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LIV, Laugh, Launder: The Morality of Sportswashing

photograph of pristine pond among palm trees at golf course

Colombo, Sri Lanka, July 9: Amid food shortages and a fuel crisis, protesters occupied the Presidential Palace to demand the resignation of President Gotabaya Rajapaksa. Meanwhile, 70 miles away in Galle, in the shadow of a picturesque colonial fort, the Sri Lankan cricket team was on their way to a hard-fought and memorable victory over Australia. Pat Cummins, the Australian captain, told reporters that he recognized the significance of the protests, but hoped that sport might provide a moment of escapism and relief for beleaguered Sri Lankan citizens.

The line between sport, morality, and politics has always been a hazy one.

The Berlin Olympics of 1936 were staged to launder the international image of Nazi Germany and spread the myth of racial superiority. The Mexico City Olympics of 1968 are remembered not for any particular feats of sporting prowess, but for the ‘Black Power’ salute performed by Tommie Smith and John Carlos in protest against racial discrimination in the U.S. Although now recognized as a powerful gesture of morality and equality, the protest was hugely polarizing and both Smith and Carlos were suspended from the Olympic team for “politicizing” the event.

More recently, Colin Kaepernick was ostracized from the NFL for kneeling during the anthem in an attempt to raise awareness of police brutality and racial justice. On the other side of the coin, the Indian cricket team was widely criticized (in Western media, at least) for wearing camouflaged, military style caps in a game against Australia in 2019. The gesture was designed to show support for Indian soldiers, 40 of whom had been killed the previous month in the disputed border region of Kashmir. The players certainly took a stand on a moral issue – but it was the exact sort of nationalist stand visionary author George Orwell warned us about over 70 years ago.

This issue of morality in sport is especially pertinent in 2022, as the golf world is slowly being torn apart by the Saudi-backed LIV tour.

The upstart event has offered massive sums of money to entice top players away from the traditional PGA circuit, but critics accuse it of being a vehicle for sportswashing – a practice used by states to launder their reputation and distract from less savory activities and human rights violations.

Greg Norman, former Australian sporting hero and the CEO of the LIV tour, excused Saudi Arabia’s human rights record by noting that “we’ve all made mistakes.”

The problem is not confined to golf. Last year, English premier league club Newcastle United was acquired by the very same group that runs the LIV tour, while defending champions Manchester City are almost entirely owned by the ruling family of Abu Dhabi, part of another state with a questionable record on human rights. Meanwhile, preparations rumble on for this year’s Qatar World Cup, where the best footballers in the world will compete in stadiums built by slaves. Yet despite widespread disquiet about sportswashing and human rights violations, few players have spoken up and none have withdrawn from the event.

Patrick Rishe presents the argument that the personal rights of the players involved in the LIV tour – the right to play where they wish, and the right to make money doing so – trump concerns about human rights violations in Saudi Arabia. And this isn’t the only trumping going on: former president Donald, who is not-so-coincidentally hosting two LIV events, suggests the players ought to “take the money” on offer.

Rishe is certainly correct to say that the choice to play in the new tour, or for questionable bosses, is up to the players themselves.

But an appeal to freedom of choice can’t absolve us from our moral responsibilities. Indeed, it is only the fact that players do have a choice that makes this such a tough moral question.

If they weren’t able to play – if they sliced every tee shot like I do – or were forced to play, we wouldn’t find their actions morally praise- or blame-worthy. So, considering that the players do have the option to play, the moral question is simple: should they?

Like Pat Cummins in Sri Lanka, Henrik Stenson – one of the most recent and highest profile defectors to the new LIV tour – leant on the potential of golf as a way to improve peoples’ lives as a justification for taking the $50 million on offer. If golf can enrich fans’ lives (as well as players’ bank balances), then playing in a new tournament with a greater reach might be morally defensible. And it’s not like Stenson himself will be taking part in any atrocities – it’s unlikely his caddy will carry a bone saw with his 9 iron.

But by taking money to be the positive faces of an oppressive regime, Stenson and his colleagues become complicit in the moral wrongdoings of that regime. The goal of sportswashing is to reduce scrutiny applied to negative actions by essentially using sport as a distraction.

If the players’ actions allow their employers to – literally – get away with murder, then they are, at the very least, preventing justice from being served. At worst, their actions are making murder more likely by reducing the likelihood of punishment.

If we’re being charitable, we might say that LIV players ought not be held complicit for wrongdoings which occurred before they signed on for the tour. Maybe they are genuine believers in the benevolence of Mohamed bin Salman, the de facto ruler of Saudi Arabia. And maybe they do genuinely believe in the transformative power of a perfectly struck 3 wood. But by signing up to the sportswashing project, they surely are complicit in any future wrongdoings. And considering Saudi Arabia’s continuing involvement in the war in Yemen, one of the worst humanitarian crises in the world, it’s unlikely that those wrongdoings are a thing of the past.

Sport, as a competition between nations, can never truly be apolitical. But it can be a force for good. When apartheid South Africa was excluded from international sport, the alienation and widespread international condemnation helped hasten the end of the racist regime. And when players broke the boycott – as several cricket teams did – they were roundly criticized and faced repercussions at home. So if the LIV players think that refusing complicity would make no difference, history suggests otherwise. And, luckily for the LIV group, there is little chance that they will be ostracized if they choose to take a moral stance on the issue – although they will take a hit to the hip pocket.

Players, then, are left with three options: take the money and stay silent; take the money whilst remaining critical of its source, like 6-time major champion Phil Mickleson has done; or reject the money and the complicity that comes with it. The latter seems like the only truly moral option. But if someone offered me $50 million to teach ethics in Saudi Arabia… well, I probably wouldn’t show them this article.

Rethinking the Moral Status Debate

photograph of silhouetted woman on cliff

The impending death of constitutionally-protected abortion rights in the United States highlights the fact that one of the major political controversies of our era implicates a deeply philosophical puzzle. In everyday life, there are certain entities with respect to which serious questions about how we ought to treat them frequently arise. Some clear examples include human children and adults, and perhaps some other animals. Call such entities moral subjects, defined minimally as beings that, in our reasoning about how to act, are entitled to a quantum of consideration concerning how our actions affect them. An important group within this category consists of beings that are entitled to the degree of consideration we are typically obliged to give to human adults and children. I will call these beings strong moral subjects. Possessing an entitlement to such strong consideration is often referred to as having a “moral right.” Thus, if human adults generally possess a moral right to life, this means at a minimum that for other moral agents, certain actions — paradigmatically, and with narrow exceptions, deliberately killing them — are out-of-bounds. Yet there are many other entities that do not ordinarily seem to demand any degree of consideration — for example, chairs and stones. Call these entities things. At least a large part of the abortion debate — though not all of it, as Giles Howdle reminds us — seems to revolve around the question whether the unborn fall within the category of things or that of strong moral subjects. This is the so-called “moral status” question.

Yet, as I will argue, the popular and significant portions of the philosophical discourses about moral status are deeply mistaken.

To begin with the popular discourse, consider the language used in an introduction to a recent episode of Ezra Klein’s podcast featuring a discussion about the ethics of abortion with the moral philosopher Kate Greasley. “We discuss . . . why the status of fetal life is the central question at the heart of abortion ethics, [and] whether life begins at conception or emerges later in fetal development.” This focus on the question of when fetal life begins, which is characteristic of how many ordinary people tend to talk about the abortion issue, is liable to cause immense confusion. To start with, “life” is a highly ambiguous term: Merriam-Webster enumerates no less than twenty distinct meanings that we attach to it in common parlance. In many contexts, it refers to a biological characteristic — namely, the characteristic that distinguishes animals and plants from inorganic matter.

Now in one way, whether the fetus is alive in this biological sense is clearly relevant to the question whether the fetus is a strong moral subject possessing a right to life, since inorganic things cannot have a right to biological life. At the same time, however, it is intuitively not sufficient to clinch the question. After all, virtually no one thinks that merely in virtue of being alive, an entity is a strong moral subject. This view would put amoeba, algae, and bacteria on a moral level with adult human beings. So, it’s hard to see how the question of when the fetus becomes a living organism is the central question of abortion ethics. Another common meaning of “life” is biographical — something like the series of events that make up a living thing’s existence. Of course, when a being’s life begins in this biographical sense is parasitic on when the being becomes alive in the biological sense. Moreover, all living things have a life in this sense. Hence, the biographical sense of “life” does not take us beyond the biological sense in answering the moral status question.

It is also common in the popular discourse to see the question whether the fetus is a “human being” treated as central. But the terms “human” or “human being” are ambiguous in ways similar to “life.”

In one sense or cluster of senses, “human being” is a biological term denoting (a) possession of a characteristic human morphology; (b) membership in the species homo sapiens; or (c) possession of a certain genome. But quick reflection suggests that these characteristics are intuitively neither necessary nor sufficient for strong moral subject-hood. Any given episode of Star Trek suggests that non-human aliens may be strong moral subjects; and isolated human skin cells don’t seem to have a strong claim to consideration.

