Evolving Human Rights

Many see the human rights defined in the Declaration of Human Rights, the two UN human rights covenants and the European Convention of Human Rights as absolute. They may accept that the relatively broad norms are filled more expansively as time passes, but they reject, correctly, that human rights are culturally or geographically contingent. The individual heads of right are sacrosanct.

Now, it is pragmatic and good that the specifics of a human right can evolve though interpretation of the individual heads of right; that the prohibition of discrimination can be re-interpreted to prohibit discrimination based on sexual orientation, for instance. This is in line with all reasonable approaches to interpretation of domestic constitutional instruments. The rights set forth in the Magna Carta have changed radically over the last 800 years, yet four provisions remain on the statute books in England, notably the habeas corpus clauses. The proud product of the French Revolution, the Declaration of the Rights of the Man and of the Citizen, is understood as the mother of all later human rights treaties, and, indeed, the Constitution of the Fifth Republic has bestowed constitutional authority on the declaration. In the 230 years since its adoption the interpretation has changed very significantly, however. The Declaration was largely co-created with the Constitution of the United States, and despite all protestation of so-called originalists, of course, the interpretation of the US Constitution has also moved dramatically with the times. Even newer instruments such as the human rights covenants or the European convention are in a constant process of refinement and evolution. That is the way it should be.

What is concerning is that new heads of right do not arise as society changes. And it is equally concerning that we do not define more stringent or more demanding rights as our societies grow wealthier and wealthier.

Given that no universal adherence to the rights defined in the Declaration of the Rights of the Man and of the Citizen has been achieved of the last 230 years and that the newer social, economic and cultural rights are woefully disregarded in many, many states, it is perhaps understandable that there is little appetite for defining new heads of right, and that we leave expansion to be done by interpretation of current instruments or by treaties that are essentially interpretative of existing rights. It may also be understandable that we have not embarked on the creation of more ambitious regional human rights, because this could appear to relativise what we consider absolute rights, and hence undermine them.

Yet, these reluctances are in the final analysis wrong. If we do not define new heads of right after 60 years without more than piecemeal evolution of social, economic and cultural rights and 230 years of fight for civil and political right we are signalling that our societies are stagnant and hidebound. When we disregard an existing fundamental right like that of asylum in order to protect our comfort we are sowing the wind and will reap the whirlwind. Do unto others as you would have others do unto you!

The concern that we relativise basic human rights if wealthy regions develop more demanding human rights is ill conceived, because it is a process of adding. So the basic human rights remain absolute whereas the add-ons are relative to wealth. As the global community becomes wealthier relative rights might transform into basic ones, but while awaiting that, these new rights become a beacon for even the less wealthy nations to ultimate achieve. These new rights become path finders and inspiration where they cannot be fully respected yet.

So what to do in concrete?

One of the structural flaws in current human rights that should be cured is that human rights are understood to be state centred. The entity addressed by human rights is the state, and the obligations are obligations on the state to enable the rights for its citizens or within its territory. This is one of the terrible legacies of the Peace of Westphalia. As Steven Krasner has pointed out, human rights are an imposition from outside on domestic rulers. However, obligations remain with the domestic rulers. No solidarity considerations between rulers are contemplated, let alone obligations on citizens towards fellow citizens. This means that there is no obligation on an able state to come to the aid of a disaster-struck neighbour. This is entirely illogical and a debate on this obvious point has sadly been overtaken by the many reflections on the Responsibility to Protect (R2P) (admittedly a new head of right of sorts). In practical terms it is likely that a responsibility to help is more important than a responsibility to protect in terms of the number of victims at risk. Of course, one does not exclude the other, but it would be salutary, and perhaps less controversial, if a responsibility to help would be put on the front burner.

If that would be the case, the corollary would also have to be discussed, namely the duty of disaster-stricken states to allow help, both from other governments and NGOs. A government that is overwhelmed by a disaster has no valid reason to deny its citizens help from outside, if such would be forthcoming. In fact, it should be an international crime to refuse genuine and needed help from other states or NGOs, despite all the definitional work required on what ‘genuine’ and ‘needed’ means.

