We live in an era of disruption, and the disrupters are everywhere. The most obvious and public disrupter is Donald Trump, who has taken the world, shaken it like a kaleidoscope, and reoriented how we might see the world differently. He has disrupted not only American life but most of the rest of the world, too, by rapidly disavowing his predecessor’s agreements about weapons, climate, and immigration, calling into question what some refer to as the “rules based international order”, and telling regimes – rogue and otherwise – there is a new sheriff in town.
One disruption that is long overdue in my opinion is the entire United Nations’ edifice. Add the subset of issues concerning human rights, and Aaron Rhodes’ new work, The Debasement of Human Rights (Encounter Books, 2018), makes the case. Rhodes completed a PhD at the University of Chicago. He began working for human rights organizations in Europe in 1991 with a focus on Eastern Europe, Asia and the Middle East, hard on the heels of the collapse of the Soviet Union, a propitious time to examine human rights in that part of the world. He comes from inside the human rights movement and in this his first book, Rhodes explains in terms painful to this international lawyer how the human rights movement presents great danger to human freedom. Painful because I grew up believing in the human rights project uncritically, and my world view of human rights is completely disrupted.
The fundamental assumption of Rhodes’ argument is derived from the distinction between positive and natural law. Positive law is the law that we create and write down and is found in legislation, court rulings, and decrees. It is law because we say so. There may be good policy reasons to declare a legal rule, but the rule becomes a law only by virtue of prevailing in the argument whether or not to adopt the law. In Immanuel Kant’s terms, positive law is a posteriori because it is declared to be only after experience has shown it is desired or needed. He draws a distinction between the external character of law and the inner character of morals.
In contrast, natural law precedes any declaration of positive law. Rhodes says natural law refers to an objective moral standard independent of human conventions. Its doctrinal origin is said to be in the philosophical work of the Greek Stoics, Aristotle, the Catholic theologian Thomas Aquinas, and Kant. Citing the Polish-British scholar, international lawyer and judge of the International Court of Justice Hersch Lauterpacht, Rhodes says that in the Stoic view, natural law provided a fixed and transcendent moral standard to constrain the arbitrary laws of governments. Aquinas stated the issue in theological terms; law can pass judgment only on “external action” for only God is able “to judge the inner movements of the will.” For the natural law theorist, law is not declared by man, law is recognized by reason. In Kant’s terminology, natural law is a priori because it is not dependent on experience.
The U.S. Declaration of Independence begins with a plain statement of natural law: “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” A self-evident truth is a truth needing no proof in experience, it is revealed by reason.
As originally conceived, human rights were imperatives about what states should not do to individual choice, dignity or security. The Magna Carta of 1215, the French Declaration of the Rights of Man and the Citizen in 1789, and the U.S. Bill of Rights ratified in 1791 set forth “negative liberties” protecting the individual from arbitrary government power. Those founding documents assumed that human rights are concerned with the rights of individuals to exercise liberty and freedom – for good reason. Moral agency requires individual liberty and freedom.
Those terms are not redundant. Liberty refers to the possibility of human choice; that is, a person has the intellectual wherewithal to recognize and make a choice. Freedom refers to the societal conditions that make the exercise of choice possible. If we are to be morally responsible for our actions then we must be free to choose; reduce liberty and freedom and you eviscerate the possibility of moral agency. Without moral agency, we become no better than automatons or sheep, and capable of being, indeed, begging to be led.
Rhodes argues persuasively that “natural law is the foundation of human rights and if we do not approach human rights from this perspective then the idea of human rights has neither logical boundaries nor any compelling basis for respect.” And he sets about to explain how human rights were transformed from a project to protect citizens from the power of the state and thereby preserve liberty and freedom to a project by which the state takes control over our quotidian life, steadily depriving us of liberty and freedom. He describes what has become a dystopian world.
Rhodes locates in the United Nations’ 1948 adoption of the Universal Declaration of Human Rights a shift in the focus of human rights away from the imperatives of liberty and freedom. Following the lead of the early 1900’s American Progressive movement, which saw government as a necessary protector of the welfare of its citizens, the Declaration combines the traditional rights to liberty and freedom with social and political rights and other “rights” such as a right to equal pay (Art. 23), a right to rest and leisure (Art. 24), a right to a standard of living (Art. 25) and others, all of which would be granted full moral equivalence. He argues the insertion of social and political rights into the Human Rights discourse in the immediate aftermath of the Second World War was thought to be necessary in order to obtain the Soviet Union’s buy-in. But they and five of the Soviet Communist client states abstained when the Declaration came up for a vote in the UN; so, I don’t know how necessary it was to co-opt the Communist states.
