Jerome J. Shestack
ICAS Spring Symposium
Humanity, Economy, Science and Technology
University of Pennsylvania
May 1, 2000
Institute for Corean-American Studies, Inc.
965 Clover Court, Blue Bell, PA 19422
Tel : (610) 277-9989; (610) 277-0149
Fax: (610) 277-3992
Remarks for Institute for Corean-American Studies, Inc.
Spring Symposium 2000
by Jerome J. Shestack*
We often hear the phrase "obedience to the Rule of Law," or "upholding the Rule of Law." For many that simply means being governed by the laws that exist in a particular nation or jurisdiction.
But consider Germany during the Nazi regime. Jews were placed in concentration camps and annihilated, all according to German law. Can anyone claim that that was the rule of law?
Or, consider South Africa where apartheid was carried out under the laws of South Africa. Can that be said to be the rule of law?
Or, in the Elian Gonzalez case, Attorney General Janet Reno justified taking Elian from his relatives by saying she was upholding the rule of law. But suppose a judge had ruled that the child should stay with his relatives. Would the rule of law require obedience to that ruling?
Philosophers from Aristotle through Hobbes, Locke, and Dicey and in modern times, Dworkin, Rawls and others, have debated as to what are the elements of the rule of law. The answers are not that simple.
Over the years B born out of experience and moral philosophy B we can identify five basic concepts that embody the essential elements of the rule of law:
First, the concept of a rule of law means a rule of law and not of man. Rules must govern government, as well as people. This means that no ad hoc or personal commands by rulers are obligatory. The personal will of government officials cannot impose legal requirements. A tenet of this principle is that the rules must stem from a democratic means, that is, reflect the will of the people, expressed through a representative government employing a democratic process for enactment of the laws.
Second, rules should be known. There can be no crime without a law that is openly proclaimed. There can be no retroactive enactments which punish persons for acts that were not forbidden when committed. People must know how to behave.
Third, the rule of law includes the principle of generality, i.e. similar cases must be treated similarly. This also precludes discrimination. This concept underlies the equal protection clause in our Constitution. This limits judges B they need to justify differences in decisions.
Fourth, a rule of law includes a fair and orderly administration of rules - which means due process, fair and open trials, known rules of evidence and other factors which provide for fairness in the administration of justice.
Fifth, we come to the vital requirement that the law must be just. Put another way, the law must conform to the ideal of justice. By that standard, the Nazi laws and those of apartheid South Africa cannot be deemed as rules of law, because they could not be considered just.
To Summarize in brief terms B the rule of law values include the following:
Intertwined with the rule of law are human rights. Human rights are a basic element of a just rule of law and the discussion focuses on the development of human rights as a part of a just rule of law.
The Universal Declaration of Human Rights put the relationship of human rights to the rule of law this way: "It is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law."
Another expression comes from Professor Ronald Dworkin, who states that the rule of law requires nothing more than a community that is ruled by an accurate public conception of individual rights.
I turn then to the substantive elements of human rights as elements of a Just Rule of Law.
At the start, let us examine the sources of human rights on an international level, for we can better understand their content if we comprehend their sources.
One source of human rights is religion. If one believes in God as a Common Father, then it follows that there is a Common Brotherhood and men and women should treat each other as brothers and sisters.
The concept of the divine spark being in human beings is common not only to Judaism and Christianity but in various formulations, to all religions. Thus, the Quran says, "surely we have accorded dignity to the sons of men." So too, the Bhagavad-Gita says, "Who sees his Lord/Within every creature/Deathlessly dwelling/Amidst the mortal: That man truly sees." Religion thus can provide an inter-cultural rational for human rights for those with religious faith.
2. Natural law
Grotius and Pufendorf developed theories of a natural law and natural rights and natural law concepts are found in Aristotle and Aquinas, as well. But it was England's John Locke who gave natural law a definitive reading which became part of Enlightenment philosophy.
Locke begins his theory with a vision of human beings in a state of nature. In that state, they enjoyed life, liberty and property which are deemed natural rights. However, hazards and inconveniences existed in the state of nature, and individuals made a compact to form a community and set up a body politic. But the body politic was obligated to protect the natural rights of its subjects. If government neglected this obligation it would forfeit its validity and office.
This concept underlay Thomas Jefferson's statement in the United States Declaration of Independence that certain rights were "unalienable." To Jefferson, the natural rights were life, liberty and the pursuit of happiness. Indeed, the denial of those rights, as the Preamble to the Declaration asserts, was the rationale for the American Revolution. Similar concepts of natural rights underlie the French Declaration of Droit de l'homme and other democratic constitutional reforms that took place during the Enlightenment era and its aftermath.