There is so much that should be pushed as new human rights. Surely, a most fundamental right for every individual is to live on an intact planet. Hence freedom from climate change is a must – and one of the rights that must be tackled collectively by states, as the Kyoto Protocol sought to do. Yet, even if it is a collective task, the consequence is that there are obligations on each state to undertake all necessary measures within its borders to limit the emission of greenhouse gases. Addressing the avoidance of climate change as a human right would alter the nature of the political discourse.

It is also a mistake to believe that only states or collectivities thereof are at the receiving end of human rights obligations. The good neighbour obligation that should sit with a state adjacent to a state living through a disaster should also attach at the level of individuals. Many states do not make it an obligation of individuals to help other individuals in distress, even if they could. Thus it might not be an obligation, or a crime, to pass a fellow human being dying from thirst with a 2-liter bottle of potable water. This is absurd. Surely the thirsty has a human right to be helped and surely the possessor of the 2-liter bottle must be under a human rights obligation to help. If you open the box of citizen-to-citizen rights, quite a number of new rights will pop out, such as rights of employees vis-à-vis employers.

The obsession with the relationship between state and its citizens has also meant that collectivities of citizens enjoy limited protection. There are rights of association and the like, for sure, but NGOs are not accorded specific rights within states despite the fundamental role they play in our societies. A charter of rights of NGOs would be a very welcome innovation.

Inequality is a scourge of our times and could also be regulated through new heads of right. For instance, inequality is much less pronounced in Germany and the Nordic countries than in Anglo-Saxony, despite the great overall wealth of all these countries. One reason is surely the role of union representation on company boards in Germany and the Nordic countries. This is obviously not a panacea, but it should clearly be a human right to have worker representation on the boards of companies of a certain size.

In terms of regional human rights, in a rich region like Europe it is hardly understandable that there are no human rights specifically addressing the plight of the youth. The right to education is not enough. Unpaid internships are modern slavery. Yet, internships are indispensable for the young in many professional fields. Why is there not a human right to be paid for honest work? Such a human right must not stand in the way of volunteer work, but it is not impossible to distinguish between interns and volunteers. Yet, in the final analysis, why tinker? Should there not be right for the young in Europe to be offered a job in their chosen profession for at least 2 years after their professional qualification? Europe can certainly afford that, and would in any event be richly repaid.

Further along that line of thought, should there not also be a right to have a youth representative on company boards, similar to the suggested general right to have worker representation? And radically, should governments not be obliged to have a ministry dedicated to the concerns of the young, rather than always make that representation toothless by joining it with sports and culture?

Finally, human rights do not occupy themselves with the rights of succeeding generations. They should! The rights of succeeding generations are not only to have a liveable Earth, free of major pollution, passed down, but also to take over a society which did not already mortgage its economic future. In private law we are not in doubt that a child cannot be forced to take over the debts of its parents. Should there not be a human right for succeeding generations to take over communities free of major debt?


Your duty to be happy!

A friend came to my office looking miserable. I asked him whether anything was wrong. No, nothing, he answered, but ‘he was not obliged to be happy’. What a terribly wrong answer that was.

You have an ethical obligation to be happy unless you have specific reasons not to be.

Life is a present of immense value, and that is true whether you are religious or not. You are the product of millions of years of evolution. You are an instrument of incredible complexity, allowing you to feel, to think, to see, to smell, to cry and to swear. To be happy or unhappy.