So much for the popular discourse. The philosopher Mary Anne Warren’s classic paper “On the Moral and Legal Status of Abortion,” still a staple of ethics courses across the country, serves as a paradigm for a common philosophical approach to the moral status question. Warren argues that the key issue is not whether the fetus is, say, alive or human, but whether it is a person. There are two crucial parts to her account of personhood. First, she says that all and only persons have full moral rights. (By “full” moral rights, she means something like the moral rights typically afforded to adult human beings as such). In other words, personhood is the decisive criterion for strong moral subject-hood, and it operates like an on/off switch: if you are a person, you are a strong moral subject, and if you are not a person, you aren’t. Second, Warren says that personhood itself can be defined as the possession of at least some of five capacities: consciousness, reasoning, self-motivated activity, the capacity to communicate an indefinite number of messages, and the presence of self-concepts.

Taken together, Warren’s account implies that the possession of some combination of these capacities is a necessary and sufficient condition for strong moral subject-hood. Warren goes on to argue that fetuses are not persons, and therefore do not have moral rights.

There are, in my view, two serious problems with this approach. The first is that it may involve a worrying circularity. In developing her account of the characteristics that constitute personhood, she asks us to consult our intuitions about which capacities we would count as relevant to determining whether newly-discovered alien life possessed a moral right to life. She plausibly claims that we would consider the five capacities listed in the last paragraph as relevant to that determination. But she does not ask us to consider whether, if we discovered that the aliens possessed those capacities and reproduced in a similar fashion as human beings, we would consider their fetuses as possessing the moral right to life and accordingly change our account of the characteristics necessary for strong moral subject-hood.

That question seems highly pertinent to the inquiry, but it introduces a dilemma for Warren. On the one hand, many people might conclude that they would consider the alien fetuses as possessing a right to life, and on this basis develop an account of personhood that counts human fetuses as persons, which would be an unwelcome result from Warren’s point of view. On the other hand, many others might conclude that they would not count the alien fetuses as rights-bearers. But if they went on to develop an account of personhood that excludes human fetuses partly on the basis of this intuition, they might be vulnerable to a circularity objection. The ultimate basis for the conclusion that human fetuses lack the right to life would be an intuition about the moral rights of alien fetuses. But since ex hypothesi the human and alien fetuses are so similar, that intuition would in all probability be itself based on the person’s views about the moral rights of human fetuses. Thus, the conclusion would be ultimately based on a premise that is identical to it.

This is sort of like holding that God exists because the Bible says so — based on the claim that what the Bible says is trustworthy because it is divinely inspired.

(Indeed, the same circularity problem would arise in the case of the person who would count the alien fetus as possessing the right to life.)

An even more serious problem with Warren’s approach is that it assumes a criterial account of moral status, according to which strong moral subject-hood is conceptually structured in terms of some set of necessary and sufficient characteristics. Again, on this approach, if you have capacities X, Y, and Z, then you are a strong moral subject; if you don’t, then you aren’t. One result of this way of thinking that students often encounter is that it turns out to be quite difficult to develop a criterial account that can accommodate all of our intuitions about strong moral subject-hood. For example, we seem to treat some non-conscious, non-reasoning, non-communicative, and non-self-aware human beings very differently from others. But why think moral status is conceptually structured like this? Instead of arguing further against the criterial approach, let me sketch out another approach that I think may be more fruitful.

The approach I favor is one that focuses on the question, what are the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood?

On this view, recognizing that fetuses do or not have a right to life is itself a moral choice, not one conceptually compelled by their possession of capacities like consciousness, rationality, and so on. Of course, whether fetuses do or do not possess these capacities may be highly relevant to our moral calculus. But this approach does not treat the possession of these capacities as a criterion of strong moral subject-hood. Rather, these capacities are probably relevant because they bear on the welfare, autonomy, and equality of all affected by the decision to treat fetuses as strong moral subjects.

A few surprising consequences may follow from my approach. First, it may follow that two classes of human beings with exactly the same intrinsic characteristics have fundamentally different moral statuses. This might sound strange, but that is because our thinking about this question is so deeply in thrall to the criterial approach. Second, it may follow that the same class of human beings might have one moral status under some circumstances and another moral status under other circumstances. Again, this seems strange, given that we’ve been taught that strong moral subject-hood wholly rests on the possession of certain intrinsic capacities. But if my view is correct, then it turns out to be not quite right to aver that, as the saying goes, you have rights simply because you are human. If by “human” we mean “possessing capacities X, Y, and Z,” on my view you don’t have rights simply because you are human; and you have rights because you are human only insofar as having X, Y, and Z is relevant to the overall moral costs and benefits of treating the class of human beings to which you belong as a rights-bearing class. Moreover, having these capacities does not guarantee that you have rights.

A full defense of my account of moral status goes well beyond the scope of this column; and without this defense, it may seem like the cure is worse than the disease.

Nevertheless, the main attractions of my account, I think, are that it avoids the potential circularity of Warren’s approach, as well as the tendency of that approach to devolve into a kind of desultory parlor game in which one tweaks one’s account of personhood ad nauseam to better accommodate intuitions about who has rights. It can also better account for some of those intuitions, although I will not argue that point here.

Even if the reader ultimately prefers the more orthodox philosophical approach to the moral status question, I think there is little doubt that popular discussions of the question are often couched in terms that serve to obscure rather than elucidate. This is one area where philosophy can perhaps be of greatest use — even if it may not be able to resolve the debate, it can help clarify its terms in ways that may facilitate moral and political progress.

George Pell and Moral Abandonment

close-up photograph of catholic priests folded hands

Last week the Australian Attorney General released a previously redacted finding of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse which handed down its final report to the Australian Parliament in December 2017.

The commission, announced by then Prime Minister Julia Gillard in 2012 began public hearings in 2013. It was the largest royal commission in Australia’s history and the most thorough public inquiry into the scandal of child sexual abuse the world has witnessed. It handled over 40,000 phone calls, over 25,000 emails, heard 8,000 stories in private sessions, and made over 2,500 referrals to authorities including police.

Of the institutions examined in which child sexual abuse occurred and was hidden in Australia, the Catholic Church was the worst. Yet the Catholic Church had argued forcefully against a royal commission, as scandals about clergy sex abuse broke open around the world. The commission was finally called following an open letter from a detective chief inspector in New South Wales, Peter Fox:

“I can testify from my own experience that the church covers up, silences victims, hinders police investigations, alerts offenders, destroys evidence and moves priests to protect the good name of the church.”

The impact of this behavior had been devastating. In the state of Victoria, police had already linked over forty suicides to sexual abuse by half a dozen brothers and priests.

Over the course of the commission a pattern emerged of known pedophile priests and brothers being moved from parish to parish, so that not only were they able to evade justice, but also were given many new opportunities to offend. An active cover-up by the Catholic Church was revealed demonstrating that the Church was vastly more concerned with protecting its reputation and its assets than protecting children or responding to victims’ needs.

The redacted section recently released pertain to the commission’s findings on the question of whether the (now) Cardinal George Pell, Australia’s most senior Catholic, knowingly moved several notorious and prolific pedophile priests from parish to parish in the 1970’s and 80’s when he was a priest, advisor to the  Bishop and responsible for overseeing schools in the Archdiocese of Ballarat in the state of Victoria.

The reason for the original redaction was that Cardinal George Pell was himself under investigation for serious historical sexual assault allegations by a number of complainants. How that played out is a long story, which came to an end on April 7th when the charges against Pell were quashed on appeal by the Australian High Court, following 18 months served in prison for offenses for which a jury found him guilty and the Victorian High Court’s refusal to overturn an appeal.

Now that that has played out, we can find out the royal commission’s findings on Pell. And they are damning. Pell’s history on this issue is common knowledge within Australia; he is well known for denying, downplaying, and obfuscating victims efforts towards redress for a litany of horrific crimes against children. The commission found it implausible, if not impossible, that George Pell did not know about the offending, was deceived about it, and had little interest in it, all of which he told the commission during questioning.

Pell has at no time displayed one iota of humility. Instead he has tried all along to paint himself as the victim, by playing the role of the undeserving scapegoat for a Church under attack—with, it has to be said, a large dose of sanctimony: since his release, Pell has likened his time in prison to the suffering of Christ.

If you don’t believe Pell’s statements to the commission, which most people don’t (apart from a small but vociferous cohort of conservative backers, including a former Prime Minister)—and even, frankly, if you do believe him—the moral failing here is so profound that it is hard to know what moral register to talk about this finding in.

Certainly moving pedophile priests from location to location, enabling offenders to evade justice, and providing new opportunities to offend against hundreds of children is a human rights violation. But to say only this is not to say nearly enough about the particular moral character of the crime. That is, the language of rights is not a moral register capable of plumbing the depths of the moral terribleness of these violations. Imagine someone comforting an abuse victim by saying “I’m so sorry; it’s terrible that your rights have been violated.” Such a response is, in this context, a tone-deaf moral language.

