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THE RIGHT OF SELF-DEFENSE AND THE ORGANIC UNITY OF HUMAN RIGHTS

Published online by Cambridge University Press:  09 December 2021

David Little
David Little*
Affiliation:
Research Fellow, Berkley Center for Religion, Peace, and World Affairs at Georgetown University
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Abstract

The article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwide comprehensibility and appeal of human-rights language.

Keywords

human rightscivil rightspolitical rightssocial rightseconomic rightscultural rightspersonal and collective right of self-defensearbitrary forcedefensive force
Type
Research Article
Information
Journal of Law and Religion , Volume 36 , Issue 3 , December 2021 , pp. 459 - 494
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University

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References

1 See the contributions in Diamond, Larry, Plattner, Marc F., and Walker, Christopher, eds., Authoritarianism Goes Global: The Challenge to Democracy (Baltimore: Johns Hopkins University Press, 2016)Google Scholar for well-documented accounts of the attempts of authoritarianism's “Big Five” to undermine liberal democracy and human rights. See also the excellent article by Anne Applebaum, “American Surrender,” The Atlantic, November 2020, 86–93, discussing in compelling detail the challenges for the new Biden administration human rights policy posed by China and other authoritarian countries, and by the derelictions of the Trump administration. President Trump's 2019 speech to the United Nations—containing the words, “The future belongs to sovereign and independent nations who protect their citizens, respect their neighbors, and honor the differences that make each country special and unique”—“was,” says Applebaum, “music to the ears of the Chinese and Iranian diplomats who want all criticism of their respective countries shut down.” Applebaum “American Surrender,” 92.

2 Such Western academic skeptics are singled out because, unlike many of their non-Western counterparts, they do not appear to support the rise of authoritarianism. For US critics, see especially the sources listed in note 7, below. One British critic is Hopgood, Stephen, The Endtimes of Human Rights (Ithaca: Cornell University Press, 2013)Google Scholar. Hopgood contends that human rights, understood as “universal, secular, and categorical” international norms, are the creation of illusory humanitarian sentiments born of parochial Christian and Western European ideas that are now in decline. That is true, he says, because “we live in a postmodern world where there are other truths supported by other authorities,” all of which casts doubt on the validity of the Universal Declaration of Human Rights (66). (My thesis here is directly opposed to Hopgood's claims.) Another British critic is Biggar, Nigel, What's Wrong with Rights? (New York: Oxford University Press, 2021)Google Scholar, who attempts to discredit any notion of natural or human rights understood to exist independent of the institutions of law and government. For a critique of Biggar's claims, see David Little, review of What's Wrong with Rights? by Nigel Biggar, Canopy Forum, January 20, 2021, https://canopyforum.org/2021/01/20/nigel-biggar-whats-wrong-with-rights/. For Biggar's response see Nigel Biggar, “Theological Critiques of WWWR: A Reply to Little & Herdt,” Canopy Forum, April 13, 2021, https://canopyforum.org/2021/04/13/theological-critiques-of-wwwr-a-reply-to-little-and-herdt/.

3 G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) (hereafter UDHR).

4 With eight abstentions: Saudi Arabia, South Africa, and the six members of the Soviet Bloc.

5 As quoted in Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House Trade Paperbacks, 2002), 77Google Scholar.

6 Ignatieff, Michael, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), 20, 84CrossRefGoogle Scholar. Older well-regarded studies affirm claims similar to Ignatieff's. Jack Donnelly argues that we may by now be satisfied with a purely “analytic or descriptive” theory of human rights rather than a “normative or prescriptive” one because “there is [now] a remarkable international consensus on the list of rights.” Donnelly, Jack, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), 21–22Google Scholar. Paul Sieghart believes that there is no longer a need, if there ever was, to consider the philosophical or theological grounds of human rights, since all that is needed now is to “refer to the rules of the international human rights law as defined by the relevant instruments which have been brought into existence since 1945.” Sieghart, Paul, The International Law of Human Rights (Oxford: Clarendon Press, 1983), 15Google Scholar. These days, in fact, it is both the usefulness and the legal and moral authority of human rights that is being widely and persistently contested in political and academic circles around the world. It surely will not do simply to ignore the growing skepticism.

7 Moyn, Samuel, The Last Utopia: Human Rights in History (Cambridge: Belknap Press of Harvard University Press, 2010), 64, 51, 83, 89, and 7Google Scholar. Moyn has extended his deconstructive efforts, asserting that human rights language is mainly the result of post–World War II conservative European Christian influence. Moyn, Samuel, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015)Google Scholar. More recently, he has developed a somewhat different line of attack, contending that human rights are largely discredited by their intimate association with neoliberalism or what he calls, “market fundamentalism.” Moyn, Samuel, Not Enough: Human Rights in an Unequal World (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar. Moyn's argument has been partially supported by Whyte, Jessica, The Morals of the Market: Human Rights and the Rise of Neoliberalism (London: Verso Books, 2019)Google Scholar. Another ally of Moyn's, Eric Posner, mounts his attack from a legal perspective, arguing that human rights law has been generally ineffective because it “reflects a kind of rule naivete,” as though “the good in every country can be reduced to a set of rules that can be impartially enforced.” Posner, Eric A., The Twilight of Human Rights Law (New York: Oxford University Press, 2014), 7Google Scholar. For a critique of The Last Utopia, see Little, David, Essays in Religion and Human Rights: Ground to Stand On (New York: Cambridge University Press, 2015), chapter 2CrossRefGoogle Scholar. For a critical assessment of Christian Human Rights and The Twilight of Human Rights Law, see Little, David, “Law, Religion, and Human Rights: Skeptical Reponses in the Early Twentieth Century,” Journal of Law and Religion 31, no. 3 (2016), 354–66CrossRefGoogle Scholar. For a critical assessment of the central claims of Not Enough and The Morals of the Market, see note 105, below. Further, some American scholars readily embrace the political consequences of rejecting human rights, offering what amount to reasons against President Biden's proposal to convene a gathering of the world's democracies for the purpose of “advancing human rights in their own nations and abroad,” and “defending against authoritarianism,” as he put it. Joseph R. Biden, Jr., “Why America Must Lead Again: Rescuing U.S. Foreign Policy after Trump,” Foreign Affairs 99, no. 2 (2020), https://www.foreignaffairs.com/articles/united-states/2020-01-23/why-america-must-lead-again. According to one critic, the United States, to the contrary, ought to give up such ill-advised objectives and start showing respect for the great-power status of an authoritarian regime like China. It should “accept the reality that its liberal values are not universal,” and stop “interfering in China's internal affairs by condemning Beijing's policies in Hong Kong and Xinjiang.” Christopher Layne, “Coming Storms: The Return of Great-Power War,” Foreign Affairs 99, no. 6 (2020), https://www.foreignaffairs.com/articles/united-states/2020-10-13/coming-storms.

8 Beitz, Charles R., The Idea of Human Rights (New York: Oxford University Press, 2009), 128, 138CrossRefGoogle Scholar. In what follows, I reject Beitz's claim that no compelling unified theory of human rights is to be found. For a related criticism, see Dworkin, Ronald, Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011), 474–75n5CrossRefGoogle Scholar: “Beitz believes that human rights should be identified not through some ‘top down’ principle, . . . but through interpretation of human rights practice, guided, as it must be, by a sense of the point of the institution. . . . But . . . interpretation of that kind requires general principles that can fix the best justification of the raw data of that practice, and these must be ‘top down’ principles of the kind Beitz wants to avoid.”

9 Morsink, Johannes, Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 222–38CrossRefGoogle Scholar.

10 For a detailed discussion of the process of development from the UDHR (1948) to the two treaties, the ICCPR and ICESCR (1976), see Henry Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, 2nd. ed. (New York: Oxford University Press, 2000), 137–320. China has ratified the ICESCR, but not the ICCPR. For the United States, the reverse is true.