The instrument you are is also a result of amazing luck. That you became exactly you was improbable in the extreme. That exactly your spermatozoid met your egg and became you was more than unlikely. And this luck you have had ever since the start of life. If your mother had not become your mother you would not have become you. If her mother had not become her mother, she would not have become your mother and you would not have become you. And so on, all the way back to the beginning of time. Winning El Gordo is far likelier than you becoming exactly you. You may, ungratefully, argue, ah, but I would have liked to be handsomer, thinner, a genius. But the point is, of course, that then you would not have been you. You would have been someone else, not an improved version of yourself. So you better accept yourself. And you better accept your loved ones as they are, because  otherwise they would have been somebody else as well. You might have loved them also, but they would not have been the ones you love now. All of which does not go to say that you should not try to improve yourself, but you should be happy that you are you. And, of course, as Oscar Wilde said, everybody else is already taken.

Kierkegaard proposed that you can lead an aesthetic, ethical or religious life. But I am convinced that whatever of these lives you lead you are under an obligation to be happy. You have been given the most precious of gifts. Do you have proper cause not to appreciate it?

The Proletarisation of the Middle Class

There is a tug-of-war going on between the proletarisation of the middle class and the middle-classisation of the proletariat. Proletarisation, favoured by the 0.1 percent, is winning.

The dream of social democracy and unions was historically to lift the proletariat into middle class status – to eliminate the underclass reality. The results were for a long time spectacular. Germany, the unsung hero of social progress, is a society where the factory worker proudly enjoys solid middle class privileges; and where the factory worker’s daughters and sons possess social mobility like any other member of the middle class. Even the pariah of modern society, the immigrant, will at the latest in the second generation be a candidate member of the German middle class.

This proud model is under threat, less in Germany, it is true, than in many other countries where it is less deeply embedded. It is under threat not because there is an attempt to re-establish the distinction between proletariat and middle class. The threat is the attempt to hollow out living conditions of the middle class to such an extent that proletarisation is the effect. What we have seen over the last more than thirty years is that living conditions of the traditional middle class, middle management in industry and government, have eroded, as have those of the factory worker, its newest member. The much-discussed equality gap.

The proletarisation disease has been highly contagious. Under the banner of ‘small government’, a mainstay of the middle class, the civil service, has been decimated and its social position and privileges cut. Unrestrained market mechanisms have turned the social mobility tool of ‘good education for everyone’ on its head. The pool of contenders for middle management jobs has swelled and employers have promptly seized on this to put pressure on salaries and relative wealth. Automation and rationalisation have meant that manual labour has become less valuable and that the uplift of the proletariat was reversed. The curse of oversupply has applied equally to worker and middle manager, and has had the same result. Demonstrating the validity of part of classical Marxist economics, the 0.1 percent has continued to benefit only because new markets opened up in the emerging world. However, the 0.1 percent has forgotten the other truth of Marxist orthodoxy, namely that capitalists need a wealthy domestic population for strong, continued consumption of their products. The equality gap means that the global economy will encounter saturation effects at some point, even if it is true that the squeeze on salaries in developed countries makes products more affordable in developing countries and thus enhances inter-regional equality. However, the excessive wealth of the 0.1 percent penalises the populations of developing and developed economies equally.

There is, however, also a mortal danger in the proletarisation of the middle calls. Democracy is, in the final analysis, a middle class instrument. With the wilting of the middle class, democracy as we know it is at risk. The middle class votes its values. Those values used to be middle-of-the-road; used to be tolerant Enlightenment values; used to care about facts and decency, used to be unadventurous in international relations. These were values predicated upon comfortable living conditions and recognised social standing. When we allow the middle class status to erode, we allow democracy as a common sense institution to erode. When middle class values recede the field is open for extremism and demagoguery! Look around you for evidence!

The Working Class Is No More

The working class, as a class, has largely disappeared. May 1st has become a commemoration, not a day for true political manifestation.

The worker still exists, of course, but not as part of a culturally defined class. Exceptions are England, and, perhaps, France. But mostly the days of workers’ clubs, workers’ evening classes, and worker as a class identity are long gone. The inadvertent genius of populist movements from early on and until today is that they address the concerns of workers as individuals, not as a class. And as concerns are shared across class boundaries the net of populist movements becomes much bigger. Most social democratic parties still believe in class interests, and that class interests are best addressed in class terms. Of course, they are becoming a dying breed when few identify as part of the working ‘class’ rather than as a worker. Witness the slow and tragic death of unions in most countries.