What can it mean to find an ‘appropriate moral register’?

About George Pell some people want to know how this can happen in a Christian institution—particularly there, in the house of a religion in which care for the vulnerable and the moral notion of sin is supposedly so central. Other’s reject the premise of this line of question, pointing to certain hermetic aspects of the institutional Church which may have been contributing factors (in abuse and/or cover-up), to argue that the very point is the need for a secular morality (and law) to which religious ethics is answerable.

These are indeed difficult issues. But to labor the point that the commission’s finding is an egregious moral failure is to say what would go without saying.

And then moral philosophy has to do a further thing beyond trying to decide what is wrong, and why it is wrong; it has to try to comprehend, to grapple with, the depth and character of that wrong. Sometimes that can be done by evoking extra-moral concepts that can function in a moral light or, conversely, can illuminate the moral dimensions of something.

One such concept, used by Iris Murdoch in a kind of extra-moral way, is the concept (not wholly, but partially as a metaphor) of vision. In Murdoch’s philosophy vision is not so much what is seen, but how it is seen. Or, rather, what one sees—how one is able to comport oneself towards others, and be responsive to them “with justice and love.” This is related to her notion of moral attention. Attention is not a matter of what will be illuminated by finding out more accurate information. It involves ‘being present to’ what one sees in a way that implicates oneself in the activity of seeing and thereby implies an activity in oneself—where one is morally ‘at issue’ in the spirit in which one sees others. Attention is therefore a species of responsiveness.

The moral failure of Pell is his incapacity and unwillingness to see—not the abuse, (I believe, with the commission, that he did see that) but the failure to attend to and respond to the children who were, in a very real sense, at his mercy. Pell failed to see and respond to the horrors as horrors, and to see children in the care of the Church as human beings worthy of respect and dignity. (He failed, to put it in explicitly Christian terms, to see them in the light of God.)

In Pell, in others, in the Church, the lack of moral vision led to the neglect of human responsiveness.

I have no new contribution to make to the already vast quantities of ink spilled on why this failure occurred. But the children abandoned to these predators were simply rendered—by Pell and the Church—invisible. That kind of abandonment not only enabled the abuse but compounded its effects. As Jill Stauffer writes: “being abandoned by those who have the power to help produces a loneliness more profound than simple isolation.”

Redress is needed, but what could possibly constitute redress here?  A task of the commission was to “make findings and recommendations to better protect children against sexual abuse and alleviate the impact of abuse on children when it occurs.” The final report of the commission made its recommendations on a firm ‘never again’ policy, formed around putting in place whatever measures were needed to protect children. The primary goal of the recommendations was, and is, to redress systemic failures by making child safety paramount.

Obviously action and practical outcomes are needed urgently, and most-comers agree that changes to the opacity of the Church is needed.

But we won’t really, morally comprehend this failure (Pell’s, the Church’s) without also reflecting on the failure of moral vision, of moral attention—failure to attend and to respond—to the human dignity, or (after Rai Gaita) the individual preciousness of each person.

Human Rights in the Age of Ecological Breakdown

photograph of dead field of crops

The Universal Declaration of Human Rights was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 and aimed at setting forth a list of fundamental human rights to be universally protected.

We must acknowledge the issues with the very concept of human rights: the philosophical problem of how rights are grounded; the practical problem of how they are enforced; and the definitional problem of whether certain things (like the right to private property) ought to even be rights.

Nevertheless human rights outline and afford protections for people, their life, livelihood and dignity, family, culture and community. As such, they have been, and remain, an important tool in establishing a more just world. At the core of the very idea of human rights is the recognition and acknowledgement of the basic dignity of all human beings.

Even though the international community has made significant gains in the expansion and protection of human rights in many places over many decades, human rights are now under pressure from the developing climate and ecological catastrophe. These rights’ reach and strength may be in danger of regressing as the effects of global heating and other environmental disasters worsen.

In reality, the corrosive effects of climate and ecological breakdown on human rights has already taken hold in some contexts: the root causes of the crisis, like the expansion of oil and mining interests known as extractivism, have already decimated the rights of Indigenous peoples in many parts of the world where traditional lands have been stolen, livelihoods robbed, cultures destroyed, and activists murdered.

As the crisis worsens and greater numbers of people are affected, there are many ways in which human rights could be impacted. We can think of the charter of human rights as a kind of checklist of human goods – of conditions under which human life can flourish. Considering these conditions against the inevitable, worsening effects of the climate and ecological crisis, we can form a picture of how those impacts will affect human wellbeing.

At 1C warming we are already seeing significant environmental impacts: melting ice and rising sea levels, more severe storm activity with once in a century flooding events occurring every couple of years, drought, salinity, desertification and unprecedented wildfires.  As environmental impacts take hold so too will social impacts and the capacity for many basic human rights to be met and secured will be compromised.

At 1.5C to 2C warming there will be major coastal inundation and many low-lying coastal cities will flood. Small islands will be lost. Severe storms will damage infrastructure, and less developed communities will struggle to cope. Rights like those enshrined in Article 25 pertaining to standards of living including access to food and clean water, to safe housing and medicine will be in question.

According to Article 27 “everyone has the right to freely participate in the cultural life of the community.” As climate breakdown takes hold and some places become uninhabitable – for example, as small Pacific Islands sink and areas in the Central Australian deserts become too hot for human habitation, as glaciers in Northern Canada melt, indigenous peoples will be forced to abandon their lands, and a loss of tradition and cultural identity will be inevitable.

One of the biggest geopolitical and social issues the world faces due to accelerated global heating will be large numbers of climate refugees – people forced by climate and ecological impacts to abandon their homes. Experts have warned that even in the next decade tens of millions of people could be displaced by climate change.

According to Article 14, everyone has the right “to seek and enjoy in other countries asylum from persecution.” It is not clear that climate refugees will be considered “refugees” in the sense defined by the Human Rights Declaration which defines refugees as persons ‘fleeing persecution.’ Though being forced to flee because one’s home is uninhabitable or has disappeared beneath the tide clearly fits our general understanding of what constitutes a refugee, which rests upon the acknowledgement of persons forced to seek refuge in circumstances in which their home is no longer safe.

However climate refugee’s rights will be in question under a number of other articles outlined in the UN Declaration.

Given the current predilection of many countries, such as Australia and the United States, for draconian treatment of asylum seekers and refugees, rights such as “recognition before the law” (Article 6), the right not to be “subjected to arbitrary arrest, detention or exile” (Article 9), and even the right not to be ” subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5) will be under pressure, and are so already.

The worsening effects of the climate and ecological catastrophe endanger the rights outlined above, and others. The upshot is that those conditions upon which human dignity is maintained and upon which human life is able to flourish will be degraded; and this degradation will be part of the erosion of society that may, if unabated, lead to the collapse of human civilization.

But human rights can be an ethical double-edged sword. While they do in general, find their basis in human dignity and flourishing, the philosophical question of how specific rights further these aims, and what specific rights should or should not be recognized in order that they be furthered, is not entirely settled.

Given that the climate and ecological catastrophe is upon us, if we as a global community are to have any hope of abating it, mass drastic action is required, some of which may be impeded by the existence of certain inalienable rights.

It could for instance be argued that the right (enshrined in Article 16) to found a family may be problematic, since each child born in a developed nation adds a significant carbon footprint. Or perhaps the right to freedom of movement (Article 13) is problematic if we factor in how much carbon pollution the aviation industry is responsible for. It might therefore be necessary, as part of a global mitigation strategy, to curtail certain rights and, for instance, restrict access to air travel.

Consider the right, (Article 19) to freedom of opinion and expression, which has been exercised, and abused, by the fossil fuel lobby for decades in a concerted, and ultimately successful, attempt to obfuscate the truth about carbon pollution and shut down attempts to prevent global heating. This effort continues unabated, as the Murdoch press are still printing mendacious untruths about the climate crisis.

In conclusion, though we need to be flexible enough in our understanding of human rights to be aware of the ways in which they can, in some situations, affect our capacity to mitigate the catastrophic effects of climate and ecological breakdown, as a legal and practical framework for improving lives and reaching social justice outcomes, human rights have been instrumental, and their role in promoting human wellbeing and protecting human dignity is now more important than ever.

Rising Sun Flag: Symbol of Hate or Cultural Pride?

image of aged Rising Sun flag

Last fall, South Korea asked the International Olympic Committee to ban the Rising Sun flag from Olympic stands in the Tokyo 2020 Olympics. South Korea argues that the Rising Sun flag is representative of Imperial Japan, thus representative of the human rights abuses and war crimes that occurred during the World War II era. Japan has pushed back by stating the Rising Sun flag is not a political statement. The reasoning is that, in the Japanese government’s view, the Rising Sun is a cultural symbol of pride and patriotism, and does not merely represent Japan’s Imperial Empire. To understand this issue, consider a similar case regarding the symbolism of flags: in the United States, many states still display the Confederate flag at state houses and on public grounds. Critics of the Confederate flag see it as a symbol of slavery, human rights abuses, and racism, while supporters of the Confederate flag view it as a cultural symbol of the South. In the case of Rising Sun or Confederate flag, it is important to recognize that the disagreement is not about if the flags have connections to human rights abuses (it is quite obvious these flags do have connections to barbaric wrongdoings); instead, the disagreement concerns questions about a flag’s meaning, whose opinion is relevant in determining that meaning, and if whatever original meaning a flag might have can be corrupted by factors later on.