Saudi Arabia also abstained, claiming the UN Declaration was inconsistent with Sharia. Article 18 of the Declaration asserts, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief.” Saudi Arabia’s problem is apostasy, which means to renounce one’s religion, was and remains a capital offense under Sharia. Any state based on Sharia cannot consistently adhere to the Declaration’s promises; Rhodes discusses the relation of Islam and human rights toward the end of his book.
The Soviet conception of society declared in a classic positive law sense that government was the source of rights, and the role of government was to create the conditions in which those rights could be exercised. There was no a priori conception of human rights, instead (with Rhodes’ emphasis) “human rights were taken to be what respected leaders and intellectuals from around the world consider them to be.” And one of those leaders, ironically, was Franklin Delano Roosevelt, who “in 1944 urged passage of a Second Bill of Rights to supplement the negative liberties guaranteed by the Constitution with economic and social rights.” Marking a Copernican like paradigm shift from an a priori to an a posteriori source of human rights, Roosevelt claimed “true individual freedom cannot exist without economic security.”
Hersch Lauterpacht joined the chorus. He said political freedom was “incomplete” without “economic freedom”, sidestepping the central question, as Rhodes puts it, whether or not we ought to classify entitlements granted by governments as innate, natural, or universal human rights that exist in a transcendent moral realm. Obviously, they do not exist in a transcendental moral realm and are, instead, subject at all times to the whim of contemporary values.
The UN Declaration’s Preamble: “human beings shall enjoy freedom of speech and belief and freedom from fear and want,” (emphasis mine) contained a sleight of hand in the discourse. Now freedom of speech and belief, i.e., what the state cannot do to you, are as important as freedom from fear and want, i.e., what the state must do for you or to you. Under the Declaration, the state is now obliged to make you feel comfortable, and if that requires you to sit down and shut up, so be it. Aldous Huxley’s 1932 novel, Brave New World, presciently predicted a time when the government kept its citizens contented with a drug called Soma. Now we have legal cannabis and in Canada the government grows and supplies it to users.
One consequence of the shift in focus was to subordinate individual rights to collective rights; the social and political rights of groups became indivisible from individual rights to liberty and freedom, and all of it became explicitly subject to political control. Rhodes writes the Declaration, “paved the way for the postmodern school of critical legal theory, which maintains that the law is nothing more than a reflection of power relationships and is designed to serve political interests.” Calling the Declaration the Achilles’ Heel of the human rights movement, by his account the history of the human rights movement and the loss of liberty and freedom have gone downhill ever since.
Rhodes describes a cascading proliferation of what are claimed to be human rights and a bureaucracy to administer them. Regional conventions in Europe, Latin America, and Africa were soon formulated to set standards and mechanisms for enforcing the protection of human rights. As the world de-colonized in the late 1950’s and 1960’s, the number of voting states in the UN General Assembly increased and a “new international economic order” came into vogue. Under the rubric of human rights, a right to development was acknowledged with a concomitant right to foreign aid, the former colonies asserted sovereignty over natural resources, and a right to redistribution of wealth was advanced.
“Third generation” human rights conventions in 1969 and 1981 to protect the collective rights of racial and gender groups put further limits on free speech, and they obligated states parties to institute discriminatory quotas as a means of reversing the effects of past discrimination. Rhodes argues, rightly it seems to me, that these quotas contravene the principle of equality which is arguably a core value of human rights. (More on that issue below.) Rhodes quotes Cathy Fitzpatrick, a veteran human rights advocate, who said, “nothing is more Soviet than gender quotas which come straight out of Marxist identity politics.”
