Tag Archives: human rights

The UDHR and the Ontology of Rights

 

UDHRMore than 60 years after its founding, the Universal Declaration of Human Rights (UDHR) remains a document relevant to contemporary issues and problems; Perhaps, its genius lies in the fact that it is a declaration that embodies a broad sweep of the world’s varied traditions, philosophies and perspectives, so that no single bloc can claim ownership over its “sacred truths,” to use a theological term in this highly secularized era of ours.

Perhaps too, it can well be said that their commonality lies in the sureness of their being profoundly human. And while critics may rightly point to how its more influential interpreters often offer to the world a lopsided bent towards the individualistic view of human rights, as a founding document, its relevance is measured by the willingness of its adherents to a reasoned dialogue about the differences and commonalities that characterize various interpretive traditions.

Of course, ontological issues cannot be summarily set swept aside. (Indeed, the Western tradition presses on the primacy of the individual as the supreme if not the only ontological truth there is).

But that precisely is the role of reasoned dialogue: to show which interpretative strategy is better able to explain the problems and the solutions to them. Hence how can we better account for the so-called collective/group rights other than a resort to the positivist predilection for the description of the what is (and its undisguised disdain for the teleological)?

This discussion is also crucial to an understanding of the rise of non-state actors in international law. Is the sociological account (as for example, the process view of Higgins) enough to convince us that original objective legal personality must now be seen as something that transcends the state.

Indeed, much of theorizing on the state has been influenced by a philosophical movement that either exalts the state as the only political reality or treats it as a legal fiction of the social contract between among purportedly free and autonomous individuals.

International legal theory takes it for granted that there is an opposition between the individual and the state, to the exclusion of all other non-state actors. International legal theory thus confronts us with a nominalism of the state as the only true sovereign and a nominalism of individuals as the basic elements of the international legal order.

Hence, international law theorists resort to an unsatisfactory strategy of (1) devising external limits to the powers of the state or (2) stressing the primacy of the individual over all else to curtail abuse of state power. This nominalistic approach has so dominated international law that for the most part, the state has been seen as the only source of legal standing and legal personality in the international arena.

The first strategy cannot fully account for the state’s public and private duties while the second strategy fails to do justice to the proper exercise of the same duties as well as to the existence of other non-state entities, such as civil society groups, churches and multinational corporations.

This in fact leads to an irresolvable conflict between the state and the individual, inasmuch as it fails to properly recognize their respective competencies, as well as the existence of other spheres in society.

Neither of the two strategies can properly account for the rise of non-state actors in international legal discourse, other than resorting to notions of democratic participation and legitimacy that in the first place do not provide a convincing ontological justification for why non-state actors should be granted the right to democratic participation and the power to ascribe legitimacy to international legal processes.

As Jeremy Sarkin has persuasively argued, there is a “clear position from 1948,” when the UNDHR was adopted, that the instrument demands that “every individual and every organ of society … promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.”

From this standpoint, although “companies may not be in the habit of referring to themselves as ‘organs of society,’ they are a fundamental part of society. As such, they have a moral and social obligation to respect the universal rights enshrined in the Declaration.”[1]

Yet his observation also begs to ask the question thus: is this merely a matter of opinio juris and state practice, or something that requires a radical and fundamental ontological commitment? Of course, we all know that even the positivist position is anchored on an unstated ontological commitment, that is, one that thinks lightly of ontology, if at all.

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On the occasion of International Human Rights Day, Dec. 10, 2015

[1]Jeremy Sarkin, The Coming of Age of Claims for Reparations for Human Rights Violations in the South, 1 SUR INT’L J OF HUM. RIGHTS 67, 69-70 (2004)

 

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The state, human rights and the simultaneous realization of norms

human-rightsThe Guardian recently published an essay by the American legal scholar Eric Posner on the failure of human rights to live up to its utopic promise. Posner flails at the top-down approach the UN human rights system has propagated around the world, despite the ambiguities and contradictions that the complex of human rights laws are stricken with. He concludes his essay with a plea for a new approach, thus:

It is time to start over with an approach to promoting wellbeing in foreign countries that is empirical rather than ideological. Human rights advocates can learn a lot from the experiences of development economists – not only about the flaws of top-down, coercive styles of forcing people living in other countries to be free, but about how one can actually help those people if one really wants to. Wealthy countries can and should provide foreign aid to developing countries, but with the understanding that helping other countries is not the same as forcing them to adopt western institutions, modes of governance, dispute-resolution systems and rights. Helping other countries means giving them cash, technical assistance and credit where there is reason to believe that these forms of aid will raise the living standards of the poorest people. Resources currently used in fruitless efforts to compel foreign countries to comply with the byzantine, amorphous treaty regime would be better used in this way.

