protesters to be terrorists, and using this self-declared conclusion as a justification for the unrestrained use of state violence against the protesters. The state claimed it was acting in the name of national security The National Indigenous Organization of Peru (aidsep) supported the ­protesters and demanded that the state cease its acts of violent repression. It also demanded the repeal of free trade laws that permit oil extraction, logging and agricultural activity. Central to the challenge to the president’s decrees were the foundations of international law. The decrees violated ilo Convention 169, in particular, Article 3.1 and also ­Article 3.2 which stipulates that no form of force or coercion shall be used in violation of the fundamental human rights of the people. Article 4 stipulates that special enacted measures shall not be contrary to the freely expressed wishes of the people concerned. The special status of land under Article 5 suggests that this article too has been violated. The additional protocol to the American Convention of Human Rights explicitly mentions environmental issues (Article 11). The San Salvador Protocol recognizes the benefits of culture and indicates an obligation on the part of states to engage in conduct “necessary for the conservation, development and dissemination of science, culture and art.” ilo Convention 69 also stipulates that planned development activities like oil extraction be preceded by an environmental impact assessment in cooperation with indigenous people The president’s decrees undermine and disparage the human right of informed consent and participation in decision making about issues that ­critically impact on their interests. In addition to the guidance of the ilo 169, the Convention on the Elimination of All Forms of Racial Discrimination, the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man have been interpreted as mandating the implementation of rights of indigenous people to free prior and informed consent regarding their fundamental rights. The Committee Interpreting the cerd has stated that “Members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly related to their rights and interests are to be taken without their informed consent.” The u.n. Declaration on the Rights of Indigenous Peoples recognizes the rights of indigenous people to control access to and manage their resources. It also provides that indigenous peoples have the right to participate in

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decision making in matters which will affect their rights. It also indicates that ­indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. The unece, Convention further strengthens the link between transparency, accountability and decision making in the protection of human and environmental rights. The State of Peru in provoking conflict and using violent methods to repress non-violent political expression, has disparaged a vast panoply of rights to which it is bound under international law. The challenge for conflict management in the Latin American context dealing with the rights of indigenous nations is to provide a greater respect for the fundamental human rights guaranteed to its populations and to which a sovereign government is legally bound. This chapter does not exhaust the specific problems of all indigenous ­communities around the world or the problems of Latin America. The illustrations provide a representational insight into the nature, challenges, and the crises extent in the defense of the fundamental human rights of indigenous people. The Focus on the Problems of Climate Change and Indigenous Peoples Rights Climate change in Amazonia is one of the most critical factors shaping the state of the global environment. The terms climate change cover a wide range of human interests and values. The raw numbers belie their importance for the future of the human prospect. Just a few degrees of global warming may trigger a melt down of the polar ice caps triggering vast changes in the climate and weather patterns as well as significant increase in the level of planets oceans. In short, climate change effectually means risking well being, health and more broadly, dangerous ecological change. This environmental change has consequences for human well being, health and indeed for life itself. Environmental degradation, conditioned by dangerous climate change, demonstrates the interdependence of fundamental human values and environmental integrity. The Millennium Report of the former Secretary General Annan underscored on the clear interdependence of human rights and the environment. If the environment collapses, human rights prospects collapse. This insight would appear to be a Universal warning for those who take human dignity seriously. However, those most immediately affected by dangerous climate change may be the weakest communities in the world. The moral calculus of human rights victimization because of climate change will probably be immediate and catastrophic for the weakest populations. These nations include the indigenous First Nations of Amazonia. The results of temperature rise according to some predicted model suggests that if things remain as they are we will have an ice-free Arctic in 2040. Such

B

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an environmental event has not existed for almost a million years. Models that are more recent predict an ice-free Arctic by 2013. Environmental change is happening faster than some predicted models. Related to this aspect of Global Warming is the anticipated loss of glacier mass. It is predicted that this will have a dramatic effect on water resources, agriculture and bio-diversity and would negatively affect 40% of the world’s population. Scientists also attribute a drought, fires, floods and extreme weather events to climate warming.17 The depletion of ozone layer above Australia is causing skin cancer and other skin diseases to the Australians. Dangerous climate change will threaten access to resources necessary for survival itself: food security, access to water and basic health services. Because the weakest must bear the cost of the abuse of the environment by the strongest global interests, the focus of human rights implications require a ­discriminating moral calculation. The moral calculus becomes more poignant when it is suggested that a significant factor in dangerous climate change is unregulated industrial ­enterprise. For example food security is threatened by the monopolistic trend implicit in global agri-business. States, which receive foreign assistance, must deregulate and permit global market forces to determine access and the pricing of food commodities. The weak states have no safety net touching food security. The weakest are at the mercy of impersonal global market forces. Conventional environmental law requires regulation. Conventional Human Rights requires regulation. Ideologically driven versions of a theoretically pure market require no regulation. Thus, we see the clash of normative priority; to regulate or not to regulate is the critical question. How may these issues affect the indigenous people of the rain forest of Amazonia? Secretary General Ban Ki-moon has affirmed that nations least ­responsible for climate change suffer disproportionately from its environmental impact. The moral calculus involving the interdependence of the ­environment and human rights and the power of a impersonal market forces has raised the question about the precise normative priority of respect for the environment, human rights and more specifically the human and environmental rights of indigenous communities. The recognition that environmental integrity is critical to the protection and promotion of Human Rights is at least implicit in several of the earlier Human Rights instruments. The Covenant on Economic, Social and Cultural Rights stipulates the Right to Adequate Standard of Living as well as the ­Highest ­Attainable Health Standard. The Covenant on Civil and Political Rights stipulates the Right to Life. 17

See Hawkins Sharock and Havens Plants and Climate Change: Which Future? (2008).

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The critical interests indigenous people have in the defense of environmental rights as human rights is that their social process makes the environment not an aspect or a commodity in its relation to the community. The environment is the basis of the community itself and not merely an aspect of it. The development of international norms that connect environmental rights to ­indigenous human rights are therefore critical. C Human Rights and Environmental Rights The un environmental instruments recognize the connection between human rights and environmental rights as follows: Man has the fundamental right to freedom, equality and adequate c­ onditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears solemn responsibility to protect and ­improve the environment, for present and future generations…18 For the purpose of Amazonia, the additional protocol to the American Convention on Human Rights specifically mentions environmental issues.19 ilo Convention No. -169, covers the Rights of Indigenous and Tribal Peoples in Independent Countries and specifically recognizes the fundamental principle that the land resources and environment are the basis of such communities. It stipulates that special measures shall be adopted to protect the environment of indigenous people consistent with freely expressed wishes (Art.4). ilo ­Convention 169 also requires that planned development be preceded by an environmental impact assessment in co-operation with the people concerned (Art 7 (3)).20 Art11 of the Protocol of San Salvador21 stipulates the right to healthy ­environment and public services for all. It also stipulates the protection, ­promotion, preservation and environmental enhancement. To the extent that indigenous people also enjoy the status of minorities, the Sub-Commission on the ­Prevention of Discrimination Against Minorities generated the Draft ­Declaration on Human Rights and the Environment, showing, that these themes are universal, interdependent and indivisible. This principle was also 18 19 20 21

Declaration of the United Nations Conference on the Human Environment, Principle 1, Stockholm, (June, 1972). American Convention on Human Rights. ilo Convention 169. Additional Protocol to the American Convention on Human Rights in the area of ­Economic, Social and Cultural Rights “Protocol of San Salvador,” oas Treaty Series No. 69 (November 17, 1988).

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influential in the drafting the 1992 Rio Declaration on the Environment and Development.22 In 1994, the u.n. General Assembly affirmed in resolution 45/94 the ­environmental human rights connection. One of the most important human rights developments from the p ­ erspective of indigenous people of Amazonia was the unece Convention. This Convention establishes the further link that transparency, accountability and ­decision making are critical factors in fully recognizing human and environmental rights in the practical world of authoritative decision making. The central and critical principle, which is an important yardstick for the people of Amazonia, is the focus on environmental awareness as a tool of political empowerment for the people and a principle of accountability and responsibility at least on the part of the state. Treaty Based Environmental Developments on Climate Change Relevant to Indigenous Interests The critical United Nations instrument on Climate Change is United Nations Framework Agreement on Climate Change (opened for signature in 1992, ­entered into force in 1994). Its objectives are expressed in Art.2 as follows: D

The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in ­accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a period sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.23 The Convention to Combat Desertification24 was adopted in 1994. This ­Convention provides more specificity to the human rights issues that are ­inherent in environmental destruction. Currently 192 states are parties. This 22 United Nations Conference on Environment and Development (June, 1992). 23 United Nations Framework Convention on Climate Change, FCCC/INFORMAL/84 GE.05-62220 E 200705, Article 2 (May 9, 1992) http://unfccc.int/essential_background/ convention/background/items/1353.php. 24 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, (October 14, 1994) available at http://www.un.org/millennium/law/xxvii-25.htm.

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Convention is especially important to the custodians of the rain forest. One of the outcomes of global warming and dangerous climate change is desertification. This Convention focuses on the responsibility of the state, community participation and the important role of developed states. The significance of the integration of a human rights approach to this ­specific environmental threat lies in community participation and essential transparency. These developments would mean very little if they could not be given operational importance. Among these issues is the importance of advocacy that is driven by ecological and human rights perspectives. Advocacy in the abstract cannot be effective without resources. The absence of advocacy resources means that indigenous nations do not have the basis to advocate wise policies dealing with fundamental interests. Advocacy and interest articulation are critical ingredients for participation in the decision making process concerning the interests of the indigenous ­nations in vital human rights and environmental values. One of the central weaknesses, which have historically served to destroy the human rights and eco-system values of indigenous nations, is of the fact that their autonomous decision making processes are marginalized, repressed and resource starved. Wise policy, which serves the interests of indigenous communities, must respect the popular institutions of indigenous nations. Because of the technical nature of environmental issues the importance of science technology, knowledge generation and sharing are critical participatory tools for indigenous communities. Resource scarcity undermines the access to the full expression of this right, which is essentially a human right of political association and participation. The transfer of core resources and decision making skills come under the category of capacity building that is critical for the protection of the rain forests and the communities who are living there. The poverty of indigenous communities literally means weakness, beyond even economic weaknesses. Threats to the rain forests carry the possibility of wide spread poverty and disempowerment. Additionally the violation of land and ecological rights requires access to justice. Access to justice requires resources including technical and professional representation at all levels. Critical to the protection of the indigenous communities in human rights in Amazonia is the issue of land and resource assets related to land. The Shuar and other important Amazonian communities have led Latin America in seeking to protect the rain forests. They have received no rewards, recognition or compensation. Rather they have been seen as a stumbling bloc to predatory interests seeking to destroy the rain forests, the larger eco-system including whole communities.

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Another critical issue is the wholesale of transfer of traditional technologies in particular traditional knowledge dealing with botanical assets of ­pharmacological, medical and scientific value. This wholesale plunder via bio-piracy and bio-prospecting takes the benefits but gives no recognition of the cultural contribution of the indigenous people. Such appropriations hold economic values but more than that, they also represent a complete disrespect for traditional culture by taking and not giving any credit or due respect to the ­community from whom such knowledge is appropriated. It is worthy of note that the knowledge drawn from bio-diversity and Shamanic insight would be destroyed by the effects of dangerous climate change. Dangerous climate change destroys biodiversity and may have untold impacts upon plant resources for human health related purposes. These two issues are, in important ways, connected to the specific problem of the protection of the rain forests and the threat of dangerous climate change. Climate Change and the Global Context of Indigenous Rights and Interests These strategic proposals have impacts on indigenous nations who live in complex interdependencies with the forests. For any of these initiatives, the critical human rights issue is participation in decision making about these strategies and the human rights consequences for indigenous communities. Before there can be participation there must be cooperation and understanding about the process and outcomes of access, sustainability and benefits. In fact, past practice has used the concept of consultation to undermine participation. Participation as a right may be related to the word consultation. However, past practice does not necessarily confirm this. Participation must be supported by informed consent for access as well as benefit sharing, for the further use and exploitation of plant diversity important to commerce, science and medicine. A model proposed by the Shuar in their Bill of Rights may be a useful point of departure. That provision is quoted as follows:-

E

ARTICLE 36. In order to protect the patrimony of the Shuar for this g­ eneration and for generations to come, it is solemnly declared that the sovereignty over the land of the Shuar belongs to the Shuar now and to the generations to come. All consultations affecting any rights contained in this Declaration must be performed through the authority of the Federation. Any agreement, contract, conveyance, sale, concession, license or any other form of agreement or understanding made pursuant to a consultation with the Federation shall be committed to writing and must

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in every particular conform to the rights declared in this instrument. Such document shall be a public record and available to the Federation and to any Shuar citizen upon request. Any agreement or understanding generated from any prior consultation at any time must now be renegotiated and involve a new consultation to ensure that such agreement or understanding is fully consistent with all the rights declared in this instrument. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive agreements. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned. F Land Titles and Environmental Changes The purpose of protected area status for indigenous lands is generally based on the principle that indigenous people have been successful in excluding predatory despoliation of their traditional lands. With the forest and its critical role in removing carbon from the atmosphere intact, the state is now in a position to engage in carbon trading based on the preservation of the forests and the non-exploitation of petroleum resources in indigenous areas. This in effect secures a form of property interests as a derivative of the preservation of the environment and the non-exploitation of carbon generating resources. Thus, the protected area provides an incentive to trade its carbon credits to polluting interests who would purchase those credits in order to increase their allowable pollution activity in terms of the release of carbon into the atmosphere. In this context the critical question is: Has the state in effect asserted a claim to land and resources of indigenous people by asserting its power to declare such territory to be protected areas? If so, when it is expedient or does not generate carbon credits of sufficient value, does the state now have the power to market other resources in these areas to satisfy the economic interests both inside and outside the state? Additionally, since the carbon credit is largely a function of the defense of traditional lands by indigenous people, do they receive any benefits from the cap and trade aspect of this process? There may as well be some disquiet about trading in pollution credits. Effectually, this trade confers on one party at least, a right to pollute. In a global environment, how is this process to be regulated so that the cap and trade approach does not exacerbate climate warming? A weakly or non-regulated global carbon trading market may well result in a catastrophic effect accelerating global warming and dangerous climate

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change. The ideological preference in the market for non-regulation may result in a catastrophic failure for the environment. If the right to pollute is only constrained by the market, then the issue of self-interest versus the common interest in the well-being of all is an issue at considerable risk of confusion, to say the least. A corporation that functions in a weakened climate of social and corporate responsibility may assume that if the right to pollute is more profitable than the right to constrain pollution it will chose the former. Moreover, a corporation may rationally calculate that the added cost of purchasing pollution credits is the cost that can be passed on to the consumer at least up to the point that it predicts a depreciation of its market share. Declaring a Protected Area and Trading the Control over Resources without the Informed Consent of Indigenous Leadership The basis of the claim of the Shuar nation is that the classical civil law gives them complete ownership of the land and resources in a territory. The civil law authority is explicitly found in the Corpus Juris Civilis, D. 1.1.1. The principle of the ownership of land is stated as indivisible, the owners owning down to the infernal depths of the earth and up to the stars. The civil law principle was completely upheld by the distinguished papal jurist, Victoria. His Holiness solicited Victoria’s consultation on the land rights of indigenous people and Victoria strongly affirmed the adoption of the civil law principle as part of the church law as well. The development of law and practice in Ecuador through to the 1998 ­constitution protects the land rights of indigenous people although some ­deliberate legal ambiguity was introduced in order to mislead indigenous ­leaders concerning the scope and currency of their land rights. One aspect of this ambiguity has been the conduct of state bureaucrats to assume that state law, governed by the civil law, owns everything under the ground in indigenous owned lands. That construction was incompatible with Ecuadorian law and Ecuadorian constitution and inconsistent with Ecuador’s treaty obligations. In addition, the jurisprudence of Inter American Court under the American Convention on Human Rights demonstrates that indigenous land rights are also protected as fundamental human rights in the Inter American System. A principle of human rights law relating to the rights of indigenous nations is the principle of informed consent and the right to participate in decisions that impact upon the fundamental rights of indigenous people. The right to participate is meaningless if there is disrespect for the institutions of governance of indigenous leaders who authoritatively represent the people. G

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This is a process that has been abused by both private interest groups and government functionaries. The state of Ecuador for example belatedly latched on to ilo Convention 169, in which the term consultation is used with regard to indigenous lands and interests. This term is used in the Convention only with regard to interest in Indian lands that have been lawfully appropriated by the state. It is preceded by a paragraph that clearly protects all interests in land whose ownership vests with the indigenous nations. The concept of consultation is meant to communicate in good faith with the legitimate leadership with the indigenous communities. In the current context when a protected area is proclaimed without prior informed consent and without consultation, and when the non-exploitation of indigenous resources is a matter of value to be negotiated and traded in some version of the urban trade market, to whom do the benefits flow? If there is an agreement to give the government of Ecuador 240 million dollars a year not to explore and develop resources owned by the indigenous nations, are these nations entitled to benefit sharing of these assets for internal development? A matter of even deeper concern is the notion that some indigenous nations will now experience a form of expropriation of the titles and interests in the eco-system by procedures that are non-transparent, lacking in accountability and demonstrate an ill- defined level of responsibility. Moreover, the lack of prior informed consent is an expropriation of the political authority of the legitimate indigenous leadership. Finally, such an approach is a fundamentally Human Rights denying approach. The Law of Free Prior and Informed Consent: The Fundament Right to Participate Among the most important developments of modern human rights law has been the right of self-determination. This right is sometimes expressed as being tied to independence. However, it is also a critical right of indigenous communities to seek a degree of self-determined authority and competence to protect and enhance their most fundamental values. In this context, the evolving of law of human rights stresses the right to participate in the decision making processes that impact upon the survivability and essential dignity of indigenous nations. This right to participate in decision making also seeks to ensure that the elected and authorized leaders of indigenous communities are protected in the tasks of evolving their political and economic skills and transferring such competence to the people themselves. The ilo Convention 169 was one of the first treaties to explicitly recognize the right of indigenous peoples to participate in decision making process,

H

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i­ncluding their right to prior informed consent. Subsequently, other treaties, including, the Convention on the Elimination of All Forms of Racial Discrimination (cerd), the American Convention on Human Rights, and the ­American Declaration of Human Rights, have been interpreted as requiring recognition and implementation of the rights of indigenous peoples to free, prior and informed consent in order to effectuate the substantive rights embodied by these treaties. The Committee interpreting the cerd has indicated in fact, “members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.”25 The Inter-American System of Human Rights has been particularly explicit about the need to secure the prior informed consent of indigenous peoples with respect to activities that may affect their lands and other natural resources even when the State has not recognized indigenous peoples’ property rights. Most recently, the u.n. Declaration on the Rights of Indigenous Peoples strongly recognized the rights of indigenous peoples to control access to and manage their natural resources. For example, “States shall consult and cooperate in good faith with the indigenous peoples concerned … in order to obtain their free, prior and informed consent before adopting and implementing … measures that may affect them.” Additionally, “Indigenous peoples have the right to participate in decisionmaking in matters which would affect their rights.” Furthermore, “Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development.” Clearly, international law requires respect for the rights of indigenous ­peoples to participate in decision making processes not only at the project level, but also at the level of international decision making. Decisions made in these international processes will have far-reaching and profound impacts on decisions made at local levels and implications for many significant rights of indigenous peoples. This may be especially true of international negotiations convened under the auspices of u.n. bodies. The u.n. Declaration stipulates: “The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance.

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Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.”26 For all the aforementioned reasons, the current climate change negotiation must respect the right of indigenous peoples to free, prior and informed consent. The decisions taken at the negotiations will have an impact on indigenous peoples, whose livelihoods, cultures and well-being depend on natural resources that are adversely impacted by climate change events. C ­ onsequently, their free prior informed consent must be obtained before final decisions ­affecting them are made. In the u.n. Climate Change Conference which ended on December 12, 2009 in Poznan, Poland, the conference ignored the call of indigenous representatives for the setting up of a mechanism to permit indigenous representatives to make representations on future climate change negotiations. Indigenous leaders insisted that since they occupy fragile ecosystems, they were immediately impacted by climate change and therefore should be given a voice in future climate negotiations. While working a statement aimed at reducing deforestation, the reference to indigenous participation was dropped from the text at the last minute at the insistence of the United States, Canada, Australia and New Zealand. The Chairperson of the Permanent Forum, Victoria Tauli-Corpuz, said that the draft text was shocking. She noted that the deletion of participation was spearheaded by the same four states that had voted against the u.n. ­Declaration on the Rights of Indigenous People. Thus, the question of free prior and informed consent and participation still experiences political obstacles at all levels apart from the unwillingness to recognize and support indigenous decision making procedures as well as the respect for collective ownership and representation of indigenous interests. Critical to the effective representation of indigenous interests are access to financial resources, access to expert scientific resources and effective legal representation. ii

Conflicts about Land Titles in Ecuador

Ecuadorian law including its constitution does not make a claim that the state owns all indigenous lands or that the state is the sole owner of all interests under the soil. State practice and policy have encroached upon indigenous 26

United Nations Declaration on the Rights of Indigenous Peoples.

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lands with policies that promoted a form of creeping colonization and by the ­administrative processes of distributing concessionary agreements for resource exploitation for foreign corporations The Shuar have maintained that they have the ownership of the land and everything beneath the soil. The state has not directly responded to these claims but has acted as if it has the rights of ownership. Informally the state has claimed these rights as rights given it by the civil law tradition. The Shuar have challenged this juridically before the Inter-American Commission. A decision remains pending. The consequence of this cloud on Shuar title has been to make it impossible for the Shuar to engage in developmental activities that might cultivate entrepreneurial development and skills. The government itself seems uninterested in engaging the Shuar as a partner in a developmental initiative. In particular, the government has been interested in unilaterally and without consultation, selling concessionary agreements to foreign oil prospectors. One of the major conflicts generated in the Shuar territory has been the spectacular pollution of the rain forest and the upper reaches of the Amazon River by irresponsible oil extracting procedures. The estimates suggest that the scope of pollution damage is four or five times greater than that of Exxon Valdez in Alaska. Additionally, there appears to be evidence that the distribution of the pollution has been regional beyond the borders of Ecuador. This means that states with borders to Ecuador such as Brazil or Colombia have in fact been impacted by the oil extractive practices of Texaco and Chevron. The victims filed a suit against Texaco in 1993 in Houston, Texas. Texaco fought tooth and nail to have the case dismissed or removed to Ecuador on the grounds of forum non-convenience. They succeeded. The plaintiffs, taking Texaco’s advice, filed the suit in Ecuador. A tough Ecuadorian judge was assigned the case. It seems that Chevron may be facing some 27 billion dollars in liability. Chevron has been using every conceivable political angle and public relations ploy to avoid the consequences of their conduct. In addition, Chevron has generated many strategies designed to delay the issuance of a judgment in Ecuador. Other oil companies have as well been issued concessionary agreements in the territories of the Shuar, although no extraction activity has taken place because of protests from indigenous people. In negotiations with indigenous people the oil corporation lawyers were presented a copy of the Shuar Bill of Rights and in particular, their claims under Article 36 to both ownership and real consultation. This led the companies to withdraw, at least temporarily. These conflicts will continue so long as the efforts to evade the rules of law that govern the rights of indigenous people do.

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A The Problems of Biopiracy in Ecuador One of the important issues on the agenda of climate change has been the recognition that is due to the traditional knowledge of indigenous people. Article 8j of the Biodiversity Convention stipulates both a right of access to traditional knowledge as well as an interest in benefit sharing for the indigenous people. This is a grudging recognition of the importance of traditional knowledge for modern pharmaceutical research. The Shuar of Ecuador are involved in a classic conflict about biopiracy and the property dimensions of their traditional knowledge. This requires a careful case study of how biopirates actually work, who funds them and what happens to the product of their biopiracy and what legal remedies indigenous people may have to the protection of their traditional knowledge. In the case of the Shuar bioprospectors secreted themselves into a small village, unknown to the leadership. The bioprospectors claimed that they were there for humanitarian reasons. They wanted to educate the children in the village. They then used the children to collect plants based on information from parents of Shaman. After they collected close to 600 items together with the uses of such plants they submitted a report to the us government and to a botanical garden. That report was put onto the register of the National Cancer Institute and made available only to the top pharmaceutical corporations. In this exercise, there was no benefit sharing, and no transparency concerning which pharmaceuticals were using this information to develop products for the market. This form of biopiracy continues today and scholars are working on theories of international and human rights law to secure the interests in the value of traditional knowledge. The last issue that we take up is the issue of land rights, human rights and informed consent in Peru. Recently Peru signed the us Peru Trade Promotion Agreement. To implement the agreement the President sought fast track authorization to enact legislation by executive decree. These powers were given the President by the Peruvian congress. Ninety-nine legislative decrees were enacted. The most controversial of the decrees was Decree 1015 later modified 1073. This Decree was essentially a ­decree of expropriation of the lands of indigenous people and the allocation of resources on these lands to foreign corporations. According to the President “We have to understand that there are resources like oil, gas and timber, that don’t only belong to the people who had the fortune to be born there—­ because that would mean more than half of Peru’s territory would belong to a few thousand people.”