11 In keeping with proper, but inconsistently applied, objections among the drafters of the UDHR to gender-specific language, the words “mankind” in the first passage and “if man is” in the second should be changed as proposed in the brackets. For a discussion of the objection, see Joseph P. Lash, Eleanor: The Years Alone (New York: W. W. Norton, 1972), 70. See also Kathryn Sikkink's important comments on women's rights in the UN Charter and the UDHR: Sikkink, Kathryn, Evidence for Hope: Making Human Rights Work in the 21st Century (Princeton: Princeton University Press, 2017), 79–84CrossRefGoogle Scholar.

12 UDHR. The objection that preambular references have no legal weight in statutory law should be anticipated. The argument developed in this article is a moral one and not, finally, a legal one, although it does offer a moral foundation for law. The preambular references are not invoked as legal warrants. They are invoked as intimations of a moral perspective on human-rights language. Their status in the argument stands or falls on the merits of the moral argument, not on their legal authority.

13 This is the convincing interpretation put forward by Morsink, Universal Declaration of Human Rights, especially chapter 2 (“World War II as Catalyst”). Morsink's evidence conclusively refutes Moyn's denials, mentioned above, that human-rights language was composed in response to the persecution of the Jews by the Nazis. See also an updated and expanded defense of the same proposition: Morsink, Johannes, The Universal Declaration of Human Rights and the Holocaust: An Endangered Connection (Washington, DC: Georgetown University Press, 2019)CrossRefGoogle Scholar, especially chapter 3 (“The 1940s Moment of Human Rights”). Although the major emphasis in this article is on the pertinence of mid-twentieth-century German fascism to the drafting of human rights language, Italian and Japanese versions are also relevant, making the fascist experience something of a universal reality. As I have noted elsewhere,

While the three versions do differ in degree, they all share certain fundamental characteristics identified by Robert O. Paxton . . . These include “a sense of overwhelming crisis beyond the reach of any traditional solutions; the primacy of the group, toward which one has duties superior to every right, whether individual or universal, and the subordination of the individual to it; the belief that one's group is a victim, a sentiment that justifies any action, without legal or moral limits, against its enemies, both internal and external . . . the need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary . . . the beauty of violence and the efficacy of the will, when they are devoted to the group's success; the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group's prowess with in a Darwinian struggle.

Little, David, “Freedom of Religion: Fundamental Right or Impossibility?,” in Law, Religion, and Freedom: Conceptualizing a Common Right, ed. Cole, W. Durham, Jr., Javier Martínez-Torrón, and Donlu Thayer (London: Routledge, 2021), 24–36, at 25n6Google Scholar, quoting Robert O. Paxton, The Anatomy of Fascism (New York: Alfred A. Knopf, 2004), 219–20 (formatting altered).

14 Tierney, Brian, The Idea of Natural Rights: Studies in Natural Rights, Natural Law and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997), 314Google Scholar.

15 Fletcher, George P., A Crime of Self-Defense: Bernhard Goetz and the Law on Trial (Chicago: University of Chicago Press, 1988), 18–29, 19–20, 23–24, and 25Google Scholar (italics added). See also George P. Fletcher and Jens David Ohlin, Defending Humanity: When Force Is Justified and Why (New York: Oxford University Press, 2008), 30–63, 86–107. For a comparable discussion of the universal conditions of defensive force, see Hessbruegge, Jan Arno, Human Rights and Personal Self-Defense in International Law (New York: Oxford University Press, 2017), 65–68CrossRefGoogle Scholar.

16 UDHR, art. 25.

17 The third statement—that force is inflicted “because it serves my interest”—in particular prompts consideration of the so-called necessity defense. A classic instance raises the question whether, under extreme conditions, taking innocent life to save oneself is ever an adequate defense. It pictures two sailors from a shipwrecked vessel struggling in the water over a plank that can sustain only one of them. Sailor A secures the plank and survives by causing Sailor B to drown. In carrying out the act, Sailor A may well state, “It serves my interest to kill Sailor B,” and the question is posed whether this is an ordinary case of arbitrary force. However evaluated, it does not appear so. Neither Sailor A nor Sailor B is a standard aggressor. It is assumed that neither sailor is ready to inflict force without regard to whether it is necessary to prevent imminent death or serious injury, or to do it without regard to proportionality or with malicious intent. On the contrary, the life of each is imminently threatened; neither has available a less extreme means of saving himself; neither wants to kill the other, and both would, it is assumed, act regretfully or “out of necessity”—which explains the term, “necessity defense.” The looming problem, of course, is that Sailor A succeeds in killing an innocent person for a self-serving reason. The case thus satisfies some, but not all, of the features of an act of arbitrary force, and for that reason, I suggest, it is irreducibly perplexing, both morally and legally. Whether or not such an act is excusable or in any way justifiable—which is hotly debated both morally and legally—anyone acting like Sailor A understandably bears at best an indelible stain of “dirty hands.” The label “dirty hands” suggests that the necessity defense may be thought of either as an “excuse” (something that reduces Sailor A's responsibility for wrong-doing) or as “weakly justified” (something that reduces somewhat the degree of wrong done by Sailor A). But it also means Sailor A's act can never be thought of as fully justified because he acted wrongly by intentionally killing an innocent person to preserve himself. For a discussion of the legal distinction between excuse and justification, see Fletcher, George P., Basic Concepts of Legal Thought (New York: Oxford University Press, 1996), 104–06Google Scholar.

18 Hitler's role, as he saw it, was not to convince by providing “good reasons” for his projects, but to mobilize his followers by achieving submission to his will through any utterance or action necessary: “[Hitler's] twelve years’ dictatorship was barren of all ideas save one—the further extension of his own power and that of the nation with which he had identified himself. . . . Hitler constantly exalted force over the power of ideas and delighted to prove that men were governed by cupidity, fear, and their baser passions. The sole theme of the Nazi revolution was domination, dressed up as the doctrine of race . . . What Hitler constantly aimed at was arbitrary power.” Alan Bullock, Hitler: A Study in Tyranny, 2nd ed. (New York: Harper & Row, 1964), 806, 206. “The dissolution of conventional forms of government was accelerated by Hitler's tendency to appoint special agents to take care of what he considered the most urgent tasks. As a rule, they were responsible neither to the party nor to the government administration, but rather only to Hitler personally. Their authority was based solely on the Fuhrer's faith in them.” Ullrich, Volker, Hitler: Ascent, 1889–1939 (New York: Alfred A. Knopf, 2016), 581Google Scholar. “[T]he rightness of fascism does not depend on the truth of any of the propositions advanced in its name. Fascism is ‘true’ insofar as it helps fulfill the destiny of the chosen race or people or blood, locked with other peoples in a Darwinian struggle, and not in the light of some abstract and universal reason.” Paxton, The Anatomy of Fascism, 16. Moreover, Hitler saw no problem in falsifying his reasons for invading other countries, as he did regularly. “The invasion of Belgium, Holland, and Luxembourg [by Nazi forces] was entirely without justification. . . . The resolve to invade was made without any other consideration than the advancement of the aggressive policies of Germany.” The Trial of German Major War Criminals by the International Military Tribunal Sitting at Nuremberg Germany, vol. 4, Judgment of the International Military Tribunal for the Trial of German Major War Criminals (London: His Majesty's Stationery Office, 1946), 31.

19 A person “has a moral right when he [or she] has a [valid] claim, the recognition of which is called for—not (necessarily) by legal rules—but by moral principles, or the principles of an enlightened conscience.” Feinberg, Joel, Social Philosophy (Englewood Cliffs: Prentice-Hall, 1973), 67Google Scholar.

20 Judith N. Shklar, “The Liberalism of Fear,” in Liberalism and the Moral Life, ed. Nancy L. Rosenblum (Cambridge, MA: Harvard University Press, 1989), 21–38, at 29. Shklar means by the term “arbitrary, unexpected, unnecessary, and unlicensed acts of force and by habitual and pervasive acts of cruelty and torture performed by military, paramilitary, and police agents in any regime.” I would expand the reference to include forcible acts of arbitrary deprivation or neglect.

