Ai Silin & Qu Weijie: Limitations and Problems of the Western Doctrine That Human Rights are Superior to National Sovereignty

Abstract: The slogan “human rights are superior to national sovereignty” put forward by Western liberal scholars contradicts the principle of non-interference as stipulated in the Charter of the United Nations. The Western conception of human rights includes two main justification methods—naturalism and bottom-lineism, but neither of them can substantively justify the universality of human rights going beyond reality. This also determines that the relationship between sovereignty and human rights is not an “either-or” one, but a dialectical and mutually reinforcing one. Human rights cannot be fundamentally guaranteed without the support of national sovereignty. The culture-centric mentality implied by the doctrine that human rights are superior to national sovereignty is not conducive to international cooperation. Only by engaging in dialogue in a non-coercive, inclusive, and equitable manner would it be possible to reach a bottom-line consensus that would be widely accepted by the international community.

Key words: Human rights, Sovereignty, Naturalism, Minimalism, Humanitarian Intervention

Since the late 20^th century, and particularly since the Kosovo War in 1999 and Iraq War in 2003, Western powers have advocated the theory that “human rights are superior to national sovereignty” to legitimize starting a series of regional wars. However, the concept which lies behind this theory conflicts with a series of principles of international law as stipulated in the Charter of the United Nations, such as the principles of the sovereign equality of states and non-interference in internal affairs. According to Jürgen Habermas, a German philosopher, “This prohibition of intervention is indeed reaffirmed by the UN Charter; but from the beginning it stood in tension with the development of the international protection of human rights.”[1] This paper attempts to review the relationship between national sovereignty and human rights based on a critical reflection on the Western concept of human rights.

I. Two Ways to Justify the Western Concept of Human Rights: Naturalism and Minimalism

It is generally believed that the universalist concept of human rights has its origins rooted in the modern Western concept of natural rights. It must first be clarified, however, that no consensus has thus far been reached in Western political academia about how the concept of “right” first came into being. Probing into the evolution of the concept of “right”, Richard Dagger wrote that the English word “right” comes from the Latin word “rectus” (meaning “straight”), which in turn can be traced to “orek-tos” (“straight, upright”) in Greek.[2] At the beginning, therefore, the word “right” presumably did not indicate “a justified claim or entitlement, or the freedom to do something” in its modern sense, and the concept of right in a political sense did not emerge in the West until the late Middle Ages as the idea of “natural rights” took shape. Western political scholars such as Charles Beitz and James Griffin who were committed to studying human rights believed that despite the differences in connotation between the concepts of human rights and natural rights, from a historical perspective, the origin of the modern Western concept of human rights is closely linked with the theory of natural rights, which in turn is directly related to the natural law theory established by Thomas Aquinas in the Middle Ages. The influence of modern natural science and the Enlightenment Movement, however, led the natural law theory to gradually give way to Enlightenment rationalism, thus divorcing the theological elements from the concept of natural rights. From this point, the individual awareness in line with the nature secured its fundamental status in practical philosophy, and the secular concept of “human rights” emerged in the late 18^th century. According to Beitz, “the most broadly influential contribution of the natural rights tradition to contemporary thought about human rights is the idea that human rights belong to persons ‘as such’ or ‘simply in virtue of their humanity’.”[3] Such justification for human rights is referred by Beitz as “naturalist” view on human rights, which is one of the most common ways to justify human rights. Its core argument is that the concept of human nature is regarded as evidence of the universality of human rights, while human nature is in itself in conformity with the nature. “Not as something evolving in the course of history, but posited by nature, because for them this individual was the natural individual, according to their idea of human nature.”[4] In the modern Western tradition of metaphysics, such an individual in conformity with the nature may either be presumed as a Kantian rational being or an experimentalist aggregate of feelings. Whichever presumption is made, the “demystified” concept of human rights attempts to justify its universalist appeal by naturalist theories.