To understand the significance and sentiments surrounding the Confederate flag, it is important to understand the history of it. The Confederacy has explicitly supported slavery in its constitution as it said ,”No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.” There were nearly 4 million slaves in 1860, mostly in the confederate states, and they were subject to brutal conditions such as whipping, burning, hanging, mutilation, and rape. The Ku Klux Klan made use of the flag during cross burnings and lynchings, and many white supremacist groups still use it today.

Supporters of the Confederate flag, however, see it as a symbol of heritage and a recognition of the millions of confederate soldiers who fought in the Civil War. In fact, most confederate soldiers did not own slaves. But critics say the Civil War was mainly caused by slavery, while some claim the cause was states’ rights. No matter the cause of the Civil War, slavery was an extremely common, atrocious infringement of human rights in the Confederate states, and many associate the the flying of the Confederate flag with those abuses.

Like the history and symbolism surrounding the Confederate flag, the Rising Sun flag has negative connections surrounding it. The flag was most notably used during Japan’s Imperial Era, but it has origins of being used by feudal warlords during the 1600s. Many Japanese people do not see its use as a political statement because it is widely used for seasonal festivals, fishermen boats, and naval ships. Although this flag can be seen in everyday cultural events, it has also been used by Japanese nationalist groups. Many in Korea, China, and other parts of East Asia see this as a symbol of Japanese Imperialism. During the Pre-World War 2 and World War 2 era, Korea and, later on, parts of China, suffered under the brutal, barbaric rule of the Japanese Empire. The Japanese military was known for kidnapping Korean, Chinese, and other Asian women and forcing them into sexual slavery, while Korean men were put into forced labor camps. Koreans were not allowed to speak, write, or learn Korean and were forced to use Japanese. In China, Japan massacred and raped hundreds of thousands of civilians which is known as the Nanking Massacre. During this period, the Rising Sun flag was used, so many Koreans, Chinese, and other countries in Asia see this flag as a symbol representing these barbaric actions by Japan. This historical divide is still can be seen today with Japan’s reluctance to apologize for war crimes consistently, South Korea’s recent boycott of Japanese goods, and Japanese nationalist groups holding rallies regularly.

Given the atrocities committed under these two banners, the question remains what message the Rising Sun or Confederate flag might send that would overcome these connections. Supporters of the Confederate or Rising Sun flags claim the original meaning and intention behind the cultural symbol should be taken as the sole meaning. But consider the Nazi Swastika or the Soviet hammer & sickle typically associated with the millions of deaths in concentration camps or gulags. If their logic was consistently applied, then the Nazi Swastika would symbolize peace and the Soviet hammer & sickle would symbolize socioeconomic equality because those were these flags’ original intentions. The fact is that flags are embedded into the community it represents, so it cannot conveniently detach from past wrongs while only associating itself with the good. Take the analogy to a sports team. Teams have wins and losses, but can the team only associate with the wins? Of course not. If a symbol represents the team, then the symbol represents the wins and losses too. The Confederacy participated in the brutal enslavement of humans, so the Confederate flag reflects slavery and southern culture. Imperial Japan sponsored massacres across East Asia, so the Rising Sun flag reflects massacres and Japanese culture. The Rising Sun and Confederate flags represent both the good and the bad.

When cruel wrongdoings are of monumental magnitude as in the case of the Confederacy and Imperial Japan, there is no removing the history of barbaric atrocities to see only original intention. Therefore, when a state or national government openly supports flags with connections to widespread historical wrongdoings, it is an amplification of the historical wrongdoings the flag represents. The flying of the Confederate and Rising Sun Flag fails to acknowledge historical injustices, some injustices in which people who are alive today have lived through.

Natural Law Theory and Human Rights Advocacy

photograph of stained glass depicting crowning of religious figure

In July 2019 Mike Pompeo announced the creation of a panel to examine the issue of human rights through the lens of natural law theory. This disquieted groups which advocate for LGBTQ rights and groups which advocate for abortion rights. Specifically, the Catholic theological connotations of the phrase “natural law” elicited significant negative response. Some media outlets provided minimal explanation about natural law theories, but little was written about what the alternative is to the natural law picture.

The connection to Catholic theology comes from the writings of Thomas Aquinas in his Summa Theologica. In his discussion of law, Aquinas specifies that there is an important connection between what two types of law which he identifies as “human law” and “natural law”. Human law is the body of explicit and authoritative rules put forth by governments and societies, while natural law is the rules of reasoning and action which apply to all thinking beings. In turn, these rules of reasoning and action are a subset of a third type of law that Aquinas calls “eternal law”—which are essentially the laws of physics, biology, psychology, sociology, etc. The argument of natural law theory, in brief, is that natural law serves as a yardstick of legitimacy for human laws. If a human edict contradicts natural law, then it is not really a law at all.

Enter the controversy. If human law must match with natural law, and if natural law entails prescriptions about human sexual and reproductive behavior, then human law must likewise make law directing human sexual and reproductive behavior. On this basis, academics like Mary Ann Glendon have argued against the inclusion of abortion as a human right. In her capacity as representative of the Vatican at a 1995 UN Conference on Women, Glendon argued that women’s sexual and reproductive rights are fundamentally rooted in duties to society, the lives of children, and God—rather than “… their own personal fulfillment …” In short, she means that any proposed legal right to abortion is not really a right at all because it contradicts natural law. Fast forward to 2019 and Glendon, a professor at Harvard Law School, is one of the academics who has been tapped to be on Pompeo’s human rights advisory committee. Her appointment is one of the aspects of the advisory committee that has worried advocates for LGBTQ and women’s rights.

But is it really natural law theory that is the problem? And if it is, what is the alternative? The usual contender with natural law theory is called legal positivism. The natural law theorist argues that human law, to count as a law at all, must measure up to some external standard. However, the legal positivist argues that to count as law a human edict need only be accepted as authoritative by the institutions which create and interpret it, as well as the subjects who follow it. The difference here is easy to miss, so take the example of laws establishing a right to seek an abortion. Mary Ann Glendon argued that such an alleged law is actually not a law at all, because it fails to meet the external standard of natural law. A legal positivist, like the 17th-century English philosopher Jeremy Bentham, would argue that if a law establishing a right to seek an abortion was issued by the proper legislative authority—and the people bound by that law habitually obey it—then it is a genuine law. This is true for the positivist even if the law fails to meet some external standard of morality or reasonability. This doesn’t mean that a positivist blindly accepts any law, no matter how repugnant—just that they acknowledge its status as the law of the land. (Incidentally, Bentham famously said “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.” So some positivist theories would be no more welcoming to the idea of a right to seek an abortion, than Gledon’s version of natural law theory.)

Advocates for LGTBQ and women’s rights may not be best interpreted as positivists, however. In general, the language of human rights invokes something more like natural law theory. The Universal Declaration of Human Rights, which is the touchstone document on the subject of human rights for advocates worldwide, speaks of “…  the inherent dignity and of the equal and inalienable rights of all members of the human family …” continuing that these” … should be protected by the rule of law.” This language indicates that human rights exist before law, and that the law serves to enshrine or protect an externally determined standard. Further, laws protecting the gamut of human rights are represented as necessary parts of the laws of any civilized and just nation. This matches closely with the Thomas Aquinas’ view that there are some human laws which are simply demanded by the natural law.

Whatever the merits or ulterior motives of Pompeo’s Commission on Unalienable Rights, natural law theory itself is not inimical to the cause of LGBTQ and women’s rights. Such a theory even seems to be a fundamental underpinning of the worldwide advocacy of fundamental human rights.

Corporate Responsibility and Human Rights: DNA Data Collection in Xinjiang

photograph of Uighur gathering

Since 2006 China has engaged in a large-scale campaign of collecting DNA samples, iris images, and blood types in the province of Xinjiang. In 2016, a program under the name “Physicals for All” was used to take samples of everyone between ages of 12 to 65 in a region home to 11 million Uighurs. Since the beginning of the program, it has been unclear whether the patients were at any point “informed of the authorities’ intention to collect, store, or use sensitive DNA data,” raising serious questions about the consent and privacy of the patients. The authorities largely characterized the program as providing benefits for the relatively economically poor region, with a stated goal: “to improve the service delivery of health authorities, to screen and detect for major diseases, and to establish digital health records for all residents.” Often accompanying program coverage were testimonies describing life-saving diagnostics due to this program. Despite being officially voluntary, some program participants described feeling pressured to undergo the medical checks. The Guardian reported numerous stories in local newspapers that encouraged officials to convince people to participate

Once a person decided to participate and medical information had been taken from them, the information was stored and linked to the individual’s national identification number. Certainly, questions concerning the coercive and secretive nature of the campaign arise as the government is collecting a whole population’s biodata, including DNA, under the auspices of a free healthcare program. In addition, this is a gross violation of human rights, which requires the free and informed consent of patients prior to medical interventions. The case is especially troublesome as it pertains to Uighurs, a Muslim minority that has been facing pressures from China since the early 20th century, when they briefly declared independence. China is holding around million Uighurs in “massive internment camps,” which China refers to as “re-education camps” (see Meredith McFadden’s “Uighur Re-education and Freedom of Conscience” for discussion). According to The New York Times, several human rights groups and Uighurs pointed to the fact that Chinese DNA collection may be used “to chase down any Uighurs who resist conforming to the campaign.” 