21 For an eloquent account of the strong tendency of fear to produce an exaggerated and irrational obsession with self-protection, see Nussbaum, Martha C., “Fear: A Narcissistic Emotion,” in The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age (Cambridge, MA: Harvard University Press, 2012), 20–58CrossRefGoogle Scholar, especially 55–58. Nussbaum's description of the destructive potential of the “narcissistic emotion” adds weight to the phrase, “the only thing we have to fear is fear itself,” uttered by Roosevelt in 1933 and lying behind the reference to “freedom from fear” in the first passage from the UDHR preamble.

22 A person “has a legal right when the official recognition of his [or her] claim (as valid) is called for by governing rules.” Feinberg, Social Philosophy, 67. Elsewhere, Feinberg calls legal rights “enforcement claims,” which are a state's obligation to guarantee for the protection of citizens. Feinberg, Joel, Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), 224CrossRefGoogle Scholar.

23 John Locke declared that the “intention [of] everyone,” by entering into “political society and government,” is “the better to preserve himself and his liberty and property” because such action overcomes what “made the state of nature so unsafe and uneasy.” It does that by establishing “standing laws, promulgated and known by the people, and not by extemporary decrees,” “by indifferent and upright judges who are able to decide controversies by those laws,” and “[by] employ[ing] the force of the community at home only in the execution of those laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion.” He adds that such action is directed to “the public good of the people,” and, again, that it “extend[s]” to their “common good.” John Locke, The Second Treatise of Government, ed. Thomas P. Peardon (Indianapolis: Bobbs-Merrill, 1952), chapter 9, section 131. A “public good” is “a service that is made available to all members of a society. Typically these services are administered by governments and paid for collectively through taxation. Examples of public goods include law enforcement, national defense, and the rule of law.” Jason Fernando, “Public Good,” Investopedia (website), accessed October 26, 2021, https://www.investopedia.com/terms/p/public-good.asp. Common good has been aptly defined as “the good proper to, and attainable only by, the community, yet individually shared by its members.” Dupre, Louis, “Common Good and Open Society,” Review of Politics 4, no. 55 (2009): 687–712Google Scholar (italics added). It has also been defined “as perhaps nothing other than the bond of solidarity and loyalty [that] holds the State together.” d'Entreves, Alexander Passerin, The Notion of the State: An Introduction to Political Theory (Oxford: Clarendon Press, 1967), 228Google Scholar. So construed, both conceptions imply a strong sense of mutuality among citizens, meaning that since the proper protection of one citizen against arbitrary injury and neglect is achieved only by extending equal protection to others, all citizens owe “duties to the community in which alone the free and full development of [every] personality is possible.” UDHR, article 29(1). It should be emphasized against much misunderstanding that Locke's above reference to the protection of property is constrained by his idea of public good. “Locke uses [that idea] as a distributive principle. Since the public good is the natural end of preservation as it applies to political society, it is equivalent to the good or preservation of each.” Tully, James, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1982), 163Google Scholar. In Locke's own words, “as Justice gives every Man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much of another's Plenty [—‘a Right to the Surplusage of [another's] Goods’—], as will keep him from extreme want, where he has no means to subsist otherwise; and a Man can no more justly make use of another's necessity, to force him to become his Vassal, by with-holding that Relief, God requires him to afford to the wants of his Brother, than he that has more strength can seize upon [someone] weaker, master him to his Obedience, and with a Dagger at his throat offer him Death or Slavery.” Locke, John, “First Treatise of Government,” in Two Treatises of Government (New York: New American Library, 1960), chapter 3, section 32Google Scholar. Along with an unconditional moral right and duty of self-defense, Locke affirms what might best be described as a conditional moral duty (along with an unconditional moral right) to preserve others: “Everyone, as he is bound to preserve himself and not quit his station willfully, so by the like reason, when his own preservation comes not into competition, ought he, as much as he can, to preserve the rest of mankind.” Locke, “Second Treatise of Government,” in Two Treatises of Government, chapter 2, section 6 (italics added). Presumably, any duty to go so far as to sacrifice life and limb in protecting others is not a “natural” duty, but a supererogatory act (for example, inspired by Christian love—“above and beyond the call of duty”). It is worth noting, by contrast, that a central feature of the added protection provided by government is the unconditional duty of law enforcement officers to risk life and limb in carrying out their responsibilities. The whole system of “added protection” provided by government, that Locke advocates, presupposes a pre-political society ideally regulated by voluntary, morally-motivated respect for and honoring of the universal rights and duties associated with the preservation of all human life. Envisioned here is a world-wide human community based on “a view of individual human persons as free, endowed with reason, capable of moral discernment, and [on] the ties of justice and charity that [bind] individuals to one another.” Tierney, Idea of Natural Rights, 77. At the same time, essential to Locke's understanding of these natural rights and duties is the right to punish violations of them. See Simmons, A. John, The Lockean Theory of Rights (Princeton: Princeton University Press, 1994), chapter 3Google Scholar. That idea accounts for the role of force as legitimate sanction in regard to the concept of a right. If a right is an enforceable entitlement, and if certain basic entitlements to human security and survival are rightly guaranteed by the use of force, then the use of force (the right to punish) is constitutive of what those rights mean. On such an understanding, all is well so long as force is not necessary because of the uniformly honorable predispositions of all members of the human community. The problem is, as things turn out, such honorable predispositions cannot be counted on. Human beings “stray like lost sheep” and commence to threaten the entitlements to basic security and survival of their fellows by exercising self-serving force. What is called for in response, of course, is defensive force—force strictly calibrated to the protection of basic rights and duties, since its opposite, arbitrary force, by definition, violates those rights. However, in a state of nature, governed, as Locke says, by “passionate heats” and the “boundless extravagance of will,” exercising the right to punish in defense of basic rights and duties, as prescribed, readily transgresses its limits and turns into its opposite. So afflicted, all humanity faces a new imperative to join and support a political society where the threat and exercise of force, now inescapable because of the liabilities of the state of nature, is scrupulously regulated by the conditions of defensive force. Earthly political society thereby replicates, “as closely as is humanly possible,” the original peaceful and just ideal of the human community.

24 In what follows, I rely especially on Hessbruegge, Human Rights and Personal Self-Defense in International Law, 27–47. Where appropriate, I have provided primary source citations to those texts discussed in Hessbruegge.

25 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 34.

26 Hessbruegge, 34.

27 Tierney, The Idea of Natural Rights, 314.

28 Tierney, 315.

29 In addition, a se defendendo defense imposed one more onerous burden on the victim. It worked as an excuse only if the victim first had made every effort to flee rather than fight.

30 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 35. Fletcher, A Crime of Self-Defense, 32.

31 Arthur Eyffinger, “Self-Defence or the Meanderings of a Protean Principle,” in Self-Defence as a Fundamental Principle, ed. Arthur Eyffinger, Alan Stephens, and Sam Muller (The Hague: Hague Academic Press, 2009), 114–15.

32 Eyffinger, “Self-Defence or the Meanderings,” 114.

33 Thomas Hobbes, “Of the Causes, Generation, and Definition of a Common-wealth,” chapter 17 in Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996); see also Tierney, Idea of Natural Rights, 341. It is important to stress the difference between the right of self-defense and the natural instinct of self-preservation, which Hobbes did not successfully do. Among other things, “the self-preservation account fails to morally distinguish self-defense from other actions of self-preservation . . . [For example, it] cannot justify the defense of strangers with whom we have no emotional ties, since the human instinct of self-preservation does not come into play in those cases. Instead, the defender may act out of a sense of solidarity or justice [rather than self-interest].” Hessbruegge, Human Rights and Personal Self-Defense in International Law, 49.

34 Tierney, Idea of Natural Rights, 77.

35 Augustine, On Free Choice of the Will, trans. Thomas Williams (Indianapolis: Hackett, 1993), book 1.5, at 9, as quoted in Hessbruegge, Human Rights and Personal Self-Defense in International Law, 32–33 (alterations in Hessbruegge; omission added).