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The fast track Decrees had a direct impact on the indigenous nations of Peru. The most important of these Decrees was effectually and expropriation of communally owned lands and the allocation of research exploitation rights to foreign corporations. The problem with the fast track Decrees is that they were incompatible with pre-existing Peruvian law and the Peruvian constitution. The president refused to hear the concerns of indigenous leaders. From the perspective of indigenous leaders, the decrees violated both Peruvian and international law and the government refused to hear them. They therefore engaged in acts of non-violence resistance and protests. The government responded with a propaganda attack declaring the protesters to be terrorists, and using this self-declared conclusion as a justification for the unrestrained use of state violence against the protesters. The state claimed it was acting in the name of national security. The ­National Indigenous Organization of Peru (aidsep) supported the protesters and demanded that the state cease its acts of violent repression. It also demanded the repeal of free trade laws that permit oil extraction, logging and agricultural activity. Central to the challenge to the president’s decrees were the foundations of international law. The decrees violated ilo Convention 169, in particular, ­Article 3.1 and also Article 3.2 which stipulates that no form of force or coercion shall be used in violation of the fundamental human rights of the people. ­Article 4 stipulates that special enacted measures shall not be contrary to the freely expressed wishes of the people concerned. The special status of land under Article 5 suggests that this article too has been violated. The additional protocol to the American Convention of Human Rights explicitly mentions environmental issues (Article 11). The San Salvador Protocol recognizes the benefits of culture and indicates an obligation on the part of states to engage in conduct “necessary for the conservation, development and dissemination of science, culture and art.” ilo Convention 169 also stipulates that planned development activities like oil extraction be preceded by an environmental impact assessment in cooperation with indigenous people. The president’s decrees undermine and disparage the human right of informed consent and participation in decision making about issues that critically impact on their interests. In addition to the guidance of the ilo 69, the Convention on the Elimination  of All Forms of Racial Discrimination, the American Convention on ­Human Rights and the American Declaration on the Rights and Duties of Man have been interpreted as mandating the implementation of rights of indigenous people to free prior and informed consent regarding their fundamental rights.

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The Committee interpreting the cerd has stated that “Members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly related to their rights and interests are to be taken without their informed consent. The un Declaration on the Rights of ­Indigenous Peoples recognizes the rights of indigenous people to control access to and to manage their resources.” It also provides that indigenous peoples have the right to participate in ­decision making in matters which will affect their rights. It also indicates that indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. The unece, Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters further strengthens the link between transparency, accountability and decision making in the protection of human and environmental rights. The State of Peru in provoking conflict and using violent methods to repress non-violent political expression has disparaged a vast panoply of rights to which it is bound under international law. The challenge for conflict ­management in the Latin American context dealing with the rights of its indigenous nations is to provide a greater respect for the fundamental human rights guaranteed to its populations and to which it has a sovereign government is legally bound.

chapter 19

Human Rights and Nuclear Weapons Chapter 19 describes the human rights violations arising from the testing, use and threats of using nuclear weapons and it describes the type of complex collaboration that states, groups, and organizations must engage in to restrain or prevent such violations. Nuclear weapons and, indeed, other weapons of mass destruction have not generated a deep global concern in the global human rights community. Yet, nuclear weapons are really not in the class of conventional weapons for the conduct of armed conflict. Nuclear weapons simply repose in a class of human technologies that completely threaten the existence of all of humanity and all the achievements that humanity has generated in the evolution of global civilization. Nuclear weapons represent the corner stone paradigm of global security since their first use in 1945. The fundamental principle justifying their salience in global security management is the principle of mutallly assured destruction (mad). The foundation of global security based on nuclear weapons is a principle founded on the notion of insecurity. This is a fragile moral framework in which to ensure the continued viability of humanity on earth. It is therefore vitally important that all human rights organizations, especially those rooted in global civil society, bring their skills of human rights advocacy, persistence and unflinching determination to rid the world of nuclear weapons in our lifetime. From the perspective of the human rights community the production, testing, threats and or uses of nuclear weapons are completely antithetical to the moral, ethical, and juridical foundations of universal human rights. More than that, they carry the potential via the elimination of humanity for the complete elimination of international law as an organizing principle of human interaction on a global basis. The elimination of nuclear weapons must be made a central emphasis in the program dedicated to the defense and promotion of universal human rights. The role of the human rights community is an urgent necessity in moving this agenda forward. President Barack Obama made nuclear weapons policy a major priority of his administration. Implicit in what President Obama said was the idea that nuclear weapons stand in sharp contrast to the u.s. commitment to international human rights. In a speech given in Prague, he stated that he had a vision of u.s. nuclear policy that was directed at the universal abolition of all nuclear weapons. Obama committed to the imperative of a complete review of the issues implicated in facilitating the realization of a nuclear weapons

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free world. There are a multitude of initiatives each implicating complex strategic and tactical policies which are critical to a credible shifting of the current paradigm and status of nuclear weapons systems. For example, there is the question of how to reduce u.s.’s considerable stockpiles of nuclear weapons. In part, this initiative is tied to developments for a new strategic arms reduction treaty with Russia. Both the former Russian President Dmitry Medvedev and Obama recognized that it is important for both Russia and the u.s. to involve other nuclear weapons states in the process of reducing their arsenals. Related to this is the priority of developing a legally binding international instrument which will completely prohibit the testing of nuclear weapons. Additionally, there is a recognized need to both strengthen and broaden the reach of the Non-Proliferation Treaty. The Obama Administration began taking a hard look at controlling the production of weapons grade materials that are crucial to the creation of nuclear bombs. In addition, the u.s. and its partners in cooperation have to confront the problem of North Korea and the possibility of Iran having nuclear weapons. Finally, there is the important issue of the war on terrorism and the fear that terrorist groups may get their hands on nuclear materials and the ability to deliver and detonate them. The problem of mutual deterrence as a constraint on the possible use of such nuclear weapons by states must confront a concept of deterrence that is infinitely broader than the contours of a bipolar world where the principal antagonists were able to craft expectations of stability out of the threat of mutually assured destruction. Deterrence with regard to shadowing non-state actors would appear to be a much more complicated policy, which policy may prove to be a constraint on the expeditious realization of a non-nuclear weapons world. The critical question that confronts international law stakeholders is what role international law can play in giving assistance and guidance to policy makers who must now proceed toward nuclear disarmament. There are always challenges and complexity about the claim and urgent priority of a national security imperative and the critical importance in the restraining force and normative guidance that international law can provide. The war on terrorism demonstrated a classical challenge for the efficacy of international law. This challenge was the claims to power and expediency versus the claims of law to the restraint of power and the substitution of a decision according to principle rather than expediency as a critical rule of law expectation. In the context of the deployment of nuclear weapons systems, the critical question of the imperatives of national security is confronted, as is the extent to which the national security strategy and tactics are amenable to the rule of law and international legal order. Some of the high points in the development,

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­testing and deployment of nuclear arsenals and the role of law in shaping security legal perspectives that enhance the common interest are presented. i

The Relevant Background to the Nuclear Age

The first and most important but troubling insight into the nature of the power in microscopic particles such as the atom is that the power in such a small mass is enormous. It is almost counter-intuitive to think that the atom, before being split, contains energy which can be used for destructive war-making ends. It was the physicists who were aware of German developments in this area that brought it to the attention of President Franklin D. Roosevelt. The military implications of these developments would give Hitler’s Germany an incredible capacity to annihilate its enemies. It became apparent to the Roosevelt administration that it was critical in the race to master the science and technology of splitting the atom and the engineering for developing bomb-like weapons that this was done by the allies before the axis forces. Thus, the Manhattan Project under the scientist, Robert Oppenheimer, and the military administrator, General Leslie Groves, was launched. President Harry S. Truman authorized the use of atomic weapons on Hiroshima and Nagasaki. The critical question from the perspective of the law of war was whether the use of this bomb could be seen as violating the principles of military necessity, proportionality and the principle of humanitarian concern. The debate about whether the use of the bombs was morally appropriate or even consistent with international law at the time is still a matter of controversy. Since these weapons had never been used before, there was little knowledge of the effects of the bomb on human populations and there was less understanding of the environmental consequences. Although efforts were made to provide a legal accounting, the use of the bombs had the direct consequence of unconditional surrender by the Japanese. As a consequence, the precise legal implications of the use of the bomb in terms of conventional law relating to the ius in bello remains speculative. The u.s. ended World War ii as an intact power with a nuclear weapons monopoly. This created a sense that the u.s. could significantly influence the direction of post-war foreign policy interest. On the other hand, the Red Army of Stalin had physically conquered much of Eastern Europe and Stalin saw the consolidation of these conquests a critical objective of Soviet foreign policy. Getting the bomb was therefore a critical Soviet objective. When John Foster Dulles became Secretary of State, he made a statement of critical importance

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to international lawyers. Addressing the American Bar Association, Dulles suggested that the nuclear age had made the u.n, Charter obsolete. Of course, modern international law draws profound inspiration from the u.n, Charter and practice has demonstrated that it is not obsolete. However, the nuclear age played an important role in the development of the Cold War and often Cold War imperatives tended to ignore or possibly undermine the promise and authority of the u.n, Charter. ii

The Role of International Law Scholarship

McDougal and Lasswell attempted to provide a conceptual map to understand the framework of world order based on the u.n, Charter and the framework of international power influenced by contending and conflicting world order systems. The world order systems they described were the global processes of effective power which were described in terms of a bipolar world. The world process of effective power was having a significant influence on the idea of world order based on the constitutional foundations of the u.n. Charter. To provide stability in a system in which there were pressures to confirm the u.n. Charter’s promise and pressures to change it, the super powers developed doctrines which codified their national security expectations. The critical question is whether these national security doctrines generated pre-legal norms that influenced how the law developed to account for the problems of weapons of mass destruction. The problem of international law and nuclear weapons crystallized around the view of Dulles that the nuclear weapons problem had rendered the u.n. Charter and international law based on the Charter obsolete. The practice of the dominant nuclear powers reflected a projection of nuclear weapons developments for the purpose of deterrence. The further justification of deterrence rested on the principle of massive retaliation or mutually assured destruction. The world of scholarly discourse generated a concern for the nuclear weapons issue and that concern was the international law implications of the u.s. testing of thermo nuclear weapons in the South Pacific. In retrospect, the scholarly initiative essentially developed a wedge into the discourse concerning nuclear weapons systems. This wedge became an important bridgehead for developing a relevant role for international law based on the u.n, Charter. Returning briefly to the claims of deterrence and mutual destruction which fueled the nuclear arms race of the 1950’s, it is possible to conceptualize these practices as claims of the dominant nuclear powers to either exempt themselves from the letter and spirit of the u.n, Charter, or that they represented

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claims to fundamentally change Charter expectations relating to international peace and security in light of the technological developments in nuclear arsenals. To the extent that deterrence is still a justification for the accumulation of massive nuclear arsenals, this claim to Charter change remains a residual and important question. One of the scholars most responsible for giving international law an important role in the nuclear weapons issue was Dr. Emanuel Margolis.1 Margolis presented a conventional view of international law to demonstrate the violation of international law by the u.s. in the testing of its thermo nuclear weapons in the South Pacific. The central thrust of his argument was that the tests restricted the use of international waters, and these restrictions violated the fundamental principle of the freedom of the seas. Margolis conceded that the purpose the u.s. had used for closing of vast tracts of the Pacific was driven by the fear of damage to users of the ocean in those areas. In short, the objective was to secure humanitarian ends. Margolis also made reference to the trust responsibilities that the u.s. owed to the trust beneficiaries. The u.s. trust over South Pacific islands was a legal product of the u.n, Charter and the Trusteeship system which it created. Margolis thus brought a conventional view of international law to a consideration of the lawfulness of the u.s. testing of hydrogen bombs in the South Pacific and declared that the practice violated the letter of international law. McDougal and Schlei defended the lawfulness of the u.s. test in the South Pacific also on the basis of international law, but the view of international law that they developed is a theoretically broader and contextually informed conception of it.2 In this sense, McDougal and Schlei sought to develop the discourse about the lawfulness of the tests by taking into account contextual factors which a narrow conventional view of international law might preclude. In their view, the rules and principles that Margolis relies on must be seen in terms of the relevant contextual background and appropriate principles of the interpretation of international norms. In short, the approach to contextual appraisal must account for the nature of the implicit claim the u.s. is made in the testing of these weapons in the South Pacific. That claim is based on the background of world order tensions and conflict which pits the democratic, rule of law based position of the u.s. against a world view rooted in totalitarian order. This claim is further sustained by the necessity of security preparedness. 1 Emanuel Margolis, The Hydrogen Bomb Experiments in International Law, 64 Yale L.J. 629 (1955); Myres McMcDougal and Norbert A. Schlei, The Hydrogen Bomb Tests and Perspective: Lawful Measures for Security, 64 Yale L.J. 648 (1955). 2 Id.

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International law itself is not a frozen cake of doctrine. It is a process in which the major participants continually assert claims and defend those claims and from time to time initiative on them. A reference is made to the concept of dedoublement fonctionnel. In a system of world order that is not highly centralized and specialized, states make unilateral claims to further their interests and justify those claims on the basis that they are a reasonable (in this instance) security competence as judged from a third party appraiser. The principle of reasonableness has historically been critical in “resolving competing claims to authority and control over the high seas.” McDougal and Schlei concluded that the temporary appropriation of parts of Pacific high seas for safety purposes was a reasonable use of a common resource. They went on to point out that the inconvenience to the populations of these islands was temporary, involved appropriate compensation and consultation. These temporary and limited interferences would therefore have to be appraised against the security importance of free world values for which the testing of nuclear weapons was an important strategic act. The scholarly exchange between Margolis and McDougal should also be seen as part of a broader discourse concerning the appropriate mess and relevance of international law in international relations. Margolis’ view of international law is one that may be characterized as being somewhat legalistic and moralistic in its theoretical assumptions and methods. Two of the most respected international relations theorists of this period provided a trenchant attack on international law as understood in terms of legalistic and moralistic procedures and methods. In their view the intrusion of international law on foreign policy makers was dangerous, inflexible and undigested utopianism. The intellectual leaders of this attack were Hans Morgenthau and George F. Kennan. According to Morgenthau, the “state creates morality as well as law and that there is neither morality nor law outside of the state.”3 Morgenthau stressed that there is no consensus about the nature of international justice and as a consequence there is no international society that can be integrated in terms of principles of justice and equality as in the nation state. The role of universal morality and universal international law is therefore misplaced. As misplaced morality the proponents of legalism cannot distinguish between what is desirable and what is possible and what is desirable and what is essential. This is a view supported by Kennan as well who stated “I can see the most serious fault of our past policy formulation to lie in something that I might call the legalistic-moralistic approach to international problems.” This approach would certainly strengthen the view within the national ­security 3 Hans Morgenthau, In Defense of the National Interest (1982).

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­establishment that an important role for international law in the policy process is misplaced. McDougal’s response to both Kennan and Morgenthau was that they had a complete misunderstanding of the global system of effective power and the possibilities and potentialities of authoritative and controlling decision as a source of critical normative guidance and policy clarification in international relations.4 Additionally, their view of international law was a view rooted in an older, limited paradigm. The concept of international law was a more flexible instrument of inquiry and appropriate policy guidance. The central contribution of McDougal in this context was to distance a contemporary conception of international law from old fashioned legalism and that its contributions were utopian. He sought to replace this by reframing the theory and methods of international law away from utopianism and towards a framework of realism and relevance. This provided flexibility and greater creativity in the formulation of legal responses to problems in the international environment. The McDougal and Schlei response to Margolis was based on an international law that was sensitive to the context of testing of nuclear weapons in the South Pacific that emerged. Context thus served to underline relevance and realism and clarified the policy constraints and guidelines that should inform decision making. In this sense, the response to the international relations specialist was based on a newer paradigm of international law. The McDougal approach provided an important theory and method for appraising the lawfulness of the testing of nuclear weapons in international law. The approach was sufficiently nuanced to take a broader view of self defense in the Cold War and it was focused on a problem that had practical implications for practical policy makers. Additionally, McDougal and Schlei made u.n, Charter expectations an important part of the professional discourse in this area and they were repudiating the view of Dulles that the nuclear age had rendered the Charter obsolete. McDougal concluded this article as follows: It is urgently to be hoped that attacks upon law and morality which so profoundly misconceive law, morality and power and the interrelations will not cause many of us to misconceive the real choice that confronts us. People whose moral perspectives preclude the deliberate resort to ­violence, and except for self defense or organize community sanction, have in the contemporary world only the alternative to some form of law. 4 Myres S. McDougal, Law and Power, 46 American Journal of Int’l L. 102–14 (1952). Myres S. McDougal and Harold Lasswell, The Identification and Appraisal of Diverse Systems of P­ ublic Order, 53 American Journal of Int’l L. 1–29 (1959).

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The choice we must make is not between law and no law or between law and power, but between effective and ineffective law. It is a choice between the doctrines and techniques of power balancing designed for the problems and conditions of bygone days, and contemporary commitments and techniques of power balancing through appropriate ­international organization that offer hope of progressive and accelerated movement toward a unified world community—a choice in some between, on the one hand, ilusory doctrines, old fashioned diplomacy and spasmodic resorts to unauthorized violence, and on the other hand, clear moral legal commitments to freedom, peace and abundance which are sustained by organized community coercion and which invoke, at both national and international levels, all the contemporary instruments of power, ideological and economic as well as diplomatic and military.5 To a large extent the approach of McDougal and Schlei was one that was far from Dulles’ repudiation of the u.n, Charter, but was also one with sufficient flexibility to be acceptable to the security establishment in the u.s. The central message of McDougal and Schlei was that international law appropriately understood and had a capacity to be relevant to the discourse and policies relating to nuclear weapons systems. However, the effect of such an approach to international and world order is not without complexity. Consider the following: [a] characteristic of a decentralized social system is that the political claims of the powerful nation-states serve as legal precedents for other, less powerful, members of the international community. Nuclear testing by the United States and the Soviet Union created permissive precedents that are very difficult to repudiate. Relative power plays a much greater role in creating precedents than in repudiating them. There is a kind of reciprocity and symmetry operative in international society, as in all social systems, that make the assertion by one state of a legal claim to act in a specified way available to other states similarly situated. Such symmetry owes much to the external aspects of the ideology associated with national sovereignty, an ideology that has contributed so centrally to the constitutive structure of traditional international law through ideas of the equality of states, the absoluteness of territorial jurisdiction, and the doctrine of nonintervention.6

5 McDougal, supra note 2. 6 Richard A. Falk, The Status of Law in International Law 452 (1970).

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With the death of Dulles, the extremist edge of Cold War foreign policy was ameliorated as President Dwight Eisenhower took charge and proceeded to send out signals of the importance of arms control and some form of control over the nuclear weapons arms race. Additionally, the major nuclear powers came to recognize that atmospheric weapons tests were diminishing in their importance to their nuclear posture. Moreover, the general concern that a prohibition on nuclear testing in the atmosphere would also serve as a kind of indirect limit on proliferation. This development led to the adoption of The Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Underwater (1963). The super powers undertook to promote the importance of the Treaty and over 100 states became parties to it. In addition, the u.n, General Assembly adopted resolutions which sought to universalize expectations concerning nuclear weapons systems. iii

Legislative and Quasi-Legislative Responses to the Control and Regulation of Nuclear Weapons by Law

In 1961 the u.n. General Assembly adopted the Declaration on the Prohibition of the Use of Nuclear and Thermo-nuclear Weapons7 This document stipulated that the use of nuclear and thermo nuclear weapons was contrary to u.n, expectations and a direct violation of the u.n, Charter. The Declaration also stipulated “Any state using thermo and nuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity committing a crime against mankind and civilization.” In 1963 the General Assembly also adopted a resolution regarding weapons of mass destruction in outer space.8 Other efforts by the u.n, to shape international expectations regarding the status of nuclear weapons in international law include United Nations General Assembly Resolution on the Non-Use of Force in International Relations and the Permanent Prohibition of the Use of Nuclear Weapons.9 The Resolution stipulates that nuclear disarmament is ­essential for the prevention of nuclear war and for the strengthening of 7 Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons, g.a. Res. 1653(xvi), un Doc. A/Res/1653(xvi) (November 24, 1961). 8 ga Res. 1884, un gaor 18th Session Supp. 15 at 13, un Doc. A/5571 (Annex ii) (1963). 9 General Assembly Res. 2936, un gaor 27th Session, Supp. No. 30 at 5, un Doc. A/8730 (1972). Additionally, General Assembly Resolution on the Non-Use of Nuclear Weapons and the Prevention of Nuclear War, ga Res. 35/152D, un gaor, 35th Sess., Supp. No. 48 at 69, un Doc. A/35/48 (1981).

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i­ nternational peace and security. It also affirms that the use of nuclear weapons would be a violation of the Charter of the United Nations and a crime against humanity. Moreover, “the threat or use of nuclear weapons should therefore be prohibited pending nuclear disarmament.” In addition, two important multilateral treaties were generated through the u.n. system: The first being The Treaty on the Non-Proliferation of Nuclear Weapons. The Treaty entered into force on March 5, 1970.10 The second is the Comprehensive Nuclear Test Ban Treaty (concluded New York, Sept. 10, 1996). This treaty is not yet enforced.11 The super power agreement on atmospheric testing served as an important stimulus to universalize a limited legal expectation tied to prohibiting the testing of nuclear weapons in the atmosphere. General Assembly declarations and resolutions are emphatic about the issue of the use or the threat of the use of nuclear weapons as being completely incompatible with the legal values in the u.n. Charter. In this sense, the General Assembly was using its resolutions and declarations process to shape global legal expectations concerning the outlawing of nuclear weapons systems. It remains to be determined what normative guidance such instruments might have in the actual operations of national security strategy and practice. The developments of these treaties influenced and were influenced by the u.n. General Assembly Resolution 2032 (xx) Urgent Need for the Suspension of Nuclear and Thermo Nuclear Tests (Dec. 3, 1965). This Resolution noted the mounting concern of world opinion for suspended tests. These two treaties provide a firm legal foundation for establishing the important role of international law in the control and regulation of nuclear weapons. iv

The Role of Judicial Settlement in the Control and Regulation of Nuclear Weapons by Law

The earliest case to test the legality of the use of nuclear weapons emerged in May, 1955 when five individuals initiated a legal action against the government of Japan for the injuries sustained as a consequence of the American atomic attack on the cities of Hiroshima and Nagasaki. The District Court of Tokyo provided a lengthy decision in the case. Although this was a lower court it received expert advice from three of Japan’s most distinguished professors of international law. This was a case in which the plaintiff witnesses directly gave evidence concerning the effects of the atomic attack on these cities. 10 729 unts 161, 168 unjyb 156; 170 ukts 88, cmmd. 4474; 21 usts 483, tias 6839 (1968). 11 ga Res. 50/245, un gaor, 50th Sess. No. 49 at 4, Doc. A/50/1027 (1996).

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The central point of the evidence was to establish that the atomic bomb caused indiscriminate suffering and violated the permissible limits of warfare. Although for procedural reasons the plaintiffs were precluded from recovering against the Japanese state, the Court provided a careful analysis of why the use of the bombs on Hiroshima and Nagasaki were violations of international law. In formulating the theory of liability, the Court relied on the principle that the indiscriminate bombing of an undefended city was a violation of international law. The Court found these standards elaborated in the Hague regulations in the draft rules of air warfare. These rules restricted the right of aerial bombardment to military objectives. The rules go on declare that “bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighborhood of the operations of land forces is prohibited.” The Court also quoted Article 22 which forbids “aerial bombardment for the purposes of terrorizing the civilian population, destroying or damaging private property or injuring non-combatants.” The Court concluded that “the act of atomic bombing of an undefended city…should be regarded in the same light as blind aerial bombardment; and must be said to be a hostile act contrary to international law of the day.” The Court’s conclusions were that international law forbids indiscriminate bombing of undefended cities and that no principle of military necessity could change this legal conclusion. The Court also saw that the use of these weapons were analogous to the international law prohibition of lethal poisons and bacteria. The atom bomb’s effects were more severe and more extensive than these prohibited weapons and therefore the use of the atom bomb was unlawful. The critical question remains as to what the legal effect the Shimoda case is as a legal precedent. Shimoda is the only case in which evidence was presented and a carefully articulated legal judgment was rendered. The case raised the question of whether it is appropriate and within the boundaries of judicial settlement to adjudicate the issue of the lawfulness of nuclear weapons. The Shimoda case at least establishes that the role of law may be an important part of the larger landscape of authoritative and controlling decision making at all levels The fact that the plaintiffs could give evidence directly on the effects of the atomic blast on them and their fellow citizens was in important formal judicial record that might influence and guide policy making in the future. It is unclear whether Shimoda will significantly influence the status of nuclear weapons in international law. However, it stands as an important lonely sentinel of justice. Law in the form of judicial settlement had a role in seeking to secure the normative guidance that international law might provide. In 1973, Australia sued France because it was conducting nuclear tests between 1966 and 1972

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east of Australia in the Pacific. Australia sought to prevent France’s testing program and declare that testing program in the South Pacific was a violation of international law. The first decision was to issue provisional measures to ensure that no action would be taken which would prejudice the rights of the other party and that the French government should avoid nuclear tests which deposit radioactive fallouts in Australian territory. This order implied that there might be an important substantive right upon which Australia could rely for the prevention of the infringement of its sovereignty with nuclear pollution. Implicit in this was the notion that the substantive right would be based on custom rather than treaty law. The interim order carried the implicit promise that the limited Test Ban Treaty and u.n, General Assembly action, in the form of resolutions and declarations might have the effect of creating a customary law rule of international law which prohibited the testing of nuclear weapons in the atmosphere. In 1974, the Court delivered its judgment. During the period involved in the Court’s interim order, a lower level official of the French government had issued a press statement indicating that France’s testing program had been concluded. Copies of the newspaper accounts were forwarded to the Court. Since the French were no longer going to test their weapons, the Court concluded the object and purpose of the case no longer existed. In this sense, the Court did not rule on the question and did not contribute to the possible creation and clarification of an international legal norm concerning the testing of nuclear weapons in the atmosphere. In 1995 New Zealand took France to the icj because France proposed to once more test its nuclear arsenals in the South Pacific. However, the Court declined to uphold New Zealand. The next major development in the evolution of international legal standards regarding the control and regulation of nuclear weapons emerged from an advisory opinion of the icj, Legality of the Threat or Use of Nuclear Weapons.12 The triggering of the advisory opinion came from an unusual source the World Health Assembly of the World Health Organization (who). The who concern was expressed as follows: In view of the health and environmental effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of its obligations under international law including the u.n, Charter. In December, 1994, the General Assembly sought an advisory opinion on a similar question: is the threat or use of nuclear weapons in any circumstance permitted under international law?

