Upholding a Human Right to Peace

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(*Photo caption: The First Hague International Peace Conference in 1899)

In a groundbreaking session at the United Nations on June 6, 2013 members of civil society opened a very significant inquiry into fundamental questions of the desirability and possibilities of bringing an end to war. Some have posed this query in terms of whether there is a fundamental human right to peace. The United Nations, members of the global civil society, and scholars have engaged in a significant effort to articulate a human right to peace (See for example, Alston 1980, Roche 2003, Weiss 2010), and the UN Human Rights Council has established an open-ended intergovernmental working group to draft a United Nations declaration on the right to peace. This brief essay is intended to launch that same discussion among peace educators by offering some philosophical arguments that up-hold that right.  The discussion will be carried forth by a response to the arguments posed in a second brief piece by Betty Reardon.

Dr. Dale T. Snauwaert
Professor, Department of Educational Foundations and Leadership
Judith Herb College of Education, The University of Toledo
Director, Graduate Certificate Program in the Foundations of Peace Education

(Originally posted June 2013)

Philosophical Rationale and Foundations of the Human Right to Peace

As a number of political and ethical theorists have pointed out, the idea of Rights is the dominant way of articulating the imperatives of justice in the modern world (Bobbio [1990] 1996, Ignatieff 2001).  Rights have become the “lingua franca of global moral thought” (Ignatieff 2001, 53).  As John Finnis puts it:  “The modern language of rights provides . . . a supple and potentially precise instrument for sorting out and expressing the demands of justice (cited in Perry, 1998, 55).” Norberto Bobbio suggests:  “I find it difficult to see how one can deny that the affirmation of human rights . . . is one of the mainstays of universal political thought which we cannot go back on (emphasis added Bobbio [1990] 1996, 88).” Human rights constitute a “world ethos” – they define a normative system of how the world should be (Bobbio [1990] 1996 69-70).  In essence rights are a way of expressing what one must do or can never do to another human being (Perry 1998).

One way to conceive rights, therefore, is to define them as what a human being is due, given their dignity.  Jacques Maritain (Maritain 2001) articulates this conception:

What does the notion of right mean? A right is a requirement that emanates from a self with regard to something, which is understood as his due, and of which the other moral agents are obliged in conscience not to deprive him. The normality of functioning of the creature endowed with intellect and free will implies the fact that this creature has duties and obligations; it also implies the fact that this creature possesses rights, by virtue of his very nature-because he is a self with whom the other selves are confronted, and whom they are not free to deprive of what is due him. And the normality of functioning of the rational creature is an expression of the order of divine wisdom (p. 60).

From this perspective, “rights” constitute what each and every human being is owed by virtue of their humanity.

Henry Shue (Shue 1980) offers another conception:

A moral right provides (1) the rational basis for a justified demand and (2) that the actual enjoyment of a substance be (3) socially guaranteed against standard threats (p. 13).

Basic rights, then, are everyone’s minimum reasonable demands upon the rest of humanity.  They are the rational basis for justified demands the denial of which no self-respecting person can reasonably be expected to accept (p. 19).

From this perspective, rights are justified demands for the enjoyment of social goods, which are guaranteed by the society.  In addition, some rights are “basic,” in the sense that they are necessary for the enjoyment of all other rights (Shue, 1980, 19).

Rights can also be conceived as protections against coercion, deprivation, inhumane treatment, etc.  Rights protect the powerless from the powerful (Bobbio [1990] 1996, Ignatieff 2001, Jones 1999,Vincent 1986) . As Norberto Bobbio asserts, human rights arise out of “specific conditions characterized by the embattled defense of new freedoms against old powers (p. xi).”  R. J. Vincent maintains that they are “a weapon of the weak against the strong (Vincent, 1986, 17).” In this sense rights are both political and historical.  They are political in that they are means of adjudicating conflict and serve as a means to protect the interests of individuals (Ignatieff 2001).

Rights thus define what the individual human being is due, is justified in demanding, and/or is protected from.  In this way rights are moral and legal devices, which define the moral and, when codified in law, the legal boundaries of human relationship.  Rights define what choices can never be made or those that must be made.  This is a position taken by Michael Perry, who offers a comprehensive general conception of human rights:  because every human being possesses human dignity, “certain choices should be made and certain other choices rejected; in particular, certain things ought not to be done to any human being and certain other things ought to be done for every human being. (Perry, 1998, 5).”  In this sense human rights function “as a fundamental moral limit (Perry, 1998, 5).”

Human rights constitute the universal moral limits and demands that follow from the intrinsic value and good of human life.  Without such value, rights are meaningless.   As Norberto Bobbio (1996) suggests:

The only thing we know about fundamental rights is that they are necessary for the achievement of final values, and they are therefore an appeal to those final values (p. 5).