36 Hessbruegge refers to Isidore of Seville. Hessbruegge, Human Rights and Personal Self-Defense in International Law, 33. See Barney, Stephen A. et al. , The Etymologies of Isidore of Seville (New York: University Press, 2006), 117CrossRefGoogle Scholar.

37 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 33.

38 Hessbruegge, 34.

39 For an illuminating review of the attention given by the classic publicists on international law to the right of self-defense, both personal and collective, see Kopel, David B., Gallant, Paul, and Eisen, Joanne D., “The Human Right of Self-Defense,” Brigham Young University Journal of Public Law 22, no. 1 (2008): 43–178Google Scholar.

40 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 30–31.

41 Hessbruegge, 37. Hugo Grotius, The Rights of War and Peace [1625], vol. 2, ed. Richard Tuck (Indianapolis: Liberty Fund, 2005), 415.

42 James Turner Johnson outlines Grotius's influence as follows:

[Grotius] wrote his influential De Jure Belli ac Pacis (On the Laws of War and Peace) . . . in the context of the Thirty Years War, the first half of which in particular was stoked by Catholic–Protestant religious difference, mistrust, and hatred, with apologists on both sides fashioning the inherited just war concepts into the doctrine of holy war that demonized the enemy and justified all-out, unlimited warfare by atrocity and scorched-earth devastation. Grotius's response undercut this understanding of war by turning the tables. In his transformed understanding of justified warfare, sovereignty was defined not in terms of exercise of the right to rule (an idea holy war apologists had employed to urge sovereigns to use armed force to enforce “right” religion) but in terms of specific territories inhabited by a particular populace, possessing their own traditions and laws. . . . From Grotius's redefined conception of sovereignty, punishment of heterodox religious belief was removed as a possible just cause for use of armed force, and defense of the commonwealth against attack—defense of its borders, its populace, and its traditions and laws—became the only just cause for use of armed force by the political community. At the same time, since he recognized the possibility that claims might overlap and parties to a dispute might equally believe themselves in the right, he stressed the need of regularized restraint in the conduct of warfare. . . . The so-called “Westphalian system” of an international order made up of independent states defined in terms of territorial integrity was in fact built on Grotius's conception as well as resulting from this praxis. The United Nations Charter stands as an expression of this understanding of international order in contemporary positive international law. So far as resort to armed force is concerned, the Pact of Paris (Kellogg-Briand Pact) of 1928 bound its signatories not to resort to force against one another to settle disputes, while not restricting the right of states to use force in self-defense when attacked. The same approach, with explicit language about the use of force by a state as proper only in self-defense against armed attack, appears in Article 2 [and Article 51] of the UN Charter.

James Turner Johnson, “The Idea of Defense in Historical and Contemporary Thinking about Just War,” Journal of Religious Ethics 36, no. 4 (2008): 543–56, at 549–50. Incidentally, Johnson elsewhere suggests that Grotius sometimes deemphasized the causes for war (jus ad bellum) in general, both because of his concern over restraining the conduct of war (jus in bello), and because of the possibility of “simultaneous ostensible justice,” or the subjective belief on the part of two belligerents that they are both right. See Johnson, James Turner, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry (Princeton: Princeton University Press, 1981), 178Google Scholar.

43 Richard Overton, “An Appeal from the Commons to the Free People (1647),” reproduced in Puritanism and Liberty, ed. A. S. P. Woodhouse (Chicago: University of Chicago Press, 1974), 323–34, at 323, 325, 330.

44 For an argument in favor of Leveller influence on Locke, see Ashcraft, Richard, Revolutionary Politics and Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986), 164–165CrossRefGoogle Scholar.

45 Locke, Second Treatise of Government, chapter 19, section 232.

46 Locke, Second Treatise of Government, chapter 2, section 8 (italics added).

47 “Like Jefferson and Franklin, Madison rested his political thought on the moral standards of John Locke's Second Treatise on Civil Government . . . When the resistance to British oppression in north America became a movement for independence and a war to expel occupying armies, the sense of connection between natural rights and nationhood increased immensely[, explaining why] natural-rights theorists insisted on the right of revolution.” Ralph Ketcham, James Madison: A Biography (Charlottesville: University of Virginia Press, 1990), 293. Echoing the belief in a strong affinity between “the Right of the people to alter or abolish” a tyrannical government and the doctrine of natural rights, Alexander Hamilton went on to highlight what became a deep divide concerning the foundation of law between the founders of the American Republic and prevailing British opinion, which held that rights are grounded in traditional English law, as enshrined in documents like Magna Carta. “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.” Bernard Bailyn summarizes the point well: “the entire legitimacy of positive law and legal rights must be understood to rest on the degree to which they conformed to the abstract universals of natural rights.” Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967), 188n29; see also Alexander Hamilton, “Federalist 28,” in The Federalist Papers, ed. Lawrence Goldman (Oxford: Oxford University Press, 2008), 134–38. For an elaboration of the division between the founders and the dominant British understanding, see David Little, “Differences over the Foundation of Law in Seventeenth- and Eighteenth-Century America,” in Magna Carta, Religion, and the Rule of Law, ed. Robin Griffith-Jones and Mark Hill (Cambridge: Cambridge University Press, 2015), 136–54.

48 “Declaration of Independence,” reproduced in Journals of the Continental Congress, 1774–1789, vol. 5, June 5–October 8, 1776 (Washington, DC: Government Printing Office, 1906), 510–15, at 510–11.

A critical issue central to the American appeal to the right of self-defense should be flagged for further consideration. It is the question how charges of a “history of repeated injuries and usurpations,” mentioned in the Declaration as the basis for rebellion, are to be understood. Jack Greene is rather ambivalent on the subject. In an article on the preconditions of the American Revolution, he calls attention to the inclination of many colonists in the mid-eighteenth century “to distort as violations a variety of imperial behaviors that were not in fact violations, with the result that, although the colonists actually misinterpreted such behaviors, they became grievances anyway because they were regarded as such.” On the next page, however, he writes: “It has become modish to dismiss colonial fears of conspiracy as they developed between 1763 and 1776 as simple paranoia arising out of a particular culturally conditioned mind-set. But insofar as it implies there was no real substance to these fears, such an interpretation is seriously deficient.” Even if, he goes on, “there was no secret combination of power-hungry ministers seeking to destroy liberty in America,” since 1748 “there had been an unmistakable and continuing effort by imperial authorities to bring the colonies under tighter regulation, an effort to implement—by various forms of coercion, if necessary—an older conception of what colonies ought to be at a point when the colonies no longer needed the kind of resources the British could offer in return for colonial acceptance of that conception.” After displaying “utter neglect” before 1748, “Britain's subsequent efforts at reform, at the assertion of ‘an absolute Dominion over the Colonies,’ could only be interpreted by many colonists as oppressive and self-serving.” Jack P. Greene, “An Uneasy Connection: An Analysis of the Preconditions of the American Revolution,” in Essays on the American Revolution, ed. Stephen G. Kurtz and James H. Hutson (Chapel Hill: University of North Carolina Press, 1973), 32–80, at 78, 79. The ambivalence points to an important jurisprudential controversy over what a “reasonable” exercise of the right of self-defense amounts to. According to what may be called the “subjective doctrine” persons invoking the right of self-defense need only show that they sincerely believed a threat of arbitrary force was real and imminent, making defensive force necessary. By contrast, what may be called the “objective doctrine” requires that persons invoking the right of self-defense perform as reasonable persons would under the circumstances, that is, as persons who in fact have good reason to believe that an imminent threat of arbitrary force exists. (See Fletcher, A Crime of Self-Defense, 41, 42, for a discussion of these two doctrines.) All that need be shown in regard to the subjective doctrine is that the colonists sincerely believed they were under threat, as is suggested by Greene's first statement. However, the objective doctrine would require that his second statement—British mid-century colonial activity really was “oppressive and self-serving”—be proved true. It is critical that this theoretical issue be faced and resolved, most sensibly, it would seem, by accepting a “hybrid doctrine” of some kind.