12

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996, 226, International Court of Justice (icj), July 8, 1996.

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The Court handed down its advisory opinion on the above matter in 1996. The Court observed as a preliminary matter that it had considered the question of whether the question posed by the General Assembly was “by their very nature susceptible to a reply based on law.” The Court concluded that these questions were of a legal character and that it was within the appropriate competence of the Court to provide appropriate legal responses. The decision of the Court covered a wide terrain of potentially applicable international law. The Court considered for example, the possible relevance of the arbitrary deprivation of life contrary to Article 6 of the International Covenant of Civil and Political Rights. It also considered the possible applicability of Article 2 of the Convention of the Prevention and the Punishment of the Crime of Genocide. It also looked at the law relating to the protection and safeguarding of the environment. The Court essentially felt that the most effective way to respond to the question was to examine the unique characteristics of nuclear weapons in the context of the u.n. Charter itself and in particular, provisions relating to the control and regulation of the use of force. These include Article 2(4), Article 51 and Article 42. The Court noted that international law did not contain any specific prescription authorizing the threat or use of nuclear weapons, nor were there rules that specifically prohibited the threat or use. The Court noted that treaties dealt largely with acquisition, manufacture, possession, deployment and testing of nuclear weapons. The prescriptive reach of treaty laws was limited. When the Court examined the question of whether there was a customary rule of law that was relevant it found that the opinio juris was not sufficiently developed for the emergence of a rule of clear, prescriptive reach. On the other hand, what has limited such a development was the strength of claims based on the doctrine of deterrence. The Court canvassed the scope of international humanitarian law and found that the new weaponry had not been explicitly accounted for in humanitarian law, which did not mean that humanitarian law was not relevant to the question. The critical holding of the Court related to the importance of the self defense/deterrence principle. According to the Court, The Court observes that in view of the unique characteristics of nuclear weapons to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with the respect for the requirements of law applicable to armed conflict. It considers nevertheless, that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules applicable to armed conflict in any circumstance.

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Furthermore, the Court cannot lose sight of the fundamental right of every state to survival and thus its right to resort to self defense, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice referred to as policy of deterrence to which an appreciable section of international community adhered for many years.13 The majority of the Court permitted the threat or the use of nuclear weapons in the narrow circumstance where the survival of the state was at stake. However, the Court qualified this by referring to the obligation in Article 6 of the Treaty on Non-Proliferation of Nuclear Weapons. This Article obligated the state’s parties to negotiate in good faith on the issue of nuclear disarmament. The opinion of the World Court generated a significant dissenting opinion by Judge C.G. Weeramantry. Weeramantry took the position that the use or the threatened use of nuclear weapons was illegal “under any circumstances whatsoever.” In the judge’s view, such threat or use would have violated fundamental principles of international law and represents “the very negation of the h ­ umanitarian concerns which underlie the structure of humanitarian law.”14 The judge contended that nuclear weapons offended such treaties as the ­Geneva Gas Protocol of 1925 and Article 23(a) of the Hague Regulations of 1907. Moreover, such weapons contradicted the fundamental principle of the dignity and worth of the human person on which all law depends. ­Additionally, it endangered the human environment which could threaten all of life on the ­planet. Judge Weeramantry came to the conclusion that the threat or use of nuclear weapons under any circumstances was incompatible with international law. Central to his approach was the distillation of the values embedded in the u.n. Charter. All specific articles in the Charter were a more specific reflection of the rationale which informed the instrument itself. That rationale was found in the keynote principles which are rooted in the concept of human dignity. Nuclear weapons held such incredibly destructive capacities that they negated the idea of law and marginalized the fundamental human element which is the foundation of law. Judge Weeramantry’s dissenting opinion was an illustration of Grotian jurisprudence at its finest. At the heart of the opinion was the principle that nuclear arsenals were simply incompatible with the idea of law, legality and reasoned elaboration. 13 14

Text of the Advisory Opinion available at http://www.icj-cij.org/docket/index.php?p1=3& p2=4&p3=4&case=95. C.G. Weeramantry’s dissenting opinion available at www.icj-cij.org/docket/files/93/7417 .pdf.

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It is valuable to assay the Weeramantry dissent in terms of the more general issue concerning the future role of the international lawyer. This issue is related to a central question implicit in this Chapter, i.e., how far and to what extent lawyer interventions will improve our understanding of the role of nuclear weapons in the context of changing world order patterns. This question is a matter that deeply implicates the fundamental values of the role, function, identity and responsibility of a learned profession. Additionally, what effective legal strategies can be employed to secure the agreed upon objective of complete nuclear disarmament and secure a clear, legal and moral basis for holding that the threat and/or use of nuclear weapons is a violation of international law? In this context, it seems there are two vitally important technical issues that international lawyers must resolve. The international lawyers must then find the means to communicate these resolutions to the political and technological and scientific communities. The first issue concerns the scope of international law. Is the regime of nuclear weapons subject only to the law of the lex specialis, or are there broader sources of law that must inform this legal conversation? In the dissenting opinion of Judge Weeramantry, it was strongly urged that the range of applicable international law wasnot confined to the lex specialis of treaty law. The Judge recognized the sources of law to include: 1.

The international law applicable generally to armed conflicts: the jus in bello, sometimes referred to as the “humanitarian law of war.” 2. The jus ad bellum: the law governing the right of States to go to war. This law is expressed in the United Nations Charter and related customary law. 3. The lex specialis: the international legal obligations that relate specifically to nuclear arms and weapons of mass destruction. 4. The whole corpus of international law that governs State obligations and rights generally, which may affect nuclear weapons policy in particular circumstances. 5. National law, constitutional and statutory, that may apply to decisions on nuclear weapons by national authorities.15 Both the majority opinion and Judge Weeramantry’s dissenting opinion embraced a broader view of what international law was and sanctioned a broader role for the international lawyer in world order matters. It is obvious, however, that Judge Weeramantry’s list of “sources” suggested that we must broaden 15

Id. at 443 (Weeramantry, J., dissenting).

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our “sources” base for international adjudication to keep abreast of the critical problems of world order amenable to judicial interventions. This is more than simply giving Article 38 of the icj Statute a generous construction as to the relevant, authoritative sources of international law.16 We are in search of a more useful theory about the sources of international law. W. Michael Reisman anticipated such an eventuality in his paper, International Lawmaking: A Process of Communication, in which he sought to provide a practical perspective drawn from communications theory about how international law was functionally created.17 Professor Reisman suggested that attention be given to the identity of both communicator and target audience.18 He suggested that, from an observer’s view, careful appraisal be given to the “authority signal,” the “controlling intention,” and the “policy content” of a relevant flow of communications.19 These theoretical ideas may find fertile ground for reflection in practical contexts of international decision making. This impacts upon how broadly or narrowly the lawyer role is conceived. The second central issue is that of interpretation. Assuming arguendo, that Judge Weeramantry was correct about the breadth of the sources of international law relevant to the problem, what kinds of explicit, normative guidance can the interpreter invoke regarding the specific prescription and application of international law? Here the u.n. Charter preamble, as an instrument of goal guidance as well as goal clarification, is most useful and insightful. In his dissenting opinion, Judge Weeramantry sought to ground the problem in the context of “six keynote concepts” which embodied the global community’s fundamental expectations about global constitutive and public order priorities.20 These concepts were vital if the interpretation of international law was to be guided by explicit standards of normative understanding. The interpretation of international law, i.e., its specific prescription and application, may be rootless, arbitrary and even quixotic if it is not subject to explicit standards of normative guidance, which are expressed in concrete terms in the u.n. Charter taken as a whole. 16 17

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See Statute of the International Court of Justice, art. 38. See W. Michael Reisman, International Lawmaking: A Process of Communication, (1981). Faculty Scholarship Series. Paper 713, at 101, available at http://digitalcommons.law.yale. edu/fss_papers/713. See id. at 107. Id. at 108 citing Myres S. McDougal and W. Michael Reisman, The Prescribing Function in World Constitutive Process: How International Law is Made, 6 Yale Stud. World Pub. Ord. 249, 250 (1980). See Legality of Nuclear Weapons, 1996 i.c.j. at 443 (Weeramantry, J., dissenting) available at http://www.icj-cij.org/docket/index.php?p1=3&p2=4&p3=4&case=95.

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The opening of the preamble expressed the first standard: the Charter’s authority is rooted in the perspectives of all members of the global community, i.e., the peoples. This was indicated by the words, “we the peoples of the United Nations.”21 The authority for the international rule of law, and its power to review and supervise the nuclear weapons problem was an authority not rooted in abstractions like sovereignty, elite or ruling class but in the actual perspectives of the people of the world community. This meant that the peoples’ goals, expressed through appropriate fora, including the United Nations, governments, as well as public opinion, were critical indicators of the “principle of humanity” and the “dictates of public conscience” as they related to the conditions of war. The Charter’s second key concept embraced the purpose of saving succeeding generations from the scourge of war.22 The drafters did not envision nuclear war in reference to the concept of war. Nonetheless, as the passage contemplated the destructiveness of war, an enhanced technological capacity for destructive weapons would enhance the relevance of this provision, not restrict its scope. The third keynote concept was the reference to the “dignity and worth of the human person.”23 The eradication of millions of human beings with a single weapon hardly valued the dignity or worth of the human person. What was of cardinal legal, political and moral import was the idea that international law based on the law of the Charter be interpreted to enhance the dignity and worth of all peoples and individuals rather than be complicit in the destruction of the core values of human dignity. The fourth keynote concept in the preamble was emphatically anti-imperialist. It held that the equal rights of all nations must be respected. Nuclear power institutionalized hegemony (nuclear umbrellas) and destabilized interstate relations as states faced the “need” to possess their nuclear arsenal in order to deter the other states from contemplating the deployment or use of their own arsenal. The fifth keynote in the Charter preamble referred to the obligation to respect international law based not only on treaty commitments, but also on “other sources of international law.”24 The entire framework of nuclear weapons perspectives and operations cannot proceed outside of the idea of law, or more precisely, the law of human survival that must be the foundational precept of modern international law. 21 22 23 24

u.n. Charter pmbl. See id. Id. Id.

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The sixth keynote point in the preamble of the Charter contained a deeply rooted expectation of progress, improved standards of living and enhanced domains of freedom. Extinction or the prospect of extinction of the human species was hardly consistent. These standards may influence the strategies of legal argument and justification concerning the legality of nuclear weapons. Moreover, it would be of value for the nuclear strategists to consider the approach of both the majority of the icj as well as the dissent of Judge Weeramantry in formulating the nuclear posture of the United States. One element of strategy would be to take the facts and logic of nuclear weapons and show in light of these keynote concepts that there is nothing reasonable in the threat of the possible extinction of the entire eco-social process. Another stratagem may be to give a cautious assessment of the available corpus of law, in light of the keynote concepts, and to appeal for caution and seriousness if states feel compelled to have nuclear weapons. A third approach would be to simply acknowledge that the issue of nuclear weapons is sui generis. To do this, one would have to ignore the normative guidance of the keynote concepts and have a great deal more faith in what states have actually achieved so far. A central question that the icj contribution addressed was how a major power like the United States considered the question of the lawfulness of the threat or use of nuclear weapons. The icj allowed the opportunity to enlarge and focus the legal discourse on a vital issue of world order. In so doing, the court established an international law and juridical structure for the problem. This structure secured a process of reasoned elaboration that was more in keeping with the Grotian tradition than the tradition of state- dominated positivism. A still more realistic picture of the legal character of the problem of nuclear weapons emerged from Judge Weeramantry’s dissent. Quite simply, nuclear weapons pointed to a legal limit on the capacity for universal destruction. This view should be considered as an aspect of the legal obligation of states’ parties to the Non-Proliferation Treaty to work assiduously towards a world without nuclear weapons. The truth about nuclear arsenals is that they cannot be reconciled with the fundamental keynote expectations of the u.n. Charter and modern international law. v

The Doctrine of Lex Specialis and the United States

The lex specialis was a reference to the development of specific treaty obligations concerning the control and regulation of nuclear weapons in

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i­nternational law. The most important of these instruments were the treaties made with the ussr/Russia on the reduction of nuclear arsenals, as well as the limited Test Ban Treaty. These treaties were very specific and the critical expectation they generate was that some aspects of nuclear weapons policy was subject to treaty-based international law. However, the expectations substantively generated were very narrow. In addition, there were two critical treaties of a multilateral character generated by the international system. These were the Non-Proliferation Treaty and the Comprehensive Test Ban Treaty. The Non-Proliferation Treaty (npt) contained an implicit pact in which a small group of international players were permitted to have nuclear weapons and the rest of the parties to the treaties were prohibited from developing nuclear weapons. The treaty did contain a loophole in the sense that a state had an inalienable right to develop nuclear technologies for peaceful purposes. Such developments closed the distance in which a state may eventually go nuclear. The treaty contained a provision for continued negotiation, the object of which is complete global nuclear disarmament. The United States signed and ratified this convention and was an active participant in the process for ensuring the goals of the convention. The Comprehensive Test Ban Treaty (ctbt) was an extrapolation of the obligation to work towards complete nuclear disarmament in the npt. The United States was a leading force in securing the adoption of the Comprehensive Test Ban Treaty. The treaty was clearly an important complement to the npt. Indeed, an important practical way of preventing proliferation was to prevent testing. If a state cannot test its nuclear arsenals, the risk to it of having untested devices deployed would be very great. Hence, the Comprehensive Test Ban Treaty was an important step in development of global legal expectations concerning the control and regulation of nuclear weapons systems. In the context of the United States, the ctbt was simply an extrapolation of a pre-existing bipartisan consensus on nuclear arms control. Former President Clinton transferred jurisdiction over the ctbt to the Senate to secure its advice and consent for the ratification of this treaty. Within the Senate, there was a well-organized lobby which worked to secure a blocking minority vote for the treaty. Once a blocking minority vote had been secured, the leadership put the ctbt on a fast track to ensure a speedy defeat of the treaty. When the administration became aware of the behind-the-scenes politics, it tried to have the treaty returned to the Executive branch. However, the blocking groups were determined to kill the treaty. The hearings were short and perfunctory and the treaty was defeated. A study by the Congressional Research Service determined that the treaty had reverted to the status of one pending before the Senate. It was within the jurisdiction and discretion of the Senate to determine whether and when it should be brought up

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for consideration. The defeat of the treaty sent a signal globally that the u.s. commitment to the use of international law for exercising control and regulation over nuclear weapons was not particularly strong since the u.s. was one of the world powers and leaders in this field. Its role in shaping global expectations about the status of nuclear weapons was thus diminished. vi

Nuclear Weapons and the Bush Administration

When the George W. Bush Administration came to power they were apparently in full agreement with right wing sentiment in the Senate on the question of the status of the ctbt. They did not believe the treaty was in the interest of the United States and they had no intention of using its good offices to promote a Senate reconsideration of the treaty. Additionally, the administration had some ideas which were reflected in the Nuclear Posture Report, concerning strategic innovations regarding the deployment of nuclear arsenals. Their major idea was the development of a nuclear global strike option. Quite clearly, the idea of a global strike option runs counter to the restraint that had been reflected in the developing treaty law as well as developing international opinion in this area. The Bush Administration sought to promote the development of a newer strategic class of nuclear weapons. These were styled as mini-nukes and bunker-buster nukes, the latter presumably for the purposes of targeting global terrorism. This approach of the administration further entrenched the signals that the u.s. was not particularly interested in a multi-lateral, global approach to the nuclear problem. The u.s. gave an indication of this approach by basing its invasion of Iraq on the notion that it could invade a rogue state, unilaterally, if that rogue state was developing a threatened arsenal of nuclear weapons. The approach of the Bush Administration tended to marginalize the importance of international law as developed via the treaty-making process or from authoritative sources such as the icj or the u.n. itself. The expectation of clarity with regard to the u.s. position on the developing international law have increased fears of global insecurity and some states may believe that the surest way to deter a u.s. led invasion is to have nuclear devices as a defense of last resort. Such states place their security expectations on the unpredictability of their defense posture as a way of deterring a possible regime change action on the part of the u.s. To fully appreciate the impact of the Bush Administration’s approach to the problem of the nation’s nuclear weapons posture, it should be remembered that the Administration inherited the decision of the Senate to kill the

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­ omprehensive Test Ban Treaty. It turned out that the Administration fully C supported the demise of the treaty. Building on the treaty’s demise, the Bush Administration gave an indication of its approach to the problem of nuclear weapons policy in its Nuclear Posture Review of 2002. The approach recommended was a radical shift from pre-existing u.s. policy. The approach suggested a concern for the traditional value of credible deterrence. Its understanding of future security threats required that a more flexible and credible deterrence posture should be developed for the new nuclear weapons policy. The central elements of this were driven by the concern that the Department of Defense had no effective tool to effectively attack enemy assets that were buried in deep earth and concrete bunkers. Thus, there was a particular interest in developing bunker busters and in particular, the possibility of arming bunker busters with “mini-nukes.” The idea of mini-nukes is tied to the idea that if mini-nukes can be developed with less environmental destructive effects, such weapons would significantly increase the flexibility of their deployment, and this would increase the credibility of deterrence. What this implied was that research needed to be done for development of tactical nuclear arsenals which could be much more easily integrated into the conventional armory of the nation so that their use would be routinized in terms of defense capability. This would require a completely new warhead design and indeed, it would also require a new round of testing of such weapons. In this regard the Bush Administration maintained publicly the u.s. moratorium on nuclear testing and at the same time resisted any notion of supporting the adoption of the Comprehensive Test Ban Treaty. Along with these views there was also the development of a nuclear global strike option. This principle should perhaps be understood in light of the articulate Bush Doctrine in the war on terror. In that doctrine the President argued for a preemptive right to self-defense and thus the global strike option would effectually find a place in the officially articulated New Bush Doctrine. It should be noted that the idea of developing low-yield nukes had been a matter that had been talked about in the administration of President George H.W. Bush as well as in the Clinton Administration. Within the nuclear community important policy papers were written to the effect that the u.s.’s nuclear arsenal had no deterrent effect on dictators like Saddam Hussein. The pronuclear lobby made the case that there was a defense need for flexible tactical nuclear weapons to fill the vacuum in the deterrence posture. Vice President Richard Cheney in his report on defense strategy for the 1990’s argued for an increased role for nuclear forces in tackling regional threats, and he endorsed the development of new non-strategic nuclear weapons. The Bush

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approach raised deep concerns internationally about the interrelated arms control agreements and their currency under that administration. The c­ entral problem was what effect Bush’s nuclear strategy might have on the Non-­ Proliferation Treaty. Rhetorically, the administration supported the npt as the bed rock of global efforts to prevent the spread of nuclear and horizontal proliferation of nuclear weapons. More importantly, in 2000 the states parties to the npt agreed on thirteen practical steps toward global nuclear disarmament. The Bush Administration’s plans contradicted several of those agreed upon steps. The 2000 npt Review Conference for example, committed the nuclear powers to the principle of irreversibility concerning nuclear disarmament. The parties also were committed to “a diminishing role for nuclear weapons in security policies to minimize the risks that these weapons ever be used and to facilitate the process of their total elimination.”25 The attempt to develop new flexible nuclear weapons and the refusal to rule out the use of nuclear weapons against non-nuclear states has raised a serious question about the good faith of u.s. pledges under Article vi of the npt. It is worth quoting the specific pledge the u.s. gave at the 1995 npt Review Conference: The United States reaffirms that it will not use nuclear weapons against non-nuclear weapons states parties to the treaty on the Non-Proliferation Treaty of Nuclear Weapons except in case of an invasion or any other attack on the United States, its territories, its armed forces or armed troops, its allies, or on a state towards which it has a security commitment, carried out or sustained by such a non-nuclear weapon state in association or alliance with a nuclear weapons threat.26 It may be concluded that the position of the Bush Administration posed dangers for weakening the legal and political force of the npt. The Comprehensive Test Ban Treaty has interlocking elements with the npt. Thus, further research into the development of mini-nuke warheads and a new generation of weapons requiring testing, would essentially end the u.s. unilateral ban on testing and would radically depreciate the currency and efficacy of the ctbt.

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The 2000 Review Conference on the Nuclear Non-Proliferation Treaty (April 24–May 19, 2000) available at http://www.nuclearfiles.org/menu/library/treaties/non-proliferation -treaty/reviewconf/trty_npt_reviewconf-2000-13-steps.htm. No First Use Policy of the Declared Nuclear Weapons States, April 5–6, 1995, available at http://www.nuclearfiles.org/menu/key-issues/nuclear-weapons/issues/policy/no-first -use_1995-04-05.htm.

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­According to Bush, “We can fight the spread of nuclear weapons, but we cannot wish them away with unwise treaties.”27 The u.s. opposition to the ctbt was a position that contrasted with the closest allies of the u.s. The legacy that President Bush left was a nuclear policy that wanted to distance itself from international agreement and international law and rely on nuclear weapons systems as the basis of its nuclear policy. By rejecting the ctbt, as well as irreversible arms reductions, and by seeking to develop new more usable nuclear weapons, the Bush Administration has presented genuine threats to the development of international arms control institutions that have taken years to be put into place. The greatest threat for nuclear proliferation was the undermining of the npt and the ctbt. The critical question for future administrations will be the extent to which it can reformulate its nuclear posture priorities in conformity with the lex specialis of the npt and the ctbt. vii

The Obama Nuclear Posture Review Challenge28

In a larger sense, the Obama npr was an important statement of Obama’s National Security doctrine. As an instrument of the official policy of the Executive, it affirmed important international law expectations. It challenged certain international law expectations and challenged aspects of international law and thus staked a claim to change or modify the relevant international law. Although the npr was a unilateral u.s. undertaking it was communicated worldwide. Others reacted to it in predictable or unpredictable ways. In the u.s., it was an illustration of the President’s vision of the future of nuclear arsenals. His announced desire to see them eliminated touched on a critical political asset, i.e., hope. However, this was hope in the serious context of collective and personal insecurity. That context has historically been politically exploited by another political asset, i.e., fear. The administration confronted and responded to political advocacy which challenged his vision and sought to exploit the political assets of fear and insecurity. The hope aspect of 27

28

George W. Bush - ‘A Distinctly American Internationalism,’ Ronald Reagan Presidential Library, Simi Valley, California, November 19, 1999, available at http://www.fas.org/news/ usa/1999/11/991119-bush-foreignpolicy.htm. See The Obama Nuclear Posture Review Report at http://www.defense.gov/npr/docs/ 2010%20Nuclear%20Posture%20Review%20Report.pdf. See also Nagan and Slemmens, Developing u.s. Nuclear Weapons Policy and International Law: The Approach of the Obama Administration, 19 Tulane J. Intl & Comp. Law, 41 (2010).

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the npr was supported and strengthened by the promise and the possibilities of an international law role in this process. The npr examined the following issues which were stipulated by Congress: 1. the role of nuclear forces in the United States strategy planning and the programming; 2. the policy requirements and objectives for the United States to maintain a safe, reliable and credible nuclear deterrence posture; 3. relationship among United States nuclear deterrence policy, targeting strategy and arms control objectives; 4. the role that missile defense capabilities and conventional strike forces play in determining the role and size of nuclear forces; 5. the levels and composition of nuclear delivery systems that will be required for implementing United States national and military strategy, including any plans for replacing or modifying existing systems; 6. the nuclear weapons ­complex that will be required for implementing the United States national and military strategy, including any plans to modernize or modify the complex; and 7. active and inactive nuclear weapons stockpile will be required for implementing the United States national and military strategy including any plans for replacing or modifying warheads. Regrettably, the issues identified and required by Congress for the review did not explicitly account for the importance of international legal process in the consideration of the policy options. To the extent that there was an expectation that the review would be a transformative report on the status of nuclear arsenals in the u.s., there was a critical fact that must be kept in mind. The instrument was an expression of unilateral expectation and to the extent that external forces and conditions influenced the development of policy options, it must be asserted that the expression of unilateral action without the cooperation of other critical players in the global environment was a constraining factor that must be kept in mind. To a large extent, the scope of any strategic and tactical changes in u.s. nuclear posture was dependent on factors and threats that were outside of u.s. borders. It was critical that tools of contextual analysis be considered in the formulation of realistic and actionable policy alternatives. The tools of modern international law provided insights of realism and relevance. In this context, there was an important role for international law as an instrument of policy guidance. For example, any credible moves that the u.s. pursued must be dependent with a sense of common interest that was shared with the other great nuclear power, Russia. u.s. efforts to reduce its nuclear stockpiles as they were deployed must be dependent on reciprocated commitments to limitations on the part of Russia and other powers. In the past, the agreements with Russia had two purposes: one narrow and one broader.

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The narrow purposes were to create agreements that were narrowly focused and whose consequences were predictable and possibly verifiable. There was considerable practice and experience between the United States and Russia in seeking to develop instruments to guide the reduction of nuclear weapons systems. The broader implication of such agreement-making was that they created confidence in the realism of established goals to limit the threat of nuclear weapons systems. They demonstrated that high security issues such as reducing deployed or deployable nuclear weapons systems were amenable to control and regulation through the processes of international agreement. These agreements depended on international law for their validity and efficacy. They established important legal expectations for broadening the role and importance of international law and its procedures for the broader mandates of arms control under the international rule of law. In the United States the npr process generated a great deal of public interest. For example, Peace Action West joined with 179 organizations representing 31 states and hundreds of thousands of people for action and outcome that was transformative. They have stressed three principle issues: 1. the United States does not need and shall not pursue new nuclear warheads; 2. maintaining a large, ready-to-launch nuclear arsenal hurts u.s. security interests overall by encouraging similar Russian behavior; and 3. only substantial reductions in those arsenals, u.s. ratification of the Comprehensive Test Ban Treaty and a commitment to a world without nuclear weapons could attract the international support necessary to stop more countries from getting the bomb and terrorists from using one.29 In President Obama’s Prague speech in April 5, 2009,30 he provided the broad framework in which the npr would be undertaken. He said the following: The United States will take concrete steps towards a world without nuclear weapons. To put an end to Cold War thinking, we will reduce the role of nuclear weapons in our nuclear strategy, and urge others to do the same. Make no mistake: As long as these weapons exist the United States will maintain a safe, secure and effective arsenal to deter any adversary and guarantee that defense to our allies. But we will begin the work of reducing our arsenals. 29

30

179 Organizations Ask Obama for a Transformational Nuclear Posture Review, Cara ­ autista, Oct. 15, 2009 http://blog.peaceactionwest.org/2009/10/15/179-organizations-ask B -obama-for-a-transformational-nuclear-posture-review/. See President Obama’s Prague speech in April 5, 2009 at https://www.whitehouse.gov/ the-press-office/remarks-president-barack-obama-prague-delivered.