To be able to ensure the success of this campaign police in Xinjiang bought DNA sequencers from the US company Thermo Fisher Scientific. When asked to respond to the apparent misuse of their DNA sequencers, the company said that they are not responsible for the ways the technology they are producing is being used, and that they expect all their customers to act in accordance with appropriate regulation. Human Rights Watch has been vocal in demanding responsibility from Thermo Fisher Scientific, claiming that the company has a responsibility to avoid facilitating human rights violations, and that the company has an obligation to investigate misuse of their products and potentially suspend future sales.

Should transnational actors, especially those providing technology such as Thermo Fisher Scientific, have a moral responsibility to cease sale of their product if it is being used for “immoral” purposes? One could claim that a company that operates in a democratic country, and is therefore required to follow certain certain ethical guidelines, should act to enforce those same guidelines among their clientele. Otherwise they are not actually abiding by our agreed-upon rules. Other positions may demand the company’s moral responsibility on the basis of obligations that companies have to society. These principles are often outlined in company’s handbooks, and used to keep them accountable. These often stem from convictions about intrinsic moral worth or the duty to do no harm.

On the other hand, others may claim that a company is not responsible for the use to which others put their goods. These companies’ primary duty is to their shareholders; they are profit-driven actors which have an obligation to pursue that which is most useful to itself, and not the broader community. They operate in a free-market economy that ought not be constrained simply as a matter of feasibility. As Thermo Fisher Scientific notes, “given the global nature of [their] operations, it is not possible for [them] to monitor the use or application of all products [they’ve] manufactured.” It may be that a company should only be expected to abide by the rules of the country it operates in, with the expectation that all customers “act in accordance with appropriate regulations and industry-standard best practices.”

Legal Personhood and Nonhuman Rights

photograph of two elephants on marshy plains

In July 2019, the Supreme Court of Bangladesh granted all of the country’s rivers status as legal persons. Doing so makes it possible for the newly created National River Conservation Commission to bring legal action against anyone whose activity is deemed “harmful” to the country’s rivers. Other countries, and states within the US, have enacted similar rules (see Meredith McFadden’s “Who and What Is a Person: Chilean Rivers” on this site). There have also been extensive efforts on the behalf of non-human animals to establish for them legal personhood. For example the Nonhuman Rights Project in 2018 sued the Bronx Zoo to obtain a writ of habeas corpus for Happy, an Asian elephant housed at the zoo since 1977. In short, they got a court to compel the zoo to justify the lawfulness of their captivity of the elephant. 

The reasoning in each case has been distinct and so no consistent framework has yet emerged to ground the efforts to extend (the recognition of) rights beyond human beings to non-human animals and non-organisms. The Nonhuman Rights Project has focused on arguing that long-standing legal definitions in the Anglophone tradition already recognize the rights of animals—and that humans largely fail to act consistently on our own legal principles. The Bangladeshi ruling leverages a cultural belief that the river is a mother figure to the country. A broad ruling on the rights of nature made in 2011 by Bolivia’s government appeals to existence of conditions on the integrity and balance of natural systems—in short, nature’s wellbeing. This raises the question of what consistent basis, if any, can be articulated for such cases going forward. As attempts to abate climate change and eliminate animal cruelty increase, there will be a need for a powerful and consistent legal-philosophical framework to undergird these types of claim. 

One possible framework relies on an anthropocentric and social utility view of rights: that is, one which determines when, and to what, rights should be extended by calculating the benefit to humanity the rights would yield. Under such a framework the ability of current and future humans to secure food, water, and shelter gives sufficient reason to treat non-human animals and non-organisms as bearers of legal rights. Most of the arguments geared toward motivating people to deal with climate change fall under the auspices of the anthropocentric framework. However anthropocentric accounts of rights only extend rights to non-human animals and non-organisms on a provisional basis: these entities are considered as bearers of rights for only as long as it benefits humans. This framework does not make sense of the language found in measures like those taken by Bangladesh and the Nonhuman Rights Project. In these cases it is for the sake of the animals and the rivers themselves that rights are being recognized—not for the sake of the humans who benefit from them.

The Nonhuman Rights Project highlights the following definition from Black’s Law Dictionary: “So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties.” To this they add, in the case of Happy, that she is cognitively sophisticated enough to pass the mirror test—a psychological exam argued by some to demonstrate the existence of a sense of self (see McFadden’s “Passing the Mirror Test” for discussion). Hence they offer cognitive sophistication as a criterion for being capable of rights or duties. Other defenses of animal rights appeal to sentience—the ability to feel pain and pleasure—as the relevant criterion establishing animals as bearers of rights. Peter Singer wrote in his 1979 Practical Ethics, explaining the views of John Stuart Mill, “[t]he capacity for suffering and enjoying things is a prerequisite for having interests at all, a condition that must be satisfied before we can speak of interests in any meaningful way.” However neither of these lines of reasoning extend to non-organisms, like rivers and lakes. These entities do not have cognition at all, much less sophisticated cognition. Moreover Singer, continuing on after the passage quoted above, forecloses upon the possibility of non-organisms having interests: “It would be nonsense to say that it was not in the interests of a stone to be kicked along the road by a schoolboy. A stone does not have interests because it cannot suffer.” This directly contradicts the language of the measures taken in Bolivia and Toledo, Ohio which discuss the rights of nature “to exist, flourish, and naturally evolve.”

Taking the idea of the rights of non-organisms like lakes and rivers seriously may require a significant departure from mainstream moral philosophy, according to philosophers of so-called “radical ecology” frameworks. Proponents of radical ecology contend that the project of extending rights of personhood to non-humans can never fully account for the moral standing of non-humans, viewing the project as a thinly-disguised version of anthropocentrism. Instead they argue for a fundamental revision of how human’s view the natural world. For instance the very division of the world into the categories of ‘human’ and ‘non-human’ is a misstep according to radical ecology—one which is at the root of problems like those addressed by Bangladesh, the Nonhuman Rights Project, Toledo, Bolivia, and others. Hence while the radical ecology framework gives full breath to language about nature’s rights to flourish, it objects to the method of extending legal personhood to non-human entities. 

Meeting the challenges of climate change and generally reforming humanity’s relationship to the rest of the natural world is no simple task. The steps taken by various jurisdictions and organizations to extend legal personhood to nonhuman animals and organisms represent a strategy that is in its first iteration. The strategy has so far met both with mixed reception and mixed results. Regardless of their success, similar measures and strategies are likely to arise as jurisdictions grapple with environmental and animal rights issues. Likewise, scholars will continue trying to develop powerful and consistent philosophical frameworks to undergird the legal work.

Racism, Refugees, and the Ripple Effect

photograph of barbed wire fence with camp in the distance

Trump has been embroiled in discussions about walking back or defending his latest racist behavior this past week. After saying that four congresswomen should “go back” to their countries of origin and presiding over chants of “send her back!” at a campaign rally, he tweeted Sunday that the congresswomen were “not capable of loving our Country.” 

As part of his “go back” rhetoric, Trump articulated his view that if the congresswomen didn’t like living in the US, they should leave and attempt to improve conditions in their supposedly broken countries. (Multiple late-night hosts noted the irony involved in Trump’s statements, as the congresswomen’s country is the US, which at the moment can feel broken and in need of fixing, and which, as members of congress, seems to be what these women are attempting to do.)

At the same time as he encouraged some Americans to leave, Trump rolled out new policy making it more difficult for others to leave their own dangerous countries. His administration has implemented a policy that requires refugees who have traveled through another country to have applied for asylum in that country as well. The ACLU quickly announced their intention to challenge the policy in court, and the administration instructed the southern border agents to implement it as quickly as possible before it may be blocked.

The so-called third-country asylum rule is incredibly restrictive, especially against asylum seekers at the US’s southern border. Such restrictive policies towards people seeking safety brings obvious ethical questions to the fore. There is, perhaps, a tension between a purported sovereign right to autonomy for nations to determine who will reside or travel within their borders and the rights of humans to be free from violence and persecution. These human rights can be seen to ground the right to freedom of movement between nation-states. Though international law recognizes that immigration and citizenship policies are, and should be, left up to each state, the UN has exceptions for refugees, whose basic human rights are in dire need of protection and overrule states’ right to make such policies.