So, on May Day let us shed a nostalgic tear for the bygone working class. And let us raise our glasses to moderate and progressive politicians who understand that workers’ interests must be addressed empathically on the specifics, not on a class basis. The working class as a cultural phenomenon is gone!



See also: The Bane of Rapacious Elites

                  The Bells of Trieste

Hawking and the seven

We mourn the passing of Stephen Hawking, the pre-eminent explorer of the biggest mysteries. A physicist with a philosopher’s mind.

But also a human being whose brilliance was wrought from terrifying adversity. The brightest of minds housed in a body that conspired to deny him his talent.

What we admire is how steely determination denied defeat, and how wonderful imagination soared perhaps even higher, because the only movement Hawking was allowed was that of the mind. Hawking touched points never touched by any human before.

Hawking was no saint, of course, and did not pretend to be. But also in this domain he mastered transformation, because he transformed his own humanity into true humanism.

You may ask what the sadness we feel by Stephen Hawking’s death has to do with seven. It has something to do with humanism and the preconditions for humanism.

Seven is the number of migrants drowning every day in the Mediterranean since the start of 2018. Those human beings we do not mourn like we mourn the death of Stephen Hawking. We do not mourn them despite all the adversity they faced and their terrible defeat. The reason is simple. The reason is that we do not have their life stories in front of us in the same fashion as we do for Hawking. It is very hard to empathise in abstract. Yet, also here Hawking has a lesson to teach us.

J.K. Rowling in her brilliant commencement address at Harvard in 2008 has explained to us that one of the most important features of imagination is the ability it confers upon us to be able to emphasise. Imagination allows us to put ourselves in the shoes of others. That is why the loss of Stephen Hawking is so painful – we can feel the loss of a unique individual. But Hawking himself could turn his imagination on to the most abstract concepts and live them. And he could get non-scientists to live the concepts as well, an ability he shared with Albert Einstein.

But Hawking was not only about the cosmos – he also turned his imagination to the human condition. Hence his humanism. We can create no finer epitaph for Stephen Hawking, his brilliance, imagination, suffering and humanity, than using our imagination not only to understand our world, but to empathise with the seven migrants that drown every day. To imagine their stories, their tragedies, and dream solutions that will stop the dying!

The Compatibility of Free Will with Determinism

Free will and determinism appear to be mutually exclusive.

Einstein’s space-time structure is supposed to be eternal, to have been always there, and to be there forever. Time is an illusion, the great man said. With everything always and simultaneously being there, choice cannot exist the argument runs. Without time the exercise of free will cannot exist. Hundred out of hundred would probably agree. When free will is defended invariably Einstein’s understanding of time is attacked.

There are, however, two ways to understand free will as not necessarily conflicting with determinism, and one of these does not require time and the other only in a much bastardised form.

The first is that free will can be understood as a quality, rather than a function. Free will needs time to serve as a function, that is true. Any concept of ‘future’ must contain a time element, and choices in our normal understanding are inherently orientated towards future effects. So, if by free will we mean that I make a choice today the consequences of which could not be predicted yesterday, then, indeed, Einstein has killed free will, because neither yesterday, today or tomorrow exist. But free will could also be understood as a quality inherent in the result. What is enshrined in the time structure may reflect a result based on free will. The free will element becomes an inalienable part of the result. In the time structure a mechanistic result would thus be of a different nature than a result reached after the exercise of free will. And to the extent sentiments are real, choices, all free, would, correctly, feel different than situations where we had no choice. Results have been there eternally, and results are, in that sense, predictable. However, these results could not have been predicted by an ‘outside observer’ with prefect command of all facts, or by God, because results contain the indeterminate element of being based on free will. That is the difference between pure Einsteinian determinism and determinism allowing for free will. Interestingly, such an allowance for free will within a deterministic universe resonates well with Einstein’s old enemy, quantum mechanics.