However, the biggest weakness of the naturalist theory is that it neglects the historical aspect of mankind. To ensure the prioritization of individual rights, an individual is ridded of his social identity such as roles and status, and is translated into a moral agent in a metaphysical sense. Marx made the lucid statement that the concept of moral agent as constructed by modern Western philosophers was but a product of disintegration of feudal society and maturity of the civil society. Elaborating human rights from the perspective of an abstract and naturalist human nature has abducted human rights evolution from its historical dimension, and the understanding of rights thereof is non-historical. In fact, the emergence and application of the concept of human rights are inevitably based on certain social practices and historical conditions, and shall undergo changes correspondingly with changes in such social practice and historical conditions. The connotation and denotation of this concept remains in dynamic evolution, in which sense the naturalist view will inevitably be challenged by historicism. From a historicist perspective, political or moral concepts are neither inherent nor created at the discretion of any person; instead, any concept is a product of history and depends on certain social practice and objective historical conditions as a foundation. So is the case with the concept of human rights, which has evolved over a long history rather than remaining unchanged, As early as during the Enlightenment Movement, certain Western thinkers and statesmen made the statement that “all men are born equal”. However, this slogan is just a promissory note that cannot be cashed immediately as U.S. sociologist Robert N. Bellah argued.[5] Women were not granted the right to vote or to stand in elections until the 1920s, and the rights of African Americans were not sufficiently protected until the Civil Rights Movement of the 1960s. Even today, various social classes and groups in the West remain troubled by identity and economic gaps.

The naturalist concept of human rights can be viewed as a “top-down”[6] approach according to Griffin, i.e. deduction of human rights based on one or multiple abstract principles, and it is exclusively built on the metaphysical concept of “man himself” or “human nature”. In fact, the evolution of human rights indicates that human nature, whether deemed a factual or normative being, is not a sufficient condition of human rights. The factual concept of human nature of the normative concept of personality itself does not naturally and logically lead to the deduction of a set of concepts of plural rights. Instead, our understanding of modern concept of human rights depends more on a “bottom-up” approach: approaching the human rights theory from widely used concept of human rights in actual social interactions. Through investigation into various types of human rights, political theorists attempt to find a consensus from all known concepts of human rights that is universally accepted by all nations. The bottom-up approach differs from the top-down approach in that the former acknowledges in the first place that different lists of rights may be categorized as human rights by different thinkers, who may interpret and understand the same right in different ways. Charles Taylor believed that human rights consist of norms of conduct and underlying justification, the former referring to various rights stipulated in national laws and international conventions, and the latter referring to philosophical views on human nature and society from a metaphysical perspective that constitute the philosophical basis of the norms of conduct related to human rights. For Taylor, people with different cultural backgrounds may vary in the deep underlying justification of human rights, which, however, does not impede us from seeking consensus on the level of norms of conduct through dialogues and communication. Such consensus, similar with “overlapping consensus” suggested by John Rawls, is a minimum consensus acceptable by all parties. Taylor further pointed out that “one can presumably find in all cultures condemnations of genocide, murder, torture, and slavery”[7]. According to Taylor, such norms of conduct are deemed overlapping consensus in a culturally diversified world. This concept of human rights can be defined as minimalism. In the West, Michael Ignatieff, a Canadian scholar of political science, is one of the first advocates of the minimalist theory of human rights, which he believes is tantamount to the “negative freedom” defined by Isaiah Berlin that protects individuals from physical harm.[8] Likewise, Western political scholars such as Michael Walzer, David Miller and Joshua Cohen all advocate minimalism of human rights, albeit to various degrees. Walzer proposes a set of “negative injunctions” that rules against murder, deceit, torture, oppression, etc.[9] as minimal morality for all societies.

A Kantian question is: how does the consensus in minimalism become possible? Is it possible to reach some degree of consensus in a non-coercive approach and come up with a list of human rights universally acknowledged by all countries? Many western scholars on human rights are optimistic, such as Griffin emphasizing that “We now, in these cosmopolitan times, tend to exaggerate the differences between societies.”[10] Empirical observations show that people in different countries may differ in religions, world outlooks, set of values and lifestyles, yet certain fundamental preconditions apply to all humans, as no one would deny the value of food, health and security in life, which may be translated into corresponding appeals for rights and summarize a minimalist list of human rights. Borrowing Walzer’s theory, this would be a “thin” list of human rights whose underlying justification does not build on “thick” and profound metaphysical or religious resources; instead, it proceeds from indisputable human needs or interests. In a world of complexity and diversity, many Western philosophers have come to realize that a “thick” list of human rights would unlikely be universally accepted unless by means of coercion or even violence. Yet obtaining a list of human rights by such means is in itself a violation and disrespect of human rights. It is therefore obvious that the minimalism of human rights with empiricism as the basic methodology conforms to our empirical observation. Problems arise, however, from empirical induction, and disputes over the contents of such a minimalist list of human rights have never ceased between countries and regions. Besides, the multitude of political, economic and social rights stipulated by various conventions on human rights are absent from the “thin” list of human rights as many of these economic and social rights rely on enormous public spending, and cashing these “checks” of pledged rights may incur an unaffordable cost on some developing countries.