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The central point that Obama was making was that the nuclear posture of the United States was dictated by the conditions of the Cold War. During that ­period, world power which tracked the distribution of nuclear arsenals was centered in the u.s.s.r. and the u.s. Clearly, a contextual analysis of current conditions of world order demonstrated that the perspectives which fueled that order were less relevant. The ideological divide between the u.s. and the Russia no longer carried the barrier of Stalinistic rigidity. Thus, a continued deployment of arsenals which were a response to the Russian arsenals no longer carried the same defensible security rationale. In a post-Cold War world, the threats were different and required different approaches. One of the important difficulties that confronted the development of the npr document was the existence of a well-entrenched nuclear security bureaucracy with turf to p ­ rotect within the government of the United States. Such resistance was reflected in the critical question of the scope of deterrence and the role of ­nuclear arsenals. There were strong voices that sought to broaden the deterrence uses of future nuclear arsenals. For example, a Defense Department analyst, ­David ­Ochmanek31 indicated that he was “a little bemused by suggestions that the u.s. nuclear arsenals mission be limited to retaliation for a nuclear strike.” ­Others saw the option of a nuclear strike in the event of the use of chemical or biological weapons as well. Still others held out for tactical nuclear weapons to target underground terrorists’ hideouts. There will be considerable bureaucratic interest in maintaining a nuclear status quo with some modest fringe reductions. The role of nuclear weapons was one of the issues that the International Court of Justice32 addressed under general international law. In that context, it took the position that there were limited circumstances of self-defense, such as where the survival of the state was at issue, where that state may lawfully use nuclear weapons in self-defense. What was clear was that the expression of general international law by the Court reflected an effort to significantly limit the use of nuclear weapons. Although the Court did not explicitly suggest that a threat which a state felt compromised its survival permited it to unilaterally attack the potential aggressor with a nuclear weapons strike, it would nonetheless be consistent with the approach of the Court to significantly limit the occasion for the deterrent use of nuclear weapons. Some policy positions that 31

32

See u.s. Defense Official Skeptical of Revising Nuclear Deterrence Strategy, nti, (July 28, 2009) at http://www.nti.org/gsn/article/us-defense-official-skeptical-of-revising-nuclear -deterrence-strategy/. See icj, Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of 8 July 1996 at http://www.icj-cij.org/docket/files/95/7497.pdf. See also Nagan, Nuclear Arsenals, International Lawyers, and the Challenge of the Millennium, 24 Yale J. Int’L. Law, 485 (1999).

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are argued suggested that nuclear self-defense should only be deployed in the event of a prospective nuclear attack. The precise guidance of international law of self-defense permited some flexibility. The general policy of international legal order as expressed by the icj was one that required seeing nuclear weapons as exceptional and their use and deployment must meet higher standards to be consistent with international law. However, there was little in the discourse that grappled with the question of the importance of rationally limiting the defensive use of nuclear weapons. It was possible that the preemptive or offensive use of nuclear weapons would be reasonably understood in terms of the context of the icj judgment that such uses were unlawful. Additionally, in his dissenting opinion, Weeramantry sought to predicate the unlawfulness on the threat of use of nuclear weapons on the most defensible values of global order shared by the world community. That analysis provided compelling restraining guidance in the formulation of the deterrence posture and in particular the role of nuclear weapons. There was some value in showing that a no first use policy was very consistent with international law and that those circumstances should, to an objective third party appraiser, be seen as extreme circumstances. Still other possibilities in the minimal deterrence posture which was reconcilable with international law would not only underline no first use, but also demand a constrained and proportional second use. The aspect of the force structure of the u.s. nuclear posture must meet the understandings from the non-proliferation process. The npt was a multilateral treaty to which the United States was a part. The treaty divided the world into nuclear weapon and non-nuclear weapons states. The nuclear weapon states were under an obligation not to proliferate nuclear weapons (Article i); they must facilitate the use of peaceful use of nuclear technology (Article iv) and they must negotiate in good faith towards nuclear disarmament (Article vi). The International Court of Justice gave special attention to Article vi and the obligation to negotiate for the limitation and ultimately the elimination of nuclear arsenals. The non-nuclear weapon states agreed to not acquire nuclear weapons (Article ii) and accept International Atomic Energy Agency safeguards over peaceful nuclear activities (Article iii). In the 2000 npt Review Conference, thirteen specific measures were adopted to serve as benchmarks in appraising progress under the ntp. These benchmarks included the entry into force of the Comprehensive Test Ban Treaty, a Fissile Material Cut Off Treaty, as well as the verification provisions for sustaining the Anti-Ballistic Missile Treaty. The Bush Administration repudiated the political understanding of the 2000 npt Review Conference. This created difficulties for the npt process since the non-nuclear power states were under continuous pressure from non-proliferation diplomacy but were reluctant to

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assume new non-proliferation obligations unless there was a reciprocal commitment on the part of nuclear powers to reduce their arsenals. The ability of the u.s. to promote improvement in non-proliferation will be conditioned by u.s. nuclear weapons policies. The expressions of policy aspiration from the Obama Administration influenced the Preparatory Committee for the 2010 npt Review Conference. The Preparatory Committee for the first time agreed upon a provisional agenda for that meeting. That agenda included provisions to protect non-nuclear states from nuclear coercion, establishment of more nuclear weapon free zones, operationalizing the rights of each nation to develop peaceful nuclear energy and measures to enhance non-proliferation and disarmament. A changed u.s. posture significantly influenced the review conference and provided the npt with a stronger global mission. The preliminary expressions of policy had a global effect. The npr endorsed the critical importance of the npt process, in part because the npt was an important instrument of conventional international law in the control and regulation of nuclear arsenals. In particular, progress on the force structure with credible reductions in u.s. arsenals joined by reciprocated reductions with Russia was an important development. Indeed, it gave life to Article vi of the npt. In the context of international treaty law, the npt was complemented and fulfilled by the ctbt. The ctbt was ambushed in the Senate and defeated. The Obama Administration indicated that it would work toward ratification of the ctbt. The Bush Administration made it clear that it would not support a reintroduction of the ctbt in the Senate. This sent a message that the u.s. was a disinterested player in developing the conventional international law by agreement on the control and regulation of nuclear weapons systems. If nuclear weapons cannot be tested, the non-testing becomes an important non-proliferation constraint. The ctbt was challenged in the Senate on a number of grounds. The real objection to the ctbt was the commitment to develop new generations of tactical nuclear weapons. The critical question was tied to the management of the u.s. nuclear stockpile of weapons. The question was whether in the management of the stockpile there should be a commitment to reliable replacement warheads. Congress itself was not inspired by this and the Obama Administration indicated its opposition to the reliable replacement warheads concept. Of course, should the administration move in that direction, it would require testing and a commitment to testing would effectually be a rejection of the ctbt. The administration considered a stockpile management program to replace obsolete warheads. The u.s. does have a Stockpile Stewardship Management Program (ssmp). This program was established to maintain confidence in the safety, r­ eliability

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and performance of our nuclear arsenals. The ssmp process uses advanced computer-based computations and modeling of the process of nuclear explosions to assist in predicting, evaluating and identifying problems in the arsenals. In effect, the ssmp is a form of virtual testing. Some could argue that such computer-based virtual testing is testing for the purposes of the ctbt. When the administration promotes the advice and consent of the Senate on the ctbt that it includes either a reservation, declaration or an understanding that computer-based virtual testing under an ssmp process is not within the reach of the contemplated ban on nuclear testing in the ctbt. viii

Conclusions

The Obama Administration is interested in the developing lex specialis of international law relating to nuclear weapons and places emphasis on diplomacy, negotiation and finding the space for common interest in which the role of law still has an important role in this area. The importance of broadening the relevance of international law via the lex specialis as well as through general international law is that it broadens the scope of international obligation and creates a normative system of global expectation that is inclusive. It is in the interest of the United States that its strategic and tactical changes in the direction of reduced global nuclear threats should carry the mantle not only of u.s. credibility, but that u.s. credibility is completely consistent with global normative priority. It will be apparent that there is strong global support for arms reduction, and a reduction of nuclear threats to global peace and security. President Obama’s commitment to the vision of a world bereft of nuclear weapons will have greater force if it is underlined by international law and carries the strength of global opinio juris. The Nuclear Posture Review should seize upon those aspects of which there is evidence of common interest consistent with the President’s declared policy aspiration. The Republican controlled Senate has put a damper on President Obama’s commitment to a reduced threat of nuclear arsenals. This represents a great challenge to the United States and the human rights community within the United States. The particular challenge is mobilization of effective and timely advocacy. The specifics of this challenge require focused advocacy that strengthens the moral and juridical culture of human rights that targets the unique lethality and destructive potentials of the threat or use of nuclear weapons in the future. The core challenge is the defense of humanitities continued existence. Human rights and the culture of law are essential to this vital global interest.

chapter 20

The Development of Human Rights and Private Sector Enforcement: The United States Experience Chapter 20 addresses the importance of international law to domestic and regional bodies. As an example, the chapter illustrates the role of human rights in civil litigation in the domestic courts of the United States. A summary of the law is provided relating to claims under the Alien Tort Statute and provide an insider’s view with appropriate documentation of the extensive litigation in the New York courts, In re: Apartheid.1 In 1980, the Second Circuit Court of Appeals delivered a landmark judgment on the private sector enforcement of human rights.2 The theory of liability in Filártiga v. Peña-Irala was that the violation of a particular human right is an international wrong, and has a tortious character.3 Assuming proper jurisdiction, a plaintiff could thus sue the defendant on a human rights tort in United States federal court. The theory of the case was based on a 1792 Statute, the Alien Tort Statute (ats).4 The ats states that a u.s. federal court provides jurisdiction for an alien to sue for a tort in violation of the law of nations.5 Up until 1980, courts had little experience interpreting the ats to include the broader law of nations. Since 1980, however, some circuit courts invoked the

1 In re S. Afr. Apartheid Litig., 346 F. Supp. 2d 538 (s.d.n.y. 2004). In this case the South ­African government stated that these types of cases interfere with the policy of the Truth and Reconciliation Commission, which “‘deliberately avoided a “victor’s justice” approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.’” Sosa v. Alvarez-­Machain, 542 u.s. 692 (2004) at 733 (quoting Declaration of Penuell Mpapa Maduna, Minister of Justice and Constitutional Development, Republic of South Africa (July 11, 2003), reprinted in Brief of the Government of Commonwealth of Australia et al. as Amici Curiae in Support of Petitioner app. b, at 7a). Given the position of the South African government, there is a strong argument that, in some situations, federal courts should defer to the Executive Branch’s judgment on the matter. 2 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). 3 Id. 4 28 u.s.c. § 1350 (2010). 5 Id.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_022

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ats as ­providing a federal tort for the violation of a human right.6 Moreover, the  ­Supreme Court has affirmed the decision of the lower federal courts in ­providing a civil ­tortious remedy for the violation of human rights norms.7 This chapter includes excerpts from briefs that one of the authors filed in  the  in re: South Africa Litigation. It seeks to clarify two important issues: 1. how  one delimits a tort in violation of law of nations in contemporary international law; and 2. the trial court stressed the importance of strict ­pleadings ­without ­adequately defining what was meant. Other courts have similarly left the m ­ atter unclarified. The excerpts from the second brief seek to clarify this. In the trial court, regarding in re: South Africa, the court essentially sought to parody the idea that apartheid was “a wrong in international law” and as such because of strict pleadings could not be construed as a wrong or delict recognizable as a tort in violation of the law of nations. The first brief carefully went through the historic context of the development of international law that made apartheid an international crime. An international crime was a wrong, punishable by criminal legal process. It was therefore not a stretch to conclude that apartheid, as a wrong, could be of tortuous character subject to the ordinary remedies of a common law court. The second brief dealt with the question of strict pleadings in 1350 litigation. The legislation was promulgated in the late 18th century. Conservative scholars insisted that both the statute and indeed the constitution itself, must be interpreted by the original intent of the drafters. Unfortunately, it was ­extremely difficult to discern in the statute or its background the idea that the original intent included the procedure by which a statute is to be enforced. The legislature would have simply considered that there was a pre-existing procedure for enforcement. When the act was promulgated, the system of procedure was based on the forms of action at common law. Early in the 19th century, the problems of the rigidity of the forms of action gave rise to a new system of pleading: code pleading. This was meant to be a more user friendly system of pleading. The pleader had to plead a cause of action, recognized at law. Judge Bork, in the Tel Oren case read into the statute the code pleading requirement of a cause of action. In strict fidelity to the original intent, code pleadings did not exist. In any event, code pleadings were themselves problematic because of the difficulty of defining a cause of action in the pleadings. If the pleader 6 See Blum, Jeffrey M. and Steinhardt, Ralph G., Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 Harv. Int’l. L. J. 53 (1981). 7 Id.

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pled evidentiary facts, this was bad. If the pleader pled conclusions of law, this was bad. The pleader had to plead an ultimate fact, which was almost impossible to define. In the 20th century, the federal rules of civil procedure were developed and replaced code pleadings. Now the pleader only needed to plead a claim upon which relief could be granted in a court with the institutional competence to grant that relief. Now the question was this, should section 1350 be subject to strict pleading procedures that have been abolished or should it be subject to the pleadings as they now exist in the federal courts? To make contemporary lawyers relearn the forms of action or the intricacies of code pleadings would seem to be an absurd requirement. 1350 must be interpreted in terms of the rules as they now exist. i

Human Rights and the Domestic Legal Political Environment

One should understand the developments in political and legal culture forming a background to the use of a nation state’s domestic courts to provide remedies for aliens who experienced human rights wrongs. The first and most important issue is the general question of what role domestic courts should have in prescribing and applying international law. Historically, there were no judicial fora of an international character by which legal disputes could be settled through judicial proceedings. Thus, with the 20th century development of human rights laws, regional courts specialized in human rights were created.8 These courts were not created without reservations. Judicial conservatives worried that the prescription, application and enforcement of human rights standards are too vague and imprecise for judicial settlement. There also r­ emains a lingering fear that national courts giving effect to such norms and standards would be trenching upon the limits of law, and transforming the courts into institutions of discretionary political preference. However, human rights ­jurisprudence before the Inter-American Court of Human Rights, as well as the European Court of Human Rights, have demonstrated that judicial settlement of human rights issues has been eminently juridical and ­principled, and there is a record of i­mpressive jurisprudence case law and precedent. A ­ fter World War ii, there was a gradual acceptance that human rights norms are amenable to the legal culture traditions of both philosophy and the practice of law. The history of the United States Supreme Court has reflected a willingness on its part to carve out a role for itself in the making and application of ­international law. In turn, all u.s. federal courts have historically been active 8 See Winston Nagan and Aitza Haddad, International Courts, Wiley-Blackwell Encyclopedia of Globalization (2012).

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agents in the development of international law through legal processes. These developments should be seen against the backdrop of u.s. foreign relations. The role of the courts in cultivating a sophisticated legal respect for human rights had to be balanced against the nation’s evolving foreign policy mandates to position itself within the global forces that enhance or threaten u.s. vital interests. These matters became critical as the u.s. saw the outbreak of World War i. The u.s. long insisted that it was a neutral party and that its neutrality might be challenged or compromised by the participants in the war.9 At the back of neutrality was the notion that the United States was exceptional and that its creation rejected strident nationalist sentiment in Europe; a sentiment that expressed itself through intense competition, expansive ­imperialist, colonial ambitions and a willingness to resort to war as an instrument of national interest. The United States was created in a revolt against colonial exploitation and imperialism. These perspectives of American exceptionalism expressed themselves in two very different outlooks. One was to stay out of the growing mess in Europe. This perspective considered the idea that the Europeans were destroying themselves and the u.s. would do likewise by participating. In a second outlook, the European conflict might generate the conditions for u.s. to influence the shape of a future world order. These principles are founded on a more idealistic perspective, and defended as exceptionally American. The first outlook would endure for a long period and have a significant impact on the u.s. position regarding international human rights. The second outlook gravitated to the right wing of the political spectrum and reflected an aggressively promoted agenda of isolationism. Wilsonian idealism influenced the peace treaty in 1919,10 and although making important compromises to the demands of the French and the British, put into the peace process the creation of a League of Nations,11 as well as the notion that all peoples had a right to self-determination.12 The ­isolationists, ­however, had a great victory when Woodrow Wilson returned to the United States and had the treaty rejected by the Senate.13 One of the leading i­solationists was 9 10 11 12

13

See generally Ross Gregory, The Origins of American Intervention in the First World War (1971). The Treaties of Peace 1919–1923 (1924) is the source of the complete text of the 1919 Treaty. See generally F.S. Northedge, The League of Nations: Its Life and Times, 1920–1946 (1986). See also Corbett, P.E. Corbett, What is the League of Nations, 5 Brit. Y. B. Int’l. L.119 (1924). Antonio Cassese, Self-Determination of Peoples; A Legal Reappraisal (1997); See also Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int’l. L. 177 (1991). Aug 19, 1919: President Wilson appears before the Senate Foreign Relations Committee, This Day in History, History.com (accessed April 12, 2012). See also American History Series: Remembering the Peace Talks That Followed the Original Armistice Day, Voice of America,

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Wilson’s arch nemesis, Senator Henry Cabot Lodge of Massachusetts.14 The isolationists were helped when at a crucial time in the treaty-ratifying campaign Woodrow Wilson suffered a severe stroke and was incapable of advocating ratification.15 Isolationism reigned triumphant and the United States turned to its internal political issues.16 The u.s. remained outside of the League of Nations. With the Great Depression becoming the focus of American politics, the nation looked even more inward as policies were crafted to respond to the ­Depression.17 Meanwhile Japanese imperialism emboldened its efforts to ­secure territorial expansion.18 In Europe, Adolf Hitler rose to power in ­Germany and the growing militarization of the Nazis began to threaten neighboring countries, as well as the u.s. and other nations’ interests worldwide.19 In between these two growing world powers, Joseph Stalin consolidated his totalitarian regime in Russia.20 It should be important to note that when Hitler supported Franco in the Spanish Civil War, the neutrality of the u.s. was not necessarily a policy favored by all.21 Thus, private brigades were created and went to Spain to fight in defense of the Spanish republic. One such example was the ­Abraham Lincoln brigade.22 When World War ii broke out in 1939, isolationism was the favored position by the American public, and the United

14

15 16 17

18

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20 21 22

VOANews.com (November 10, 2010). See generally Lloyd E. Ambrosius, Woodrow Wilson and the American Diplomatic Tradition: The Treaty Fight in Perspective (1990). Id.; see generally John Cooper, Breaking the Heart of The World: Woodrow Wilson and the Fight for the League of Nations (2001); See also David Mervin, Henry Cabot Lodge and the League of Nations, Journal of American Studies, 4, 201–14 (1971). Id. Id. See generally Amity Shlaes, The Forgotten Man: A New History of the Great Depression, (2008). See generally, Peter Temin, Lessons from the Great Depression, (1991). See also John A. Garraty, The New Deal, National Socialism, and the Great Depression, The American Historical Review, Vol. 78, No. 4, 907–44 (October, 1973). Id.; See generally, Sugihara Kaoru, Japanese Imperialism in Global Resource History. Working Papers of the Global Economic History Network (gehn), 07/04, Department of Economic History, London School of Economics and Political Science, London, uk. (2004). Id.; See generally Hans Raupach, The Impact of the Great Depression on Eastern Europe, Journal Of Contemporary History, Vol. 4, No. 4, The Great Depression, 75–86 (October, 1969). Id.; See generally, Chris Ward, Stalin’s Russia(1993). See generally Robert H. Whealey, Hitler and Spain: The Nazi Role in the Spanish Civil War, 1936–1939, (2005). Id.

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States officially stayed out of this latest European crisis.23 President Roosevelt, however, had a keen sense of the strategic implications the war for American security, and could not support an absolutist isolationist policy in which the u.s. had little control over the conflict’s outcome.24 He worked on a number of mechanisms to support Britain and her allies while still maintaining the fig leaf of neutrality.25 The debate over u.s. neutrality in World War ii ended when the Japanese attacked Pearl Harbor on December 7, 1941.26 This attack sidelined the leading advocates of isolationism, as their perspectives now ­appeared to give aid and comfort to America’s enemies. With America at war, Roosevelt developed a framework for the Allies’ war aims, known now as Atlantic Charter.27 The Charter contained four freedoms: freedom of speech and expression, freedom of conscience and belief, freedom from fear, and freedom from want.28 These principles formed the foundational values for the creation of the United Nations and the u.n. charter.29 These principles were also Roosevelt’s principles in which he based his New Deal policies.30 Following the war, and after Roosevelt’s death, the Allies created the u.n., with the u.s. being a critical player in its founding and in its ­functions.31 23 24 25 26 27

28 29

30 31

See generally, Alantaylor, Origin of the Second World War, (1996); See also Winston Churchill, The Second World War, (1960). Id. Id.; See generally Warren F. Kimball, Forged in War: Roosevelt, Churchill and the Second World War, (1998). Id.; See generally James Rusbridger and Eric Nave, Betrayal at Pearl Harbor: How Churchill Lured Roosevelt Into World War ii (1991). Id.; See generally Douglas Brinkley and David Facey Crowtherthe Atlantic Charter Macmillan (Apr 15, 1994). See also The Atlantic Charter, signed by Franklin Roosevelt and ­Winston Churchill on August 14, 1941, available at http://avalon.law.yale.edu/wwii/­atlantic.asp. Id. Id.; See also M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights, Human Rights Quarterly, Vol. 9, No. 1, 19–48 (February, 1987). See generally Frank Robert Donovan, Mr. Roosevelt’s Four Freedoms: The Story Behind the United Nations Charter (1966). Id.; See generally Elizabeth Borgwardt, A New Deal for the World: America’s Vision for ­Human Rights, (2005). Basic Facts—About the u.n., u.n. Publication, Sales No. E.04.I.7; The u.n. officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the u.s. and a majority of other signatories. See generally Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (2009). See generally Stephen C. Schlesinger, Act of Creation: The Founding of the United Nations; A Story of Superpowers, Secret Agents, ­Wartime Allies and Enemies and their Quest for a Peaceful World (2004). See generally

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Central to the u.n.’s charter are concerns for world peace and security, and human rights.32 It was widely acknowledged at the time, however, that ­human rights issues should be clarified and possibly codified.33 For this purpose, President Truman appointed Eleanor Roosevelt as a delegate to the u.n. ­General Assembly, where she became chairperson of the committee charged with drafting a Declaration of Human Rights.34 The Universal Declaration reflects the new deal values of the u.s. at that time.35 Civil and political rights were paramount.36 However, Roosevelt believed that the fundamental rights of the u.s. were incomplete without the protections of economic human rights.37 Roosevelt in fact talked about the fact that necessitous men were not free.38 Before the war, he speculated about a national bill of socio-economic rights, including human labor rights.39 The u.n. adopted the United Nations Declaration of Human Rights (udhr) as a resolution of the general assembly.40 In general, resolutions of the general assembly are not legally binding.41 To get the degree of global consensus for

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35 36 37

38 39 40 41

Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (2001). See also Leland M. Goodrich, From League of Nations to United Nations, International Organization, 3–21 (1947). Id.; See also United Nations, Charter of the United Nations, 24 October 1945, 1 unts xvi, available at: http://www.unhcr.org/refworld/docid/3ae6b3930.html. See also Fassbender, Bardo The United Nations Charter As Constitution of the International Community, 36 Colum. J. Transnat’l L. 529 (1998). See also Leland M. Goodrich, et al., Charter of the United Nations: Commentary and Documents, 290–309, (3d ed.) (1969)—discusses the history of the Charter of the United Nations and justifications as to why the Security Council is imbued with such power. Id.; See also Lillich, Richard B., Intervention to Protect Human Rights, 15 Mcgill L. J. 205 (1969). M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights, Human Rights Quarterly, Vol. 9, No. 1, 19–48 (February, 1987). Id.; See generally Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent, (1999). Id. Franklin Delano Roosevelt, A Rendezvous with Destiny, Speech before the 1936 Democratic National Convention, Philadelphia, Pennsylvania (June 27, 1936). See also Franklin Delano Roosevelt, Annual Message to Congress (January 11, 1944). Id. Id. Universal Declaration of Human Rights, g.a. Res. 217 (iii) A, u.n. Doc. A/Res/217(iii) ­December 10, 1948. Joyner, Chritopher C., u.n. General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation, 11 Cal. W. Int’l L. J. 445 (1981). See also

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the adoption of the udhr meant that, in effect, it would have to be adopted as a non-legally binding resolution.42 Still the udhr was not without some political, moral, and juridical currency. It is generally understood that when a sovereign state expresses that it supports a particular issue, it should not act in a manner inconsistent with those views. Human rights, as a concept, are not specifically defined in the u.n. Charter.” This means that the udhr is based on a constitutional principle and has a legal character in the u.n. charter itself.43 The u.n. charter is the international constitution. The udhr is an ­interpretation of a pre-existing international constitution.44 There was a need for an explicit effort to create a treaty-based regime inspired by the udhr. The u.n. generated two other treaties using the udhr and provided greater explication of the rights in it in the form of international treaties. These two treaties are the International Covenant on Civil and P ­ olitical Rights,45 and the International Covenant on Economic, Social, and Cultural Rights.46 These three instruments constitute what is referred to as an International Bill of Rights.47 The critical question now is the role of the u.s. in adopting these treaties and making them part of u.s. law.48 In the 1950’s, a new

42 43 44 45 46 47

48

Stephen M. Schwebel, The Effect of Resolutions of the u.n. General Assembly on Customary International Law, Proceedings of the Annual Meeting (American Society of International Law), Vol. 73, 301–09 (April 26–28, 1979). See also Johnson, D.H.N., The Effect of Resolutions of the General Assembly of the United Nations, 32 Brit. Y. B. Int’l L.97 (1955–1956). Id. Id. Id. International Covenant on Civil and Political Rights, g.a. Res. 2200A (xxi), u.n. Doc. A/Res/2200A(xxi), unts 999, p. 171 (Dec. 16, 1966). International Covenant on Economic, Social and Cultural Rights, g.a. Res. 2200A (xxi), u.n. Doc. A/Res/2200A(xxi), unts 999, p. 3 (Dec. 16, 1966). Strossen, Nadine, United States Ratification of the International Bill of Rights: A Fitting Celebration of the Bicentennial of the u.s. Bill of Rights, 24 U. Tol. L. Rev. 203 (1992–1993)—“The three documents that constitute the International Bill of Rights are the Universal Declaration of Human Rights, which the United Nations adopted by consensus in 1948, and two covenants that spell out in greater detail the broad principles enunciated in the Universal Declaration: The International Covenant on Civil and Political Rights (“iccpr”) and the International Covenant on Economic, Social, and Cultural Rights (“icescr”). These three documents contain core human rights principles that are widely recognized by the international community”; See generally Louis Henkin, The International Bill of Rights: The Covenant on Civil and Political Rights, (1981). Id.