Those familiar with contemporary discussions of the role of international law in the promotion of democratic ideas will recognize many valid concerns in Posner’s essay. Indeed, democratic theory in international law — by extension includes human rights theory — has often drawn criticisms that it is fundamentally a Western, liberal democratic imposition. For example, the Finnish scholar Martii Koskenniemi rejects the universal claim of international law (specifically democratic theory) as rooted in a European tradition and should not and could not speak for humanity.

He warns that such a tradition of liberal democracy may yet end up as another hegemonic imposition on non-Western states, reminding us of his arguments in his book the Gentler Civilizer of Nations about the international lawyers of an earlier era who thought none of the contradictions that came with assigning to international law a civilizing task and at the same time using it as justification for colonialism:

As international lawyers, the only arguments open to us are those provided by our tradition: jus cogens, obligations erga omnes, and all the legal paraphernalia produced by treaties, customs, international institutions. They do not automatically express anything universal: indeed, more often than not they are used as instruments in hegemonic struggles. As soon as we lose sight of this, they turn into kitsch.

For Koskenniemi, there is nothing special about the modern state, or its democratic aspirations. Yet at the same time, he is not about to celebrate the indigenous that easily either. Indeed, Koskenniemi’s has remarked that : the state can either be used for good or bad. But towards the end of his book’s chapter on sovereignty and international law’s supposed civilizing mission, he says that while indeed it may often be suggested from history that “it is better to live in a political society whose administrators speak our language, share our rituals and know our ways of life,” he quickly adds that “there is no magic” about these relationships. Lest we forget, “communities that are closed to outsiders will rot from the inside.”

For me, this somehow stresses Dooyeweerd’s point first of all about the nature of the state as a differentiated public legal community.

Koskenniemi and all his kindred spirits are correct in locating ideas of democracy in the Western tradition. Dooyeweerd’s own account of the development of the theory of the state in its different stages draw from the Western, if largely European experience (with certain Dutch emphases).

A differentiated society, in Dooyeweerd’s systematic philosophy, could only arise from the disclosure of societal structural principles by human positivation. It is a process that is distinctive for its historical embedded-ness. A society could be closed, so that differentiation could not take place. (Koskenniemi seems to realize this as he remarks about the decline communities slide into if they remain in autarkic existence. For all his hesitations, Koskenniemi has implicitly cast his lot with the comfortable choice, that is, his own Western tradition, warts and all. )

We must not lose sight of Dooyeweerd’s argument from history and the directionality of positivations.

The development of a public legal community is so closely bound up with societal differentiation itself that we cannot measure the rest of the world’s pace against the Western experience (or let alone consider the tragic injustices that most of them have suffered in the era of colonization). Skillen had long ago noted that human rights “are tied in with the very meaning of justice and injustice in states and thus cannot be protected or enhanced in abstraction from actual state and interstate structures.”

In other words, if the very character of the sovereign state is part of the problem, every effort to advance human rights without changing the function and identity of states will lead to failure.

There then, is a certain realism to Dooyeweerd’s theory of the state: differentiation is an historical process that demands public commitment. At the same time we must also realize that Dooyeweerd’s theory of differentiation also shines through with a fundamental Christian conviction about the direction societal structures may take: differentiation by itself is not to be equated with development. An integral part of the state’s historical task of disclosure is what the kindred philosopher and economist Bob Goudzwaard has  long called the “simultaneous realization of norms,” following his mentor, Dr.  T.P. van der Kooy.

This means that the realization of one norm cannot be separated from the others. It also means that the realization of one norm is dependent on those of others. Economic development cannot be pursued for its own sake, independently of the others. The state will have to consider as well considerations of justice and mercy, for example. (For those interested, Goudzwaard discusses the need to simultaneously disclose economic norms with others in his first full-length work, a critique of the Western ideology of progress as embodied in Capitalism, here).

Perhaps, this is Dooyeweerd’s answer to Koskenniemi’s worries that international law is turning into kitsch, (by which he means an imperialistic and racist instrumentalism that looks at the Other as the savage, and the Western self as the epitome of human rights and civilization).

And this does not in any way let off the hook the formers of the cultural way of being from the historical task of building a public legal community. They can only hold it off at the risk of grave injustices to their own constituencies.