The viewpoint that “human rights are superior to national sovereignty” is unlikely to constitute a minimal consensus among all countries on the human rights issue since minimalism requires overlapping consensus based on equal dialogue. As behind the theory that “human rights are superior to national sovereignty” lurks a unilateralist and interventionist approach in international affairs, which is unacceptable for other countries advocating equality of national sovereignty.

II. Boundaries of Humanitarian Intervention and Its Subsequent Problems

It was not until after WWII that a modern and secularized concept of human rights became globally influential. Traumatized by the unprecedented calamity of Fascism preying on all nations, and in particular the holocaust by Nazi Germany, many argued that a prospective international political theory shall be advocated to safeguard human rights. In 1948, the UN General Assembly adopted The Universal Declaration of Human Rights, which sought to provide a generic and normative foundation to safeguard human rights worldwide by listing a series of rights that all shall be entitled to. It was in this very context that “human rights diplomacy” practiced by Western countries started to gain momentum across the world, and wars were started in the name of “humanitarian intervention”, which consisted a major challenge to the concept of human rights in classical international law. So, does safeguarding human rights necessarily require a thorough abolishment of non-intervention principle within international law?

To answer this question, Western political philosophers advocating minimalist human rights argue that approving humanitarian intervention does not mean abandoning the non-intervention principle in international relations, but rather “becoming aware of particular exceptional situations” which constitute the scope and boundaries of humanitarian intervention. Walzer was one of the first Western political philosophers that expounded on humanitarian intervention whose basic viewpoint grounded upon “the norm is not to intervene in other people’s countries; the norm is self-determination”.[11] In normal situations, the principle of non-intervention shall apply in international affairs; however, humanitarian intervention is justified when it is response to acts “that shock the moral conscience of mankind”[12] and no local political organization possess the means to end the status quo. Therefore, failure in exercising sovereignty is an essential condition for the deposal of a sovereign state; while a second essential condition is the occurrence of “exceptional situation” that shock the moral conscience of mankind. Therefore, justified humanitarian intervention is essentially negative with a very narrow scope of applicability. According to David Miller, the non-intervention principle would be set aside provided that the international community reaches a universal consensus on whether the human rights violation has gone beyond the boundary of tolerance. At present, “such agreement exists in the case of genocide”[13] where the victims are deprived of all means of resistance without foreign aid. In such a case, the non-intervention principle of the international law is temporarily disabled and the boundary of national sovereignty broken, and intervention by other countries is justified. This indicates that a rather high threshold for the execution of humanitarian intervention is defined by minimalist human rights theory.

Another crucial question is: is “regime transformation” included in the “exceptional cases” where humanitarian intervention applies? Some advocates of “human rights first” argue that in order to prevent or avoid humanitarian disasters, it is necessary to transform the regime of certain countries by military means into a regime in conformity with Western liberalist democratic institutions. For them, humanitarian intervention is of a hysteretic nature and represents a negative and passive response; to eradicate the possibility of humanitarian disasters, regime transformation must be executed in countries where such disasters are possible to mold them with Western democracy. In other words, do political and military actions aiming at regime transformation deserve the name of humanitarian intervention or constitute a legitimate reason of humanitarian intervention? Walzer emphasized that democracy and rule of law of a country does not provide a legitimate ground for intervening with its internal affairs, nor is democracy of the political system a precondition for intervention; the key, instead, is whether the sovereignty is in severely conflict with human rights, and the only purpose of such intervention should be putting an end to violence. Therefore, “humanitarian interventions are not justified for the sake of democracy or free enterprise or economic justice or voluntary association or any other of the social practices and arrangements that we might hope for or even call for in other people’s countries”.[14] Every country has its own historical traditions, values and cultural beliefs, and one cannot truly understand the emergence, evolution and operation of political systems without being personally immersed in these specific cultural tradition resources. Regime transformation in the name of humanitarian intervention reflects a cultural centralism, which, in any form or type, would be refuted by cultural pluralism from a theoretical perspective in a world highlighting cultural diversity. In its very essence, an institutional and cultural superiority lurks behind cultural centralism in violation of the liberalist morality of equality and mutual respect. The theory that “human rights are superior to national sovereignty” constitutes a violation of basic liberalist moral principles such as equality, respect and pluralism, and is, therefore, a self-negation of the theory.