49 Hessbruegge, Human Rights and the Personal Right of Self-Defense in International Law, 45–46.

50 Hessbruegge, 47.

51 Georg Bühler, ed. and trans., The Laws of Manu (Los Angeles: Library of Alexandera, 1964), chapter 8, verses 349–50, quoted in Hessbruegge, 45.

52 Hessbruegge, 45.

53 Lao Tse, Tao Te Ching, trans. James Legge (1891; repr. Arc Manor: Rockville, 2008); Wen-Tzu, “Understanding the Mysteries,” no. 80 in The Taoist Classics, trans. Thomas Clearly (Boston: Shambhala Publications, 1999), 1:209; both sources quoted in Hessbruegge, Human Rights and the Personal Right of Self-Defense in International Law, 42–43.

54 Ping-cheung Lo, “Varieties of Statecraft and Warfare Ethics in Early China,” in Chinese Just War Ethics: Origin, Development, and Dissent, ed. Ping-Cheung Lo and Sumner B. Twiss (New York: Routledge, 2015), 3–25, at 8. See also Ping-cheung Lo, “The Right of Self-Defense in Confucianism,” Canopy Forum, July 14, 2020, https://canopyforum.org/2020/07/14/the-right-of-self-defense-in-confucianism/.

55 Lo, “Varieties of Statecraft,” 8.

56 “The Buddhist I Ching,” in Classics of Buddhism and Zen, ed. Thomas Cleary (Boston: Shambhala Publications, 2002), 5:336, as quoted in Hessbruegge, Human Rights and Personal Self-Defense in International Law, 46. Hessbruegge incorrectly identifies the quoted text as the I Ching, not the later Buddhist interpretation.

57 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 44.

58 Hessbruegge, 44.

59 Abu Dawud, Sunan Abu Dawud, volume 3, book 35, chapter 1708, hadith 4754, as translated in Abdul Ghafur Hamid @ Khin Maung Sein, “Islamic International Law and the Right of Self-Defense of States,” Journal of East Asia and International Law 2, no. 1 (2009): 67–101, at 77, quoted in Hessbruegge, Human Rights and Personal Self-Defense in International Law, 41. English translations of Qur'anic verses are those of Mohammed Marmaduke Pickthall.

60 Peters, Rudolph, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), 25Google Scholar; Yadav, R. D., Law of Crime and Self-Defence (New Delhi: Mittal, 1993), 97Google Scholar. See also Owaydhah, Khalid A. and Yunnis, Mohamed, “The Concept of Self-Defense in Islamic Jurisprudence,” International Journal of Arts and Sciences 9, no. 4 (2017): 209–26Google Scholar.

61 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 41–42.

62 Hessbruegge, 30.

63 Hessbruegge, 30.

64 Hessbruegge, 78.

65 Morsink, Universal Declaration of Human Rights, 307–12. Representatives to the UDHR drafting committee from the USSR, along with those from Chile, Brazil, and El Salvador, argued for explicit inclusion of the right of self-defense in the Declaration but were opposed by the United States, the United Kingdom, and, eventually, a majority of the committee, who countered that doing so would likely destabilize struggling democracies. One such proposal included in an early draft read as follows: “When a government seriously or systematically tramples the fundamental human rights and freedoms, individuals and peoples have the right to resist oppression and tyranny, without prejudice to their right of appeal to the United Nations.” William A. Schabas, ed., Universal Declaration of Human Rights: Travaux Preparatoires (New York: Cambridge University Press, 2013), 793 (italics added); see 17, 285, 566, 744, 810, 815 for other references to the right of self-defense in drafts of the UDHR and in the debates surrounding them.

66 CCPR General Comment No. 36 (ICCPR, Article 6, the right to life), U.N. Doc. CCPR/C/GC 36 (2018) states: “The Human Rights Committee recognizes that while Article 6 explicitly prevents arbitrary deprivations of life, the right to life is not absolute. . . . For example, deprivations of life are permissible when individuals are exercising self-defense or in certain circumstances when issuing the death penalty. However, the Committee emphasizes that any permissible deprivation of life must be reasonable, necessary, and proportional to the aims sought, and must be established under the law with effective institutional safeguards to protect against potential arbitrary abuses” (italics added).

67 ECHR Art. 2(1)(a): “2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: 1(a) in defense of any person from unlawful violence.”

68 Statute of the International Criminal Court, Art. 31(1)(c): “1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: . . . (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.”

69 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 58–59.

70 Fletcher, A Crime of Self-Defense, 27. For a similar conclusion, see Hessbruegge, Human Rights and Personal Self-Defense in International Law, 32.

71 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 235–43, 91–234.

72 Art. 51 of Protocol I of the 1977 Protocols to the Geneva Conventions. (I discuss Article 51 and the UN Charter below, in the final subsection, “The Collective Right of Self-Defense as a Human Right.”)

73 Hessbruegge, Human Rights and Personal Self-Defense in International Law, 103. Forum of Conscience v. Sierra Leone, Comm. No.223/98 (2000), para. 19; Human Rights Committee General Comment No. 6: (ICCPR, Article 6, para. 1), U.N. Doc. HRI/GEN/1/Rev.1 6 (1994).

74 Franklin Delano Roosevelt, “State of the Union Message to Congress,” January 11, 1944, http://www.fdrlibrary.marist.edu/archives/address_text.html. See also Cass R. Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004).

75 In his Universal Declaration of Human Rights and the Holocaust, Morsink criticizes Elizabeth Borgwardt's striking failure to draw a connection between Roosevelt and the UDHR. Borgwardt acknowledges that the Atlantic Charter telegram, issued in August 1941 by Roosevelt and Winston Churchill, inspired the three charters she believes shaped America's vision for the postwar world: the Bretton Woods Charter, the United Nations Charter, and the Nuremberg Charter. Elizabeth Borgwaldt, A New Deal for the World: America's Vision for Human Rights (Cambridge, MA: Belknap Press of Harvard University Press, 2007), chapter 9. However, she ignores the fact that the phrasing of the telegram—“after the final destruction of the Nazi [the United States and United Kingdom] hope to see established a peace . . . which will afford assurance that all men in all the lands may live out their lives in freedom from fear and want”—“begs,” according to Morsink, “for alignment with the drafting of [the UDHR] that [Roosevelt's] wife, Eleanor, oversaw some five years later.” Including freedom from fear and want along with freedom of speech and worship in his famous list of Four Freedoms, says Morsink, underscores “FDR's social and economic agenda for the postwar world, which the second half of the Universal Declaration [and the ICESCR] spells out in great detail.” Morsink, Universal Declaration of Human Rights and the Holocaust, 40–41, quoting the 1941 Atlantic Charter telegram, as reprinted in Borgwardt, A New Deal for the World, 304.

76 Roosevelt, “State of the Union.” “Without the consequences of the Great Depression, which hit Germany particularly hard, the [Nazi Party] would never have become a mass movement. And it was [Hitler] who best understood how to articulate and exploit people's desires for a savior who would inject order into chaos, create an ethnic-popular community in place of party squabbling and class warfare and lead the Reich to new greatness.” Volker, Hitler, 378.

77 Morsink, Universal Declaration of Human Rights, 37. See Morsink, Universal Declaration of Human Rights and the Holocaust, for further elaboration. Still, without detracting from the importance of Roosevelt's contribution to broadening the concept of human rights based on his reaction to the Holocaust, it is important not to overlook the influence of the Latin American experience especially on the shape of the economic and social rights. Morsink himself stresses it. Morsink, Universal Declaration of Human Rights, 130–39. Sikkink provides additional support, particularly as to the influence of the American Declaration of the Rights and Duties of Man on the drafting of the UDHR: Sikkink, Evidence for Hope, 59–64, 74–79. This emphasis is part of a broader point that Sikkink develops effectively, namely, the great significance of the Global South for the postwar development of human rights and the fact that the Global North was by no means always a dependable partner in the cause. See, for example, Sikkink, Evidence for Hope, 101–04; 125–26; 131–32. For further evidence of sustained legal, political, and religious opposition to human rights in the United States during the 1950s and 1960s, see Little, Essays in Religion and Human Rights, 72–76.