While all of this was happening in New York, in 1993 Rhodes became director of the International Helsinki Federation and began working with Soviet and Eastern European dissidents, most of whom were still simply interested in liberty and freedom. Once confronted by Russian tanks in Prague’s streets, the leaders of Charter 77 in Czechoslovakia engaged in “public acts based on initiative” to reclaim freedom. Returning human rights to its roots, Soviet dissident Ludmilla Alexeyeva said, “only in a country where there are political freedoms will citizens be able to effectively defend their material interests.” This means we will get about finding food, shelter and the other necessities of life only after we are free. In a stark expression of the issue, one might say I don’t want comfort until I’m free, a simple expression of the theory that the desire for freedom is a priori.
But the world organizations would have none of it. The ethnic war in the former Yugoslavia shook all notions of liberty and freedom to their core. The Serbian murderers of Muslim boys and men did not think of themselves as violating human rights because they did not consider Muslims to be human. Rhodes argues that post-modern uncertainty about evil paralyzed the West from acting to stop the slaughter. Rather than return to first principles, the global human rights advocates at the 1993 World Conference in Vienna doubled down on the principle of “indivisibility”, which says we cannot separate any of the now long list of things labeled human rights, and all have moral equivalence. But like George Orwell’s Animal Farm, some rights are more equal than others.
Around 3,000 NGO delegates participated at Vienna; every one of them advanced their own “rights” project. Rhodes was a conference observer and when former President Jimmy Carter tried to speak, he reports, “a repetitive sound resembling a cloud of locusts rose up and drowned him out.” Foreshadowing recent events, he says, “The ‘human rights’ NGO representatives, disregarding civility and freedom of speech, had formed themselves into a mob.”
As might have been predicted following the 1993 Vienna World Conference, initiatives added to the growing list of human rights, and now with a sprawling regulatory bureaucracy having very little to do with protecting basic individual freedoms from state power. These initiatives include efforts to protect children, persons with disabilities, Muslims following the September 11 attacks, to grant rights to food, water, health, family planning and sustainable development, to abolish customary differences in the life patterns of men and women, to impose a global financial transaction tax, a human right to be protected from noise pollution, to protect older persons, peasants, and more.
The 1996 International Covenant on Economic, Social and Cultural rights added rights to self-determination, trade unions, and several welfare-state entitlements such as fair wages, rest and leisure, holidays, food, clothing and shelter. Rhodes argues that “only a state that intrudes deeply into the economic and social life of a society and that severely limits individual liberties could claim to guarantee such standards.” And objection was now prohibited; Article 22 of the International Covenant prohibited free speech.
The UN established a Human Rights Council, and in November 2013, Cuba, China, Russia and Saudi Arabia were elected to the Council, marking another departure from any pretense about promoting liberty and freedom. Rhodes doesn’t address it, no doubt the result of his publisher’s deadlines, but Saudi Arabia’s 2017 election to the UN Commission on the Status of Women – established to promote gender equality and empowerment – is yet another debasement of the human rights ideals.
Rhodes complains, rightly so, that the practical effect of the uncritical acceptance of the indivisibility of rights has been to promote the false notion that the natural right to freedom cannot be enjoyed without specific social policies. “The entire edifice of human rights is made dependent on a particular kind of state, a welfare state.” Referring to Cuba, where it is said health care and education are free, he quotes a Cuban dissident who spoke in Geneva in 2013 saying, “Our health care system and our education system are not free. We have paid for them with our freedom.” I say those who can see it and want to resist the totalitarian impulse should heed her warning.
That people can view the same circumstances so differently reminds me of a story related to me by a Peruvian woman I met while attending the Public International Law course at The Hague Academy 15 years ago. The well off daughter of a successful Lima architect, she worked for a North American funded NGO on rural poverty reduction in Peru. During a meeting with villagers she told them she was there to help them escape poverty, and an older gentleman spoke up and said, “why do you say we live in poverty, we have our land.”
Rhodes attributes today’s descent into identity politics and tribalism directly to these initiatives to carve out special human rights for some people.
In Chapter Five, Rhodes discusses American Exceptionalism and its relation to the evolution of the way we think about human rights. He argues that Exceptionalism, which assumed certain self-evident truths at the heart of natural law, has given way to the Progressive movement under the leadership of John Dewey, Justice Oliver Wendell Holmes, Presidents Wilson and Roosevelt, and others. While Presidents Reagan and Bush pushed back against that trend, Rhodes says “the American approach to human rights moved sharply toward the global center under the resurgent progressivism that characterized the administration of Barack Obama.” He charitably asserts, “the trajectory seems unclear under the Trump administration.”