The minimalist theory of human rights is only in favor of humanitarian intervention under exceptional circumstances; however, as Walzer put it, since the Spanish conquest of Mexico with the pretext of putting an end to Aztec human sacrifices, the so-called humanitarian intervention in most cases has been risible. Even in a morally justifiable intervention, the country initiating such intervention might have a political agenda in mind apart from humanitarian aid, for example, seeking regional political hegemony in the name of humanitarian intervention. The absence of pure humanitarian intervention in reality is the essential theoretical dilemma of humanitarian intervention. Walzer distinguished between two types of humanitarian interventions: pure humanitarian intervention and humanitarian intervention with mixed motives, the former purely aiming at saving lives, while the latter referring to mixed cases where the humanitarian motive, among other considerations of political and economic interests, is one among several reasons for military intervention. There are few genuine cases of military intervention in which their purpose was purely humanitarian; although military powers play a crucial role in international political arena, states do not send their soldiers into other states, it seems, only in order to save lives. As Jürgen Habermas noted, “the program of human rights consists in its imperialist misuse”[15] when human rights politics is reduced to an ideological tool manipulated by major powers to cover up their political interests. Therefore, entering a country by military means always sounds an alarm, and reality has sufficiently proved that interventionism tends to end up in failure. Both the Iraq War in 2003 and Libyan War in 2011 started in the ideological frame of unilateralism and interventionism deviated from the tracks presumed by Western countries, as neither country has an effective human rights protection mechanism put in place, or achieved post-war reconstruction for a thriving economy and stable society; on the contrary, both countries are plunged into prolonged turmoil. Interventionism has produced large number of refugees in West Asia and North Africa, who are deprived of both human rights and national sovereignty by the intervention of external forces.

III. Re-examination of the Relationship Between Human Rights and National Sovereignty

The theory that “human rights are superior to national sovereignty” reflects the belief that individual rights and freedom are of a higher priority than national sovereignty, and that the respect and protection of human rights constitutes the moral foundation of legitimacy of national sovereignty. Again, “individual” here is a metaphysical presupposition, where individuals are viewed as atomic, independent moral agents entitled to the identical plural rights regardless of all identity markers such as nationality, ethnic background, culture and faith, as well as all social relations. Therefore from the perspective of philosophical foundation, the theory that “human rights are superior to national sovereignty” relies on ontology where “the individual comes first, and society comes second”, on which critical reflections can be initiated in the following three aspects.

First is the Marxist rebuttal of the metaphysical presupposition of the individual. Marx criticized such an atomic individual as “an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community”[16]. Human rights are thus established on the isolation rather than coalition of individuals. Isolation here refers to clear boundaries between one another that distinguish “me” from “him”. Taking property rights as an example, private property rights are defined as the possession and use of one’s own property without intervention from others, hence the existence of others is regarded as a restriction on individual rights rather than an essential element of materializing one’s individual rights. For Marx, human beings are a species being rather than enclosed and estranged “monad”. For an individual, society is a constitutive being—constituting the identity and main source of social relations of an individual—rather than a dissident being, The notion that an individual is an atomized being free of all historical traditions and social relations is but a philosophical fiction which in reality is untenable. An individual is an individual in reality, and the question of individual identity will not dispel by itself; therefore the “cosmopolitan citizen” imagined by liberalists is but a castle in the air. When one claims to be a “cosmopolitan citizen”, he/she would inevitably be questioned on his/her nationality, ethnic background, faith, etc., therefore voiding the claim of being cosmopolitan citizen. The existence of community (Gemeinschaft) makes identity possible for an individual, and all individuals in turn find themselves in existing political and cultural communities.