The other way of making determinism and free will compatible is based on the many worlds theory of Hugh Everett; a quantum mechanics product. According to the many worlds theory superposition is not followed by quantum collapse but by the birth of a new universe in which the discarded choice is played out. Thus whenever there is choice both options exist in parallel in superposition (Schroedinger’s cat) and according to Everett neither option collapses and each will continue having effect in its own parallel universe. As a result an immense number of universes exist according to the many worlds theory. When you make a choice a parallel you will arise in a parallel universe. A you that is absolutely identical with the you at the time of choice.

The upshot of the many worlds theory is that an unimaginable number of yous live all the possibilities you ever had. All possibilities will be realized in some or other parallel universe. The relevance of this for free will lies in the fact that a you has continuing consciousness throughout all the choices made by that you. All other yous will carry exactly the same experiences and the identical emotional baggage and will have continuing consciousness from the moment they arise. But their own continuing consciousness. All parallel yous will appear indistinguishable from each other, but will not be because each possesses its own unique continued consciousness. If a you dies, for instance, it is little consolation for that you that an almost infinite number of other yous will continue existing in parallel universes. The continued consciousness of the dead you will be no more. This distinction of a specific you from all the other yous is little appreciated by those discussing the many worlds theory, but gives a path forward for assuming free will for any you, since any choice that  a you discards will be lived by another you. All universes and all possibilities in a realized form might be forever existing, and thus represent perfect determinism. But a specific you will always have the choice of living one option or the other. The sum of realized options does not change depending on which route a given you takes in a specific situation of choice. Another you will pick up the choice that a given you decides not to live. Thus every you has a thread in her life determined by the choices made. That thread might sometimes be inherited baggage, although not appearing as such. But from the moment of the coming into existence of that specific you the thread of life will be based on the choices, the exercise of the free will of that specific you.

The two above examples are, of course, counterintuitive, yet demonstrate that scientific method and free will must not be opposed. And counterintuitive perspectives are often not counterfactual. After all, our current understanding of the universe was counterintuitive compared both to the geocentric and heliocentric theories.

The Silence of Lawyers

In the run-up to the second Gulf War international lawyers and the international community were agog over the Bush administration’s suggestion that preventive self-defence would be legal.  Reams of publications were produced.

Now, at a time when the United States is threatening North Korea with ‘fire and fury’, there is virtually no discussion of the legality of the use of force by the United States. International lawyers have gone mum, although, once again, the issue is preventive self-defence.  There are probably a number of reasons for this.

First, both lawyers and the general public might believe that military action is not very likely. If so, they are terribly wrong. When the US Secretary of State is saying that diplomacy continues ‘until the first bomb drops’ there is all reason to believe that military action is being seriously considered. Statements by H.R. McMaster, Lindsay Graham and Nikki Haley underscore how seriously we should treat the possibility of cataclysmic military conflict on the Korean Peninsula.

Another reason for the silence might be that a discussion of preventive self-defence is not very intellectually stimulating. All permutations were discussed at the time of the 2003 Iraq war. And mainstream international lawyers concluded that preventive self-defence is at odds with the provisions of the Charter of the United Nations. The Charter gives the Security Council a monopoly on the use of force, except in case of self-defence in a narrow sense. Allowing preventive self-defence would largely eliminate the role of the Security Council.

Finally, and this is frightening, there might not be much discussion because the Trump administration has no interest in international law, and therefore does not seek to frame any action in terms of legality. Such an attitude would normally create an outcry not only from international lawyers but from all of the international community.  After all, international law is about the preservation of the interests of international society.

Is it really possible that we have no discussions about the legality of the use of force against North Korea because the state that may use such force is not interested in such a discussion?  This we must not allow. If we do, the consequences are likely to be catastrophic!