Importantly, the freedom to make immigration and citizenship policies does not mean that all such policies are created equal, from a moral point of view. From a moral perspective, immigration policies that are transparent and ensure migrants have access to basic human goods are preferable to an opaque and unpredictable set of policies that makes navigating the systems that provide basic goods difficult, though both are legally acceptable.

But, beyond the legal space to determine immigration and citizenship policies is the commitment to accept refugees. This commitment is based in the idea that humans should not be condemned to suffer, when there is a place they could live without being persecuted. Many nations, including the US, have agreed to policies that commit them to accepting asylum-seekers: countries cannot force migrants who have entered their territory to return to places where their safety is under threat. This is the “non-refoulement” principle from the United Nations 1951 Convention of Refugees, and even countries that are not participants in the convention have endorsed the spirit of the principle.

Trump’s policy builds off of a crucial exception to this principle, which concerns migrants who have come through a country considered to be “safe.” Countries are deemed “safe” according to the Immigration and Nationality Act, which governs asylum law, pursuant to a bilateral or multilateral agreement. Currently the US only has such an agreement with Canada. Trump attempted to sign such an accord with Guatemala, but the president cancelled the trip to sign the third country agreement in order to see what Guatemalan courts ruled regarding the treaty.

In the US, asylum rates have been declining over the past six years, and this trend is on track to continue. Six years ago the denial rate was just 42.0 percent, but last fiscal year saw 70 percent of applications denied. In 2018, a particularly high spike in denials was the result of a policy shift made by Attorney General Jeff Sessions. Sessions banned asylum requests on the basis of domestic violence and gang violence, though this ban was later struck down in the courts. The new third-country policy would “effectively end” asylum on the southern border.

The decline in granting asylum and other relief to refugees does not just affect the groups at our border, however. This trend in US policy has been reflected in the policies of other large and wealthy nations. For instance, the EU currently attempts to prevent asylum-seekers from reaching their shores – supporting border agents in countries like Libya that catch migrants attempting to cross the Mediterranean Sea and detain them in Africa in deplorable conditions in detention centers.

This is leading to worldwide declines in aid to those seeking relief: “It’s called a ripple effect,” says Jeff Crisp, a research associate at the Refugee Studies Centre at Oxford University. “When the largest and wealthiest nations get away with breaking international human-rights laws, then other countries wonder, why can’t we?”

India, a country with a long history of hosting asylum-seekers, currently has 40,000 refugees from Myanmar, and now is treating them as illegal migrants. It has begun sending Rohingya refugees back to Myanmar, the site of a 2017 genocide sponsored by the current government.

Similarly, Trinidad and Tobago sent 80 Venezuelans back to their devastated homeland last year, while Peru returned 40 Venezuelans for “allegedly being part of criminal gangs or for not having legal papers.”

Refugee policies are just one part of a racist and exclusionary nationalist landscape. The rhetoric that the US has engaged in bolsters other countries with similar constituencies. Hungary has explicitly praised the US’ nationalist tendencies and cited the “America First” anti-immigration policies as providing them with the support they need to enact similar attitudes within their own country. (Hungary closed its borders during the height of the Syrian refugee crisis and has rejected humanitarian pleas to take part in the effort.)

The import of human rights is being subjugated in national dialectic to the sovereign rights of a nation-state that endorses a racist identity. That isn’t the priority of international law or humane moral systems.

Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals, as nations and in international relations. Nearly every mature, liberal democracy has a constitutional bill or a charter of rights to which lawmakers and keepers must defer. 

Rights language has become entrenched in the way we speak, that it is often taken as fundamental. A claim that “I have a right to X” will often trump other arguments. A right is an entitlement. A right entails a duty – the right to freedom of expression entails the duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity, self-determination of persons. They are important because they promote those conditions necessary for well being, for humans to flourish and for society to promote that flourishing. 

But there can be a dark side to rights claims – for example a claim to the right of free speech can be used to protect racism and lies, the right to freedom of religion can be used to protect discriminatory practices and the right to bear arms, enshrined in the US constitution, has made it nearly impossible to tackle the scourge of gun violence in America. 

Some important philosophical questions about rights – what they are grounded in, what things should be considered rights, how they are protected and what to do when rights appear to clash with one another – remain a challenge. Some of these questions are central to the current national debate in Australia over whether a bill or charter of rights should be instituted. 

Australia is the only mature liberal democracy that does not have a charter or a bill of rights. Many feel that the introduction of constitutional rights is long overdue, yet others do not believe that a bill of rights is needed. In fact, many feel that such a bill might even be a hindrance to the administration of justice.  

This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible and most democratic protections for Australians, versus those who think that the system is failing in some key areas which a bill of rights would help to rectify. 

At the time Australia’s constitution was written, early in the twentieth century, having a bill of rights as part of the constitution was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.”

Some constitutional provisions function as rights provisions– such as freedom of religion. But it is the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination. Many of these have been based upon Australia’s ratification of international treaties. 

Various parties feel this process has worked well because it gives flexibility to the system, where charters of pre-existing, inalienable rights can make the system inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy usually works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election. 

A further objection to the introduction of a bill of rights, that such a bill would lead to a kind of ‘judicial imperialism’ by way of transferring power currently held by the legislative body, to the courts – unelected (usually white, middle-aged, male) judges. The worry is that, a bill of rights could result in the entrenchment of values of said judges into law, in a way that would prevail even over Parliamentary statutes. 

However, the argument that it would politicize the courts and allow too much power in the hands of judges, who are unelected and therefore not as accountable in the democratic system, may be losing ground. One contributing factor is this era of increased populism, from which Australia, following the results of the most recent election, is certainly not immune. In that vein, one could also add the growing  sense that people’s trust in democracy has been eroded through the influence of many different, powerful forces from corporate lobby groups to misinformation spread on social media. 

Nevertheless, the issue of flexibility is still present. As the example of the right to bear arms in the US illustrates, things which may be important fundamental rights at one time, may not be appropriate in another. Having protections enshrined as rights can make them very difficult to amend later. The Australian constitution, like the US constitution, is very difficult to alter, so the worry is that the community could be stuck with rights that end up resulting in more harm than good. 

A bill of rights drawn up now may not have the capacity to deal with problems of the future. We live in an age of such exponential technological change, we may not yet know what problems internet technology, biotechnology, genetics or artificial intelligence may pose. It is not likely that a bill of rights drawn up now would be able to predict or manage all of the issues that these advances might bring. The argument is that it is better to leave rights and responsibilities associated with these issues to be dealt with as they arise by the parliament of the day through the enactment of specific legislation. Such legislation can typically be expressed in far greater detail and specificity. 

On the other hand, the democratic system may have its own flaws when it comes to equal protections for every person. It does, of course favor the majority, and for this reason it is felt by some that a bill of rights is necessary to ensure the interests of minorities and other vulnerable individuals are equally protected. As Justice Michael Kirby, a strong advocate for a bill of rights in Australia, said in a recent address on the subject:  

Democracies look after majorities. Democracies are good in looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it. 

Though it is true that rights can sometimes be inflexible, and that there are difficulties in deciding what rights to enshrine, how to enforce them, and how to manage situations where they may come into conflict with one another, from the perspective of the question of how a society can best protect minorities or vulnerable individuals it is prudent to remind ourselves about the philosophical case for rights. 

The notion of inalienable rights is based on an ethical principle of equality and dignity. It is a deontological principle which has at its core the imperative to treat persons with respect, as ends in themselves but never as means to an end. This fundamental tenet is at the center of the notion of human rights. 

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions for basically political reasons. Justice Kirby argues that: 

Basically, the idea of finding the fundamental principles that bind us together and that our rules for a fair society are principles that should be bipartisan and not consigned to one side of politics.

A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all Australians, and all those under Australia’s protection. Minorities and the vulnerable would be protected from the possibility of legislation which would undermine these things. These protections communicate our convictions about principles like equality, justice and kindness, which is the essence of a good and free society.

Separating the Freedom of Religion from the Right to Discriminate

photograph of Israel Folau playing rugby

This week, GoFundMe shut down the campaign of Israel Folau, a top Australian rugby player who had set up an account up in an attempt to raise Aus $3 million to take legal action against Rugby Australia for terminating his contract. Folau’s contract was terminated last month for a high-level breach of the Professional Players’ Code of Conduct over his controversial social media posts. In many recent posts Folau had expressed his belief that, among others, homosexuals, adulterers, and atheists would go to hell unless they repented.

Folau is challenging his dismissal in the Fair Work Commission, arguing Rugby Australia violated his religious freedom. He is an evangelical Christian, and he claims that it is his responsibility to preach his religion. “I am… a Christian. My faith is the most important thing in my life. I try to live my life according to the Bible and I believe it is my duty to share the word of the Bible,” he said. GoFundMe’s manager Nicola Britton said in a statement “as a company, we are absolutely committed to the fight for equality for LGBTIQ+ people and fostering an environment of inclusivity.” 

