The Rights Revolution (7 page)

The Universal Declaration of Human Rights altered the balance between national sovereignty and individual rights. With the declaration, the rights of individuals were supposed to prevail over the rights of states when those states engaged in abominable practices. This might be the most revolutionary of all the changes that have taken place since the peace of Westphalia established the European order of states in 1648. With each passing year, we get closer to a new dispensation in which the sovereign rights of states are conditional upon there being adequate protections for the basic human rights of citizens. Where states consistently abuse human rights, where all peaceful remedies have been exhausted, the UN may authorize intervention, from sanctions all the way up to a full-scale military campaign. From the world of the 1930s, where the violations of the German Reich were viewed as a strictly internal matter, to the world of the 1990s, where violations in a province of Serbia end up justifying
military intervention, we have travelled a long way.

Yet many people increasingly question the destination to which human rights seem to be headed. The emerging obligation to protect strangers outside our own borders is indeterminate and unclear — and it could also be dangerous. It may be a warrant for imperialism, and imperialism contradicts one of the basic rights we have: to rule ourselves free of outside interference.

The interventions of the 1990s — Somalia, Bosnia, Kosovo — were all justified in the name of human rights, and all involved a potential conflict with the right of peoples to live their lives without interference. How are we to resolve this conflict? Our obligation to care for the human rights of others is limited by rights talk itself. We have no business intervening in other people’s lives unless they explicitly ask for help. The basic rules that apply overseas also apply at home. You may have next-door neighbours who fight. You can hear their arguments through the party wall. You don’t have any right to intervene. It’s their business. But if you hear a blow, a cry, and a call for help, you’d be something less than a citizen, and possibly something less than a human being, if you didn’t come through the door to break up the dispute.

Those who criticize interventions in the name of human rights on the grounds that we must always respect the sovereignty of a state need to remember that the victims of that state are usually imploring us to intervene. That’s the first condition that must be met if interventions are justified: victims must be demanding our help. Other conditions follow: the abuses must be
gross and systematic; they must be spilling over into other countries, causing refugee flows and instability in nearby states; and intervention must stand a genuine chance of stopping the abuses. Intervention has no justification as punishment; its only purpose is to protect. Another condition is that intervention must be a last resort. Force is never just unless all other peaceful means of finding a solution have been exhausted. Those who intervene must also seek the consent of the international community, preferably the
UN’S
Security Council. We don’t want a world in which human-rights principles end up justifying unilateral military interventions by single states. So these states need to convince other states of the justice of their cause, and the best place to do that is the Security Council. But sometimes — and the genocide in Rwanda is one such case — intervention is imperative, yet one or other Security Council power prevents it from happening. In such instances, coalitions of countries may have to persuade each other to act, and they should do so provided that their intervention meets the tests I’ve outlined. Finally, human-rights principles can never justify a permanent military occupation of another people’s territory. If we intervene, we have to get out once the job is done, once victims have been returned to their homes, once the killing has stopped.
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I leave it to you to judge whether recent interventions have actually met these tests.
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Instead, I want to make the more general point that the concept of human rights is a self-limiting kind of authority. Yes, it mandates the use of force in exceptional circumstances. But those who invoke
it to justify force are committing themselves to use force with maximum restraint, to seek the consent of victims and the consent of other states, and to leave when the job is done.

Having said all this, I must not pretend that justifications of force will ever be anything but controversial. What some will see as a mission of humanitarian rescue, others are bound to see as an imperialist violation of the sovereignty of a people. People who talk about human-rights principles as if they were the common sense of humankind fail to understand that all rights claims, including those that seem perfectly self-evident to us, are bound to be controversial to others. A belief in human rights is not a faith like a religion, and the authority it confers is not the authority of faith, only the authority of argument. Human rights are not the trump cards that end arguments. In the real business of moral life, there are no trumps. There are only reasons, and some are more convincing than others. If this is true, then the legitimacy of human-rights interventions — the large ones that marshal armies and the small ones that intercede in personal lives — can only ever be limited and conditional. This is a blessing in disguise, for it means that they will never command the kind of consensus that sometimes justifies unlimited brutality.

It would be a mistake, in other words, to think of human rights as a pure and abstract morality. Rights are used to justify acts of power and resistance, and like all such languages, rights talk is open to abuse. Rights talk can be used to justify evil as well as good. But properly
understood, it is self-limiting. To say you have a right to do X is to imply the right of Y to resist. To say you have a right, moreover, is to engage in justification, and all justification implies the possibility of rebuttal.

Let me sum up. The first presumption I have argued against in these lectures is that the language of rights is an apologia for force. I am committed to the language of rights for precisely the opposite reason: because it mandates limits to the use of force.

The second presumption I have opposed is the claim that rights language fragments community. I shall have more to say about this in later lectures, because the charge simply won’t go away, but for the moment I want to emphasize that rights create reciprocities, and that these reciprocities are the very bedrock of community. Moreover, rights express not only individual claims, but also collective values: above all, the idea that rights are indivisible. If they come for you, they also come for me. That means we must stick together.

The third claim I have criticized in these lectures is that rights are hostile to difference. Marx was simply wrong when he claimed, in 1843, that rights talk reduces us all to abstract, equal individuals, held together by our biological sameness. The claim I would make is the reverse. If the supreme value that rights seek to protect is human agency, then the chief expression of human agency is difference, the ceaseless elaboration of disguises, affirmations, identities, and claims, at once individually and collectively. To believe in rights is to believe in defending difference.