Natural rights theory makes an important contribution to human rights. It envisions higher authority as a basis for the protection of human rights. It identifies with human freedom and equality from which other human rights easily flow. And it provides properties of dependability and support for a human rights system both domestically and internationally.
The difficulty in natural rights theory is simply that the scope of "natural" rights depended on the definer of the rights.
During the 19th century, natural rights theory, because of the ambiguities of definition, declined and there arose another approach to human rights, that of legal positivism. This philosophy came to dominate legal theory during most of the 19th century and it commands considerable allegiance in the 20th.
Under positivist theory, the source of human rights is found only in the enactments of a legal system with sanctions attached to it. Positivists were haunted by the need to distinguish law as it is from what it ought to be; and they condemned natural law thinkers because they had blurred this vital distinction. Classical positivists deny any a priori source of rights. What counts with positivists is not what the law ought to be, but what the law is.
The positivist contribution to rights theory is significant. It brings the state's legal processes to bear upon the protection of human rights. It then becomes easier to focus upon concrete deprivations and upon the specific legal implementation necessary to protect particular rights. Indeed, positivist thinkers such as Jeremy Benthan and John Austin were often in the vanguard of law reform. Most jurists in western legal systems consider themselves positivists in the sense that they interpret a written constitution and enacted laws.
The methodology of positivist jurists is also pragmatically useful in developing a system of rights in international law. For example, the international human rights treaties reflect a positive set of rights, i.e., rules developed by the sovereign states themselves, and then made part of a system of international law.
There are, however, weaknesses in positivism B particularly in the international area. Positivism can undermine international law because of the emphasis many positivists place on the supremacy of national sovereignty without accepting the restraining influence of an inherent right above the state.
In the aftermath of the war, there emerged a revival of natural rights theory. Certainly, this was due in large measure to the revulsion against Nazism and the Holocaust which revealed the horrors that could emanate from a positivist system in which the individual counted for nothing. It was not surprising that there should emerge a renewed search for immutable principles which would protect humanity against such brutality.
The new rights philosophers, however, did not don the same metaphysical dress as the early expounders of the rights of Man. Their approach may be called a qualified natural law approach in that they try to identify the values which have an eternal aspect.
For example, John Rawls, a pre-eminent modern moral and political philosopher, builds on Kant's intuition that the central focus of morality is personhood, namely the capacity to take responsibility as a free and rational agent for one's system of ends. Rawls' thesis is that each person possesses "an inviolability founded on justice," that even the welfare of society as a whole cannot override. Therefore, in a just society the liberties of equal citizenship are settled. This means that the rights secured by justice are not subject to political bargaining or to the calculus of social interests.
According to Rawls, the First Principle of Justice is that each person is to have an equal right to the most extensive total system of basic liberties compatible with similar system of liberties for others.
What are the basic liberties with which the First Principle is concerned? Rawls does not precisely enumerate them but, roughly speaking, they include political liberty, freedom of speech and assembly, liberty of conscience and thought, freedom of the person (along with the right to hold personal property) and freedom from arbitrary arrest and seizure. These liberties are all required to be equal by Rawls' First Principle since citizens of a just society are to have the same basic rights. These are essential Bill of Rights type of liberties.
The Second Principle involves the advance of equality. Equality involves both equality of opportunity and an equality of distribution, the latter being the most difficult. Rawls postulate is that no distribution should be made unless the poorer fare better by the distribution than the rich.
There is, of course, a large variety of presentations and analyses among modern rights oriented scholars. Obviously, this brief outline cannot do justice either to Rawls' complex and influential theory or to other philosophic formulations that merit consideration. However, the basic common and universal characteristic in modern rights theories, that cuts across cultural lines and may be said to have a universal appeal, is the concept that the central focus of morality is personhood, or more simply stated the dignity and worth of each human being.
Grounded on the theme of human dignity and worth the United Nations envisioned an entire system of rights of universal application. To that end, shortly after the creation of the U.N., its Commission on Human Rights with Eleanor Roosevelt as its chairperson, began drafting the Universal Declaration of Human Rights.
The drafters, which included both Western and Asian representatives, were influenced by the natural rights theory I discussed, as seen in the opening statement of the Universal Declaration:
"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. . ."
Similarly, Article 1 provides:
"All human beings are born free and equal in dignity. They are endowed with reason and conscience and should act toward one another with a spirit of brotherhood."