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form of isolationism emerged from the extreme right wing of the u.s. ­Senate.49 Senator John Bricker of Ohio led this movement. Senator Bricker took the view that he wished to bury the human rights covenant so deep that no u.s. ­President would dare to resurrect it. A leading illustration of the isolationist movement’s power came from its ability to block the adoption of the first human rights treaty. This Convention outlawed genocide.50 Senator Bricker was an impeccable enemy of international human rights. The success former isolationists had in blocking the ­adoption of the League of Nations treaty fueled the isolationist movement in the 1950’s. Ideologically, that perspective was also justified by the fact that in the League of Nations there was the International Labor Organization (ilo), the goal of which was to protect the fundamental rights of workers worldwide. Hence, the ilo had the odor of socialism, an ideology deemed anathema to the right wing. Under the jurisdiction of the ilo were matters concerning the protection of minorities. This presented the problem of the internationalization of race relations under the progressive ilo. This was a sensitive matter for the right wing political concerns. The ilo also developed a jurisdictional concern for indigenous people. The complicated and dark history of the u.s.’s treatment of indigenous peoples further fueled the isolationist outlook. In the 1950’s the civil rights movement for black Americans had asserted itself in ­earnest. The idea that human rights values could be mobilized to support claims for civil and political rights was another reason to sustain the strength of isolationist demands.51 There was also a broader political struggle during this time in the Cold War.52 This decade long contest was fought on many fronts, including on the front of ideology. In this battle for ideological primacy, the u.s. postured ­itself as being on the side of freedom, democracy, and fundamental rights.53 49

50 51 52

53

See generally Sara Diamond, Roads to Dominion: Right-Wing Movements and Political Power in the United States, (1995); See also Natalie Hevener Kaufman and David ­Whiteman, Opposition to Human Rights Treaties in the United States Senate: The Legacy of the Bricker Amendment, Human Rights Quarterly, Vol. 10, No. 3, 309–37 (Aug., 1988). Convention on the Prevention and Punishment of the Crime of Genocide, g.a. Res. 260 (iii) A, u.n. Doc. A/Res/260(iii)A, (December 9, 1948). Id. See generally Antony Evelyn Alcock, History of the International Labor Organization, (1971). See Anders Stephanson, Cold War Origins, in Encyclopedia of American Foreign Policy, Volume 1, ed. by Alexander DeConde, Richard Dean Burns, Fredrik Logevall. (2001); See also, Robert L. Messer, The End of an Alliance: James F. Byrnes, Roosevelt, Truman, and the Origins of the Cold War, 292 (1982). Id.

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It sought to ­portray its adversary, most notably the u.s.s.r., as standing for the opposite values.54 In this battle, human rights held an important place in the u.s.’s armory of Cold War ideas.55 The isolationists’ antipathy to the adoption of the genocide convention was an embarrassment to both Republican and Democratic administrations. The results of isolationist advocacy generated an important and unintended consequence. Since the u.s. was a major grantor of foreign aid, Congress determined that foreign assistance from the u.s. should be made conditional on some measure of human rights performance.56 Putting human rights provisions in the Foreign Assistance Act57 was a way of avoiding problems of treaty adoption.58 A treaty requires a supermajority for ratification, and isolationist participation represents a veto of treaty ratification. Placing human rights into the framework of legislation and the Foreign ­Assistance Act had far-reaching implications for human rights advocacy. Since human rights were made a condition for receiving foreign assistance, it attracted interest groups that lobbied for the granting or withdrawal of f­oreign ­assistance based on a particular nation’s human rights performance. This made the culture of human rights a part of ordinary political advocacy in the national legislative process. Foreign assistance legislation developed constituencies in human rights advocacy, including watchdog groups. Further, in the executive branch, the introduction of human rights values into foreign policy resulted in the development of human rights reporting by the Department of State. This included the creation of a human rights position within the department during the Carter Administration. This administration insisted upon the more general principle that human rights be the framework of normative guidance for the foreign policy of the u.s. The significance of the introduction of human rights into the framework of the u.s. foreign policy meant that there were many advocacy constituencies generated and which targeted the political process. Human rights had in effect, become domesticated. Perhaps the most significant human rights achievement, in the context of u.s. foreign relations, occurred during the R ­ eagan administration, after Congress enacted a unique bill called, Comprehensive

54 55 56 57 58

Id. Id. See generally, David P. Forsythe, Human Rights and u.s. Foreign Policy: Congress Reconsidered (1988). The Foreign Assistance Act of 1961 (p.l. 87–195; 22 u.s.c. 2151 et seq.). Id.

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Anti-Apartheid Act of 1986.59 This bill imposed comprehensive sanctions on South Africa based on human rights standards and guidelines. The Reagan Administration opposed the bill but it was enacted over the Reagan veto. The u.s. example of using foreign assistance and foreign policy to advance human rights was also followed by many other developed states. A Private Sector Enforcement of Human Rights in the Domestic Courts Human rights interest groups explored various ways in which human rights advocacy could be directed at the domestic courts of the u.s. The leading m ­ odern example of this initiative is Filártiga v. Peña-Irala.60 In this case, the plaintiffs, the Filártigas, appealed a federal district court decision that dismissed their wrongful death claim against the defendant, Peña-Irala for lack of subject matter jurisdiction.61 Both the plaintiffs and defendants were c­ itizens of Paraguay. The Filártiga family was purported opponents of the government of Paraguay. They claimed that their 17-year old son, Jolito, had been kidnapped and tortured to death by Peña-Irala, Paraguay’s inspector general of police.62 The Filártigas believed that Jolito was tortured and murdered in retaliation for the Mr. Filartiga’s political activity.63 Initially, Filártiga filed a criminal action against Peña in the Paraguayan courts; however, Peña arrested Filártigas’ lawyer chained him to a wall and threatened his death.64 That attorney was subsequently disbarred from practicing law. When the Filártigas heard that Peña was in the u.s., they filed a civil suit against him asking for $10,000,000 in compensatory and punitive damages. The complaint was filed as a suit inter alia on the Alien Tort Statute (ats).65 The ats reads as follows, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”66 Although the ats had originally been included in the Judiciary Act of 1789, it was not widely litigated until the Filártiga decision.67 The critical question for the Second Circuit Court was whether torture is a conduct that ­violates the law of nations 59

Winston Nagan, Economic Sanctions, u.s. Foreign Policy, International Law and the AntiApartheid Act of 1986, 4 Fla. Int’l L.J.85 (1988–1989). 60 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). 61 Id. 62 Id. 63 Id. 64 Id. 65 28 u.s.c. § 1350 (2000). The ats was originally part of the Judiciary Act of 1789. 66 Id. 67 Id.; See also Philip A. Scarborough, Rules of Decision for Issues Arising Under the Alien Tort Statute, Columbia L. Rev. 107:457 (2007); See also Jeffrey M. Blum and Ralph G. Steinhardt,

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based on treaty.68 This required the court to examine whether torture was an international tort in violation of the law of nations.69 That inquiry required determining whether there is a source of international law providing legal currency to the idea of torture as an actionable wrong under the law of nations.70 The court placed strong reliance on the identification of appropriate sources of the law of nations, as indicated in Supreme Court precedent.71 Indeed, the Second Circuit quoted the following passage from The Paquete Habana: where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.72 Based in part on this precedent, Judge Irving Kaufman determined that torture was an international wrong and a tort in violation of the law of nations under customary international law. The court quoted the u.n. Charter, not a self-­executing international agreement, to the effect that it established an obligation to promote “universal respect for, and observance for human rights and fundamental freedoms.”73 It also quoted Article 55 of the u.n. Charter,

68 69

70 71 72 73

Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act ­after Filartiga v. Pena-Irala, 22 Harv. Int’l L.J. 53 (1981). Id. Id.; See generally, Craig M. Scott, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, (2001); See also Michael Danaher, Torture as a Tort in Violation of International Law: Filartiga v. Peña-Irala, Stanford L. Rev., Vol. 33, No. 2, 353–69 (January, 1981). Id. Id. The Paquete Habana, 175 u.s. 677, at 700 (1900). Id. at Part ii. “The United Nations Charter (a treaty of the United States, see 59 Stat. 1033 (1945)) makes it clear that in this modern age a state’s treatment of its own citizens is a matter of international concern. It provides: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations … the United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion. Id. Art. 55. And further: All members pledge themselves to take joint

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which stipulates that all members of the u.n. “pledge themselves to take joint and separate action” for the achievement of promoting and supporting human rights.74 The court also referenced the udhr, a politically, but not legally, binding declaration, based on its stipulation that no one shall be subjected to torture.75 The court noted that the u.n. General Assembly had indicated that the Charter precepts embodied in the udhr “constitute basic principles of ­international law.”76 The court found further support in the udhr on the protection on all persons being subjected to torture.77 Finally, the court also

74 75

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and separate action in cooperation with the Organization for the achievement of the ­purposes set forth in Article 55. Id. Art. 56.” Id. Id. “While this broad mandate has been held not to be wholly self-executing, Hitai v. ­Immigration and Naturalization Service, 343 F.2d 466, 468 (2d Cir. 1965), this observation alone does not end our inquiry. (9) For although there is no universal agreement as to the precise extent of the ‘human rights and fundamental freedoms’ guaranteed to all by the Charter, there is at present no dissent from the view that the guaranties include, at a bare minimum, the right to be free from torture. This prohibition has become part of customary international law, as evidenced and defined by the Universal Declaration of Human Rights, General Assembly Resolution 217 (iii)(A) (Dec. 10, 1948) which states, in the plainest of terms, ‘no one shall be subjected to torture.’ (10) The General Assembly has declared that the Charter precepts embodied in this Universal Declaration ‘constitute basic principles of international law.’ g.a.Res. 2625 (xxv) (Oct. 24, 1970).” Id. Id. These u.n. declarations are significant because they specify with great precision the obligations of member nations under the Charter. Since their adoption, “(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote.” Sohn, A Short History of United Nations Documents on Human Rights, in The United Nations and Human Rights, 18th Report of the Commission (Commission to Study the Organization of Peace ed. 1968). Moreover, a u.n. Declaration is, according to one authoritative definition, “a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated.” 34 u.n. escor, Supp. (No. 8) 15, u.n. Doc. E/cn.4/1/610 (1962) (memorandum of Office of Legal Affairs, u.n. Secretariat). Accordingly, it has been observed that the Universal Declaration of Human Rights “no longer fits into the dichotomy of ‘binding treaty’ against ‘non-binding pronouncement,’ but is rather an authoritative statement of the international community.” E. Schwelb, Human Rights and the International Community, 70 (1964). Thus, a Declaration creates an expectation of adherence, and “insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States.” 34 u.n. escor, supra. Indeed, several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law. Waldlock, Human Rights in Contemporary International Law and the Significance of the European Convention, Int’l & Comp.L.Q., Supp. Publ. No. 11 at 15 (1965).

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drew on developments seeking to outlaw torture in regional international law.78 In the court’s view, the cumulative effect of these expressions generated an ­unambiguous expectation that torture is universally condemned and prohibited in customary international law.79 Shortly after Filártiga, the u.s. Circuit Court for the District of Columbia heard Tel-Oren v. Libyan Arab Republic, another case related to human rights.80 In Tel-Oren, the critical question was whether terror is a tort in violation of the law of nations.81 The three circuit judges deciding the case, Robert Bork, Harry T. Edwards, and Roger Robb, all voted to dismiss the lawsuit, but they provided radically different grounds for doing so.82 The opinions appeared to effectually undue Filártiga.83 Judge Bork reasoned that an interpretation of the 1789 Judiciary Act should be guided by the original intent of the drafters. In Bork’s view, the original intent of Congress in 1789 could have conceivably had only three cases in mind; (1) safe conducts; (2) infringement of ambassadorial

78

79

80 81 82 83

Id. at Part iii—“the sphere of domestic jurisdiction is not an irreducible sphere of rights which are somehow inherent, natural, or fundamental. It does not create an impenetrable barrier to the development of international law. Matters of domestic jurisdiction are not those which are unregulated by international law, but those which are left by international law for regulation by States. There are, therefore, no matters which are domestic by their ‘nature.’ All are susceptible of international legal regulation and may become the subjects of new rules of customary law of treaty obligations.” Preuss, Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction, Hague Receuil (Extract, 149) at 8, reprinted in H. Briggs, The Law of Nations 24 (1952). Id. “Having examined the sources from which customary international law is derived the usage of nations, judicial opinions and the works of jurists (16) we conclude that [HN5] official torture is now prohibited by the law of nations. The prohibition is clear and ­unambiguous, and admits of no distinction between treatment of aliens and citizens. Accordingly, we must conclude that the dictum in Dreyfus v. von Finck, supra, 534 F.2d at 31, to the effect that ‘violations of international law do not occur when the aggrieved parties are nationals of the acting state,’ is clearly out of tune with the current usage and practice of international law. The treaties and accords cited above, as well as the express foreign policy of our own government, (17) all make it clear that international law confers fundamental rights upon all people vis-a-vis their own governments. While the ultimate scope of those rights will be a subject for continuing refinement and elaboration, we hold that the right to be free from torture is now among them. We therefore turn to the question whether the other requirements for jurisdiction are met.” Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (d.c. Cir. 1984). Id. Id. Id.

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rights; and (3) piracy.84 Judge Bork concluded that the framers could not have envisioned either torture or terrorism, and thus it did not apply. The second opinion, by Judge Edwards, reasoned that that liability should be extended to non-state actors. The third opinion, by Judge Robb, reasoned that the entire matter ­implicated the political question doctrine. Judge Bork’s opinion also contained a more technical basis for dismissal than merely original intent. He reasoned that none of the sources including either treaties or customary international law created “an explicit grant of a cause of action.” The existence of an explicit grant of a cause of action is necessary for legal action in the courts. In the absence of such a cause of action, the judiciary would be encroaching on the constitutional powers of the other two branches of government in the conduct of foreign relations. In effect even if there was federal jurisdiction under the ats, no explicit cause of action had in fact been created to permit the plaintiffs to pursue the claim. Judge Bork’s ­insistence upon an international cause of action is not a matter that could have been established in 1789, since there were no causes of action then. The system of pleadings was based on the formulary system requiring a ­specific pigeonhole of liability. In fact, the formulary system grew out of the common law and its peculiar history. In the 19th century, the forms of action were eventually displaced by the system of co-pleading and that system relies on the concept of a cause of action to state a valid claim at law. However, the code system developed its own problems and in 1938, the Supreme Court ­adopted a new system of rules of federal procedure. Central to the new system was a throwing out of the code system of pleading causes of action. The federal rules required notice pleading, a short plain statement of the claim indicating that the pleader is entitled to relief. Thus, Judge Bork’s strict pleading standard is no longer the law governing pleading and procedure in federal courts. The Tel-Oren case has not been a significant influence on the development of human rights law under Section 1350 of the ats. A sizeable body of case law developed in other circuits. In Todd v. Panjaitan, an Indonesian general was held liable for the death of a young student-activist during the 1991 East Timor Dili massacre. In Forti v. Suarez-Mason, the court held that torturers from ­Argentina who acted against fellow citizens were enemies “to all mankind” and thus subject to the jurisdiction of any country, even though the atrocities were

84

Id. at 779. “The principal offenses against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safeconducts; 2. ­Infringement of the rights of ambassadors; and, 3. Piracy.” 4 Blackstone’s Commentaries 67, Welsby, ed., (1854).

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committed elsewhere and the parties were not citizens of that country).85 In Paul v. Avril, the dictator-president of Haiti was held liable for the torture of five political opponents.86 The Forti v. Suarez-Mason case in the Ninth Circuit was extremely helpful for clarifying the ostensible differences in the interpretation of § 1350 in ­Filártiga and Tel-Oren. In Forti, the court concluded that the interpretation given to § 1350 in Filártiga was “better reasoned and more consistent with principles of international law.” The court noted a growing consensus in practice that ­“section 1350 provides a cause of action for certain international common law torts.” The Court explicitly rejected Judge Bork’s requirement that the plaintiff establish “the existence of an independent, express right of action. This is because the law of nations clearly does not create or define civil actions, and to require such an explicit grant under international law would effectively nullify that portion of the statute which confers jurisdiction over tort suits involving the law of nations.” The Court concluded that a plaintiff needs only to plead a tort in violation of law of nations. The implications of Tel-Oren’s interpretation of § 1350 is that that section not only provides for jurisdiction, but also establishes the basis of a cause of action. This federal cause of action arises from the recognition of certain international torts through the prism of § 1350. The standards that guide the recognition of these international torts are that they represent a universal consensus in the international community as to the binding status and content. The standard of customary international law for § 1350 purposes is that the foundation for a cause of action for an international tort must have the character of universality, it must be definable and it must carry the mantle of an obligatory international legal norm. In the first Forti decision, the court determined that “causing a disappearance did not meet the customary law criteria quoted above.” The Court came to the same conclusion with regard to the alleged international tort of cruel, inhuman and degrading treatment. In the second Forti decision, the court ­reexamined these issues with the support of a multitude of jurist consults ­indicating that there was a consensus about the expectation of obligation regarding the wrong of causing a disappearance. The Court quoted the opinion of Professor Franck “the international community has also reached a consensus on the definition of a disappearance. It has two essential elements: a) abduction by a state official or by persons acting under state approval or authority and b) refusal by the 85 86

Forti v. Suarez-Mason, 672 F. Supp. 1531 (n.d. Cal. 1987). 901 F. Supp. 330 (s.d. Fla. 1994). See also Kadic v. Karadzic, 70 F.3d 232, (2d Cir. 1996); Deutsch v. Turner Corp, 324 F.3d 692 (9th Cir. 2003); Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir. 1988); Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004).

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state to acknowledge the abduction and detention.” The Court also noted that the Restatement of the Law (3d) of Foreign Relations Law of the United States § 702 includes “disappearance as a violation of the international law of human rights.” These and other materials in the form of resolutions, declarations and reports led the Court to conclude that the material before it was “sufficient to establish the existence of a universal and obligatory international proscription of the tort of causing a disappearance.” The Court found that the tort of cruel, inhuman or degrading treatment was insufficiently precise and insufficiently developed to qualify as a tort in violation of law of nations under § 1350. The precise status of human rights claims under § 1350 was significantly clarified by the United States Supreme Court in Sosa v. Alvarez-Machain.87 An important consequence of Sosa was that it supported the Second and the Ninth Circuit conclusions that a selected number of human rights torts are actionable under the ats. In Sosa, plaintiff Alavarez-Machain sued defendant Sosa for the alleged tort of arbitrary detention. Specifically, Sosa led a group of Mexican nationals who abducted Machain and had him secreted to the United States where he was arrested and made to stand trial for allegedly being ­implicated in the torture murder of a dea agent in Mexico. The Supreme Court declined to extend the scope of human rights torts to the wrong of a­ rbitrary detention. According to the Court, “any credible invocation of a principle of a­ rbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in ­excess of positive authority.”88 The relatively short period Alvarez was detained by Sosa was not a wrong of sufficient gravity to constitute a breach of a universal, defined, and obligatory rule of customary international law. The Supreme Court in Sosa considered the history of the Alien Tort S­ tatute and the context of the law of nations during the period of its enactment. The Court notes that the term law of nations contains two identifiable meanings reflected in practice. First, the law of nations was essentially about the rules that operate between nations. Second, the Court noted a separate and more pedestrian meaning whereby a judge made law, regulating individuals functioning outside of domestic boundaries. These domestic forms of conduct had an international character. They included mercantile issues such as bills of exchange, marine causes such as freight, average, demurrage, insurances, bottomary, all disputes related to prizes, shipwrecks, hostages, and ransom bills. The Court noted that it had the law of nations in mind when it decided ­Paquete Habana. In that case, the status of coastal fishing vessels in wartime 87 88

Sosa v. Alvarez-Machain, 542 u.s. 692 (2004). Id.

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grew from “ancient usage amongst civilized nations, beginning centuries ago, and gradually ripening into a rule of international law.” The Court also referred to another class of cases where binding obligations were imposed on individuals and were derived from the norms of state relationships. Referring to Blackstone, the Court identified the violation of safe conducts, the infringement of the rights of ambassadors and piracy. This was a narrow set of violations to the law of nations that provided a judicial remedy. The Court thought these violations were probably on the minds of those who drafted the ats with its reference to tort. The Court agreed with Judge Bork’s view that the ats was a jurisdictional statute and did not create new causes of action. The Court added that a reasonable inference from historically background suggests that the statute was meant to have a practical effect the moment it became law. Thus, the Court maintained that the jurisdictional foundation of the statute was best read as “having been enacted on the understanding that the common law would provide a cause of action for a modest number of international law violations with a potential for personal liability at the time.” The Court concluded that: it is correct then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses: violation of safe c­ onducts, ­infringement of the rights of ambassadors and piracy. We assume, too, that no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filártiga v. P­ eña-Irala has categorically precluded federal courts from recognizing a claim under the law of nations as an element of the common law; Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute. Still there are good reasons for a restrained conception of the discretion of a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think the courts should require any claim based on the present day law of nations to rest on the norm of international character accepted by the civilized world and defined with specificity comparable to the feature of 18th-century paradigms we have recognized.89

89

Id.

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The Court then examined the fundamental reasons of judicial policy for the approach that was cautious with respect to the creation of human rights causes of action under § 1350. The central point that the Court made was that the view of the common law in 1789 was influenced by Blackstone’s natural law outlook. This meant that the Court could create its own common law beyond secular political authority. This discretionary view of the common law was rejected by the case of Erie v. Tompkins which provided a positivists gloss to the question of the status of common law in the federal courts.90 In Erie, the Supreme Court held that federal courts, as courts of limited jurisdiction, could not create their own independent forms of federal common law. There are limited circumstances where the courts have been required to develop rules of a narrowly formulated common law by necessity doctrine. It has become more apparent that the role of the federal courts in the making and application of international law are applying international law as a form of the common law. It is generally accepted that there is an international law as a part of federal common law, Erie notwithstanding. Essential to the Court’s analysis reflecting judicial caution was the problem of the separation of powers and the management of foreign relations. In other words, how far can the judiciary go in creating private causes of action in international law without compromising the powers held by the executive and legislative branches. The Court reasoned that federal courts “have no Congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of Congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity.” The Court noted the clear mandate of Torture Victim Protection Act of 1991 “establishes an u ­ nambiguous modern basis for federal claims of torture and extrajudicial killing.” The Court also noted that in the legislative history there is remark that “§ 1350 should ‘remain intact’ to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.” The Court noted that Congress itself has done “nothing to permit such suits.” It perhaps could be indicated that Congress has done nothing to limit the development of § 1350 in the context of human rights claims. The Court reasoned that the door is still ajar for a narrow class of cases based on international norms. The Court supported this by stressing its own history affirming that the domestic law of the United States recognizes the law of nations. The Court recognized that the United States courts do apply international law as a part of domestic law in appropriate circumstances. The Court continued that in the past it has held that “international law is a part of our law and must be ascertained 90

Erie Railroad Co. v. Tompkins. 304 u.s.64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

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and ­administered by the court of justices of appropriate jurisdiction as often as questions of right depending on it are duly presented for their determination.” Moreover, the Court has recognized recently that international disputes implicating u.s. relations with foreign nations are one of the narrow areas in which federal common law continues to exist. The Court reasoned as follows: “it would take some explaining to say now that federal courts must avert their gaze from any international norm intended to protect individuals.” A central concept of normative guidance regarding the role of the courts in the recognition of international law as federal common law for the purpose of § 1350 was the statement of Justice David H. Souter, …we think courts should require any claim based on the present day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to features of 18th century paradigms we have recognized. A significant problem with this test is whether it is largely reliant on the 18th Century paradigms for the specificity required to define an international tort in violation of the law of nations. A significant case came before the Second Circuit providing an opportunity to apply the Sosa standards. In Khulumani v. Barclay National Bank, ltd.,91 the plaintiff’ sued a corporate defendant claiming it should be liable under the ats for aiding and abetting in the tort of apartheid violating the law of nations. The lower court held that tortious liability did not extend to corporations whose business practices in South Africa were seen as aiding and abetting in the ­policies and practices as well as repression used by the apartheid regime to sustain its power. On one hand, Justice Souter listed a number of reasons why the lower courts must be careful in creating new causes of action under the authority of Section 1350. The Supreme Court suggested that some normative guidance may be gleaned from the context of 18th century paradigms of liability, which may have been within the contemplation of Congress. On the other hand, the Court was clear that although the ats was jurisdictional, the proper interpretation went beyond pure jurisdictional. To give it such a narrow meaning, the Court would have rendered the ats meaningless. The Court reasoned that Congress must have intended that the courts have the power to create limited tort causes of action under the law of nations. This meant that the proper interpretation of § 1350 was to give the lower courts discretion to recognize and give effect to torts based on wrongs in violation of the law of n ­ ations. 91

Khulumani v. Barclay National Bank, ltd., 504 F.3d 254 (2d Cir. 2007).