The Fair Work Commission’s decision regarding Folau’s claim to have had his right to freedom of religion violated may have important ramifications for future challenges in workplaces and religious institutions both for religious people who want to exercise their right to carry out the tenets and responsibilities of their religious worship, and also for those against whom such freedoms may discriminate.

The Folau case is another iteration of an issue that has been widely problematized following Australia’s new same-sex marriage laws which came into effect in 2018; after which religious people’s concerns that they would not be allowed to refuse services to, or would be forced to teach the legitimacy of, same-sex couples led to the government conducting a review into religious freedom and to canvassing the possibility of legislating extra protections as well as instituting a commission to oversee protection of freedom of religion. 

“Unfortunately, GoFundMe has buckled to demands against the freedom of Australians to donate to his cause,” a spokesman for Folau said. “There appears to be a continuing campaign of discrimination against Israel and his supporters.”

Following GoFundMe’s closing of Folau’s funding campaign, he has received a $100,000 donation from the Australian Christian lobby. ACL managing director, Martyn Iles said “They [quiet Australians] feel the pinch of political correctness and the erosion of their basic freedoms.” Setting aside the point that Folau is anything but a ‘quiet Australian’, the salient point in these responses by Folau and his supporters is that they portray him as a victim of discrimination whose freedoms are being eroded. 

Freedom is at the core of many of our ethical principles and moral and political values. The UN Universal Declaration of Human Rights, adopted by the general assembly in 1948, specifies many types of freedom – such as freedom of speech, assembly, religion – that are enshrined as universal moral rights. 

These liberties serve as the fundamental lynchpin of democracy. In the Folau case, more than one fundamental democratic principle is at stake, and they appear to be at odds with one another. The first is the right to believe in, practice, and undertake religious activities. This right is enshrined in Article 18 of the international covenant on civil and political rights (ICCPR), to which Australia was an original signatory. The second is the right to freedom from discrimination, and according to Article 18 governments can limit religious freedom if it is “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

Either those principles clash because they are fundamentally incompatible, or they clash in practice because of disagreements about how to apply them. This therefore raises the question of what exactly freedom of religion entails, and whether it includes the right to discriminate against those who do not share such beliefs. In short: how far does a person’s right of religious expression extend? 

The limitations placed on freedom of religion in Article 18(3) of the ICCPR provide an essential qualification on the capacity of one right to disproportionately impinge upon the exercise of other rights. Any concessions for freedom of religion must be balanced against rights to equality and non-discrimination. Freedom of religion is a right designed to protect religious persons from discrimination, it is not a free pass to allow the religiously-sanctioned discrimination against others, and those who try to co-opt it as such are being disingenuous. 

In a statement in defense of his claim that his religious freedom was being violated, Israel Folau said: “What makes our country so wonderful is that we have such a diverse community made up of so many different cultures and values.” It is hard to read this remark as anything other than stunning hypocrisy, given that his mission appears to be nothing short of homogenization of the culture into a salvific vision of Christianity.

It is also worth remembering that freedom of religion is not traditionally a core tenet of the Christian religion – a fact to which the centuries of zealous missionary efforts to convert non-Christians the world over is testament. Freedom of religion, as enshrined in the UN Universal Declaration of Human Rights, article 18, is a core secular principle. It is only when laws are no longer determined by religious beliefs that people’s freedom to worship in their own way becomes possible.

Moral Standing and Human Monkeys

photograph of macaque's face in profile

Last month researchers significantly complicated how we conceive of the landscape of moral creatures. Scientists in China have created a monkey with a human brain gene, inserting it with a virus into eleven macaque monkeys. “The five survivors went through a series of tests, including MRI brain scans and memory tests. It turned out they didn’t have bigger brains than a control group of macaques, but they did perform better on short-term memory tasks. Their brains also developed over a longer period of time, which is typical of human brains.” The scientists articulated the aim of the study as observing the evolutionary process of the human brain, the research was meant to capture how our brains developed the way they did. The next stages will involve study of the genes associated with language learning.

Typically, ethicists and laymen alike have taken there to be something morally relevant about most humans that means that they ought to be treated in particular ways, and should treat others in particular ways. Humans are moral animals in the sense that they are the ones that can do wrong and be wronged. In other words, when a non-human predator kills and eats its dinner, they are harming but not wronging their prey. When humans kill something, this is a potentially morally-loaded behavior.

The moral standing of humans is a tense enough ethical question, it being notoriously difficult to find an intuitive property that could ground the moral package of rights and duties that we take most humans to have – that transforms humans into persons. Is it advanced cognitive capacities such as reason, or self-awareness, or the ability to direct their behavior self-consciously? Is it the complex ways they feel pain and pleasure? The sort of relationships they have with one another? The potential to develop into a being that has these properties? Their membership in the “advanced” species? Each of these standards misses some intuitions that many would find central to our moral understanding – children may be excluded, animals may be included too strongly, humans experiencing brain death or persistent vegetative states or advanced dementia may not be captured appropriately.

While much of the focus of discussions of moral standing attempts to figure out what is special about humans, it is difficult to ignore that many of the things that makes humans special are shared to varying degrees with non-human animals. Our tool-use, communication, intelligent and flexible responses to the environment, complex social structure, etc., can all be found across the animal kingdom in various forms. This is suggestive of duties or respect that we may owe to such animals, and animal ethics is a large and growing area of research.

Further, with the advances made in computer science, some philosophers suggest that we need to start thinking about treating artificial intelligence that we create with similar moral respect that we owe to non-human animals. So, while humans may be a model for moral consideration, concern, and responsibility, extending this framework to relevant beings in the world is nothing new.  

However, influencing creatures to give them the properties of humans is a significant step. While there may be ways of ethically treating some non-human animals in captivity (wildlife preserves?), keeping a creature with human capacities captive has long been viewed as morally reprehensible (a view that hopefully criminal justice systems will catch up with). Also, one major justification for experimenting on non-human animals is the benefit for humans – potential disease intervention, etc. This, however, is not the aim of these studies.

While there are those that consider it to be unethical to interfere with the basic capacities of non-human animals, the researchers have a two-pronged defense. First, apes are similar enough to humans that altering their genetic structure wouldn’t be a harm. Second, their test subjects are different enough that their research won’t succeed in making them sufficiently human to worry.  

An interesting result of the potential future of these experiments is that many creatures would have the moral status of “potential person”, which is relevant to some in the US’s abortion debate. If the research on primates continues as the researchers articulate, Tooley’s science fiction thought experiments from the 1970s and 80s about the potential to inject cats with the rationality of mature humans transitions from science fiction to scientific possibility, and attention to the standing of “potential person” will be relevant outside of the abortion debate.

The US, the UN, and Human Rights Investigations

Photo of the UN flag flying against a blue sky with white clouds

The United States has stopped cooperating with United Nations human rights investigations in the US. There are at least 13 requests for inquiry that have gone unanswered since May 7, 2018, and the only UN investigators that have operated in the US in Trump’s administration were invited by the previous administration under President Obama.

Human rights are norms that apply to all members of the community and attempt to protect our basic human dignity from abuse in the political, legal, and social spheres. These rights include freedom of expression/religion, the right to a fair trial if charged with a crime, and the right to participate in political activity.

The UN investigators organized by President Obama were looking into extreme poverty in the US. Extreme poverty violates human rights because of the suffering experienced at the time, and the purported human right to autonomously guide one’s own life. When you live in extreme poverty, often this affects your health, which limits your options in life, and also the poverty creates a situation of need that shapes the choices you make. Because you will enter choice-making scenarios, such as where to live, what jobs to pursue and accept, what food to purchase, etc., from his position of need, these choices are not autonomous but coercive. Your continued survival and baseline well-being are the deciding factor; in a real way you are not free to choose your life’s direction.

The Trump administration has implemented a number of controversial policies that have received outrage by the national population, let alone the international community. The administration has reintroduced mandatory minimum sentencing (contra right to a fair trial), has moved to rescind DACA (contra right to education and right to arbitrary detention), selectively banned immigration from Muslim-majority nations (contra freedom of religion and non-discrimination), invited an anti-LGBT+ hate group to the UN commission on the Status of Women (contra non-discrimination, equal protection under the law, and undermining the rights of LGBT+ people and women), just to name a few.

The UN has reached out regarding incidents in the US under the Trump administration only to be met with silence: “Among the formal approaches that have failed to receive a response from the US over the past several months are queries about family separation of Central Americans at the US border with Mexico, death threats against a transgender activist in Seattle and allegations of anti-gay bias in the sentencing to death of a prisoner in South Dakota.” When events like the family separations at the southern border of the US occur at the administration’s injunction, there is no further authority to regulate the practices; they are legally permissible unless some court can declare them illegal in some way. The huge bureaucratic force of the executive branch was (and is) behind a system that separated families and housed many in cages, all performed according to policy.

A major role of the United Nations is to monitor and report on the condition of respect for human rights in countries around the world. This is a crucial function because there are multiple ways that the living conditions for people can violate their human rights, even in manners systematically supported or allowed by governing systems. The UN human rights investigators serve as an external check on the effects of the policies that sovereign nations can enact.