Concepts of "inherent dignity" and "inalienable rights" have natural rights roots and carry out the Kantian axiom I mentioned. These concepts regarding human worth and dignity also appear in various forms in philosophies and religions outside the western sphere. To borrow a phrase from the philosopher Felix Cohen, the Universal Declaration was perceived by its framers (who were not just from the West) as a formula "that will permit men to speak to each other across all the gulphs of creed and to understand each other through all the curtains of dogma." But whether or not all of the nations that accepted the Universal Declaration were of common philosophic exposition, the important point is that the Declaration delineated the basic legal rights that were to be part of a system of world order under a universal rule of law. And, as discussed shortly, in the several decades that followed, covenants came into force establishing a comprehensive system of human rights in international law.
From the start, the development and implementation of a universal system of human rights faced serious obstacles.
First, concepts of sovereignty were strong and were an obstacle to an international system. Moreover, most of the world post World War II was Authoritarian or Totalitarian.
Second, Article 2(7) of the UN Charter, on its face, protected domestic jurisdiction, a provision often invoked by abusive governments. Third, there was a mutual back-scratching by which each nation refrained from raising human rights violations of another. But most important, for international human rights to be accepted, it was necessary that they be included in the foreign policy of nations. It may seem odd now that it took so long for human rights to become part of foreign policy, but that did not take place until the late 1970s. The United States, happily led in that direction.
It bears noting the reasons why human rights became a focus of U.S. policy. There are at least seven cogent reasons, somewhat interrelated.
First, human rights had become a major issue on the global agenda, appealing to the aspirations of people on every continent. The human rights cause affords a unique opportunity to be responsive to those aspirations.
Second, from a realpolitik viewpoint, championing human rights gave democratic nations a lead in the contest with the communist world for the "hearts and minds of men." Thus, championing human rights was an appealing role for the United States and other Western European nations.
Third, furtherance of human rights advances national security for democratic states because of the following points:
Fourth, human rights abuses also have a spillover effect, generating masses of refugees that increase stress on nations to which they flee.
Fifth, human rights law addresses economic and social justice, without which a stable world order is unrealizable.
Sixth, human rights help further a just world order which requires legalized international institutions, a web of common values, and an acceptance of domestic and international legal restraints. Human rights advances these goals.
Seventh, a nation's national interest calls for a foreign policy that reflects the fundamental values of its people and, therefore, commands popular support. An emphasis on human rights fits that prescription, certainly for the western nations. Moreover, there is a connection between the failure to support human rights abroad and erosion of human rights at home; a nation enhances its own liberties by concern for the liberties of others. That too was an important concept for democratic nations.
International human rights thus offers the nations the opportunity to generate broad coalitions of shared purpose with the goal of a just world order.
Despite these considerations, international human rights were slow to advance afer the Universal Declaration. It was not until the mid-1970s that four major developments occurred which advanced human rights. These developments are interrelated and symbiotic.
A seminal advance on the international human rights scene occurred in 1975, when the European nations meeting in Helsinki signed the Helsinki Accords. Originally designed to deal with confidence building measures on security issues and improvement of commercial and journalistic relations. Additionally, Basket III of the Helsinki Accords affirmed human rights law as expressed through the principal covenants. This brought about a high consciousness of human rights in Europe and Eastern Europe and certainly played an influential role in the ultimate collapse of communism.
Additionally, the Helsinki Accords provided a basis for human rights dissidents to speak out under the shelter of the Accords. Dissidents such as Sakharov, Sharansky, Orlov and others formed Helsinki groups in the Soviet Union and spoke out against human rights violations, raising world consciousness of the abuses in the Soviet empire.
The Helsinki Accords also afforded a basis, at the periodic Conferences on Security and Cooperation in Europe, for Western nations to hold the Soviet Union to the Helsinki standards. Essentially, the western European nations and the United States, Canada and Australia became a defacto human rights bloc placing pressure on the Soviet Union and its satellites to ease their human rights restrictions. Although there is no quantitive measure by which to appraise the effect of the Helsinki Accords, undoubtedly, the Accords and their aftermath were a factor in the coming of Glassnost and in the fall of the Berlin wall.
Another major development is that human rights began to have a role in U.S. foreign policy. The Human Rights cause needed a champion and it obtained one in President Carter's foreign policy. Carter coined the phrase that human rights is "the soul of the U.S. foreign policy." It was not long the US initiatives highlighted human rights in its foreign policy that many other nations began to make human rights a part of their foreign policy. This was an important development in placing human rights high on the global agenda and in converting the UN atmosphere into a pro human rights climate.