Jacques Maritain (2001) makes the same point:

For a philosophy which recognizes Fact alone, the notion of Value –- I mean Value objectively true in itself — is not conceivable. How, then, can one claim rights if one does not believe in values? If the affirmation of the intrinsic value and dignity of man is nonsense, the affirmation of the natural rights of man is nonsense also. (p. 62).

Thus, human rights are grounded in human good and this good, as Martha Nussbaum points out, is objective and thereby universal:

[Human good can] be objective in the sense that it is justifiable by reference to reasons that do no derive merely from local traditions and practices, but rather from features of humanness that lie beneath all local traditions and are there to be seen whether or not they are in fact recognized in local traditions (cited in Perry, 1998, 68).

Therefore, it can be concluded that human rights and human values and goods are interdependent, rather than mutually exclusive (Perry 1998).

These goods and values are universal: They are found in every society and are necessary for human coexistence.  As Sissela Bok (Bok 1995) maintains:

Certain basic values necessary to collective survival have had to be formulated in every society.  A minimalist set of such values can be recognized across societal and other boundaries (p. 13).

These basic values are indispensable to human coexistence, though far from sufficient, at every level of personal and working life and of family, community, national, and international relations (p. 19).

These basic values pertain to duties and norms in three areas:  (1) Positive duties of mutual care and support, (2) negative duties of no harm to others, and (3) norms of rudimentary fairness and procedural justice (Bok, 1995 p. 14-16). Bok maintains that securing these values is necessary for the kind of trust that underlies all social relations and thus is essential for societal order on all levels, including the international level.  It can be argued that the securing of these values constitutes a state of “peace,” and that individuals have a basic human right, thereby, to their enjoyment.  That is, peace so defined constitutes the moral threshold below which no one should fall.  Peace constitutes a value that everyone is justified in claiming.

The right to peace is universal in reach, and thus a human right, in the sense that it fulfills the criterion of moral reciprocity and hence reasonableness: claiming a right to peace is to reasonably assert fair terms of social cooperation that other reasonable people and societies can accept from a position of fair equality.  A right to peace is reasonable in this sense.  It comprises a core element of a political ethic that can regulate relations between Peoples (Rawls 1999).

Upholding a Human Right to Peace: National Sovereignty, International Law, and Global Public Reason

From the perspective of a human right to peace, the claim that “war is politics by other means,” so often invoked by State actors acting on the presupposition that States have the right to pursue their rational interests by any means necessary, including the use of military force, is unreasonable.   It violates the basic values and norms of reasonable coexistence necessary to maintain a social order conducive to human well-being.  The idea of human rights, including a human right to peace, calls into question the historical claim that national sovereignty constitutes final and absolute political power.

In the wake of the devastation of World War II and the Holocaust at the Nuremberg Tribunal and at the first meeting of the General Assembly of the United Nations the final and absolute political power of national sovereignty was refuted in favor of the primacy of international law and morality.  This refutation took the form of the “Nuremberg Obligation,” which constitutes an overarching duty to uphold international law and morality even if it conflicts with national law. International law and morality have priority over national sovereignty. They “trump” (to borrow Ronald Dworkin’s phrase) national law.  Individuals are obligated to obey the imperatives of international law and morality even when in conflict with national law. Individuals are also personally responsible for such violations, even when their crimes conform to national law or the orders of superiors (if, that is, a moral choice is possible). From the perspective of the Nuremberg Obligation, all individual citizens, including state agents, have an obligation to uphold international law and the basic principles of international justice even when not stipulated by national law or custom or even when in direct violation of national law.

This obligation is grounded in international agreement as expressed by UN General Resolution 95; the Nuremberg Obligation is a body of custom that codifies the individual’s moral obligation to refuse to participate in crimes against peace, including the planning of and preparation for war, war crimes, and crimes against humanity, even when dictated by national law or the orders of superiors. By implication the Nuremberg Obligation mandates that citizens actively oppose acts of state that are criminal in character under international law and/or violate international morality.

However, while agreeing in principle to international legal prohibitions, States, especially the Great Powers, have practiced legal and moral selectivity, only adhering to international law when it serves their rational interests (Mazower 2012).  It is asserted that this selectivity is justified by the absence of a global sovereign power to enforce international law.  The international system is understood to be an anarchy, a state of relations without the existence of a sovereign power to enforce morality and law (Hinsley 1986).  From this perspective, it is maintained that, due to a lack of enforcement power, international law, as system of justice, is ineffective and inherently unstable. It is argued that adherence to moral principle, law, and even mutual promises (contracts, agreements, covenants, treaties, etc.) is contingent upon the existence of an overarching authority. This authority requires a sovereign power that is capable of enforcing obligation. This is the case because there is a lack of mutual assurance that the law will be followed.  It constitutes a macro-level Prisoner’s Dilemma.  Without mutual assurance it is rational to employ moral selectivity. This is the nature of anarchy, a Hobbesian state of nature.