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On the specific facts of Sosa, a rather short period of arbitrary detention did not give rise to liability under the ats. However, the Court seemed to imply that the nature of the declaration must be of sufficient gravity, in addition to meeting the test of universality and definition in terms of the statute. The trial judge in Khulumani focused his attention most exclusively on the part of Sosa which stressed caution and limitation in the creation of a­ ctionable claims under the ats. That conclusion was supported by the Court’s reasoning that apartheid did not meet the standard of definability. Moreover, apartheid appeared to represent a problem that is less juridical and more political. The Court was especially antagonistic to the claim that private sector corporations could be liable for the activities of the apartheid state to the extent that they aided and abetted in the policies and practices of apartheid when doing business in South Africa. The central issue for the Second Circuit on appeal was the District Court’s ruling that, under the ats, aiding and abetting was not a recognizable theory of liability. Two judges on that Court held that aiding and ­abetting was a recognizable theory of liability. According to Judge Robert Katzman, Sosa required that the courts examine scope of liability questions from the perspective of international law. Looking to the Rome Statute92 of the international criminal court, Judge Katzman concluded that aiding and abetting liability is an accepted theory of secondary liability. Under the Rome Statute, it is the equivalent of rendering aid to someone who commits a crime. Judge Peter W. Hall, who joined in the majority, also concluded that Sosa required an examination of customary international law to determine the standard of ats liability. However, he suggested that the standards of accessory liability should be based on u.s. domestic law. To this end, he maintained that the proper test was in the Restatement Second of Torts Section 876(b). According to the Restatement, one aids and abets in tortious conduct “if he knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or e­ ncouragement to the other.” This standard merely required mens rea with ­regard to general knowledge, while the Rome Statute mens rea requires specific intent. Judge Edward R. Korman dissented. In his dissenting opinion, however, he suggested a preference for Judge Katzman’s test on aiding and abetting.93 92 93

The Rome Statute of the International Criminal Court, 2187 u.n.t.s. 90, Art 25, undoc A/CONF. 183/9, July 17, 1998. The majority’s decision in Khulumani that aiding and abetting is a valid theory for corporate ats liability finds support in a number of other cases. Almog v. Arab Bank, plc, 471 F. Supp.2d 257, 287 (e.d.n.y. 2007); Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457 (2006); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp.2d 633,

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The circuit court’s focus on the issue of aiding and abetting corporate liability prevented it from clarifying other aspects of the Sosa, in particular its implication for characterizing apartheid as a tort in violation of law of nations under the ats. The substance of two amicus briefs filed with the Second Circuit during the period prior to the appellate hearing were noted. These briefs explored the problem that Sosa represented in terms of the guidance of an 18th century legal paradigm for actions under the ats. Second, because the judges, including the trial judge, implied some reservations and prudential misgivings about the idea of apartheid as a tort in violation of the law of nations, that issue as well must be clarified. A summary of the central arguments in those amicus briefs follows. ii

Apartheid as a Tort in Violation of the Law of Nations

Violation of the Rules of Customary International Law for the Tort of Apartheid Gives Rise to Claims for the Appropriate Civil Action in the Federal Courts under the Alien Tort Statute To determine whether apartheid is an international wrong, and whether, as an international wrong, it is specifically unlawful, requires an analysis of what apartheid actually is and how it is operationally defined. By defining apartheid, it can be determined whether it is a tort that violates international law. This specific case deals with private economic actors who have allegedly been complicit in the perceived wrongs characterized through apartheid. This complicity is tantamount to a quid pro quo for the receipt of economic preferences for direct and indirect support of apartheid policies and practices, which ­resulted in grave human rights deprivations. These apartheid policies and practices comprise an important aspect of what the international community has ­outlawed as a matter of positive international law. Thus, the corporations that allegedly aided and abetted the implementation of the policies and ­practices of apartheid were in fact complicit in the wrongs for which the plaintiffs have suffered damages. An authoritative study done in 1975 concluded as follows: “So long as [the corporations] are present in South Africa and conducting ­normal business activities, American firms remain subject to charges of a­ ssisting in the A

668 (s.d.n.y. 2006); Bowoto v. Chevron Corp., No. C 99-02506, 2006 u.s. Dist. lexis 63209 (n.d. Cal. Aug. 22, 2006); In re: “Agent Orange” Prod. Liab. Litig., 373 F. Supp.2d 7, 52–54 (e.d.n.y. 2005). But see Doe v. Exxon Mobil Corp., 393 F. Supp.2d 20, 24 (d.d.c. 2005).

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maintenance and strengthening of apartheid.”94 The study was done in consultation with many corporations doing business in South Africa and the corporations were fully cognizant of the meaning of apartheid.95 No Herculean effort of pleading was needed to state a claim for relief that apartheid was unlawful in international law. Indeed, the unlawfulness of apartheid was firmly established in customary international law, which was a part of federal common law. The principle was established that wrongs characterized as having a tortious character may be appropriately adjudicated in the federal courts. To the extent that the District Court was seemingly confused about what apartheid actually was, The following questions must be addressed. What is apartheid? Why is apartheid a wrong in international law? Why does it have delictual or tortious character? Why is it appropriate for United States federal courts to adjudicate the international tort of apartheid formulated as a claim for with the federal courts are suitable instruments for giving relief? Apartheid is Defined with Sufficient Specificity to Establish a Civil Action for Tort under the ats What is apartheid? Apartheid was invented by the ruling Nationalist government of South Africa in 1948. The term apartheid is a neologism. The term ­literally breaks into apart, an English word, and heid, an Afrikaans word that translates into the suffix “-ness.” Apartheid was the policy and practice of South Africa’s ruling party prior to the establishment of a government of reconciliation.96 When the National Party won the elections of 1948, it began a program of systematic racial discrimination designed to cover every facet of human ­intercourse for which there might be trans-group contact or interaction.97 Beyond these practical and historical definitions, apartheid has meaning as a term with juridical qualities. Apartheid is a systematic pattern of policy and practice for establishing domination and subjugation based on racial pedigree. It is sustained by the total apparatus of the state. In policy and practice, it ­deprives the subjugated races of the most fundamental human rights established in international law. That apartheid is characterized by racial B

94

95 96 97

Donald Mchenry, United States Firms in South Africa: Study Project on External Investment in South Africa and Namibia (South-West Africa), 37 (Africa Publications Trust, The African Studies Program, Indiana University, Bloomington Indiana (1975). Id. at 1–2. The Oxford History of South Africa Vol. ii 1870–1966, Monica Wilson & Leonard ­Thompson eds., at 374 (1971). Donald L. Horowitz, A Democratic South Africa? Constitutional Engineering In A Divided Society at 10 (1991).

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d­ omination ­essentially means that the practice of such domination is more virulent than mere racial discrimination.98 To be more specific, the definition of apartheid under Article 7(2) (h) of the Rome Statute of the International Criminal Court comprised an appropriate starting point from which to begin the definition of apartheid. The Rome Statute sought to define more narrowly the international law wrong of apartheid in terms of established humanitarian law precepts. The Rome Statute’s definition was useful in the sense that it gave a strong legal imprimatur to those aspects of apartheid that have a criminal law character. It did not cover aspects of wrongs that may be included in a concept of civil liability. This would be much broader than the stipulations of positive criminal law. The Rome Statute generated a substantial global consensus. Although the United States was not a party to the Rome Statute, many of the principles codified in the Rome Statute had the status of customary international law. Hence, specific parts of the Statute reinforced the legal character of existing rules of customary international law. As such, the Statute could serve to strengthen the expectation that a particular rule of customary international law is appropriate for enforcement in civil proceedings. With regard to apartheid, the Rome Statute stipulated: The crime of apartheid means inhumane acts of a character similar to those referred to in…[Article 7(1) of the Rome Statute, including “Murder,” “Extermination,” “Enslavement,” “Deportation or forcible transfer of [a] population,” “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,” “Torture,” “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity,” “Persecution against any identifiable group or collectivity on political, ­racial, national, ethnic, cultural, religious, gender…or other grounds that are universally recognized as impermissible under international law…,” “Enforced disappearance of persons,”… and “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”], committed in the context of an institutionalized regime of systematic oppression and domination by

98

M. McDougal, et al., Human Rights and World Public Order, 523; Winston P. Nagan, Racism, Genocide and Mass Murder: Toward a Legal Theory about Group Deprivations, 17 National Black L. J. 133 (2004).

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one racial group over any other racial group or groups and committed with the intention of maintaining that regime.99 It is important to note that this definition was criticized for its failure to ­address other aspects of apartheid, such as the social, economic and political ­implications of dividing particular populations and prohibiting inter-group socialization, professional conduct, marriages and more.100 Accordingly, juris consults derived from the statute’s definition a coherent and explicit definition of apartheid that served as the legal predicate for the formulation of a civil action in law. Apartheid had the characteristics of slavery, caste and racial discrimination. The fact that apartheid was a more virulent form of racial discrimination did not diminish its legal characterization as prohibited in international law. Slavery and caste were prohibited in international law. The fact that apartheid had elements of these prohibited forms of conduct did not mean that apartheid was construed as not having the imprimatur of law to establish its unlawfulness. The fact that a so-called cornucopia of specific prohibited behaviors flowed from the policy and practice of apartheid did not mean that the catalog of explicit human rights and humanitarian law violations were immune from the characterization that they were essentially unlawful and that legal remedies may be applied in appropriate circumstances by the courts. Apartheid is Wrongful and Correspondingly Unlawful in Customary International Law It is well established in United States practice that the federal courts may ­directly apply customary international law to appropriate cases for which ­jurisdiction is established. It is important to note that slavery was once ­validated by customary international law and then outlawed by customary i­nternational law. This is conventional international law. In Prigg v. Pennsylvania, a case involving a fugitive slave, Supreme Court ­Justice Joseph Story noted that conventional or customary international law was used to justify the institution of slavery.101 The Court also noted that customary international law applied to the colonies prior to the revolution and continued to do so after the revolution. In short, courts directly applied C

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u.n. General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9, available at: http://www.unhcr.org/refworld/ docid/3ae6b3a84.html. 100 Human Rights Watch, Summary of the Key Provisions of the icc Statute, available at http://hrw.org/campaigns/icc/docs/icc-statute.htm. 101 Prigg v. Pennsylvania, 41 u.s. 539, 563–64 (1842).

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c­ ustomary international law to protect private rights unless those rights were changed by explicit statutory intervention. The central principle regarding the binding force of customary international law in United States courts was firmly established in The Paquete Habana, which held: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or juricial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.102 The District Court did not recognize apartheid as a wrong in customary international law. This was not the case. The International Court of Justice (icj) is the institution in international law that is charged with the authoritative interpretation of the character and reach of international law. In 1971, the icj determined as a juridical matter, that apartheid was simply unlawful in international law.103 In defining that apartheid was unlawful the Court stated that apartheid which was promulgated: “[t]o establish …, and to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitutes a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.”104 This authoritative interpretation by the icj stood in stark contrast to the proposition that apartheid was not a wrong in international law. The specific status from a “binding” perspective of an advisory icj opinion was not critical. What was critical was that such a ruling from this source influenced the expectations crucial to the establishment and maintenance of a customary rule of 102 The Paquete Habana. 103 Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 i.c.j. 16 (Namibia Case). 104 Id. at 57.

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international law that apartheid was unlawful. The icj referred to a legal construction of the United Nations Charter.105 The Charter was not self-executing from the perspective of United States domestic courts, but its provisions established and maintained the generally agreed upon norms of world order and also gave rise to the expectations codified in specific customary international law rules.106 The icj’s ruling in 1971 reflected the overwhelming expectation that particular contraventions of international law were juridically unlawful and not merely violations of a form of positive morality. The severity of the human rights deprivations through apartheid represented a degree of deviance from international legal norms which generated ­specific initiatives to define apartheid as a crime against humanity. Correspondingly, the effort to criminalize core aspects of apartheid required a narrower ­definition in order to establish unambiguously those aspects of apartheid that were criminal. Using the policies and practices of the repressive aspects of apartheid, the international community found a striking correspondence to the international crimes prosecuted at Nuremburg.107 The principles by which the Apartheid Convention were based, regardless of the specific number of ratifications it received, were principles already established under customary international law.108 The Apartheid Convention was a source of evidence of state practice, giving specific meaning to already accepted principles of international criminal law. Even if it was alleged that there was some novelty in the nature of the repression which characterized apartheid, there was universal consensus that apartheid was unlawful, that it resulted in wrongs of a tortious character or that remedies were unexceptional for tort claims in the United States. Given the universal consensus and condemnation of apartheid by the world community, many advocates considered strategies consistent with 105 Id. 106 Richard R. Baxter, Treaties and Custom, 129 Recueil des Cours (Hague Acad. Int’l L.) 25, 32–104 (1970-I); Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994). 107 Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 u.n.t.s. 279, reprinted in 39 Am.J.Int’l 257 (1945); International Convention on the ­Suppression and Punishment of the Crime of Apartheid (Apartheid Convention), Nov. 30, 1973, Arts. 1–3, 1015 unts 243; Winston P. Nagan and Lawrence Albrecht, Judicial Executions and Individual Responsibility: The Case of the Sharpeville Six, United Nations Center Against Apartheid/ Notes and Documents, 6: 1–9 (1988), reprinted in Without Prejudice, The Eaford International Review of Racial Discrimination, Vol. ii, No. 2. 108 Id.

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international law to eliminate apartheid. A parallel example existing in the case of I.G. Farbin, in which a corporate giant was involved in the “final solution” of Nazi Germany.109 Both the United Nations and individual nation states generated resolutions, declarations and foreign policy directives designed to end apartheid. These responses included cultural and academic boycotts, unilateral and collective economic sanctions, arms embargoes, and private sector campaigns for corporate disinvestment and divestment from any involvement with and financing of the political economy of apartheid, and selected natural resource sanctions, such as those against oil, precious stones, etc.110 Given the notoriety in the United States of the problems of Polaroid and General Motors in South Africa and the specific issues of corporate responsibility and respect for international law, private sector actors involving themselves in the political economy of apartheid were consistently put on notice as to its unlawful character in international law.111 In the United States, the anti-apartheid perspective expressed itself in the Comprehensive Anti-Apartheid Act of 1986 which imposed economic sanctions on South Africa and threatened sanctions against those who sought to benefit from United States sanctions. The United States foreign relations ­initiative required by Congress was not unusual in the world community as an expression of policy to support respect for international law and human rights. Judge John E. Sprizzo listed five specific criteria that he determined should influence the interpretation of the ats in the light of apartheid as a tort.112 The District Court indicated that apartheid would have to “rest on a norm of international character accepted by the civilized world.”113 The universal rejection of apartheid by the civilized world and its notorious characterization as a norm which violated international law were firmly established. The District Court referred to the fact that apartheid should be defined with specificity comparable to the features of 18th Century paradigms of law.114 Specificity 109 Winston P. Nagan, Economic Sanctions, u.s. Foreign Policy, International Law and the­ ­Anti-Apartheid Act of 1986, 4 Fla. Int’l L.J. 85, fn 281 (1988); See generally J. Borkin, The Crime and Punishment of I.G. Farbin (1980). 110 Winston P. Nagan, An Appraisal of the Comprehensive Anti-Apartheid Act of 1986, 5 J.L. & Religion 327 (1987); 4 Fla. Int’l L.J. 156–57. 111 See Letter to the Secretary General of the United Nations from The anc, March 7, 1973 ; Apartheid and Doing Business in South Africa: General Motors and South Africa, National Council of Churches newsletter, March 1973. 112 Apartheid Litigation, 346 F.Supp. 2d at 547–48. 113 Id. at 547. 114 Id. at 547.

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r­ equired the norm to have content necessary for a tort. By definition, custom was not new law. The role of the court was to declare whether the rigorous tests to determine its content, authority and ubiquity were met. The District Court expressed appropriate concern for the foreign relation consequences of declaring customary international law. The condemnation of apartheid by the executive branch of the government of the United States was a long and consistent practice. Congress made human rights an aspect of the foreign relations of the United States as indicated in the Foreign Assistance Act of 1961.115 Finally, Congress enacted a comprehensive sanctions regime against South Africa based on apartheid as a violation of international law.116 The ­District Court’s concern that the courts must have a Congressional mandate to declare customary international law was a principle of interpretation unsustained by practice. The prohibition of apartheid met the requirements of a wrong in customary international law. Given the strict standard of the pleadings demanded, the Court did not give adequate attention to the specific issue that it had to address, whether apartheid was a wrong in international law. A wrong in international law may be categorized as a wrong having a tortious character ­appropriate for litigation under the ats. This required an adequate definition of what apartheid was, an indication of its universal condemnation and the condemnation was meant to have a legal character in international law. D Apartheid is an International Tort under the ats Characterizing apartheid as a wrong in international law left open the ­question of whether some of its aspects generated liability under civil law because they were torts in violation of the law of nations. The test for a tortious claim under customary international law rested on whether international law itself determined whether there was a wrong, whether the wrong may be characterized as tortious or delictual and whether the remedies sought were appropriate to the role of a court of limited jurisdiction. This specific formulation permited focus on the tests used to determine a rule of customary international law. Those tests established the principle accepted in the federal courts that customary international law must demonstrate a universal consensus and that the relevant rule must be definable, obligatory and universally accepted.117 The ­international law test focused on the opinio juris sive nessicitatis as well

115 Foreign Assistance Act of 1961, p.l. 87–195, 75 Stat. 424. 116 Comprehensive Anti-Apartheid Act of 1986, p.l. 99–440, 100 Stat. 1086. 117 Forti v. Suarez-Mason.

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as the practice among states that they must have a certain uniformity, consistency and coherence as claim appropriate for adjudication in federal courts.118 The definition of apartheid encapsulated tort liability in terms of its component elements. These elements may also give rise to distinct civil actions in tort. Nothing in international law stipulated that apartheid, defined inclusively, cannot be a distinct tort or that specific practices mandated by apartheid may not give rise to tort liability. To illustrate, torture might be comprised of the elements of assault and battery. That did not make torture less of a liability because the definition of torture may include these elements. This theory also applied to apartheid. The central challenge required by customary international law was that the wrong must first be definable. Once defined, its core elements can be explained, thus meeting the test of definability. The Court insisted that only a single form of action was mandated by the pleading requirements of the statute as interpreted. The District Court conceded the existence of widespread international law violations. The rejection of these violations as actionable was based on the assumption that they may include multiple claims of civil liability. It was for the discovery process and other pre-trial mechanisms to determine the precision of matters that must be adjudicated at trial. The District Court’s approach to the definition of apartheid, its relationship to customary international law and its relationship to the system of pleadings required in federal litigation, represented egregious errors of construction and interpretation of both the procedure and the substance of litigating customary international law claims in the federal courts of the United States. United States Federal Courts are a Proper Forum to Adjudicate a Civil Action for the Tort of Apartheid in International Law A central concern for United States courts has been what role its courts should play in the prescription and application of international law. Historically, United States courts contributed significantly to the development of international law. The complexities of contemporary world order required these courts to be more self-reflective in defining their appropriate role in in adjudicating international law in United States jurisprudence. Contemporary international law is still significantly decentralized and while the development and prescription of rules take place at the international level, specific application and enforcement are often matters of state practice. Issues which are peculiarly suited for

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118 North Sea Continental Shelf Cases, 1969 i.c.j. 3 (Feb. 20, 1969) (confirming current ­international practice and which parallels the practice in the federal courts).

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judicial dispute settlement include the rights of individuals reflected in both United States constitutional law and in international law. The District Court stressed the fact that the courts must be cautious about creating private rights based on international law. A court’s role was not to create private rights, but to provide remedies for rights which already existed. International law permitted individuals to assert rights in appropriate circumstances. An important issue under continuing scrutiny was whether a u.s. domestic court was the appropriate institution to provide such relief. Domestic courts have long played a role in the prescription and application of international law and continue to do so. The specific concern regarding decisions based on private rights was undermined by the fact that Congress enacted the Foreign Sovereign Immunities Act in order to treat states like private actors in matters of commerce and civil wrongs.119 Apartheid used race as a marker to determine who would dominate and who would be subjugated. The subjugated class experienced the deprivation of all rights commonly associated with the International Bill of Rights.120 An originalist might freeze the statute in time to 1789, which meant that an international law wrong such as slavery would be excluded from liability under the statute and a corporation could theoretically use slave labor abroad and be immune from liability in United States federal courts. International law linked dissent-based discrimination to the prohibition of state-driven practices which rob particular classes of people of the freedom of choice. Apartheid in policy and practice repudiated the values in the United States Bill of Rights as well as the values in the Universal Declaration of Human Rights for which there was a significant overlap.121 F Conclusion of Amicus Argument The District Court’s use of a pleading standard that rejected apartheid as a wrong of a tortious character under customary international law for the purpose of the ats was an erroneous construction of the appropriate pleading standard, governed by Rule 8 of the Federal Rules of Civil Procedure. This  ­erroneous ­construction of the text led to the court’s dismissal of the

119 Foreign Sovereign Immunities Act of 1976, 28 u.s.c. §§ 1602–1611 (Supp. 1989). 120 Namibia Case, 1971 i.c.j. 16. 121 Elizabeth Landis, Human Rights in Southern Africa and United States Policy in Relation Thereto, in Hearings on International Protection of Human Rights before the Subcomm. on International Organization and Movements of the House Comm. on Foreign Affairs, 93d Cong., 1st Sess. 946–64 (1974).

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c­ omplaint on an inaccurate construction of the Sosa requirements regarding the ­interpretation of the ats. Moreover, the District Court’s general construction of the requirements of customary international law was incompatible with practices of both the United States and the international community’s rigorous standards governing what a rule of customary international law actually was. The District Court also misconstrued the proper role of the federal courts in protecting rights in civil proceedings in which rights were universally prescribed under customary international law. More egregiously, the District Court ignored the notorious uniformity of practice in both international law as well as the foreign relations law of the United States which held in unambiguous terms that the policy and practice of apartheid was a repudiation of the most fundamental principles of international legality and a complete rejection of the Rule of Law that United States courts were obliged to promote and defend. Second Amicus Argument: The Language of the ats Calls for a Threshold Determination of What a Federal Common Law Tort is in Violation of the Law of Nations The second argument put before the Court focused on the trial court’s use of a strict pleading standard assumed to be characteristic of an 18th century ­paradigm of law. In Sosa, Justice Souter first held that the Alien Tort Statute did not merely grant jurisdiction, but it also recognized causes of action for torts based on ­violations of international law including customary international law. The Court also required that judges exercise extreme caution when dealing with and potentially granting recognition to such claims. Specifically, the Court ­required that the only permissible claims under the ats were those based on well-established customary international law and/or treaties that were selfexecuting or ratified by the United States and implemented by appropriate United States legislation. The District Court was ambiguous about its reference to the formulation of claims under the ats, which had to be in some measure respectful of “18th  ­Century paradigms.”122 This reference to “18th Century paradigms” ­created ambiguity as to whether the reference was to the technical aspect of pleadings or to the special techniques needed to formulate the substantive ­sufficiency of a customary international law rule. G

122 In re South African Apartheid Litigation, 346 F.Supp. 2d 538, 549 (s.d.n.y. 2004) quoting Sosa, 124 S. Ct. at 2762.

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The Language of the ats Calls for a Threshold Determination of what a Federal Common Law Tort is in Violation of the Law of Nations The text of the ats read as follows: “The district Courts shall have original ­jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ats assumed a procedural context based on the forms of action characteristic of common law at that time. It also assumed a jurisdictional element which was tied to the system of pleadings. The pleadings and the jurisdictional component shaped the nature of the action in tort under the ats. The complex relationship between procedure including pleadings rules and substance was well-documented in practice.123 Procedural rules were sometimes classified as substantive to the extent that they shaped and determined the nature of the legal action and its remedy.124 These cases stressed the importance of a proper judicial appreciation of the nature of a legal claim in the context of the ats, with its jurisdictional stipulation, its implicit pleading assumptions, and influence these characterizations have on the sufficiency of a civil action, such as a tort in violation of the law of nations. H

The Language of the ats Supports Findings of Subject Matter Jurisdiction and a Civil Action, Regardless of Whether a Textualist or a Non-textualist Construction and Interpretation is Employed From a textual standpoint, it was arguable that the language of the ats ­supported findings of both subject matter jurisdiction as well as civil actions. Again, the ats granted jurisdiction for cases where torts were “in violation of the law of nations.” The phrase in violation arguably created an explicit claim for victims of international tortfeasors in certain circumstances. It was possible to argue that such an explicit claim was not created by the language in question. Moreover, from a non-textualist perspective, cases were tried in which courts found that a plaintiff was not required to assert an explicit claim in order to bring a claim under the ats.125 The claims before these

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123 See Grant v. McAuliffe, 41 Cal.2d 859 (1953); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34 (1961); Walter Wheeler Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L.J. 333, 344 (1933); Winston P. Nagan, Civil Process and Power: Thoughts from a Policy O ­ riented Perspective, 39 Fla. L. Rev. 453 (1987). 124 See Walker v. Armco Steel Corp., 446 u.s. 740 (1980). 125 Kadic v. Karadzic, 866 F.Supp. 734 (s.d.n.y. 1994), Forti v. Suarez-Mason, 672 F. Supp. 1531 (nd Cal. 1987), Xuncax v. Gramajo, 886 F.Supp. 162 (D. Mass. 1995), Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992).