During the Reagan Administration, especially at its outset, the US regressed in its human rights emphasis and gave comfort to authoritarian rulers, particularly in Latin America. But well before that administration ended, it recognized that human rights had enormous popular and congressional support and human rights remerged in American foreign policy, although with less exuberance than during the Carter days. Human rights continued to be an objective of U.S. foreign policy during the Bush administration, particularly respecting Eastern Europe. During the Clinton administration there was a pro-human rights polocy although with some inconsistency when other U.S. interests were seen to override human rights emphasis.
At the three-quarters mark of the 20th century much of the world was totalitarian, as in Eastern Europe, or authoritarian, as in Latin America and most of Asia.
As noted, in the late 1970s, human rights began to be prominent on the world agenda. The communications revolution meant that human rights yearnings and achievements became known everywhere. The willingness of western nations to make human rights a foreign policy objective was significant. Totalitarian and authoritarian rulers began to recognize that the people were a sleeping giant that could be aroused to the human rights call.
In Latin America, one authoritarian ruler after another was deposed. In Argentina, the Junta, with its horrendous record of disappearances, was replaced with a democratic government. The generals in Brazil and in Uruguay were replaced. Pinochet was replaced in Chile and Strasser in Paraguay by democratically elected governments. All of Latin America emerged from the authoritarian tent into a democratic government.
In Europe, the fall of the Berlin Wall in 1989 signaled the end of Communist totalitarian regimes. Glassnost in the Soviet Union marked the break in the Iron Curtain. Within the next few years all of the Eastern European nations had thrown off Communist totalitarianism and became emerging democracies.
Any survey of human rights progress must give substantial credit to the non-governmental human rights organizations (known as NGOS). Over the years, human rights NGOs have been constant to the cause of human rights, investigating abuses, reporting frankly, marshalling public opinion, testifying at the United Nations, enlisting volunteers and encouraging and protecting dissidents and human rights victims. The NGO story is one of courage, determination and a remarkable lesson in the power of volunteer organization to effect change.
Actually, the NGO movement was slow in maturing. As late as the mid 1970s there were only a handful of international human rights organizations. The most prominent were the International League for Human Rights and the International Commission of Jurists and Amnesty International.
During the past decade, however, human rights NGOs have multiplied. Now there are literally thousands of NGOs around the world engaged in various human rights endeavors. Fifteen years ago, barely a handful of academics wrote on human rights subjects. Now, there are many dozens teaching and writing in this area and human rights journals are plentiful. There is no doubt that NGOs have played a significant and constructive role in advancing human rights and the rule of law.
After the Universal Declaration of Human Rights in 1948, the emphasis at the United Nations was on creating standards of human rights with implementation not even on the agenda.
During the 1960s and 1970s, the UN bodies drafted and secured the adoption of the major human rights treaties in the field of civil and political rights, economic, social and cultural rights, torture, racial discrimination, religious tolerance, women and children's rights and other area. As noted earlier, by the mid 1970s, the law of international human rights was well developed but the UN Commission on Human Rights and other treaties Committees were largely ineffective.
For many years, however, the United Nations was ineffective in the area of implementation, paying attention to human rights abuses in only a few selected areas, particularly South Africa. But gradually that situation improved. Spurred by the increased role of human rights in global crises during the past decade, the United Nations has increasingly focused on structures to implement human rights. A High Commission on Humay Rights was established and now has a major portfolio at the U.N. Special rapporteurs or working groups have been established to investigate and report on forced disappearances, on summary executions, or religious intolerance, and on arbitrary detention. Special rapporteurs have also been authorized to investigate some of the nations that engage in egregious violations. And special committees of experts established within the framework of human rights treaties, receive reports on observance of human rights treaties, receive reports on observance of human rights obligations. Gradually, these committees have also addressed implementation of the human rights treaties. While these special bodies have no enforcement power, they are able to focus a public glare on violators. Experience has shown that even repressive rulers often show sensitivity to world opinion and ease restrictions in the face of public exposure and condemnation. Publicity and public exposure is one of the most effective remedies available for human rights enforcement absent a system of judicial enforcement. On the whole, the U.N. has now become a vital force in promoting and advancing human rights as part of the rule of law.
Achieving human rights and establishing a just rule of law world-wide is no sport for the shortwinded. It requires commitment, steady block building, constant education, courageous advocacy and governmental as well as individual champions. In the final analysis, there can be no just world order without observance of human rights.
Advancing individual worth and dignity under a rule of law is humankind's cause. It is a cause that requires all of us to be its champion.
* Jerome J. Shestack was President of the American Bar Association during 1997-1998. He is a former U.S. Ambassador to the U.N. Commission on Human Rights and is a member of the Executive Committee of the International Association of Jewish Lawyers and Jurists.