Countries sometimes enact policies that directly violate human rights, such as the border policies in the US recently, but systemic conditions in a country can also create or reinforce conditions that violate human rights, such as the poverty being investigated by the UN before the Trump administration ceased to cooperate. Both of these routes to human rights violations are concerning, of course, but what is perhaps most troubling is that direct rights violations are being blocked from UN and international scrutiny.

For the UN to be effective in holding sovereign nations accountable, nations need to cooperate and take its authority seriously. For the US to cease to interact and respect the UN’s human rights investigations is a blow to their international authority and may have long-term effects on the effectiveness of extra-national checks on the living conditions of citizens. One advantage of having a body like the UN perform such checks is that it reduces the pressure on individual nations to perform the checks or feel individual burden to perform humanitarian interventions.  Cooperating with the UN thus has the benefit of highlighting and hopefully cooperating with international standards of human rights within one’s own country, and maintaining an international body that can serve as such a check on nations in the future as well.


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Human Dignity, Capital Punishment, and the Pope

Scrabble tiles spelling out the phrase "Death Penalty" on a gray background

Since his elevation to the papal seat in 2013, Pope Francis has repeatedly made international headlines with comments suggesting a desire to change Roman Catholic doctrine on matters ranging from marriage to contraception to the nature of the afterlife and more. The beginning of August saw Francis make more than a remark with the publication of a revision to the Catechism of the Catholic Church officially labeling the death penalty “inadmissible” in all cases.

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The Ethics of Deterrence: Australian Offshore Immigration Detention

Photograph of a long row of dark green tents

For over five years, the Australian Government has enforced a policy of not allowing asylum seekers or refugees attempting to reach its shores by boat to enter the country, and of ensuring that no persons who attempt to do so will be settled in Australia. Ever. As the government’s own disseminated advertising says: No Way. You will not make Australia home Continue reading “The Ethics of Deterrence: Australian Offshore Immigration Detention”

Reconciling Culture and Health in the Debate over Female Genital Mutilation

A photo of an African woman looking out over a field with her baby.

In a thought-provoking posted by CNN earlier this year, Female Genital Mutilation (FGM) is defined as “a brutal practice that’s inflicted on thousands of girls and women.” Female genital mutilation is the process of “intentionally altering” a female’s genital organs for various reasons. It can include partial or total removal of the external female genitalia. There are many moral reasons as to why this practice maybe considered “brutal,” but is it is ethical to portray such cultural practices in a negative light?

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Fast Fashion and the Ethics Behind Your T-shirt

A Photo of fashion design mannequins in an empty warehouse.

Can ethics and economics ever work together? This question captures the essence of the sweatshop issue that dominated the majority of media in 2013, especially highlighting Bangladesh. In 2013, according to the Guardian, a garment factory located from the fourth floor to the seventh floor of Rana Plaza collapsed, killing 1,135 people.This was not a natural disaster in any way, but rather was purely man-made. The workers apparently noticed a crack on Tuesday and reported to their manager, which resulted in a supposed Wednesday off for inspection. However, for some reason the building was declared safe to work in later on, and hesitant yet voiceless workers were called back to work, as CNN explains. Unfortunately, the Rana Plaza incident was not the first incident related to garment factories that occurred in Bangladesh. Previously in 2005, reports indicate that there were 70-plus deaths in a garment factory in the same area. Additionally, in 2012 another garment factory fire has already killed more than a hundred people in Dhaka, Bangladesh.

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Does the United States Steal Nurses from the Developing World?

Jamaica’s healthcare system has a critical problem: there are not enough specialist nurses in the country. Jamaica produces plenty of specialist nurses. However, nurses trained in Jamaica are leaving the country to work in places in the developed world, like the United States or the United Kingdom. According to a recent NPR article, “the exodus has forced Jamaican hospitals to reschedule some complex surgeries because of a lack of nursing staff on their wards.” James Moss-Solomon, the chairman of the University Hospital of the West Indies in Kingston, accused richer countries like the U.S. of “poaching” nurses from Jamaica. The use of the verb “to poach” —which can mean “to take something in an unfair way”—implies a moral condemnation of the practice.

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Do Children Have Rights That Adults Do Not?

Though the 2016 election may be more defined in the public imagination by questions concerning the candidates’ personal virtues and vices, this does not mean that substantive questions of policy that provoke deep philosophical and ethical disagreements among the American public have not also been relevant. One issue that has not received much coverage concerns policy proposals aimed chiefly at improving the lives of children and their families. Recently, for example, Hillary Clinton has proposed a generous expansion of the child tax credit, a refundable credit taxpayers receive in virtue of having children. In addition, Clinton has other proposals aimed at expanding access to early childhood education.

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Should You Have the Right to Be Forgotten?

In 2000, nearly 415 million people used the Internet. By July 1, 2016, that number is estimated to grow to nearly 3.425 billion. That is about 46% of the world’s population. Moreover, there are as of now about 1.04 billion websites on the world wide web. Maybe one of those websites contains something you would rather keep out of public view, perhaps some evidence of a youthful indiscretion or an embarrassing social media post. Not only do you have to worry about friends and family finding out, but now nearly half of the world’s population has near instant access to it, if they know how to find it. Wouldn’t it be great if you could just get Google to take those links down?

This question came up in a recent court case in the European Union in 2014. A man petitioned for the right to request that Google remove a link from their search results that contained an announcement of the forced sale of one of his properties, arising from old social security debts. Believing that since the sale had concluded years before and was no longer relevant, he wanted Google to remove the link from their search results. They refused. Eventually, the court sided with the petitioner, ruling that search engines must consider requests from individuals to remove links to pages that result from a search on their name. The decision recognized for the first time the “right to be forgotten.”

This right, legally speaking, now exists in Europe. Morally speaking, however, the debate is far from over. Many worry that the right to be forgotten threatens a dearly cherished right to free speech. I, however, think some accommodation of this right is justified on the basis of an appeal to the protection of individual autonomy.

First, what are rights good for? Human rights matter because their enforcement helps protect the free exercise of agency—something that everyone values if they value anything at all. Alan Gewirth points out that the aim of all human rights is “that each person have rational autonomy in the sense of being a self-controlling, self-developing agent who can relate to others person on a basis of mutual respect and cooperation.” Now, virtually every life goal we have requires the cooperation of others. We cannot build a successful career, start a family, or be good citizens without other people’s help. Since an exercise of agency that has no chance of success is, in effect, worthless, the effective enforcement of human rights entails that our opportunities to cooperate with others are not severely constrained.

Whether people want to cooperate depends on what they think of us. Do they think of us as trustworthy, for example? Here is where “the right to be forgotten” comes in. This right promotes personal control over access to personal information that may unfairly influence another person’s estimation of our worthiness for engaging in cooperative activities—say, in being hired for a job or qualifying for a mortgage.

No doubt, you might think, we have a responsibility to ignore irrelevant information about someone’s past when evaluating their worthiness for cooperation. “Forgive and forget” is, after all, a well-worn cliché. But do we need legal interventions? I think so. First, information on the internet is often decontextualized. We find disparate links reporting personal information in a piecemeal way. Rarely do we find sources that link these pieces of information together into a whole picture. Second, people do not generally behave as skeptical consumers of information. Consider the anchoring effect, a widely shared human tendency to attribute more relevance to the first piece of information we encounter than we objectively should. Combine these considerations with the fact that the internet has exponentially increased our access to personal information about others, and you have reason to suspect that we can no longer rely upon the moral integrity of others alone to disregard irrelevant personal information. We need legal protections.

This argument is not intended to be a conversation stopper, but rather an invitation to explore the moral and political questions that the implementation of such a right would raise. What standards should be used to determine if a request should be honored? Should search engines include explicit notices in their search results that a link has been removed, or should it appear as if the link never existed in the first place? Recognizing the right to be forgotten does not entail the rejection of the right to free speech, but it does entail that these rights need to be balanced in a thoughtful and context-sensitive way.

Negotiating with Terrorists in Colombia

The thought of allowing a terrorist group who has committed human rights violations such as the murder, kidnappings and displacement of thousands to create their own political party, let alone be integrated into society, is terrifying. Immediately you get a bad taste in your mouth. But if it means ending a 50-year-old conflict, is it worth the risk?  After several failed negotiations throughout the years, the Colombian government is closer than ever to ending its ongoing civil conflict with its two top guerrilla organizations, the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN).  The negotiations include land reform, the elimination of the drug trade, amnesty for combatants, and political participation through new political parties.

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The Unknown Nature of Zika

Many of us had never heard of the Zika Virus until recently, when it first took the media by storm. The Zika Virus, first discovered in Uganda Forest of Zika in 1947, is a mosquito-transmitted pathogen similar in nature to yellow fever and the West Nile Virus. This May, it made its first appearance in the Western Hemisphere, with an outbreak in Brazil. Now, the virus is running rampant, and has spread to numerous other countries, even making as far as the U.S. in Texas.

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