The Immanent Dichotomy of Human Rights: Emergency Powers v. Universal Protection

Abstract

We usually think of Human Rights as having two main characteristics. The first is their universal aspect, which basically refers to their source of validity and to the range of their possessors. The second is their political aspect, which refers to their respondent: the states' governments. In this paper I argue that the opposition between the two creates an immanent dichotomy that enables the violation of Human Rights by their addressee. I show one effect of this dichotomy through inquiring the issue of human rights during national emergencies. I argue that in such situations, where human rights are most fragile and vulnerable, and desperately needed, governments use their power (with the permission of both human rights theorists and even human rights conventions and covenants) and violate them, at least temporarily. I criticize this permission and claim that human rights should be respected even during national emergencies.

Ovadia Ezra is a senior lecturer in the department of philosophy at Tel Aviv University. He was incarcerated three times in a military jail for refusing to serve in the reserve military service in the occupied territories (the last time was in April 2002). He is the author of the books: The Withdrawal of Rights: Rights from A Different Perspective (2002, Dordrecht, The Netherlands: Kluwer Academic Publishers), Moral Dilemmas in Real Life: Current Issues in Applied Ethics (2006, Dordrecht, The Netherlands: Springer), Justice and Equality: Affirmative Action Needed, (2006, in Hebrew, Ramat-Gan, Israel: Hakibutz Hameuhad–Sifriat Poalim Publishers).

Notes

1. On the division of “first” “second” and “third” generation Human Rights see Waldron 1993: 578. “First generation” Human Rights are basically the traditional liberties and privileges, “second generation” Human Rights pertain to the socio-economic sphere. These two levels comprise rights of individuals. “Third generation” Human Rights deal with group and community rights, environmental integrity, etc.

2. On different problems which pacifists encounter with regard to military service, see Daniels 1975: 267–269.

3. These are Nickel's hesitations and doubts about the effectiveness of considering Human Rights as “moral” or “natural” rights.

4. The same happens when we inquire into the possession of Human Rights by mentally retarded people, mentally ill people, or even by non-citizens who are “normal adults” within those states. The universality becomes contingent, provisional, stipulated and conditional.

5. Horowitz, Irving Louis. (1978) Forward–On human rights and social obligations. In Human Rights and World Order, Abdul Aziz Said (ed.). (New York: Praeger Publishers), p. vii.

6. Weiss Thomas G., Crahan Margaret E. and Goering John (eds.). (2004) Wars on Terrorism and Iraq. (New York: Routledge). The articles I refer to are that of Tom J. Farer (2004): “The Interplay of Domestic Politics, Human Rights, and US Foreign Policy,” and the Article of Tom J. Forsythe (2004): “US Foreign Policy and Human Rights in an Era of Insecurity: The Bush Administration and Human Rights After September 11”.

7. The Universal Declaration of Human Rights (December 1945). Preface, second paragraph.