78 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. Subsequent references are to the article number in the text.

79 Basic rights may, however, be subject to limitations, as, for example, by Article 18 (3), permitting certain restrictions on the “manifestation” or practice associated with religion or belief, or they may admit of exceptions, as, for example, the right of self-defense and the death penalty in respect to Article 6 (see notes 66 and 67, above, and 82, below).

80 Threats to the safety, health, or order of society include more than just the exercise of arbitrary force against the government, whether initiated from within or from outside the society. Natural catastrophes, such as severe flooding or a pandemic, or widespread institutional failure—of the banks, for example—are also the proper occasion for derogating from certain civil and political (as well as economic, social, and cultural) rights. The relevant point, though, is that the government response to such threats necessarily involves the enforcement of emergency laws and policies, and thus inescapably raises the specter of the possible arbitrary abuse of force.

81 It is important to note that CCPR General Comment No. 29 (Article 4), U.N. Doc. CCPR/C21/Rev.1/Add.11 (2001), expands on the idea of nonderogable rights in three ways. First, the nonderogable rights listed in Article 4 (2) are “related to but not identical with” peremptory norms in international law, or what are known as jus cogens norms. “The proclamation of certain provisions of the Covenant [as nonderogable] . . . is to be seen as recognition of the peremptory nature of some fundamental rights ensured [in the Covenant] (e.g. arts. 6 and 7). . . . Furthermore, the category of peremptory norms extends beyond the list [in art 4.2]. States parties may in no circumstances invoke article 4 . . . as justification for acting in violation of humanitarian law or peremptory norms of international law for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence [art. 14, right to a fair trial, with presumption of innocence, 14(2)].” Second, “The recent codification of crimes against humanity, for jurisdictional purposes, in the Rome Statute of the International Criminal Court is of relevance in the interpretation of article 4.” Third, “Although [article 10, legally accused and/or detained persons shall be treated with humanity and respect] is not separately mentioned in the list of nonderogable rights . . . , the Committee believes that here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to . . . the close connection between articles 7 [against torture, etc.] and 10” (italics added). These additional references are all obvious examples of security rights protecting from violations of the prohibition against arbitrary force.

82 In addition to the right of self-defense (see notes 66 and 67, above), this article permits capital punishment as an exception, but with obvious reservations that are themselves undoubtedly based on the logic of defensive force. Paragraph 6 goes out of its way to state that “nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party.” The reservations are presumably supported by the familiar charges of arbitrariness against the practice, namely, that the death penalty is excessive if there exists a less severe, more proportional punishment, such as life imprisonment, capable of preventing the crime in question from being repeated, and if the punishment is regularly implemented in a discriminatory fashion (for bad reasons, that is).

83 Well-known exceptions to the categorical prohibition of torture are frequently proposed. However, arguments permitting torture in extreme circumstances, as in ticking bomb scenarios, invariably posit a high probability that the suspect possesses reliable actionable information regarding an impending threat to other lives. The reason for applying torture in such a case is thus not self-serving but aimed at protecting the basic rights of others. As such, these arguments presuppose the importance of avoiding arbitrary pain [pain without good reason]. It is arguable that the existence of such conditions might reasonably serve to excuse or weakly justify the use of torture in a very narrow range of circumstances in accord with the necessity defense (see note 17, above). “Nevertheless, it should also be unmistakably clear why a strong general presumption against torture is properly prescribed in the human rights instruments. That is because of the irreducible difficulty of knowing whether or not such circumstances apply in a given case, as well as how to determine the amount and character of pain allowable in those circumstances. In short, torture is inherently liable to arbitrary use.” Little, Essays in Religion and Human Rights, 52–53 (original italics). See, also, Luban, David, “Liberalism, Torture, and the Ticking Bomb,” Virginia Law Review 91, no. 6 (2005): 1425–61, at 1431–32Google Scholar.

84 The second sentence recalls vividly the Nazi record of arbitrary abuse against which the original article, UDHR, Article 3, was composed. It thereby establishes an indelible real-life point of reference for interpreting and applying the key concepts of the article, which pertains also to most of the rights enumerated in the two treaties.

85 Morsink makes clear that the background of these prohibitions (UDHR, Article 4) was the unspeakable abuse associated with slave labor to which whole populations were subjected during World War II. Nazi authorities had total control over the lives and destinies of the victims, with no restraint on the authorities’ capacity to inflict at will death, torture, cruel, inhuman, or degrading treatment or punishment. Morsink, Universal Declaration of Human Rights, 41–42.

86 Article 11.2 is the counterpart in the UDHR to this article. “It is because the provisions of Article 11 were constantly violated by the Nazis that the drafters agreed so readily on . . . their inclusion in the Declaration.” Morsink, Universal Declaration of Human Rights, 53. Incidentally, the drafters were concerned about, and discussed at length, the possible relevance of the prohibition against retroactive laws to the Nuremberg Trials, which were criticized at the time as an example of “victors’ justice”—that is, of depending on laws that were invented after the fact so as to be able to punish alleged German and Japanese war criminals. That criticism was implicitly rejected by the drafters, which explains the following words in Article 11.2 of the UDHR and repeated in Article 15 of the ICCPR: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed” (italics added). The majority of drafters believed the violations of which fascist war criminals were accused were already amply codified in national and international law. Morsink, Universal Declaration of Human Rights, 52–58.

87 The protection provided by this Article (UDHR, article 6) was understood to be of the greatest significance in restraining oppressive governments. German court decisions under Nazi rule that Jews and others were “legally dead,” that they possessed no legal competence as individuals, and therefore “lacked rights,” meant they were utterly powerless against the uninhibited exercise of arbitrary force. Morsink, Universal Declaration of Human Rights, 43–45.

88 Morsink indicates that placing “freedom of thought” first meant that it “embraces” conscience, religion, or belief, implying that everyone is always free to rethink with impunity all settled fundamental convictions, whether one's own or those of anyone else. Morsink, Universal Declaration of Human Rights, 261.

89 “[I]t will be recalled that although the [Weimar] Constitution . . . assured full freedom of conscience and belief to all inhabitants of [Germany], and permitted each religious group to administer and control its own affairs, the [Nazis] completely reversed the whole attitude of the State towards religion and belief. The Nazis sought to establish a ‘folk religion’ based on blood, race, and soil. They gradually restricted the activities of the Catholic Church . . . , and at the same time they made determined efforts to assimilate the Protestant Church into their organization, and gradually, through the use of terroristic methods, to gain complete control over it. . . . Protestant opposition . . . gradually weakened after many of the leaders of the Protestant resistance had been put in concentration camps. At the same time, anti-Semitism, a characteristic of National Socialism, worked toward the destruction of the Jews.” Arcot Khrishnaswami, “Study of Discrimination in the Matter of Religious Rights and Practices,” in Religion and Human Rights: Basic Documents, ed. Tad Stahnke and Paul Martin (New York: Center for the Study of Human Rights, Columbia University, 1988), 2–55, at 10. Whether Judaism is defined as a matter primarily of belief or of ethnic identity does not matter, since, as Max Weber pointed out, ethnic identity itself amounts to “a subjective belief in common descent.” A subjective belief about common identity is typically shared by a substantial number of the members of the group, but it may also serve as the basis for a judgment about the group on the part of outsiders, as was the case with Nazi beliefs about the Jews. Accordingly, Nazi beliefs, certainly opposed by the Jews, became the basis for the destruction of the Jews. See Max Weber, Economy and Society: ; An Outline of Interpretive Sociology, ed. Guenther Roth and Claus Wittich, trans Ephraim Fischoff et al., 3 vols. (New York: Bedminster Press, 1968), 1:385–98.

