by: CHERYL L. DAYTEC
Litigation is fallible. As the satirist Ambrose Bierce defined it, it is “a machine which you go into as a pig and come out of as a sausage.” Yet, in dealing with difficult issues involving human rights calling for political judgment, it is still the best adversarial process there is, short of a revolution or political upheaval. None superior or less inferior to it has been contrived yet.
Litigation is fallible. As the satirist Ambrose Bierce defined it, it is “a machine which you go into as a pig and come out of as a sausage.” Yet, in dealing with difficult issues involving human rights calling for political judgment, it is still the best adversarial process there is, short of a revolution or political upheaval. None superior or less inferior to it has been contrived yet.
The adoption by the Strasbourg organs of the doctrine of margin of appreciation is not so much an acknowledgment that “litigation is not the
best procedure for dealing with matters of political judgment”[1]
as it is a recognition of the fact that it is vulnerable to flaws. Supranational bodies concerned with
international human rights adjudication are confronted with similar issues
with similar if not identical factual backdrops involving various states.
Yet, this does not mean that they will resolve all cases by the same token. It may happen
that the political, socio-economic or
cultural substructures of similar issues
raised against states are each peculiar
on its own. To treat these unequally
circumstanced states equally is to
discriminate.
Having said this, I agree that “decisions about human rights are not a technical
exercise in interpreting texts, but judgments about political morality.”[2]
As a general rule, in exercising judicial review, it is not the province of
courts to inquire into the wisdom of acts of sovereignty, otherwise they end up
supplanting it. But to observe metes and
bounds set by the political question doctrine which is a bar to interpretation in domestic
settings is to give states an argument
with which to legitimize human rights abuses. The obvious compromise is the
application of the margin of
appreciation doctrine under which supranational
courts will scrutinize the necessity of the use of a coercive measure or the derogation from
obligations or limitation of fundamental
rights by states on the basis of the political morality thereof.
If decisions were about legal hermeneutics, supranational bodies can
just pull the wool over their eyes and
invoke the doctrine of stare decisis. In principle,
this doctrine is not controlling but in practical terms, there is nothing
that stops them from citing precedents. Considering the volume of decided cases,
texts of human rights conventions have been construed
in every possible way. Interpretations that may appear conflicting lend credence to the fact that human rights
conventions are living instruments. Their
interpretations insofar as balancing polarities created by divergent interests in a political community is evolving with
the socio-political milieu. They are much larger
than their texts. Beyond cavil
then, international human rights adjudication is not about expertise in text
interpretation because expertise
cannot be achieved when the meaning of a
text is ambulant, i.e., it is never final. What may be mastered is the
science or art of judging the political morality of acts of states involving
the use of coercive power.
In deferring to a state’s political judgment on a matter involving
sensitive cultural, religious or national issues, a supra-national human rights
court must not compromise universal values of morality. This is the lowest level it should go to. Otherwise,
it becomes a toothless body, shaved of its
relevance in humanity’s unending struggle to protect inalienable rights. As foundationalists
argue, “political morality is derived from universal, immutable first principles that
can be apprehended by rational reflection,”[3]
which is not a faint echo of Yash Ghai’s assertion that human nature is
universal, knowable by reason.[4]
For example, a state with a debt-ridden economy needs to generate
revenues. After resorting to taxation, the national treasury remains
cash-strapped. It has “white elephant” assets, the maintenance of which is
further eating a sizable chunk of the national budget. To pave the way for
mining as source of revenue, it expropriates the remaining ancestral domains of indigenous peoples over
the latter’s objection. The said domains are their source of livelihood,
culture base and sacred grounds. Most of indigenous territories have been taken
over by the state in the past for
development projects in the name of national interest. The
expected revenues from mining will pay part of the state’s debt and provide the
much needed funds for the state’s
operation. The state offers compensation
beyond the properties’ fair market value
to the affected peoples. Is the act of expropriating
the indigenous territories politically moral?
If I were the supranational court,
I would rule that the state’s action is indefensible. Under Art. 1 of the International
Covenant on Civil and Political Rights, in no case may a people be deprived of
their means of subsistence, an immutable
principle. The taking of ancestral lands deprives the indigenous peoples of
their means of subsistence. The act is tantamount to cultural genocide as indigenous peoples are attached to their
land, divorced from which they become culturally extinct. Balanced against
the national interest sought to be
served, which may be addressed through the sale of idle assets, the taking of these peoples’ ancestral domains has
far more onerous consequences and is politically immoral, infringing on the
non-derogable right to life.
[1] A.H. Robertson and J.G. Merrils. Human Rights in Europe. Manchester-New
York, Manchester University Press, 1966, p. 190
[2] Ibid., p. 204
[3] Amstutz,
Mark. International
Ethics: Concepts, Theories, and Cases in Global Politics. Lanham: Rowland and Littlefield Publishers, Inc.; p. 12
[4] Yash Gai. “Universalism and Relativism: Human Rights as a Framework for
Negotiating Interethnic Claims” in 21 Cardozo Law Review (1999-2000), p.1096.
