Tuesday, June 14, 2005

Opposition of Negatives as a Human Right

David Kopel at the Volokh Conspiracy answers the questions "Is Resisting Genocide a Human Right?" in the affirmative in a recent paper.

Kopel's premise, as explained in the opening of the paper essentially runs like this: A positive rule against genocide exists in international law, this rule can't be considered an effective right (as opposed to a nominal right) without a remedy. The regular enforcement of international laws against genocide are spotty at best, as such, each individual possesses a broader right against being a victim of genocide that includes taking up arms against those intending to perpetrate genocide against your people (and presumably yourself).

Obviously this premise has considerable support in domestic legal theory. Someone being threatened with murder has a right to self-defense which acts as a defense to a charge of murder. The next natural question is how this right is extrapolated to other "rights" under international law. The domestic law extrapolation is demonstrated by a right of property owners to expel trespassers with non-lethal force. Does this extrapolation follow in international law? I don't think there is a niced canned answer to this, but I suspect that the answer would generally be that it depends on the clarity of the international rule barring certain state actions and the gravity of the actions being opposed. For example, the mere fact that the source of an international law is customary rather than treaty based would imply that the parameters of that law are more difficult to ascertain, and, as such more difficult to create a right of opposition.

Anyway, I encourage all to read Kopel, et. al.'s paper and form your own conclusions.

1 comment:

Neil McDonald said...

Let's say you are a target for genocide. You probably already have a right to self-defence under domestic law (although I can't comment on every legal system here). This has not served your dead fellow genocide targets well. Because they are, em, dead. My point is that attaching human rights/remedies language to opposing genocide is all very well and good on paper but does very little to address a situation where the power imbalance is such that the genocidaire can do as they please in the first place. Lifting the arms embargo would probably have little practical effect.

Furthermore, arguing that such a right could/should lead to the lifting of arms embargoes imposed upon the genocide targets is also troubling in that it appears to advocate proliferation of the kinds of brutal internal armed conflict international legal mechanisms should (theoretically) prevent or halt. I agree that Darfur brings into sharp relief the failings of the international community to act. However, the failure of international law in some instances does not warrant this potentially dangerous approach, which risks escalating an already tragic state of affairs.