90 It should be emphasized, in the light of the recurring criticism of the text and application of Article 18, that prevailing authoritative interpretations of the article by the CCPR is by no means restricted to any particular parochial understanding of “religion or belief.” See CCPR General Comment No. 22 (Article 18), U.N. Doc. CCPR/C/21/Rev.1/Add 4 (1993), esp. paras. 2 and 4. See also, Little, “Religious Freedom: Fundamental Right or Impossibility?”

91 Article 18(3).

92 The right to freedom of conscience, religion, or belief may not be limited in consideration of national security, as may derogable rights.

93 See CCPR General Comment No. 22 (Article 18), para. 8, which stresses that any limitations on the manifestation of religion or belief must be “necessary” and “proportionate.”

94 CCPR General Comment No. 22 (Article 18), para. 11. The comment admits that although Article 18 “does not explicitly refer to the right of conscientious objection,” “the Committee believes that such a right can be derived from [it] inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief.” Two conclusions leap out. First, the Committee seems to concede that being compelled against conscience to perform an act of such indisputable moral consequence as using force smacks of duress, something to be prohibited categorically. Second, in certain circumstances, parallel to the right of self-defense, the individual is granted an exceptional range of authority in determining whether or not to use force, a range of authority that, to a remarkable extent in both self-defense and conscientious objection, supersedes state authority—itself premised on possessing a total monopoly of force.

95 Article 4(1)(3). According to CCPR General Comment No. 29 (Article 4), “the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers” (section 4; italics added).

96 CCPR General Comment No. 29 (Article 4) states: “Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on principles of legality and the rule of law inherent in the Covenant as a whole” (section 16).

97 Morsink, Universal Declaration of Human Rights, 69. These articles are similarly numbered in the UDHR.

98 In a way that respects cultural and religious diversity. In that regard, this article is vastly different from Article 27 in the UDHR, which promotes cultural assimilation rather than diversity. See Morsink, Universal Declaration of Human Rights, 269–80. See also, Little, Essays in Religion and Human Rights, 77–79.

99 According to CCPR General Comment No. 22 (Article 18), “the Committee is of the opinion that the international protection of the rights of persons belonging to minorities includes elements that must be respected in all circumstances[,]” such as protection provided by the prohibitions against genocide and against discrimination (article 4 (1)), and by “the nonderogable nature of article 18. Section 13 (c).”

100 Alston, Philip, “The Committee on Economic, Social, and Cultural Rights,” in United Nations and Human Rights: A Critical Appraisal, ed. Alston, Philip (New York: Oxford University Press, 1992), 473–508, at 471–76Google Scholar.

101 “To the obvious truth that rights depend on government must be added a logical corollary, one rich with implications: rights cost money. Rights cannot be protected or enforced without public funding and support. This is just as true of old rights as of new rights, of the rights of Americans before as well as after Franklin Delano Roosevelt's New Deal[,] . . . the right to freedom of speech no less than the right to decent housing. All rights make claims upon the public treasury.” Holmes, Stephen and Sunstein, Cass R., The Cost of Rights: Why Liberty Depends on Taxes (New York: W.W. Norton, 1999), 15Google Scholar.

102 Alston, “Committee on Economic, Social, and Cultural Rights [CESCR],” 494–96.

103 CESCR General Comment No. 3: The Nature of the Parties’ Obligations (Art. 2.1), U.N. Doc. E/199/123 (1990), para. 10.

104 CESCR General Comment No. 14: The Right to Health (Art. 12.1) U.N. Doc. E/C.12/2000/4 (2000), para. 47 (italics added).

105 CESCR, General Comment No. 3, para. 10. The stipulation by the CESCR that ensuring “the satisfaction, at the very least, of minimum essential levels of each of the rights” is a nonderogable obligation of the States parties to the Covenant is a key focus of complaints by Samuel Moyn and Jessica Whyte regarding what they (sometimes) consider is an intimate connection between human rights language and neoliberalism (see note 7, above). Moyn contends that the preoccupation with “minimum essentials” is only about “sufficiency” and not about “equality” at all, a preoccupation that makes human rights a “powerless companion of market fundamentalism.” That is true, he says, because human rights “simply have nothing to say about material inequality” and therefore represent no threat whatsoever to neoliberalism's core conviction—that a “free market,” requiring, as it does, unequal outcomes as a necessary goad to competition and as an incentive to work harder—is the singular foundation of a good society. Moyn, Not Enough, 216. Whyte partially reinforces Moyn's conclusion, invoking Frederich Hayek, who, as one of the founders of neoliberalism, stood firm for social and economic inequality, “endors[ing] inherited wealth” and holding “there was no justification for state action to equalize [the] chances” of those disadvantaged by the market. Accordingly, he favored “privatizing welfare” and “foreclosing redistribution.” “In reality,” she continues, “the social and economic rights in the UDHR were hardly threatening to the market order as Hayek and his comrades seemed to believe. Framed in minimal terms, and oriented toward securing the [unequal] racial and gender order of mid-twentieth century capitalism, these social and economic rights were ultimately far more compatible with a liberal market than neoliberals feared.” Whyte, Morals of the Market, 113–14. The problem is that the arguments of neither author are altogether consistent or clear. Having declared without qualification that human rights “simply have nothing to say about material inequality,” Moyn claims elsewhere that though the UDHR did not say so explicitly, it nevertheless “depended on” “a much larger consensus concerning the purpose of the state and even its role in planning the economy. . . . No one who endorsed social rights in the 1940s did so on the premise that the unregulated market itself would generally fulfill them. Rather, social rights were an indirect justification for a new kind of state,” one that was “part and parcel of an egalitarian set of aspirations.” Moyn, Not Enough, 67 (italics added). Moyn goes on to state that FDR's “Second Bill of Rights,” mandating a list of social and economic rights, “bears a tolerable resemblance to [the list] consecrated several years later in the [UDHR],” and as such “preserved New Deal aspirations to an egalitarian state and economic planning to get there,” or what he describes elsewhere as an “egalitarian welfare state.” Moyn, 69, 70, 71 (italics added). It is especially noteworthy that FDR's list of rights, just like the list of social and economic rights in the UDHR, uses the language of “sufficiency”: for example, “the right to earn enough to provide adequate food and clothing and recreation”; “the right to adequate medical care”; “the right to adequate protection from the economic fears of old age.” Of additional interest is the fact that while the ICESCR preserves the language of sufficiency, for example, Article 11: “the right of everyone to an adequate standard of living,” it elsewhere employs much less restrained language, such as Article 12(1): “the right of everyone to the enjoyment of the highest attainable standard of . . . health.” Moyn's repeated contention that neither the New Deal nor subsequent American policy ever satisfactorily put egalitarian ideals into practice does nothing to detract from his critical admission that the original language of the UDHR implies a social and economic vision sharply at odds with that of neoliberalism. By conceding, as he does twice over, that the language of sufficiency in no way excludes concern for equality, Moyn fails to establish, after all, the sharp distinction between sufficiency and equality so central to his case. In fact, he is himself persistently unclear about exactly what he means by a desirable degree of equality, about what in detail an “egalitarian welfare state” should look like. Even if guaranteeing economic and social rights “to a sufficient minimum in provision of the good things of life were ever achieved,” he says, “it would not guarantee a modicum of material equality, which was in fact the chief casualty of the neoliberal age.” Moyn, Not Enough, 202. But the frustratingly vague phrase, “modicum of material equality,” which appears frequently throughout his book, is the closest Moyn ever gets to providing a definition of his ideal of an egalitarian state. There is never a discussion of what the difference is, after all, between a “sufficient minimum” and a “modicum of equality.” Things are much the same with Whyte's arguments. In supporting her reservations about any serious opposition between human rights and neoliberalism, Whyte claims that the language of Article 25 in the UDHR, and presumably of its counterpart, Article 11 in the ICESCR, guaranteeing everyone, as it does, “the right to a standard of living adequate for the health and well-being of himself and his family,” yields a “male-breadwinner model,” involving a “gendered social vision,” that matches neoliberal tolerance of gender inequality. Whyte, Morals of the Market, 91–95. The difficulty is that the CESCR explicitly rejects that interpretation, declaring that “the reference in article 11.1 to ‘himself and his family’ does not imply any limitation upon the applicability of this right to individuals or to female-headed households,” an interpretation fully in accord with UDHR Article 2, and ICESCR Article 2(1), outlawing discrimination based on sex, race, and the like. General Comment No. 12: The right to adequate food, Article 11, sect. 1. On the same grounds, there would appear to be no justification for Whyte's assertion that human rights language secured “the racial order of mid-twentieth century capitalism,” an assertion she herself casts doubt on by mentioning that the drafters of the UDHR “challenged the civilizational hierarchies that motivated the mandate system.” Whyte, Morals of the Market, 50. Moreover, in discussing “neoliberal human rights,” Whyte summarizes definitively the sharp conflict with human rights language. “Securing freedom” for the neoliberals, she writes, “required the shaping of a competitive market and the use of rights to protect the sphere of individual[s’] means from political intervention. In contrast to the common argument that the entrenchment of neoliberalism saw the decline of ‘social and economic rights’, neoliberals had their own distinctive account of ‘economic rights’. These were not the rights to food, clothing, housing, and education enshrined in the UDHR, which sought to offer some protection from market forces. On the contrary neoliberal ‘economic rights’ sought to protect the market freedom of private capital.” Whyte, Morals of the Market, 228. For an arresting example of the stark contrast in question here, compare Ronald Reagan, “America's Economic Bill of Rights,” July 3, 1987, Ronald Regan Presidential Library and Museum, https://www.reaganlibrary.gov/archives/speech/americas-economic-bill-rights, with Roosevelt, “State of the Union” (discussing the “Second Bill of Rights”). A more consistently reliable guide to the relation between human rights and economic equality is the work of Philip Alston, former UN Special Rapporteur on Extreme Poverty and Human Rights. He agrees with critics like Moyn and Whyte that the United States, among other governments, along with international economic institutions like the International Monetary Fund, the World Bank, and World Trade Organization, and human rights organizations like Amnesty International and Human Rights Watch, have a generally bad record in attending to radical economic inequality and extreme poverty as an acute human rights problem. However, he does not agree that human rights language is the culprit. Establishing as a matter of right clear minimum standards for sustenance, shelter, health, education, unemployment and old-age protection, and so on, and actually living up to them, would help greatly to overcome inequality. That is unquestionably true for a country like the United States, whose deficiencies in that regard have been harshly criticized by Alston. Philip Alston, “Statement on Visit to the USA [. . .], United Nations Office of the High Commissioner for Human Rights, December 15, 2017, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22533. Such efforts would obviously reduce inequality by making available to all citizens benefits previously denied to too many of them, and doing that by means of state tax policies and other measures that would significantly redistribute wealth, as well as political and social power, since it is axiomatic that extreme concentration of wealth undermines not only economic and social rights, but civil and political ones as well. According to Alston, “perfect economic equality” is neither achievable or desirable, but societies like the United States can go much farther than they have so far in reducing inequality by adopting and implementing clearly defined minimum human rights standards, and embracing laws and policies necessary to realizing them fully. See Philip Alston, “Report of the Special Rapporteur on Extreme Poverty and Human Rights,” May, 27, 2015, A/HRC/29/31, https://digitallibrary.un.org/record/798707?ln=en; Philip Alson, “Extreme Inequality as the Antithesis of Human Rights, OpenGlobalRights (blog), August 27, 2015, https://www.openglobalrights.org/extreme-inequality-as-the-antithesis-of-human-rights/.