The international anarchical system is in a continual state of war, in the sense that war is always imminent; it is inherently “a war of all against all.”  Under the conditions of anarchy military self-defense is rational.  Others, however, not knowing one’s intentions with certainty, will respond out of self-defense with an increase in arms. The result is escalation, leading to an increased probability of the outbreak of conflict.  This phenomena is referred to as the “security dilemma:” to defend one’s self is to increase the probability of conflict; defense, pursued in order to be secure, leads to insecurity (Jervis 1991).    Thus, given the anarchical assumption, a state of war is generated — an inevitable and perpetual state of insecurity.  The only way to maintain negative peace or a state of cold war under these conditions, that is, a state of relations free from actual fighting in the context of a state of perpetual insecurity, is through a balance of power.  If power is balanced between states, wherein no one state or group of states is dominant, then a state of cold war or negative peace can be maintained without the actual outbreak of hostility, for the balance of power deters aggression by posing a significant retaliatory threat (Doyle 1997, Nye 1977, Smith 1986).  Under these conditions it is rational to forgo and/or manipulate international law to one’s advantage.

Is an effective and stable regime of international law that protects the human right to peace possible?  The question is whether the nation-state also has a duty to non-nationals. In other words, in protecting the rights and interests of its own people, does the State have a moral obligation to those outside the boundaries of the national moral community?  Is the pursuit of one’s national interest a legitimate justification for inflicting harm, and even death, onto the citizens of other societies? Can partiality to the good of one’s community, and the citizens that comprise it, be so exclusive to the point of a complete denial of concern for the well being of other persons?  Does one owe, in a positive sense, other persons moral consideration? 

While this is a very complex question, well beyond the scope of this short paper, it can be suggested that our basic intuition about the nature of morality suggests that a moral act is one where we act or refrain from acting even when there is no threat of external enforcement due to a recognition of moral reciprocity (Rawls 1993, 1999, Rawls and Herman 2000a).  This recognition is a function of our moral capacity for reasonableness.  We possess two fundamental moral powers: rationality and reasonableness.  Rationality is a capacity to have a conception of and pursue our own good; reasonableness is a capacity for a sense of justice (Rawls 1993, Rawls and Herman 2000b, Rawls and Kelly 2001).  A sense of justice, grounded in a proper sense of self-respect (what Rousseau refers to as amour-propre), is a capacity and higher-order regulative desire to affirm and act from a recognition of moral reciprocity, to offer to others terms of social cooperation that they would agree to under conditions of equality and fairness (Rawls 1993, Rawls and Herman 2000b, Rawls and Kelly 2001).  As reasonable persons we have a moral obligation to others to explain and justify our political preferences and opinions to one another in the terms of publicly recognized and accepted values and principles of a political conception of justice. It is a duty to appeal to this conception of justice in the course of public deliberation; the duty of civility in fact structures a particular form of public discourse, a form of deliberation that is grounded in public reason. This ethic constitutes a “mutually recognized point of view from which citizens can adjudicate their claims of political right on their political institutions or against one another.” (Rawls 1993, p. 9.) In other words, these recognized values and principles constitute an ethical framework for public deliberation.  So construed, public deliberation employs a form of reasoning that is public – public reason.

States per se are not reasonable; only people are.  States are only rational; they pursue the good, the rational advantage, of the people they serve.  If States are to act in reasonable ways, they must be regulated by the public reason of the People.  States will only adhere to international law, and uphold the human right to peace for all, if they are regulated and held accountable by the People through the process of public reason. As the codification of international political conception of justice, international law comprises the content of global public reason, and being its content, it can only be effectively implemented through the exercise of global public reason.  This calls for the institutionalization of international law as the content of global public reason through a variety of forums and structures of public deliberation.

Institutionalization, while necessary, is not a sufficient condition.  Effective public reason requires the development of a range of moral resources that enable citizen’s sense of justice. While a rational understanding of the values and principles of the ethical framework and the skills, understandings and dispositions of public deliberation are necessary conditions for deliberation, the development of internal moral resources is equally important. The internal moral resources — capacities and dispositions — enable one to exercise response-ability, to morally respond to others.   These resources include:  the capabilities of practical reason, empathy and affiliation, thinking and self-reflection, moral wide-awakeness, and moral judgment (Glover 2000, Snauwaert 2009). In other words, the effectiveness of public reason is contingent upon “peacelearning” through a holistic peace education that employs a pedagogy of reflective inquiry (Jenkins, Hunter, and Academy 2013, Reardon and Snauwaert 2011).

References

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