The final argument, most basic of all, is that rights are not abstractions. They are the very heart of our community and the very core of our values. We have them because those who went before us fought for them, and in some cases died for them. Our commitment to rights is a commitment to our ancestors. We owe it to them to maintain the vitality of the right to dissent, the right to belong, and the right to be different. In my next lecture, I want to explain, in more detail, how a single community like ours struggles to reconcile these values. For they make us who we are.

T
HE IDEA OF RIGHTS
implies that my rights are equal to yours. If rights aren’t equal, they wouldn’t be rights, just a set of privileges for separate groups of individuals. The essential purpose of any political community based on rights is to protect that equality on behalf of everyone. What holds a nation together, then, is this commitment we each make to treat all individuals the same.

Now the trouble with equality is that no one actually wants to be treated just like everybody else. We want this as a baseline, but we also want more. Each of us wants to be treated equally and to be recognized as different. We want other people to acknowledge us as individuals and as members of groups, to recognize the status that goes with being somebody special. In private life, we usually get this recognition. But we also want our distinctiveness recognized in public. As citizens, we want public officials to pay attention to us as individuals with particular needs. Reconciling the demand that we be recognized
as individuals and simultaneously treated as equals is not easy, as doctors, welfare officers, and policemen and -women know to their cost. These people are supposed to be fair without being partial, giving everyone their due without doing anyone any favours. An official who does favours on a regular basis is corrupt. Corruption violates the principle that in this society everyone has rights, but no one ought to have privileges. Again, I’m talking about what’s supposed to happen, not what actually does. Everyone, but everyone, is trying to get privileges out of our system. The fact that the system works with any degree of equity and honesty is testimony to the power of equality as an ideal.

This idea of equality, and the notions of fairness that go with it, gives us a particular vision of national belonging. The belonging consists in knowing that everyone shares more or less the same entitlements and the same responsibilities. When we map this ideal of equality onto the countries we actually live in, we get a picture of a nation as a single, homogeneous, and unified political space made up of equal individual units. No region has more power than any other — nor does any group.

It’s no accident that this ideal looks like a model from the physics classroom. In late-seventeenth-century England, when political philosophers such as Thomas Hobbes and John Locke were imagining states as communities of equal individuals founded by an original compact in the state of nature, Isaac Newton was imagining physical space in an analogous way: atoms and molecules, units of pure mass, colliding in an undifferentiated
medium called space according to the uniform laws of gravity. From that point on, political theory has recurrently sought to model politics as if it were a Newtonian science.

If we move this Newtonian model from the physics classroom to the neighbourhood pool hall, the resulting metaphor looks like this: The pool table is the state. The individuals who make up the nation are the billiard balls. The laws are the bumpers, and the shared territory is the green baize. Now, this model holds that if the individuals in the game are not equal, not able to spin across political space with equal ease, then we should make them so. For the game to work fairly, every individual must be as round and smooth as every other.

And that, of course, is where the trouble starts, and where the analogy between billiards and politics falls down. No one wants to have their edges rounded off, even if that means they can play the game better. They want to play the game on their own terms.

If this is the case, the political problem that every nation has to face looks like this: How can we create a society where everyone has rights without flattening out the differences that give us our identity as individuals and as peoples? How do we recognize group differences without jeopardizing the unity of our country?

Reconciling these objectives is difficult because creating equality and recognizing difference both imply a distinctive kind of political space. The equality project fits well with the Newtonian image of political space as unified green baize. The difference project implies a political
space that looks more like a patchwork quilt.

The dilemma we have is that we can’t actually choose one to the exclusion of the other. Nations have the characteristics of both. It is basic to the idea of the nation-state that all citizens should have the same rights, and that these rights should apply across the board. There may be different levels of government, but the constitution works out a division of powers so that there is as little overlap and conflict as possible. That’s the Newtonian model. No country, however, is only a Newtonian space. Nations are also historical creations, layered with the sediments of time, with old political systems still present just beneath the surface of functioning ones. In Canada, just beneath the political layout created by our act of union in 1867, there are the remains of the four colonial governments that existed before Confederation. Each of these colonies agreed to come into Confederation only if their differences were respected. The one with the greatest number of differences, of course, was the French-speaking colony whose laws, religion, and language were protected by British imperial acts going back to 1774. The Québécois would enter Confederation only if these distinct rights were incorporated into the constitution alongside guarantees to civic equality. This recognition was given, and from the beginning, therefore, Canada was both patchwork quilt and green baize.
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The second peoples with original rights of their own were the aboriginals. An imperial proclamation of 1763 recognized their treaty rights, and hence their identity as separate nations, so bringing these peoples into a political
confederation should have meant giving them equality as citizens while protecting their communal rights to be different. But that is not what happened. Aboriginal peoples were not given a place at the table when the new political order was created in 1867. Their pre-existing treaty relationships with settler peoples were ignored and their status as nations was dismissed. They were accorded neither the right to be different nor the right to participate in the new union as equals. Having been excluded from the founding of the country, they were made wards of the federal state under the terms of the Indian Act. This act excused them from certain obligations of citizenship, such as paying taxes, while denying them the right to represent themselves, to organize as a free people, and to control the lands and resources they depended on for their livelihood.