Second, the theory that “human rights are superior to national sovereignty” fails to dialectically acknowledge the mutual complementarity between individual rights and national sovereignty. In fact, human rights and national sovereignty are in a dialectic and mutually complementary relationship rather than a dualistic one, and there would be no guarantee of human rights without national sovereignty. A review of the theoretical origins of Western political philosophy shows that despite the differences in their philosophical origins, the thriving development of both notions is closely related to the theory of social contract. The purpose of reaching a social contract is to ensure effective fulfillment of individual rights, which in turn relies on the sovereign authority constituted through social contract signed by the people. The principle of people’s sovereignty reveals that sovereignty is essentially constituted by the common will of all people in a political community and has, therefore, a view to safeguard public interests that are relevant to all people. Thomas Hobbes made it clear that the purpose of sovereignty is not only procuration of the safety of the people, but also guarantee that every individual subject to the sovereign be granted “all other Contentments of life, which every man by lawfull Industry, without danger, or hurt to the Common-wealth, shall acquire to himselfe”.[17] In other words, the theoretical constitution of the social contract reminds us that national sovereignty should not be severed from human rights. Should no guarantee be needed for the fulfillment of rights, the purpose of the constitution of social contract would be somewhat suspicious: since an individual has already possessed and fulfilled his/her rights, what is meaningful about sovereignty authority? Subjecting an individual under the sovereignty through social contract itself indicates that the fulfillment of human rights require a corresponding institution that materializes and safeguards human rights.

A functionalist opinion holds it that sovereignty authority will be weakened as globalization deepens. Globalization has given rise to massive flows of commodities, services, capital and workforce, delivering a heavy impact on the established lifestyles and ideologies of various countries; meanwhile, human beings are facing mounting global challenges from tackling the climate change to anti-terrorism and addressing regional security concerns, which is beyond the means of any single country. Common interests and community of destiny are therefore constructed for all countries by such reality. According to Jürgen Habermas, “this conception encounters difficulties in a highly interdependent global society.”[18] Such a functionalist view is undoubtedly based on the reality of economic globalization yet its conclusion is open to debate. In reality, from a realistic perspective, there is no global political institution whose legitimacy is universally acknowledged that is able to practically defend all rights, and nation states remain the dominant institution to safeguard human rights. Overriding the boundaries of sovereign states would likely fail to secure human rights and even cause greater harm to the human rights of other nations. Furthermore, as the US President Donald Trump openly declared “make America great again” as the guiding program of his administration, this slogan in itself indicates bitter controversies over the theory that “human rights are superior to national sovereignty” within the Western society itself. Opposite to what liberalist philosophers advocating universalism of human rights have presumed, localizationist and nationalist narratives are still exerting their far-reaching influence on the Western society.

Lastly, the theory that “human rights are superior to national sovereignty” ensconces the hypothesis that the contemporary Western political and legal systems are more effective in defending human rights, and that the institutional pattern of developed countries in the Western hemisphere is the only right option for the development model of modern countries, behind which lies, undoubtedly, the mindset of Euro-American cultural centrism, which is powerfully challenged by the rise of cultural pluralism that calls for inclusiveness and mutual respect in addressing cultural differences, and pursues diversity rather than singularity. Confronting Euro-American cultural centrism, S.N. Eisenstadt and Taylor both advocated the concept of “pluralistic modernity”, emphasizing that various modern cultural patterns exist among different countries, that the Western culture is merely one component of the world’s pluralistic cultural system and that Europe is but a “provincializing Europe”[19]. As mentioned above, the modern concept of human rights in the West is a universalist value proposition based on so-called universal human nature or humanity. Yet, Alasdair MacIntyre was precise to the point as he commented on David Hume’s moral philosophy that “the appeal to a universal verdict by mankind turns out to be the mask worn by an appeal to those who physiologically and socially share Hume’s attitudes and Weltanschauung.”[20] To say the least, the fact that universalist value appeal is a typical feature of the Western culture does not necessarily eclipse the cultures of other countries or regions which are also entitled to appeal for universalization, as universality is not exclusively reserved for the Western cultural pattern. In summary, based on the normative requirements for inclusiveness and equality, Western cultural values cannot be taken indiscriminately as the standard against which value appeals in other cultures are measured. The theory that “human rights are superior to national sovereignty” is detrimental for international cooperation on an equal footing, as the cultural centrism behind it jeopardizes, rather than facilitates, the consensus on human rights. Only through joint participation in dialogues with a non-coercive, open and inclusive attitude will a minimal consensus acceptable to all stakeholders be possible.

（Ai Silin: Professor; Dean of School of Marxism, Tsinghua University; Changjiang distinguished professor, Ministry of Education.

Qu Weijie: Associate Professor, School of Marxism, Beijing University of Posts and Telecommunications.）

This paper was first published in Marxism and Reality, No 3, 2020 in Beijing, China.