106 This point must be stressed. Article 11 of the ICESCR exemplifies the standard formulation throughout the Covenant: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living” (italics added).

107 Surprisingly, to date there appears to be no CESCR General Comment on Article 4 of the ICESCR.

108 Of course, such clarification would also have to explain why economic, social, and cultural rights are properly derogable under such considerations when there is no such provision in the ICCPR.

109 CESCR commentary in General Comment No. 12 on Article 11—“the right to adequate food” (U.N. Doc. E/C.12/1999/5 (1999))—may be taken to illustrate the manner in which the CESCR interprets the idea of “core,” “nonderogable obligations” as applied to other rights, such as those to adequate housing and clothing, which are also included in Article 11: “The Committee considers that the core content of the right to adequate food implies: The availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; The accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights. . . . Some measures at these different levels of obligations of States parties are of a more immediate nature, while other measures are more of a long-term character, to achieve progressively the full realization of the right to food. . . . Violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger. In determining which actions or omissions amount to a violation of the right to food, it is important to distinguish the inability from the unwillingness of a State party to comply. Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. This follows from article 2.1 of the Covenant, which obliges a State party to take the necessary steps to the maximum of its available resources, as previously pointed out by the Committee in its general comment No. 3, paragraph 10. A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food. . . . Furthermore, any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.”

110 CESCR General Comment No. 18: The Right to Work (Art. 6) U.N. Doc. E/C.12/GC/18, para. 6.

111 The “personal” and “collective” rights of self-defense are not in every respect interchangeable. In regard to personal self-defense, the offending party is held liable both for initiating an arbitrary attack and for conducting it in disregard of the conditions of defensive force. Concomitantly, the defender, in responding, is strictly responsible to abide by the rules of defensive force. Collective self-defense, under the laws of armed combat, is different. Because the decision to use force is an act of state, state authorities are taken to be primarily responsible and liable for initiating an unlawful attack, as distinct from the combatants who carry out the attack. Accordingly, offending state authorities, if captured, are subject to legal punishment; however, combatants fighting under their orders may, if captured, only be confined as prisoners of war for the duration of the conflict and then released. As far as treatment of noncombatants goes, combatants on both sides of an armed conflict are liable under the conditions of defensive force codified in the Geneva Conventions; but in using force against enemy combatants, the conditions of defensive force are extensively relaxed, although they are not withdrawn altogether—for example, there are still limitations on weapons that cause “unnecessary suffering” to combatants (dum-dum bullets), or have massively indiscriminate effects (poison gas).

112 Johnson, “The Idea of Defense in Historical and Contemporary Thinking about Just War,” 550–51.

113 See Johnson, 551–54, where he argues that preeminent twentieth-century defenders of just-war theory, such as Paul Ramsey, Michael Walzer, and the authors of the Catholic pamphlet Challenge of Peace (1983), either played down the salience of the considerations of jus ad bellum as compared to the considerations of jus in bello (Ramsey, partly following Grotius), or elevated self-defense as a cause for war (Walzer and the authors of Challenge of Peace, also partly following Grotius).

114 Louis Henkin, “The Use of Force: Law and U.S. Policy,” in Right v. Might: International Law and the Use of Force, by Louis Henkin et al. (New York: Council on Foreign Relations, 1989), 37–69, at 38 (italics added).

115 Semegnish Asfaw, Guillermo Kerber, and Peter Weiderud, eds., The Responsibility to Protect: Ethical and Theological Reflections (Geneva: World Council of Churches, 2005).

116 Gareth Evans, “The Responsibility to Protect: Moving towards a Shared Consensus,” in Asfaw, Kerber, and Weiderud, The Responsibility to Protect: Ethical and Theological Reflections, 3–9, at 5.

117 Evans, “The Responsibility to Protect,” 7–9.

118 Evans, 7–9.

119 Although the two standards of jus in bello—military proportionality and noncombatant immunity—are not specifically mentioned, one assumes they are implied.

120 Kathryn Sikkink, Evidence for Hope, 139–221. Sikkink has begun to provide persuasive answers to such charges, as registered by Posner, Moyn, Hopgood, and others (see notes 2 and 7, above). See also Morsink, Johannes, “The Charge of Unrealistic Utopianism,” in Inherent Human Rights: Philosophical Roots of Human Rights (Philadelphia: University of Pennsylvania Press, 2009), 205–52CrossRefGoogle Scholar.