The normative view of the state is in fact a strong critique of the supposedly “civilizing” purpose of colonialism. The continuum between power and justice found in Dooyeweerd’s theory of the state suggests that much. No political project can disregard the requirements of justice without risking its adverse consequences. While power is foundational to the state – the monopoly of the sword – it simply cannot survive on that count alone. Power must reach, or anticipate, justice. Power must open up to, and be deepened by, justice.

*human rights themed image  taken from the oxfam website.

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Thoughts on the continuing relevance of the State

In the international legal system, the state is the primary domestic institution charged with the task of ensuring the promotion and protection of human rights.

This is so for the following reasons:

* States are the principal parties to human rights instruments as well as to international humanitarian law conventions, and are therefore the principal instituthe_state_largetions charged with implementing them in their respective jurisdictions.

* As early as 1928 in the Las Palmas case where the Philippines lost title over the island of Las Palmas (or Miangas) to Indonesia, international law has always recognized that states, in the grant by the international legal system of sovereign and territorial rights to them, have concomitant obligations to the protection of human rights. As held by the lone arbitrator Max Huber: “Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has a corollary, a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.”

* It is true that there are now various international mechanisms to hold perpetrators of international crimes responsible for their actions; for the most part, however it is the institution of the state as a public legal community that plays a lead role in ensuring that the demands of public justice and the common good are best served within its  jurisdiction.

* The state’s law enforcement and prosecutorial arm for protecting and promoting public justice and the common good in the domestic legal order sets it apart from other societal institutions; only the state is the immediate institution in the domestic sphere entrusted with the legal duty – backed up with the force of arms – to protect and promote the Rule of Law.

* For example, the International Criminal Court (ICC) – the first permanent international tribunal with jurisdiction to hear individual crimes involving cases of gross violations of human rights and humanitarian law – generally works under the principle of “complementarity,” where the state is given the primary jurisdiction to try these cases, and the ICC only steps in when the concerned state fails to prosecute an international crime.

— taken from Romel Regalado Bagares,  Contemporary  Models of Civil Society Human Rights Engagements, in The Katarungan Manual for Human Rights Victims’ Advocacy 164-213 (2014)

Further discussions on this point from a philosophical perspective are found here and here.

 

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Ampatuan victims vs. Arroyo

By H. Harry L. Roque, Jr.

(The article below first appeared yesterday in my column View from Malcolm Hall  for the Manila Standard Today.  You may also  read in my main blog.

At 2:15 Tuesday afternoon, 15 victims of the Ampatuan massacre filed a P15-million damage suit versus Gloria Macapagal-Arroyo. The victims had three causes of action: one, aiding and abetting the Ampatuans for the massacre; two, violation of their constitutional rights (the rights to life and freedom of the press of the victims); and three, command responsibility.

Aiding and abetting as a means of acquiring liability was first recognized in the Nuremberg tribunal. The very first individuals found guilty for it were the officers and directors of a company that manufactured the gas used in the notorious gas chambers used by the Nazis in pursuit of their final solution: the annihilation of the Jews. The officers and directors of the company may not have directly killed the Jews themselves, but the genocide could not have happened without the chemicals which they supplied. Yet another conviction for aiding and abetting was in a case decided by the International Tribunal for the former Yugoslavia. There, a man was physically present when another was torturing a detainee. The court ruled that even if the bystander did not personally perform any torturous act, he is still liable because he did nothing to stop the criminal act.

Why aiding and abetting against Arroyo?

The victims argued that she is liable for aiding and abetting because she legitimized the private army of the Ampatuans through an executive order that absorbed them as “force multipliers” of the Armed Forces of the Philippines. The victims also argued that she supplied these members of the private army with the arms and the bullets used to kill the victims of the massacre. Finally, she was responsible for the sense of impunity by which the massacre was committed precisely because she endowed the clan with tremendous influence. This arose from the peculiar role that the Ampatuans played for Arroyo in Maguindanao that is now the subject of prosecution for electoral sabotage. In fact, it appears that Arroyo stole the presidency from Fernando Poe, Jr. largely through the Ampatuan machinery in the province.