In Chapter Six titled, A Convergence against Liberty, Rhodes outlines the impacts of “Eurasianism” promoted by Russia, orthodox Islam, and the European Union efforts to prohibit certain speech. Eurasianism claims a Russian cultural space where President Putin proclaimed an exceptional “Russian genetic code” was distinct from a “so-called Western genetic code.” Rhodes says the Eurasian “human rights doctrine is overtly hostile to individual and natural rights, while emphasizing economic and social rights.” Not much has changed there, apparently.
Rhodes’ brief foray into Euransianism is unfortunate as he could have unwrapped its origin and current status as a foil for his emphasis on the original arguments about liberty and freedom. According to Charles Clover’s 2016 essay, Lev Gumilev: passion, Putin and power, Eurasianism arose in the 1920’s when Russian exiles nostalgic for their homeland and fretful from the trauma of the Bolshevik revolution, rejected the idea that Russia could ever be western or bourgeois. Convinced that the Enlightenment with its advanced European social theories had brought Russia to genocide and ruin, while there was harmony in the wildness of the Huns, the Turks, and the Mongols, Gumilev coined the expression passionarnost to describe the innate solidarity among those who suffer adversity together. After spending many years at hard labor in Stalin’s gulag, he became a scholar of the nomadic tribes of the Steppe, and he melded what he saw happen among his fellow prisoners with the ethnic self-identification he saw in the Steppe. According to Clover, Gumilev concluded the urge to identify with a nation is so pervasive that it must be an essential part of human nature. And that urge was characterized by self-abnegation, surely what Putin was calling out as a special Russian genetic code.
He is similarly dismissive of Islam, which has no human rights doctrine, in large part because the religion and the state are one and the same. Within the global human rights bureaucracy, the primary focus of attention is to prohibit speech directed at Islam – recast as hate speech – ignoring, apparently, female genital mutilation, polygamy, or compelling women to wear the chador. As for the violence against the Danish publishers of cartoons mocking the Prophet, he laments the reaction, including President Obama’s statements, blaming the publisher’s decision rather than the decisions to react with murderous rage.
In Europe, freedom of speech is severely restricted. It’s a crime to deny the Holocaust, to use sexist language, or to incite hatred. In one case in Germany in 2016, a man was prosecuted for calling a response by an imaginary Muslim interlocutor “mealy mouthed”. As freedom shrinks liberty withers.
The Debasement of Human Rights does not end on a happy note. These efforts at state control over liberty when viewed in the light (read darkness) of the global human rights project, which put entitlements before basic liberty, converge to strengthen the totalitarian impulse. Rhodes concludes, “international human rights has become an ideology that, under the guise of protecting human dignity, paints mankind as a species with little more individual autonomy than insects.”
He calls for a new human rights community as the existing human rights structure is too corrupt to accept top down reform. The new community must return to the roots of human rights, which recognizes the elemental difference between freedom and coercion.
Rhodes does not address the criticism from some quarters that the human rights project is Western centric and may exclusively and narrowly reflect the Western philosophical traditions of the relation of people to their governments. While he makes passing reference to Eurasian and Islamic traditions, he says little or nothing about the Chinese or subcontinental approaches.
Plus, Rhodes doesn’t interrogate the principle of equality, which he argues is at the core of traditional human rights theory.
John Locke probably stated the issue most plainly. In the Two Treatises of Government, Locke argued that as found in a state of nature, i.e., before any form of government arose, all men were believed to be free and equal. He argued that people have rights, such as the right to life, liberty, and property, and these rights have a foundation in reason that is independent of the laws of any particular society. Whether the foundation in reason is a function of innate knowledge or deductions from first principles is debatable. Therefore, it seems to me that the theory of freedom and equality is no more than an assumption. Worthy and aspirational to be sure, but it is difficult to imagine a time when mankind did not enslave others or behave as if some were more equal than others. Recall that in Thomas More’s Utopia (which literally means “no place”), published one hundred seventy years before Locke wrote, each household had two slaves.
Nevertheless, the book is well written with the passion one would expect from an author who lived through the battles he describes. If you care about human rights, you should consider Rhodes’ arguments carefully as the disruption of our world marches on.
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