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The Turn to Rights

Another new characteristic of humanitarian ethics in practice is its increasing tendency to adopt a theory of rights alongside, or even on top of, its more traditional principles and legal rules from IHL. The fundamental principle of humanity has been increasingly spelled out in human rights law over the last sixty years. In this process, it has become the norm to talk in terms of rights in humanitarian ethics. The Humanitarian Charter is explicit on this point and identifies three general rights which together encompass what constitutes humanity for people suffering in armed conflicts and disasters. These rights draw closely on a mixture of the UDHR and IHL; but, as the Charter points out, "while these rights are not formulated in such terms in international law, they encapsulate a range of established legal rights and give fuller substance to the humanitarian imperative”.15 These three aggregated rights are:

  • • The right to life with dignity
  • • The right to receive humanitarian assistance
  • • The right to protection and security

Importantly, these three rights are true to the essential value of humanity. In their concern for dignified bodily life they point clearly to the principle of human life lived as a person. Indeed, the Humanitarian Charter’s explicit emphasis on dignity is only a beginning. Having acknowledged the principle of dignity in the Charter, the actual Sphere Standards that follow it have a further seventy-seven references to dignity in their various prescriptions of what counts as good humanitarian action.16

In natural disasters, the same move to rights has taken place in the development of International Disaster Relief Law (IDRL). Pioneered by the Red Cross and Red Crescent Movement and by a UN Special Rapporteur, draft articles on disaster relief law are now established, and several governments are officially recognizing and referring to their recommendations and incorporating them into domestic law.17 The IDRL Guidelines and UN Draft Articles on Protection of Persons in the Event of Disasters are largely concerned with improved efficiencies in the provision and coordination of humanitarian aid.18 They affirm respect for state sovereignty and the primacy of state responsibility in disaster response, but the UN Articles and Red Cross and Red Crescent Guidelines are also framed in terms of human rights. The Red Cross and Red Crescent resolutions make clear that the Guidelines are grounded clearly in the needs of the individual, especially "the safeguarding of basic human rights” and "the fundamental right of all people to offer and receive humanitarian assistance”. This resolution and the Guidelines themselves explicitly recommend that states organize humanitarian action in line with the Humanitarian Charter and its Minimum Standards.19

The rights turn in humanitarian ethics is significant because it binds humanitarian ethics into international law, and also because it moves the moral emphasis on the principle of humanity from the virtue of the helper to the entitlement of the victim. Adopting a political theory of rights in humanitarian action is a shift of ethical paradigm away from a moral landscape of optional philanthropy towards a political contract of legally based obligation.20 This political process of engaging state and non-state responsibility around individual human rights has been in train ever since the first modern laws of war were agreed in The Hague and Geneva in the nineteenth century. However, as it now stands, applying a theory of rights has created a certain political ambivalence in humanitarian ethics in four main ways.

First, a rights-based approach to humanitarian ethics involves a major change in the ethical mood of humanitarian action to shape its discussion in terms of politics rather than humanity. This development is both advantageous and problematic. Specifically because politicizing humanity is progressive. Just and peaceful states have usually become so precisely because of a political consensus that agrees to prioritize humanity, mutual aid and fairness. But such transformations are usually born from a deep political process that takes centuries. During armed conflicts, when the very basis of society is being contested, a political discourse of rights rather than a compassionate discourse of humanity can be seen as premature and parti pris. Wars are usually fights about rights, and any additional interference from outsiders can antagonize people further. Humanitarian agencies can sound politically partisan when referring to rights in a way that differs from discussions on humanity.

A second area of ambivalence concerns the potential proliferation of humanitarian entitlements. Trying to limit humanitarian discussion to key rights that relate strictly to the preservation of life and dignity is difficult even in extremis. Talk of rights tends always to cascade into a wider conversation about the whole spectrum of human rights. In liberalism, at least, it is intellectually and politically incoherent to talk as if only a few basic rights matter. If a person in war-ravaged Aleppo has rights to humanitarian assistance, she also has all the rights in the UDHR and every other relevant human rights convention. The natural proliferation of rights in any engagement with communities brings hard questions about the scope of humanitarian action.21 How far does it go in addressing the full range of human rights? As Charles Beitz has well observed, the longer the list of rights, the greater that scepticism about human rights tends to become.22 The use of rights discourse can then encourage scepticism around humanitarian action itself when it is seen as part of a contested human rights movement.

Thirdly, a system of rights explicitly politicizes humanitarian action to bring state responsibility centre stage in any humanitarian encounter. This is desirable because the state is often, but not always, best placed to influence the humanitarian conduct of conflict. However, it is also diplomatically testing because observations of rights violations frequently involve simultaneous criticism of the state. This explicit politicization of humanitarian responsibility can make it difficult for humanitarian agencies to argue an apolitical posture in armed conflicts and natural disasters in line with humanitarian neutrality and independence.

Finally, the politicization of humanity in a system of rights encourages and enables states to take full responsibility for a crisis and then to exclude international agencies as extraneous or interfering. This kind of humanitarian nationalism has been a feature of government policy in Sudan, Syria and Sri Lanka, where strong states have refused, coerced or expelled international humanitarian agencies on the logical legal grounds that humanitarian responsibility belongs to the state. Having rightly taken political control of the crisis, they have then wrongly failed to meet humanitarian standards of protection and care, sometimes deliberately.

This chapter has examined the shape and character of humanitarian ethics beyond the simple presentation of itself as a principle-based system of ethics. In its application, humanitarian ethics inevitably becomes more realist as an ethics of struggle that adopts a role morality and is increasingly turning to the theory of rights to buttress or perhaps even supersede its more traditional ethical claims. Moving beyond theoretical description, the next part of the book looks in more detail at the practice rather than the theory of humanitarian ethics.

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