The cause of action based on command responsibility is a principle borrowed from International Law. When Yamashita, the “tiger of the Malayas” was being prosecuted by Philippine authorities for war crimes at the end of the war, he invoked the defense that he did not order the crimes to be committed and that he did not even know that the crimes were being committed. Here, the Philippine Supreme Court held that as a commander, Yamashita was duty bound to adopt a sound system to ensure that his troops were in compliance with the law all the time. On appeal to the US Supreme Court, the court formulated the principle as it stands today: commanders —or Presidents—are responsible for the acts of their subordinates under their control when they knew or should have known that the crimes were about to be committed and they did nothing to prevent them.

The contention of the widows is that Arroyo knew the kind of violence that the Ampatuan clan was capable of. In fact, her Cabinet members warned Toto Mangudadatu about their violent nature. Moreover, the blocking force that intercepted the ill-fated convoy was in place as early as November 19, 2009 and yet, Arroyo, as commander-in-chief, did nothing to prevent the massacre from happening.

We do acknowledge that these are tough allegations and causes of action to prove. But what do the victims have to lose? Two years after the massacre, only 93 of 197 accused have been arrested, and only 64 of the accused have been arraigned. At this pace, it would take more than double the lifetimes of the victims before justice can be accorded them. Meanwhile, we cannot sit idly by and merely tell the victims how truly unfortunate they are. I have always maintained -as a lawyer and a law professor- that there is always an effective legal remedy for those whose legal rights have been violated. For now, the civil suit appears to be their only effective and speedy, or at least, their speediest remedy.

On the occasion  of the second anniversary of the massacre, Malacañang spokespersons should go beyond saying that President Benigno Aquino III will merely ensure that the public prosecutors are not the reason for the delay in the prosecution of the case. It is still the task of the Executive to apprehend those are still at large so that witnesses, whose lives are already in danger, should not be made to repeat their testimonies over and over again to identify yet another accused arraigned or arrested. Malacañang should know too that the Pareno study funded by the Asia Foundation has already concluded that it is primarily because of the lapses within the executive branch that is responsible for the impunity accorded to killers in our society. Certainly, it is the burden of the Executive to reform the criminal justice system to ensure that victims of the massacre, and all other victims of extralegal killings: the Ortegas, Evangelistas, Barramedas etc., are all accorded their rights to an effective and speedy remedy under local laws and the right to receive compensation.

The tendency of the President’s spokespersons to pass the buck will only exacerbate rather than end the culture of impunity.

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We will pursue her wherever she goes – Roque

By Romel Regalado Bagares

The Supreme Court, voting 8-5, has allowed the Arroyos to travel abroad, purportedly to seek medical treatment for Mrs. Gloria Macapagal-Arroyo’s bone ailment.  According to news reports, President Aquino’s three appointees – Associate Justices Ma. Lourdes Sereno, Bienvenido Reyes and Estelita Perlas-Bernabe – voted against granting Arroyo’s petition and were joined by  Senior Associate Justice Antonio Carpio and Jose Mendoza.

Prof. H. Harry  L. Roque, Jr. – convenor of the Concerned Citizens’ Movement and chair of the Center for International Law – issues a statement below in reaction to the High Court’s decision:


Lawyer Harry Roque said yesterday he will pursue and hold accountable for her crimes Mrs. Gloria Macapagal-Arroyo wherever she goes, following the Supreme Court’s decision to allow the former President to travel abroad purportedly to seek medical help.

“This is distressful to the nation,” said Roque in reaction to the Supreme Court’s decision. “But the Concerned Citizens’ Movement (CCM) will not sit idly by and do nothing.” The citizens’ group s exploring with the Center for International Law the possibility of filing an international claim against Mrs. Gloria Macapagal-Arroyo.

The lawyer has close ties with both organizations, which had been actively campaigning to hold the former President accountable for human rights violations, electoral fraud, corruption and plunder.

“GMA was able to restrain a rule made by her own alter ego,” said Roque, adding that her promise to return has no weight to the Filipino people, who have not forgotten how she once promised not to seek re-election. (30)

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Why GMA is not entitled to asylum

By Romel Regalado Bagares

I got a call early in the morning today from radio station DZAS for comment on a news item that Mrs. Gloria Macapagal-Arroyo is seeking asylum or has already been granted asylum in the Dominican Republic. Apparently, Mrs.  Macapagal-Arroyo visited the Carribean country last May. The country’s President  Leonel Fernandez  awarded her with the country’s highest honor,  ” but the reasons behind her visit were never disclosed,” according to a Dominican Republic newspaper.

Reports say that Mr. Fernandez had already given Mrs. Macapagal-Arroyo and other members of her family visas but according to the Department of Justice, this information is still being verified with Dominican authorities through the Philippine Department of Foreign Affairs.