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courts were not predicated on the “in violation” language of the ats. Instead, the sufficiency of each claim was independently defined by each Court, based on the nature of the international tort on which the claim was based. Were it not so, slavery—despite its continued existence in many forms today—might not have attained its contemporary status as universally condemned in state practice and considered a criminal matter in international law since the 19th Century. In other words, if one took the construction of the originalists, thus freezing the statute in time to 1789, an international law wrong such as slavery would be excluded from liability under the statute and a corporation could theoretically use slave labor abroad and be immune from liability in United States Federal Courts, if such a construction were to prevail. In Filartiga, the Court found that to ascertain the nature of the action for which the ats granted subject matter jurisdiction, it was necessary for the Court to refer to substantive principles of international law. Specifically, this Court determined that the ats provided subject matter jurisdiction and then remanded the case for further determination with regard to the particular civil action.126 On remand, the District Court remarked on the importance of ­respect for the global community’s interests and that even if certain actions do not violate the laws of a particular foreign state, implied claims may yet exist under international law. This point was also made clear in Forti. The Court in Forti stated: It is unnecessary that plaintiffs establish the existence of an independent, express right of action [to apply the ats], since the law of nations clearly does not create or define civil actions, and to require such an explicit grant under international law would effectively nullify that portion of the statute which confers jurisdiction over tort suits involving the law of nations… Rather, a plaintiff seeking to predicate jurisdiction on the [ats] need only plead a ‘tort…in violation of the law of nations.’127 Certain fundamental human rights were enforceable in a United States Court and, while not every such violation created a juridically cognizable tort, the Forti decision established that where the international tort was both clearly defined and universally condemned, it was considered a self-executing civil claim.128 Further, the u.s. State Department contended that all u.s. Courts

126 Id. at 887–89. 127 Id. at 1539. 128 See id. at 1540–41.

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must recognize certain international law violations perpetrated by a state ­because “a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the ­protection of human rights.”129 The Filartiga decisions effectively gave contemporary juridical meaning to the ats. Following Filartiga i and ii, the United States judiciary recognized various torts as actionable under the ats including genocide,130 war crimes,131 summary execution, arbitrary detention,132 disappearance,133 cruel, inhuman or degrading treatment134 and wrongful death.135 It is Within the Competence of the Federal Judiciary to Determine what in Federal Common Law Adjudication is a Tort and it is Within the Competence of the Judiciary to Determine the Appropriate Pleading form in Which the Right Might be Vindicated? The specific language of the ats settled the jurisdictional question of whether an international law tort may be adjudicated in a Federal District Court. By necessary implication in the ats, Congress granted the authority to provide a remedy that was consistent with the role of an Article iii Court. The specific question raised by the majority opinion in Sosa was whether the Congress gave the court the additional competence to create forms of tortious liability other than the forms that existed in 1789. One response to this concern was that Congress would have specified in the statute the specific torts in international law that would fall within the jurisdiction of the Courts under the ats. Indeed, these specific international wrongs were few in number, e.g., offenses against ambassadors, violations of safe conducts and piracy. It is important to note that Congress did not do so. It should be parenthetically noted that these wrongs were partly criminal and, if actionable under the statute, would have been tortious as well. There was an additional reason for Congressional silence. The definition and development of tort law has historically not been the province of the ­legislature. The common law, including the law of torts, was a product of J

129 See Memorandum for the United States, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), reprinted in 19 i.l.m. 585, 604 (1980) (referring specifically to causes of action arising out of circumstances of official torture). 130 Kadic, 866 F.Supp. at 734. 131 Id. 132 Xuncax, 886 F.Supp. at 162. 133 Id. 134 Id. 135 Linder, 963 F.2d 332.

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judge-made law. Congress, in granting this power to the federal Courts, would have been aware that the Courts would have to approach the question of what a tort was in the terms of the particularity of common law adjudication and especially the limits imposed by the forms of action in pleadings. It cannot be argued that the statute would involve Congress in the act of freezing international law wrongs to a specific date and time. The historical development of tort law repudiated this. There was, moreover, a compelling inference that Congress chose not to ­include specific, intentional wrongs in the ats simply because it could easily have done so. Indeed, it could still be done. Furthermore, Congress legislated the civil liability component into the Alien Tort Statute in 1940.136 “The term civil action was substituted for the word suits in view of Rule 2 of the Federal Rules of Civil Procedure.”137 If there was a plausible reason why Congress neither restricted the statute in its text nor revised it, it may lie in the fact that Congress fully understood the lawmaking relationship between legislation, which was molar, and judge-made law, which was molecular. Congress was prudent to leave this matter for the Courts. Given the expansion of the concept of a claim in federal civil litigation, federal law provided effective counter policing to ensure that claims that were litigated met the criteria appropriate to the role of domestic courts in the making of the application of law. In appraising liability for torture in the Torture Victims Protection Act, Congress was fully aware of Filartiga and its specific recognition of an international tort of torture. Congress had ample opportunity to abrogate the statute or to confine it to the forms of wrongs recognized in 1789. International law was a species of multi-state law and shared a conceptual affinity with private international law. Private international law recognized the interpretation, ­application and enforcement of tortious liability across state and national lines as a routine matter.138 Although its doctrines have been more effectively developed in domestic litigation, the practice of the private international law of torts suggested that the competence to prescribe for international torts was a competence well within the role of the Federal Courts in the international law environment. Clarifying the appropriate construction and interpretation of the ats provided a clearer basis for determining objectively the nature of tort liability under customary international law under the ats. 136 1. Prior law and revision: Based on title 28, u.s.c., 1940 ed., § 41(17) (Mar. 3, 1911, Ch. 231, § 24, pp. 17, 36 Stat. 1093). 137 28 u.s.c. § 1350 fn. 1. 138 See R. Weintraub, Commentary on the Conflict of Laws (1980); Winston P. Nagan, Conflicts Theory in Conflict: A Systematic Appraisal of Traditional and Contemporary Theories, 3 n.y. J. Int’l & Comp. L. 343, 464 (1982).

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The Historical Underpinnings of the ats Yields Clear Guidance Regarding the Scope of Its Specific Prescription and Application in Particular Cases

In Sosa, the Supreme Court held that ats effectively opened the door to ­certain “private causes of action for certain torts in violation of the law of ­nations.” The Sosa decision made no specific reference to the mechanics of the relationship between pleadings, procedure and the construction of the substantive law under the ats. Despite the lack of analysis, the holding in Sosa must assume the existence of such a legal relationship. Indeed, the Apartheid Litigation ­District Court relied on Sosa to validate a stricter pleading standard. The language specifically used in Sosa did not mandate this. The specific ­language read as ­follows: “[W]e think courts should require any claim based on the presentday law of nations to rest on a norm of international character ­accepted by the civilized world and defined with a specificity comparable to the f­eatures of the 18th Century paradigms we have recognized.” The phrase “[W]e think” was ­unusually speculative for the Supreme Court. The phrase “features of 18th  ­Century paradigms” was unusually vague. Indeed, the term paradigms made no reference to the system of pleadings and the nature of a civil action at law as part of the 18th Century paradigms. The District Court in quoting this ­language, used it to justify a standard of pleadings characteristic of the strict forms of the 18th Century rather than the requirements of the F­ ederal Rules of Civil Procedure. The concept of an 18th Century law paradigm was ambiguous. The construction and interpretation of the ats in the context of the framework of an earlier system of pleadings led to the Court’s erroneous construction of the rules of procedure because the reasoning of the Court implicitly assumed that the theory of liability to the case was significantly influenced by the procedural and substantive context of 1789. The District Court’s erroneous construction of the pleadings was based on the assumption that the substantive law of 1789 carried with it the procedural rules of that period or was influenced by a strict construction of the procedural rules characteristic of the forms of pleadings, which have been abolished. This was an approach that relied too narrowly on a version of original intent associated with an 18th Century paradigm, assumed to be implicit in the ats. This was an improper approach to the interpretation of the statute. The proper approach was to ­interpret the substantive provisions of the statute exactly as required by Rule 8 and Rule 1 of the Federal Rules of Civil Procedure. Had the District Court been faithful to the intent behind the Federal Rules of Civil Procedure Rule 1 and 8, the District Court’s construction of the sufficiency of the claim would not have been erroneous. Construing federal s­ tatutes

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e­ nacted prior to 1938 consistent with the pleadings required by the Federal Rules of Civil Procedure was an important matter of the public interest. General Remarks on the Relationship between Substance and Procedure The relationship between substance and procedure was a matter of historical difficulty in common law. Substantive law developed through the rules of procedure. The issuance of a writ was historically essential for the characterization of a legal form of action and a remedy. The system of pleadings available to a litigant when the ats was enacted was the system of common law pleadings based on the “forms of action.”139 To the extent that the forms of action required for a pleader in 1789 influenced the stricter standard of the District Court, it should be noted that the forms of action have been abolished. The abolition of the forms of action did not require that the statute be abolished by construction and interpretation. In Thompson v. Allstate Ins. Co., Judge John Minor Wisdom stated the following: A

Ancestor worship in the form of ritualistic pleadings has no more disciples. The time when the slip of a sergeant’s quill pen could spell death for a plaintiff’s cause of action is past. Under Federal Rules of Civil Procedure, a complaint is not an anagrammatic exercise in which the pleader must find just exactly the prescribed combination of words and phrases.140 Similarly, Chief Judge Charles E. Clark stated in United States v. Lamont: Pleading, either civil or criminal, should be a practical thing. Its purpose is to convey information succinctly and concisely. In older days the tendency was to defeat this purpose by over elaboration and formalism. Now we should avoid the opposite trend, but of like consequence, that of a formalism of generality. There seems to be some tendency to confuse general pleadings with entire absence of statement of claim or charge. But this is a mistake, for general pleadings, far from omitting a claim or charge, do convey information to the intelligent and sophisticated circle for which they are designed.141

139 F.W. Maitland, Equity. See also The Forms of Action at Common Law: Two Courses of Lectures, Lecture I, A.H. Chaytor & W.J. Whittaker, eds., (1910). 140 Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir.1973). 141 United States v. Lamont, 236 F.2d 312, 317 (2d Cir. 1956).

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To the extent that the trial court was influenced by the formulaic rigor of common law or code style pleadings, the reliance on such sources was an error of law because the Court was governed by the pleadings required in the ­Federal Rules of Civil Procedure. The District Court’s stricter standard was not ­mandated by Rule 8 and cannot be supported by the stricter standards of previous systems of pleadings which have been abolished. The pleadings standard required by the system of code pleadings that ­replaced the forms of action required a stricter standard of pleading. The drafters of the Federal Rules of Civil Procedure surveyed the experience with code pleadings and determined that the stricter standards required at the threshold of a lawsuit simply provided for legal chaos in civil proceedings. The loose use of such terms as cause of action, evidentiary fact, ultimate fact and conclusions of law developed a compartmentalization which proved to be a fantasy. In Rannels v. S.E. Nichols, Inc., Judge Ruggero J. Aldisert stated that it was ­inappropriate for the federal lower courts to resurrect the stricter standards of code pleadings.142 The court ruled, citing the Supreme Court in Conley v. Gibson,143 that the Federal Rules of Civil Procedure, which had simplified pleadings, were not to be replaced by the stricter standards of the code system.144 In Conley, the Court stated explicitly “The Federal Rules of Civil Procedure reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” The lower court’s use of a stricter standard in the pleadings, influenced by an attempt to determine the original intent behind the statute associated with an 18th ­Century paradigm, misunderstood the principle that the earlier approaches to procedure governing claims in the Federal Courts replaced by the Federal Rules of Civil Procedure. The change in the nomenclature of pleadings from the terms form of action and cause of action have been replaced by the term claim, qualified by the phrase “indicating that the pleader is entitled to relief,” appropriate to civil proceedings in the Federal Courts. The pleader was entitled to specify the statement of a “claim upon which relief can be granted,” and we parenthetically note, not a form of action or a cause of action. The specific application of this insight to the ats was that the concept of a tort in violation of the law of nations cannot procedurally be frozen to the forms of action of 1789 or the system of code pleadings developed in the mid-19th Century. Therefore, any

142 Rannels v. S.E. Nichols, Inc., 91 F.2d 242 (3d Cir. 1979). 143 Conley v. Gibson, 355 u.s. at 47–48. 144 2A Moore’s Federal Practice, Par 8.13, at 1692–93.

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heightened standard of pleading in applying the ats would be applying law that had been abolished since 1938. B Substance and Procedure and the Application of the ats The District Court ruled that the ats must be interpreted in the context of the date within which it was enacted. Sosa did not mandate this. Moreover, this formulation undermined and possibly misdirected the appropriate standard of interpretation for the ats. This approach required the court to do a historical fishing expedition with regard to either the forms of action existing in 1789, or more charitably, the system of code pleadings that replaced the forms of action at common law. In either case, neither the forms of action nor 19th Century causes of action provided any practical guidelines as to the meaning of the ats. A court was confronted with a question of the appropriate standard used to understand the substantive law of the ats in the light of its appropriate procedural context. A standard of interpretation, which required the Court to elucidate the procedural context of 1789, effectually undermined the plain meaning of the statute. It was a canon of statutory construction that if there was a means of construction that gave meaning to a statute, it should be preferred to a canon that denuded a statute of its rational meaning. The statute must be construed and interpreted in the context of claims in law as they historically and currently existed in interpreting Federal Rules of Civil Procedure Rule 8. The civil action in the Federal Rules of Civil Procedure clearly included claims based on customary international law as well as the law of treaties to which the United States was a party. The development of case law under the ats, which involved the recognition of certain human rights as having the character of customary international law as well as being actionable as torts under the statute, gave Congress ample opportunity to restrict or abolish the ats. The statute has, in other contexts, been affirmed by Congress.145 Moreover, the statute was revised in 1940 to make it consistent with the Federal Rules of Civil Procedure. Clearly, Congress ostensibly intended that there be no ambiguity with regard to the relationship between the ats and the Federal Rules of Civil Procedure. C Conclusion on the Argument Relating to Strict Pleadings The Court’s interpretation of the ats’s procedural context, using a stricter pleading standard influenced by abolished forms of pleadings, led the Court to a misinterpretation of what the Federal Rules of Civil Procedure required the Courts to do in the application of pleadings. By reading a subjective and 145 Torture Victims Protection Act, 28 u.s.c. § 1350.

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­ nsubstantiated standard into the meaning of Rule 1 and Rule 8, the Court u in effect was vesting itself with a discretion incompatible with the rules it is obliged to follow. This undermined the appropriate level of judicial restraint required of the Court. The Federal Rules of Civil Procedure have never been construed to be purely prospective. Substantive law in existence prior to 1938 must be construed rationally in the light of the present day system of pleadings that the Court was duty bound to apply. Applying the Federal Rules of Civil Procedure provided a firm foundation for determining whether a claim based on customary international law was one that had the properties of a civil law claim for which traditional remedies were available. Principles governing the interpretation of statutes mandated that when one construction of a statute depreciated or minimized it and another gave it full rational effect, the Court was obliged to use the standard which supported and did not undermine the text of the ats. The ats contained both a procedural element and a substantive element. Assumptions about the original procedural requirement must be discarded and the statute must be explicitly read in the light of current pleading rules. Those rules may shape the concept of the claim in customary international law in which the pleader claimed he was entitled to relief. The rules of pleading ­cannot be read to exclude claims based on contemporary international law ­because custom may not have developed into a rule of international law in 1789. The practice of law has been replete with the construction of ­statutes prior to 1938 which have been interpreted in the light of the contemporary assessment of what claims were assessable in law. These points do not mean that an understanding of the history and practice under a statute are not important to its construction, but these understandings must take into account a current understanding of the law, including procedural law, and contemporary practice. The plaintiffs won on the issue of aiding and abetting and the case was ­remanded for the plaintiffs to re-plead the apartheid claim under Section 1350 of the ats. Have the Courts Retreated from the Promise of Human Rights Litigation in Section 1350 of ats? In Arar v. Ashcroft,146 a Syrian born Canadian citizen, Maher Arar (Arar) brought a lawsuit against the United States and several u.s. government officialspursuant to the Torture Victim Protection Act (tpva),147 and the Fifth Amendment to the United States Constitution. In the lawsuit, Arar alleged that after

D

146 Arar v. Ashcroft, 414 F.Supp.2d 250 (e.d. n.y. 2006). 147 28 u.s.c. § 1350.

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b­ eing detained in the United States, he was removed to Syria for the purpose of ­being interrogated under tortured. However, the u.s. government moved to dismiss the case by asserting the state secrets privilege, claiming that the reason Arar was a member of Al Qaeda and sent to Syria, instead of Canada, were state secrets. The government argued that litigating the matter would disclose state secrets, revealing intelligence methods and harming national security and foreign relations. Although plaintiff countered that his case could easily be proven without state secrets being revealed, and even if such information were required to establish a defense, procedural safeguards could protect such information. Even so, Judge David G. Trager of the u.s. District Court for the Eastern District of New York dismissed Arar’s claims against u.s. officials for deporting him to Syria where he was tortured and arbitrarily detained. Judge Trager found that even if such conduct violated u.s. treaty obligations or customary international law, national security and foreign policy prevented him from holding the officials liable for carrying out an extraordinary rendition. Arar appealed and argued before the Court of Appeals for the Second Circuit. The divided court upheld the lower court’s dismal on political question grounds. The majority found that adjudicating Arar’s claim would hamper ­national security and foreign policy, a ruling which the dissenting judge found gave governmental officials the license to “violate constitutional rights with virtual impunity.”148 The majority found that Arar was a foreigner, not formally admitted into the u.s., and had no constitutional due process rights. In a surprising move, the appellate court voted to rehear the appeal en banc. A divided panel of eleven judges from the Second Circuit Court of Appeals voted in a 7-4 decision to affirm the District Court’s decision. The Court found that neither the tpva nor the Constitution provided a remedy for someone illegally seized by u.s. authorities while traveling through the United States and sent around the world to be tortured. The Court also stated that, if a civil remedy was to be granted, it would have to done by Congress. Writing for the seven judge majority, Judge Dennis Jacobs claimed that the tvpa did not ­apply because it covered only the actions of foreign governments. Judge Jacobs stated that the law did not allow Arar to sue under what the law refers to as a Bivens claim, because “the judicial review of extraordinary rendition would offend the separation of powers and inhibit this country’s foreign policy” The appellate court declined to recognize a Bivens action because of the potential exposure of state secrets and the effects on foreign policy called for hesitation. Dissenting Judge Barrington D. Parker, Jr., vehemently disagreed with the ruling as an explicit abdication of the judiciary’s role to check executive branch 148 Arar v. Ashcroft.

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abuses by enforcing constitutional due process guarantees. The Court’s majority opinion reflected a hesitation to render any decisions that may jeopardize national security. The Court’s hesitation was reflected in Jacob’s majority opinion stating, “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief.” In his dissent, Judge Guido Calabresi stated, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”149 The Second Circuit Court of Appeal initiated the private sector revolution in the enforcement of international human rights under the Alien Tort Statute. The critical question was whether the manifest justification of the majority’s decision obscured a deeper policy foundation for the rejection of the plaintiff’s claim. iv

Supreme Court Weighs Corporate Liability in Human Rights Cases

A Kiobel v. Royal Dutch Petroleum (February 28, 2012) Under the Alien Tort Statute (“ats”), United States District Courts have jurisdiction to hear tort claims brought by aliens for violations of the law of nations or of a United States treaty. The Supreme Court has never ruled, however, on the question of whether corporations, in addition to individuals, can be sued under this statute. A divided panel of the Second Circuit answered this question in the negative. The plaintiffs, Nigerian residents, brought a putative class action alleging that Royal Dutch Petroleum Company and Shell Transport and Trading Company, acting through a Nigerian subsidiary, aided and abetted the Nigerian government in committing human rights violations, including killings, torture, forced exile, and other wrongs. The plaintiffs alleged that the defendants had assisted these violations by actions such as providing transportation to Nigerian forces, allowing their property to be used as staging grounds for attacks and providing food and compensation to soldiers. In response to the defendants’ motion to dismiss, the United States District Court for the Southern District of New York dismissed certain of these claims, but permitted others to go ­forward. However, it certified its entire order for interlocutory appeal, so that the Second Circuit could address it. 149 Benjamin Weiser, Full Appeals Court Rejects Suit in Rendition Case, New York Times, November 2, 2009; See also Arar v. Ashcroft.

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On appeal, in a 2-1 split, the Second Circuit ruled that corporations could not be held liable under the Alien Tort Statute. The majority opinion, written by Judge Jose Cabranes, stated relying on Second Circuit precedents as well as the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain that “international law, and not domestic law, governs the scope of liability for violations of customary international law under the ats.” The Court then concluded that corporate liability has not “attained universal acceptance as a rule of customary international law,” and as a result, the plaintiffs’ ats complaint which was brought against corporations only required dismissal in full. Judge Pierre Leval wrote separately, explaining that although he agreed that this particular claim warranted dismissal because it failed to adequately plead an ats violation, he disagreed that corporate liability was generally unavailable under the ats. Judge Leval argued that international law took no ­position on whether and how civil liability should be imposed for violations of its norms, but instead left that question to each nation to resolve. He reasoned that because the United States has, through the ats, “opted to impose civil compensatory liability on [international law] violators and draws no distinction in its laws between violators who are natural persons and corporations,” a plaintiff bringing an ats suit should be entitled to recover against a tortfeasor regardless of whether that defendant is an individual or a corporation. The Kiobel case was appealed to the Supreme Court of the United States.150 The central question before the court was “whether corporations are immune from tort liability for violations of the law of nations, such as torture, extrajudicial executions, or genocide, as the court of appeals determined.” In short, “whether corporations may be sued in the same manner as any other private party defendant under the ats for similar violations,” as the 11th Circuit had held. It should be noted that the Second Circuit Court of Appeals had held that there was no corporate liability under the ats. The Supreme Court granted certiori and after an initial hearing the court determined that there should be additional hearings on expanded matters that were in effect beyond the matters necessary for its appellate jurisdiction. In this regard, the court resurrected a principle of statutory interpretation. That principle was a presumption that u.s. statute law did not have extraterritorial effect unless Congress intentionally determined that it did. The problem presented in this context was that the application of the presumption against extraterritoriality would serve to negate all the human rights jurisprudence under the ats, and more importantly it would emerge as a stealth attack on the relevance of human rights in the domestic rule of law developments in the u.s. Courts. However, such a 150 Kiobel v Royal Dutch Petrollium, 133 S. Ct. 1659 (2013).

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decision would emerge with a veneer of judicial neutrality, while its outcome effects would be a large-scale determination of change in the judicial ideology sympathetic to global rule of law developments. The technical basis for the Court declining ats jurisdiction in this case was that the connection of the lex loci delictus was too casual and too slight with regard to its connections to the United States. The following quotations underlined this. Justice Kennedy: But, counsel, for me, the case turns in large part on this: … “International law does not recognize corporate responsibility for the alleged offenses here”; and … the amicus brief for Chevron saying “No other nation in the world permits its court to exercise universal civil ­jurisdiction over alleged extraterritorial human rights abises to which the nation has no connection.” And in reading through the briefs, I was trying to find the best authority you have to refute that proposition, or are you going to say that proposition is irrelevant?151 Justice Alito: There’s no connection to the United States whatsoever. The alien tort statute was enacted, it seems to be—there seems to be a consensus, to prevent the United States—to prevent international tension, to—and—does this—this kind of lawsuit only creates international tension.152 The invocation of the principle that held that u.s. statute law had no extraterritorial reach in the context of this case was not unproblematic. Roberts, C.J. made the assertion “We therefore conclude that the presumption against territoriality applies to claims under the ats, and that nothing in the statute rebuts that presumption.” It was not clear with that presumption, belatedly read into the ats, essentially meant that the entire jurisprudence under the ats was now suspect, including Sosa’s clarification of the meaning and reach of the act. Of course this case can be confined to its special facts, and that would be the prudent course, rather than the stealthy immasculation of the ats. The expression of the law, with regard to extraterritorial limitations, was well-developed in the private international law context. One of the earliest cases dealing with a limitation of a state’s choice of law rule, as choosing the law of the forum, was New York Life Inc. Co. v. Dodge, 246 u.s. 357 (1918). In this case, the state of Missouri could not substitute its own law for the law of the 151 Transcript of First Oral Argument, at 3:19-4:6, Kiobel v. Royal Dutch Petrolium Co., 133 S. Ct. 1659 (2012) (No. 10-1491). 152 Id. at 12:1–7.

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state in which the contract was made. The approach was followed in Home Insurance Co. v. Dick 281 u.s. 397 (1930). In this case, Texas was unable to affect the terms of a contract made in Mexico. Like the Dodge case, the focus of the justices was on the physical context between the parties, the respective jurisdictions, and the forum. These physical contacts had to be sufficint in o­ rder to meet the due process requirement of the 14th amendment. More recent decisions of the court in this context suggested that the due process requirement of minimal contacts should be construed minimally, and a focus on state interests was more appropriate.153 What the All State court suggested was that earlier cases were written against a background that collapsed territoralism into sovereign, autonomous law-making and the lawfulness of the chosen law rule would depend on contact counting rather than a focus on the interests of the parties and the connected states. Since the choice of law jurisprudence has tended to give more detailed analysis than the relevance of contact counting, its emerging jurisprudence with a focus on interests would provide a better focus for the interpretation of the ats. In short, the question should be what interests were advanced by giving effect to ats claims in the domestic courts of the United States. First, the ats did not function as a choice of law rule choosing u.s. law rule as a rule of decision. The reference to substantive law was not a reference to either Nigerian law or us law. It was a reference to the law of nations. In large measure, the law of nations clarified the nature of international law prescriptios, but in a still highly decentralized world, the application and enforcement of these predcriptions was usually done in the domestic fora of states. This of course raised the important question of the role of domestic courts in the making and application of international and human rights law. In the context of the limits of state defined territorialism, there was also the established claim in international law that states may assert based on universal jurisdiction, and that the state has jurisdiction to define and prescribe sanctions for certain offences recognized by the international system as matters on international concern. These wrongs included piracy, slave trade, attacks and hijacking of aircraft, genocide, war crimes, and grave violation of human rights. Certain acts of terrorism were included as well. The authority supporting universal jurisdiction in the domestic courts of the United States went back to u.s. v Smith, 18 u.s. (5 Wheat) 153 (1920). A specific example of genocide in war crimes was indicated in the Eichmann Case.154 The expansion of u ­ niversal 153 All State Insurance Co c. Hague, 449 u.s. 302 (1981). 154 See Attorney General of Israel v. Eichman, 36 International Law Reprts, 277 (1962). See also, Matter of Barbie, 2983 Gaz. Pal. Jur. 710 (Cass. Crim. October 6, 1983).

