by Aleksandar Jokic
(Swans - November 3, 2008) The unfolding financial crisis in the U.S., which has sparked real fears that it could lead to a deep and long recession on the global scale, is understandably on the minds of many people. Much has been written about it already; specialists from different backgrounds have attempted to contribute to a better understanding of the history, mechanics, and gravity of the situation. Not all attempts are helpful, however, and some are downright intellectually embarrassing. Such is the case at hand.
A team of two professors, Radhika Balakrishnan and Diane Elson, has undertaken in an OpEd (opendemocracy.net, October 16, 2008) to demonstrate that the current economic crisis in the U.S. is a human rights issue. Their principal thesis is the following:
"Both the crisis and the proposed bailout involve violations of the human rights of millions of Americans."
To justify their claim the authors link the Universal Declaration of Human Rights and announce that the Declaration is their basis for attributing to (sovereign) states three obligations with respect to human rights: (1) the obligation to respect, (2) the obligation to protect, and (3) the obligation to fulfill. From the fact that these obligations apply to all states, including of course the U.S., their main thesis above is supposed to follow. However, their premise -- though admittedly a reflection of a by now conventional interpretation of states' obligations upon ratification of the Declaration -- is the result of a reading so creative that one can wonder whether it ought to be taken seriously, or if it is even meaningful. Let us consider each of the alleged obligations separately:
The obligation (1) is formulated thus: "The obligation to respect requires that states refrain from interfering with the enjoyment of human rights."
There is no textual support for this claim. The word "respect" occurs exactly four times in the Declaration, and at no time is respect connected to any obligation by the state:
1. The first instance of "respect" simply expresses a pledge "to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms."
2. In the second instance of "respect" the Declaration is proclaimed as a standard towards which various entities, including states, "shall strive by teaching and education to promote respect for these rights."
3. The third instance of "respect" occurs in Article 26 and pertains to education, which "shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms."
4. The fourth instance of "respect" occurs in Article 29 and sets out the circumstances in which rights can be restricted: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."
Hence, the meaning of "respect" in quoted passages cannot be construed as defining any obligation by the state whatsoever.
The obligation (2) is formulated thus: "The obligation to protect requires that governments prevent violations of human rights by third parties."
No agent, be it a person or a state, can possibly be claimed to have an obligation, moral or legal, to prevent violations of rights of any kind. Consider the following reductio ad absurdum of this idea: Take any state at any moment when a murder -- a violation of someone's right to life -- occurs. Does it follow from the mere fact that a murder has happened that ipso facto the state has violated a certain basic human right because the state failed to prevent the murder from happening? This is of course an idea that must be rejected, and may explain why the word "protect," let alone the phrase "obligation to protect," occurs exactly zero times in the Declaration.
The obligation (3) is formulated thus: "The obligation to fulfill requires that governments take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of human rights."
The word "fulfill" also appears exactly zero times in the Declaration, hence, again, it is questionable that the phrase "obligation to fulfill" stands for any coherent idea that has anything to do with the document. The contention that governments -- not states this time -- would be obligated to ensure "full realization of human rights" can conceivably be connected to positive rights listed in Articles 23-27. However, construing these rights as entitlements enjoyed by individual persons that must (legally) be satisfied by governments may violate Immanuel Kant's well-known dictum that "ought implies can." Take for example the human right to protection against unemployment or the human right to rest and leisure (i.e., paid vacation), how can the government be obligated to ensure full employment and that everyone's vacation is paid for? Whether any given government is in the position to effect success with respect to the contents of these two rights is at best an empirical matter, and is certainly not a matter of principle (moral or legal). No sense can be made of the idea of legislating economic (or any other) success.
None of these claims attributing specific obligations to states, consequently, can stand up to scrutiny. The Declaration is, in addition, a declarative document, and its ratification by a state does not imply a modification of domestic law. The authors, however, proceed as if those claims -- (1)-(3) -- are meaningful and true, and this only leads to more embarrassing statements. Let us consider a few examples:
"The system of international human rights law provides a framework through which governments can be held accountable for their discharge of these obligations."
Is this true? What international court can I go to in order to complain that I had no paid vacation last year? What international court could order the U.S.A. to find jobs for some 7% of population that is currently jobless?
"The U.S. government has been complicit in the emergence of the financial crisis."
If the goal is to find fault with the U.S. government with respect to alleged human rights abuse one need not wait for a financial crisis to make such claims and to do so may be cynical and offensive. As soon as there are people without jobs; people who do not receive equal pay for equal work; as long as there are persons or families who live an existence not worthy of human dignity; as soon as people encounter difficulties organizing trade unions for the protection of their interest; and as soon as one experiences a standard of living that is not adequate for the health and well-being of himself and of his family (see Articles 23-25), conditions are in place for exactly the sort of point the article attempts to make. So, where were these professors all this time, well before the financial crisis, to make these accusations of human rights abuse in the U.S.A., and have they studied domestic cases such as Castle Rock v. Gonzales, which provide a sobering look at the extent of the U.S. Supreme Court's interpretation of a "state's right to protect"?
There is more. Take, for instance, the following statement:
"Think of what could be done to fulfill human rights with $700 billion - improvements in public education, support for job creation, support for homeless people and health care for all to name a few."
If this claim is made in all seriousness, it represents an argument that is too good for its own sake. If it manages to make any point at all, it could be used to argue against every grotesquely large Pentagon budget. Just as Congress approved the $700 billion bailout with all the hoopla and loud cheering for and against, another defense budget was quietly passed. In the fiscal year that just ended, the U.S. spent $694.2 billion on defense: So, where is the cry "Think of what could be done to fulfill human rights with $694.2 billion?" Year after year the opportunity is there to make this cry.
The conclusion of the article written by two academics is simply embarrassing:
"It is time to hold the U.S. government accountable to comply with obligations it undertook in voting for the Universal Declaration of Human Rights."
If the current financial crisis is what gets these distinguished professors over the top to make this urgent indictment, it can only serve to whitewash much more serious and real, as opposed to contrived in terms of human rights, charges against the U.S. To give just one example: How about accountability for destruction of countless (in the sense of no one cares to count) real human lives -- never mind their human rights -- around the world in successive wars of aggression conducted by the U.S. with impunity?
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