If this is at all true, it will certainly be a key argument for Philippine authorities why the Supreme Court should deny her petition filed earlier questioning the DOJ’s decision to place her on a watchlist. Her camp had been circulating pictures of an ailing Mrs. Gloria Macapagal-Arroyo as state prosecutors made belated moves to prosecute her for electoral fraud in the 2007 elections — a non-bailable offense — among other charges. This makes her a very big flight risk.

Of course, she’s not being original here.

She’s obviously taken her cue from one of her old lieutenants, Joc-Joc Bolante, her man at the Department of Agriculture when she was her power, who implemented what is now known as the P728 million Fertilizer Scam, where money intended for farmers were allegedly diverted into election purposes. When the Philippine Senate launched an investigation on the scam, Mr. Bolante fled to the United States and asked for asylum there, claiming he’s being persecuted in the Philippines for his political beliefs.  We — Dean Raul Pangalangan, Dean Merlin Magallona, Prof. Harry Roque and myself —  subsequently filed an amicus brief with the US court that heard his petition and the court took it “on advisement.” When the US court  finally came out with a ruling, the immigration court cited the same grounds that, we said in our amicus brief, showed just how preposterous Mr. Bolante’s claim of political persecution was.

If Mrs. Macapagal-Arroyo were to seek asylum in the US, we have no doubt that she would be denied (although we’re sure she wouldn’t dare do that, for quite another reason, and it is called the Alien Tort Claims Act); but the Dominican Republic is quite another matter. Certainly, we can’t be too sure with a country that awarded with its highest honor someone like Mrs.  Macapagal-Arroyo who is facing a slew of plunder, corruption, human rights and electoral fraud charges in her own country.

In any case, the international law on asylum is well-defined and under its terms, Mrs.  Macapagal-Arroyo does not qualify.

The criteria for who may seek asylum are found in the 1951 Refugee Convention and its 1967 Protocol.  Under Article 1(A)2 of the Convention, the term “refugee” shall apply to any person who:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Now historically,  the Refugee Convention was drafted  to respond to the huge European mess that came in the wake of World War II, where hundreds of thousands, if not millions, became refugees or were rendered stateless. States later on drafted the 1967 Protocol to expand the scope of its protection,  removing its time and geographical limits. A key principle of asylum law is that of the French term non-refoulement. This principle, according to Art. 33 of the 1951 Refugee Convention, pertains to the duty of a receiving state not to return a refugee to a country of territory where the asylum-seeker  would be at risk of persecution:

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

This principle is taken as part of customary international law and binding on all states. It is also restated in major international human rights instruments, as in the case of the 1984 Convention against Torture, which  proscribes the extradition of an asylum-seeker to a country where s/he risks being tortured.

Properly appreciated, asylum law affords people who are being persecuted in their countries of origin a good measure of protection against abuse.

But to qualify as a refugee, a person must meet the following  basic characteristics:

  • S/he must be  outside their country of origin or outside the country of former habitual residence;
  • S/he must  be  unable or unwilling to avail themselves of the protection of that country because of a well-founded fear of being persecuted; and
  • The feared persecution is based on at least one of five stated grounds: race, religion, nationality, membership of a particular social group, or political opinion.

In US jurisprudence, the  US Attorney General may not remove an alien if the alien is able to establish a clear probability of persecution in the country to which he would be returned.”The standard of proof for restriction on removal is more demanding than the well-founded fear standard applicable to an asylum claim. Thus, when an applicant fails to establish the objective component of a well-founded fear of persecution, he necessarily fails to establish entitlement to restriction on removal.” [Wiransane, 2004 U.S. App. LEXIS 8259 at *6 (internal quotation marks omitted)]

In the case of Mrs.  Gloria Macapagal-Arroyo, it would be preposterous to say that she is under persecution because of any of the five grounds stated in the 1951 Refugee Convention.

What she fears is that she would eventually be prosecuted criminally for the crimes she committed or caused to be committed when she was in power.

Mrs.  Macapagal-Arroyo is  NOT BEING PERSECUTED  because of her race, religion, nationality, membership in a particular social group, or political opinion. But certainly she is BEING PROSECUTED for plunder, corruption, human rights violations and electoral fraud. That is a world of a difference there. And that is why she is not entitled to asylum.

*PHOTO CREDIT: photograb from Ms. Ellen Tordesillas’s blog. She says the photo is by Belna Cabasan and was taken  from Stella Arnaldo’s wall

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