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jurisdiction in the context of contemporary international law was one of the most important developments of the rule of law in the global system of p ­ ublic order. It would seem to be obvious that if a claim before the courts implicated a wrong such as torture or a war crime, then the presumption against territoriality was simply irrevelant to the competence of a domestic court to prescribe and apply its remedies as an incident of the principle of universal ­jurisdiction. Indeed, territorialism was irrelevant to the prescriptive force of universal jurisdiction. In addition, the exercise of extraterritorial jurisdiction under u.s. law was well-developed in the context of extraterritorial applications of u.s. antitrust law and u.s. securities law.155 So that the extraterritorial reach of u.s. law, while it still contained a presumption against extraterritoriality, was considerably weakened when we review the case law dealing with the adoption of an out of state rule of decision. In the context of conflicts of jurisdiction in international law, there was a considerable weakening of the rigid territorialism of an earlier time and practice had evolved a jurisdictional rule of reason concerning the extraterritorial application of u.s. law. These developments focused more sharply on the state interests that were implicated in the extrateritorrial application of u.s. statute law. When the statute on its face referred to the law of nations and its consequence for another jurisdiction, one important factor that should be considered was that the law of nations bound all concerned states and all states had a common interest in ensuring the integrity of the law of nations. When one comes to grave or ­serious violations of human rights, there has to be a shared interest in securing these important global concerns. In the Koibel case, the Supreme Court insisted on arguments based on the idea that the case should not be adjudicated in terms of the appealable e­ lements of the lower court. In fact, it sought to explore a different basis for d­ enying the plaintiff’s case. That basis was the invocation of the statutory presumption that u.s. law not be given extraterritorial effect. This excursion was singularly unfortunate. Rather than providing a proper clarification of the scope and meaning of the presumption in u.s. statute law against extraterritorial applications, the court stretched the logic of its own earlier decisions to the point that the clarity of the law in this area represented an unfortunate juridical mess. Essentially this case (a foreign cube case) had a close resemblance to an important earlier decision: Morrison v. The National Australian Bank, Ltd.156 This case dealt with whether the statutory presumption against a territorial 155 See The Restatement of Foreign Relations Law, Sections 415 and 416. 156 The National Australian Bank, Ltd., 130 S. Ct. 2869 (2010).

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application of the u.s. Securities Exchange Act applied with regard to a claim for fraud for stock purchased on a foreign stock exchange. The central finding in this case was that the extraterritorial reach of a statute was an issue of the prescriptive reach of the law seeking to regulate conduct and quite distinct from the closely related issue of the court exercising subject matter jurisdiction over the dispute. The rule relating to the presumption against extra-territoriality applied only to the prescriptive jurisdiction of the court and not to the court’s subject matter jurisdiction. Three years later, along came Kiobel. In this case, the issue was whether and under what circumstances, the courts may recognize an action under the Alien Torts Statute for violations of the Law of Nations occurring within the territory of a sovereign other than the United States. The ats granted the United States District Courts “original jurisdiction of any civil action by an alien for a tort only, commited in violation of the Law of Nations.” The court in Kiobel acknowledged that the ats was “strictly jurisdictional.” On its face, the statute did not directly regulate conduct or give relief. Kiobel, like Morrison, was a foreign cube case. It would therefore appear to be obvious if precedent was worth anything, that Morrison on this issue governed Kiobel. There was no extra-territorial presumption directed at the court’s subject matter jurisdiction, and since the ats was a strictly a jurisdictional statute, it did not directly regulate conduct, and a presumption against extra-territoriality was inapplicable at least according to the court’s Morrison ruling. It is difficult to find a rationale for the court so brazenly avoiding its own immediate prior precedent. It would appear that the judges were strongly motivated to emasculate the jurisprudence that had developed around Section 1350. A short explanation could be that Kiobel was an unapologetic adoption of result selective, right-wing legal realism in the sense that legal reasoning did not mean much. In this case, it was important to recognize a critical difference between Morrison and Kiobel. The statute in Morrison was a prescription exclusively focused on u.s. law, and u.s. law was the ostensible source of conduct regulating principles. In Kiobel, the conduct regulating rules pointed not to u.s. domestic law, but to the Law of Nations. Conseqently, the appropriate question was whether the domestic u.s. court was vested with sufficient authority to create a claim upon which a relief could be granted under international law. In substance, the foundation of the legal claim was rooted in u.s. law and the conduct regulating principles emerge from international law. In the context of Kiobel, the international prescriptions comprised grave violations of human rights and included torture and war crimes. These provided international law with the prescriptive force of universal jurisdiction.

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The courts expansion of the extra-territorial presumption focused on not so much the claim, but certain evidentiary facts, which somehow or other must be pled with a focus on those facts having sufficient force to “touch and concern the territory of the United States” with sufficient force to displace the presumption. This approach completely ignored the interests of the United States in the promotion and defense of universally agreed upon human rights norms. The case substituted for the analysis of the claim in fact, a kind of unqualified contact counting method. This case repudiated the jurisprudence that the court had developed in this area and substituted for it a murky and u ­ ndigestible method of juridical exposition and analysis. Kioble of course can be confined to its facts or it might now be expanded so as to make it virtually impossible to litigate 1350 cases in the u.s. courts. The private section enforcement of human rights was a major achievement of modern American jurisprudence. It is to the discredit of the United States Supreme Court that it self-consciously sought to undermine this important legal development. B Mohamad v. Palestinian Authority (Apr. 18, 2012) Relying on the plain meaning of the term ‘individual’ provided in the tvpa, the u.s. Supreme Court ruled that the statute imposed liability on natural persons only and did not impose liability on organizations. The petitioners sued the Palestinian Authority under the tvpa for the death of their relative, a naturalized u.s. citizen who was arrested, tortured and killed by Palestinian intelligence officers on his visit to the West Bank. The District Court dismissed the case relying on the language of the tvpa, which provided a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under authority or color of law of any foreign nation. The Court of Appeals for the District of Columbia affirmed the District Court’s findings. The petitioners then filed a petition for a writ of certiorari. The Supreme Court declined the petitioners’ invitation to read the term ‘individual’ broadly, concluding instead: “The text of the tvpa convinces us that Congress did not extend liability to organizations, sovereign or not. There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the Act, and it is not the province of this Branch to do otherwise.”

Conclusions: Moving Ahead We have sought to use principal themes in human rights in order to clarify and provide insight into the dynamic nature of human rights claims and satisfaction within both society and law. To advance these objectives, we explicitly acknowledge that human rights are not simply a matter of the conservation of pre-existing standards of decency. Human rights effectually are a tool of humanistic change. To generate the dynamism of change implicit in the human rights idea requires interest articulation and advocacy. Interest articulation means that there is an important task which realistically requires the identification of human rights problems as representing a certain social and political priority in the broader context of representing human interests as claims which target the institutions of decision to facilitate their realization. Clarification of interests of human rights salience requires the tools of social, economic, and political realism. This clarification requires that we have an epistemology with an explicit focus on the identification of human rights problems in their contextual location or framework. It is the salience of the human rights problems that is the trigger for the social activism and advocacy needed to advance human rights values in the context of real problems as well as the capacity and institutional competence of available resources which may be deployed to provide an authoritative response to the solution of problems implicating human rights values. We have explored the dynamics of advocacy in terms of the functions that decision makers deploy in responding to the advocacy seeking to advance human rights values. The element of advocacy in a cross cultural, global perspective may be seen to be influenced by the ideals implicit in confessional systems as well as dominant ideological systems. This is not to say that confessional systems or ideological systems may not be used to disparage human rights. However, the idealization of values which constitute a virtuous, compassionate, kind, and generous perspective of human relations is to be found from an ecumenical perspective in almost all religions. Indeed, most religions proclaim the virtues of a merciful creator, a forgiving creator who promotes the Godgiven qualities of universal beneficence and generosity. Most religions extol the virtues of universal love, compassion and positive sentiment, which in this study we have conceptualized as affection. It is our contention that the commitment to the advancement of human rights through dynamic humanistic advocacy must invariably be nurtured by the perspectives of positive sentiment. Positive sentiment is essentially the sentiment that crystallizes around the idea of affection or affect. The e­ ssential

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004315525_023

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dynamism of human rights is ineluctably tied to the processes by which a society reproduces and optimally distributes the positive sentiment of affection. Implicit in the political meaning of affection is the importance of the processes of solidarity identifications with humanity as a whole. A distinctively social meaning of the concept of affection implicates the universality in humanity of the idea and the ideals of love. We have sought to provide a deeper understanding of the social process that is specialized in any community to the production and distribution as well as the exchange of affection and positive sentiment. This approach provides a radically contextual description of the affection process and we selectively draw from this the dimensions of affection and positive sentiment that are critical to the advocacy and promotion of the values of universal human rights. One critical limb of the human rights discourse must explicitly account for the salience of positive sentiment in both advocacy and decision-making. In a broader sense, the challenge of positive sentiment reposes in the dynamics of human systems of identification. The positive sentiment that we recommend and promote requires a love and solidarity with all of humankind. This is the challenge as well of the universal values behind human rights. It is the challenge that most religions provide in terms of an idealized God or deity who symbolizes universal love, universal solidarity and the universality of the promotion of positive ideals. We find that, in the experience of major confessional orientations, there is a considerable endurance of the fundamental, ethical, and moral precepts. These precepts possibly explain the endurance of the faith inspired by higher ethical and moral values. It should be noted that the development of religion has generated antagonisms and significant conflicts, as religion itself inspired a contestation for the exercise of power. Notwithstanding, we still note the endurance of moral precepts, the capacity of these precepts to be internalized as guidelines for a good and virtuous life, and as signposts for activism in the promotion and defense of these values. We draw attention to one of the oldest religions in the world based on the Vedic inspirations of Indian seers. One of the central themes that emerges from the Vedas and, in particular from the Bhagavad Gita, is the idea that human beings, in order to live a successful life, must engage in doing good, which is seen as an aspect of the dharma or, the law of the person’s life. However, the Gita insists that good is done without any attachment to the results of the endeavor. In short, good is done, not with the expectation of a reward, but with the expectation of complete altruism. This is a difficult moral challenge. Additionally, Krishna, who is the incarnation of God, says, “[h]e who works for Me, who looks on Me as the Supreme, who is devoted to Me, who is free from

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attachment, who is without hatred for any being, He comes to me.”1 The Gita therefore underlines the element of altruistic consciousness. It stresses the importance of the person not being consumed by the ego-desire “of I and mine.” In the Gita, Krishna holds that the man who attains peace has become “devoid of longing, freed from all desires and without the feeling of I and mine.” The Gita warns of the pitfalls of negative sentiment. In the Bhagavad Gita, Chapter 2, verses 62 and 63, it is stated, “Brooding on the objects of the senses, man develops attachment to them; from attachment comes desire; from desire anger springs forth.” This idea is continued: “From anger proceeds delusion, from delusion confused memory the ruin of reason; due to the ruin of reason, he perishes.” The Gita also advises that one who is free from fear and anger approximates the state of constant wisdom. The Gita’s stress on dharma warns that one should “seek to perform your duty; but lay not claim to its fruits.”2 With regard to the value of environmental integrity, the Gita insists that the total environment is an environment of godliness. “He who sees Me everywhere, and sees in Me, and sees all in me, He never becomes lost to me nor do I become lost to him.”3 The Gita also stresses the idea that the form a devotee of God takes is not an impediment to the achievement of spiritual wisdom. “Whatever form any devotee with faith wishes to worship, I make that faith of his steady.”4 The Gita extols the virtues of “intellect, wisdom, non-delusion, patience, truth, self-restraint, calmness, pleasure, pain, dirth, death, fear, and fearlessness.”5 To stress the salience of the following: “non-injury, equanimity, contentment, austerity, charity, fame, and obliquoy—these different qualities of beings arise from Me alone.”6 A contemporary legacy of the Gita is the principle of non-violence in the struggle for freedom and dignity. It was a process and pathway to the independence of India. It had a profound effect on the struggle for freedom in South Africa. It had a great effect on the launching of the civil rights movement in the United States, for justice and freedom from racial oppression. It continues to influence world events where people are demanding social and political change, and a respect for the dignity of human beings. 1 The Bhagavad Gita, Chapter 2, verse 55, printed in Sanskrit [?] and English with commentary by Swami Chidbhavananda (Tapovanam Series 80, Tirupparaithurai Publishing, 2000) at 639. 2 Chapter 2, verse 47 of the Bhagavad Gita, id. at 172. 3 Chapter 6, verse 31 of the Bhagavad Gita, id. at 391. 4 Chapter 7, verse 21 of the Bhagavad Gita, id. at 439. 5 Chapter 10, verse 4 of the Bhagavad Gita, id. at 529. 6 Chapter 10, verse 5 of the Bhagavad Gita, id. at 529.

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Finally, the powers that are generated by God are powers that inspire eight sakti’s. First is the sakti that generates the feeling of love and compassion that a good person has for immediate family. Love and harmony, in the affection unit, is a critical part of the Vedic message. It is maintained that, if love permeates the home, then virtue follows and will prevail; and in this sense, the affection unit as a home attains a certain degree of affection. The second sakti takes this feeling of positive sentiment in the immediate home and extends it to relatives, neighbors, and friends. This extension of positive sentiment is meant to break down the barriers of others, who are more distant from the immediate family circumstance. The critical objective is that the positive sentiment of the first sakti merges into the positive sentiment of the second. The third sakti requires that the positive sentiment generated in saktis one and two be extended to the broader world of working, professional, and business associations and, indeed, the public at large. Positive sentiment generates honest relationships in business, professions, finance, and politics. This is most challenging, because the wider world is contentious and conflict-prone. In the Vedic tradition, professions prosper when the interests protect as their own the interests of others. The fourth sakti is a combination of the three previous saktis. Here, the result of positive sentiment generates the creativity in the love of culture, learning, and scientific discovery. Here, the Vedic tradition believes that the religious foundations of positive sentiment are a critical strut for creativity in the arts and the sciences; and such creativity aids in harmony and solidarity, and in the generation of hope for the future. The fifth sakti is the permeation of the person with the positive sentiment and love of a transcendental nature, which makes the person a foremost proponent of charitable works and immense generosity. Such a perspective is the product and culmination of the four saktis, and the spiritual inspiration derived from the love of God. The sixth, seventh, and eighth saktis are more spiritual and otherworldly in outlook; but they build upon the foundations of positive sentiment in the first five saktis. This reconstruction of the way in which positive sentiment is represented in the Vedic tradition is an important tool for the promotion and defense of the idea of human rights as an expression of positive sentiment and hope. It gives us a clue to how we approach the future of human rights advocacy. The great insight of the Buddha was his observation that one of the greatest problems that humanity confronts is the problem of suffering. After an exploration of a multitude of penances, sacrifices, and related efforts to understanding the cause and cure of suffering, the Buddha emerged with what is called The Middle Way. Central to The Middle Way is the premise that we should follow an eight-fold path as a guide to the constraining of desire and a perspective that is non-acquisitive. At the same time, the central message of the Buddha is the message of universal compassion for all living sentient beings. At the

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heart of the Buddha’s message, therefore, is the concern with human suffering; and at the heart of the human rights advocate’s concern is the alleviation of human suffering, sometimes in extreme form. One of the great applications of Buddhist values is to be found in the edicts of the monarch Asoka. The monarch was concerned about constraining the abuse of governmental power by officials. He was concerned about the excessive killing of animals to satisfy the human appetite. He was concerned to provide for the well-being, medically speaking, of human beings and animals. It is possible to see the edicts of Asoka as the first effort to codify human rights as the law of the state. In this sense, the human rights impulse has Asian roots; this point is to suggest that, for the third world detractors of human rights who suggest that they are a purely Western invention, such is not the case. It is possible that, because modern human rights received a significant inspiration from the tragedy of the Second World War, it was a movement that essentially sought to constrain and prevent the translation of negative sentiment into enormous human tragedy. In this sense, modern human rights may not capture the spiritual insights of Hinduism and Buddhism, which also plot a pathway toward the salience of the cultivation and extension of positive sentiment on a universal basis. In the Christian tradition, we have a tremendous store of moral insight that has inspired the world for 2000 years. Christ had a simple but revolutionary message: value the idea of human solidarity and equality. Possibly, one of the best illustrations is the example of the Good Samaritan. It is the “other” here that rescues the Jewish traveler, who has been attacked by bandits. It is an example that the boundaries between the Jewish traveler, the “we”, and the “other”, the Good Samaritan, are artificial and ought to be discarded. With regard to the rights of women, Christ is famous for his challenge, when a woman was to be executed by stoning for alleged infidelity, that the one in the crowd who was without sin should throw the first stone. Christ was born into the Judaic tradition. Christ’s witness was essentially to open that tradition to all non-self others. He preached a powerful non-sectarian view of religion and salvation. On the issue of violence, Christ is famous for the insistence on turning the other cheek. This insistence is a great testament to the virtues of non-violence. Judge Weeramantry, in his book The Lord’s Prayer, demonstrates that we can isolate all of the values of the Universal Declaration of Human Rights in the Lord’s Prayer. The Christian tradition inspired a powerful tradition of jurisprudence based on natural law. Among the most important of the Christian theorists were Thomas Aquinas and John Duns Scotus. This version of natural law was predicated on the revolutionary idea that man could use reason to elucidate and apply higher moral precepts to the practical dynamics of governance. Finally, the Confucian tradition sought to keep alive the importance of ­moral integrity and reason. Traditional African culture had developed an

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i­mportant foundational human rights principle, analogous to the principle of human dignity. This principle is the African customary principle of ubuntu. The term, literally translated, means that people find their humanity in their relationships and through other people. This principle was used by the Constitutional Court in South Africa in the Makwanyani case, in which that court declared that the death penalty in South Africa was unlawful. A part of the court’s reasoning relied on the conclusion that the death penalty was incompatible with the ubuntu principle.7 According to the court, “To be consistent with the value of ubuntu ours should be a society that ‘wishes to prevent crime… [not] to kill criminals simply to get even with them.’”8 The case is a repudiation of the negative sentiment that drives the acceptance of capital punishment. It finds affirmation in the positive sentiment that sustains the ubuntu concept. Contextual realism requires that we recognize the negative side of sentiment. Negative sentiment is reproduced conspicuously in the global social process and much negative sentiment is the driving force of human rights deprivations. Ubiquitous deprivations such as racism, genocide, mass murder, torture, disappearances, slavery, gender discrimination, and prejudice are the most obvious outcomes of the global social process when negative sentiment predominates. The forms of negative sentiment are often identified with negative emotions of hatred, otherness, and alienation, as well as psycho-pathologies which eliminate compassion, generosity and expansive dimensions of affection, solidarity and love. This book seeks to provide an analytical description of the social processes which are characterized by negative sentiment. The specific idea is to understand the critical psycho-social and political conditions that represent the causes of human rights deprivations. A better understanding of the causes represents a critical challenge for advocacy and decision for policies and practices that attack these causes and replace them with the foundations of universal respect and affection. This book, therefore, seeks to understand human rights issues historically and contemporaneously in terms of the importance of factors that shape human perspectives that are positive and negative, and to suggest strategies by which positive sentiment may overcome or diminish the effects of negative sentiment which includes hate, alienation, otherness, and psycho-pathological behaviors. The pathway to the future of humanity on a global basis lies in the sustained universalization of global human solidarity, sustained by positive sentiment and the values of affection on a universal basis. Herein is the hope for a positive future for humanity. 7 State v. Makwanyane, Constitutional Court of the Republic of South Africa, 1995 Case No. CCT/3/94, [1995] 1 lrc 269. 8 Id. at paragraph 131.

Index Adam and Eve myth 215 Advocacy functions 191–195 Affection 223, 240, 246, 248, 564, 579, 627, 639, 643, 654 African National Congress 126 aids 775, 778, 780 Amnesty 859 Ancient Celts 93 Apartheid 344, 354, 983 Aquinas, St. Thomas 79–80 Atlantic Charter 126, 129, 139 Bailyn, Bernard 111 Becker, Carl 111 Bentham, Jeremy 141 Berr, Henri 93 Bio-piracy 140, 894, 930 Bisset, Baldred 97, 99 Bondage 293 Buchanan, George 91, 106, 108 Buddhism 51–56 Bush administration and nuclear weapons 952 Calgacus 90 Celtic church 95 Celts 93, 103 Christianity 64–65 Climate change 918, 923 Colbourn, H. Trevor 116 Colombia 862, 885 Configurative jurisprudence 7, 23 Conflict 159–163 Confucianism 58–62 Contextual mapping 174 Cowan, Edward J. 97 Declaration of Arbroath (1320) 92, 99–104, 110 Declaration of Independence 121 Diversity 150 Dumnorix 89 Dynamic Humanism 2, 135, 171, 205, 209 Ecuador 914 Ellis, Peter 94

Emotion 211–212, 237, 370 Environmental rights 920 Ferguson, Adam 114 Finnis, John 83–84 Forced labor 300, 304 Formalism 9 French Declaration of the Rights of Man 121 G8 and G20 760 Galatia 94 Gender 214 Genocide 344, 365, 375, 392, 400, 431 Ghandi, Mahatma 126 Global apartheid 741 Global civil society 758 Globalization 155, 171, 203, 206 Group depravations 413, 420, 430 Group identity 264 Hanna, Charles 106, 113 Hart, H.L.A. 83, 146 Henkin, Louis 122 Henry, Patrick 90 Heroic activism 808 Hinduism 46–51 Holmes, Oliver Wendell 9 Holocaust 128, 365 Human dignity 208 Human rights activism 171, 189 Human sentiment 235, 237, 240, 244, 248, 276 Human trafficking 278, 307 Hutcheson, Francis 110 Indigenous peoples 894, 921 Institutes of Justinian 78 Intellectual property 773, 795 International Bill of Rights 140 International Covenant on Civil and Political Rights 132 International Covenant on Economic, Social and Cultural Rights 132 Irish Enlightenment 109 Islam 65–69

1018 Jefferson, Thomas 121 John of Paris 97–98 John of Salisbury 97 Judaism 56–58 Kames, Lord 110 Kasson, John 107 King, Martin Luther 90, 127 Knox, John 105 Lafayette, Marquis de 121 Lasswell, Harold 11, 13–17, 145–149, 156 Latin America 879, 895 Law of Innocents 96 Lawyer roles 171, 203 League of Nations 125 Lexington and Concord 117 Lincoln, Abraham 123, 125 Linton, Bernard de 101–102 Locke, John 93, 110–111 MacNeill, Duncan 91, 116 Magna Carta 107, 112–113, 117 Mair, John 101–102, 105 Mandela, Nelson 90 Manegold of Lautenbach 97, 99 Map of the World Community Process 157–159 Markets, values and morality 755 Marriage 689 Marsilius of Padua 97, 99 Mass murders 259, 344, 359, 397 McDougal, Myers 17, 145–149, 156 Melville, Andrew 109 Millennium Declaration 763 Milton, John 106 Minh, Ho Chi 126 Muir, Thomas 120 Natural Law 8, 76 Negative sentiment 253–255, 257, 272 New Deal 713 Nuclear Weapons 933 Nuremburg Trials 129, 165–170 Organized crime 472 Peace and human rights 769 Policraticus 97

Index Positive sentiment 212, 231, 572 Positivism 8 Post-modern theory 195 Poverty and human rights 748 Power process 187 Private sector enforcement 962 Q Methodology 20 Racism 344 Rawls, John 19, 141 Reagan, Ronald 90 Religious values 31 Reparations 859 Revolution 808–816 Right to health care 804 Robert the Bruce 101, 104 Roosevelt, Eleanor 129, 716 Roosevelt, Franklin 715 Roosevelt, Theodore 90 Sallust 97 Scottish Association of the Friends of the People 119 Scottus, Sedulius 97–98 Scotus, John Duns 2, 92, 97–102 Sen, Amartya 19, 141–147 Sentiment 378 Serfdom 294 Sex change 703 Sexual orientation 654, 694 Sexual pluralism 218 Sexual relations 220 Shuar Nation of Ecuador 896 Slavery 278 Small, William 110 Social process of negative sentiment  255–256, 373 Social process of positive sentiment  250–252, 371 Socio-economic justice 711–717 South Africa 785, 883 Sovereignty 179 Subjectivity 12 Torture 436, 441, 455 Torture Convention 449, 511 Transitional justice 839, 853, 855

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Index Transnational Organized Crime Convention 309 Truth and Reconciliation Commissions 841, 845 Truth and reconciliation process 808, 834, 873, 883 Tutu, Bishop Desmond 91 United Nations 741 United Nations Charter 72, 137, 179–187 Universal Declaration of Human Rights 128–132, 137, 757, 767 Values 25–30, 138, 153–154 Vercingetorix 89 Wallace, William 90 War Crime Trials 845

Washington, George 90 Western history of ideas 75 Whigs 111, 117–118 William of Ockham 97 Wills, Garry 112, 118, 123 Wilson, James 110 Wilson, Woodrow 90 Witherspoon, John 110 Wolter, Allan B. 100 Wood, Gordon S. 111 World Community Core-Value Processes 158–159 World War ii 82 Zionist Congress 127