30 Human Security or Human Right: Which is More Basic?

Dr. N. Rajkumar

AIMS OF THE CHAPTER :

• To learn the linkage between human rights and human security.
• To learn about international instruments that aim at protecting human security.
• To appreciate the debate on prioritizing human rights or human security.

I. INTRODUCTION

Human security is a concept that has been in limelight and has been a part of the society since time immemorial. The concept of human security is one that has arisen from the insecurities of a human being. Such insecurity is an ancient phenomenon. The various insecurities faced by humans in the form of threats of famine, war, drought, flood, wild animals, plague, and enslavement appear in numerous ancient writings across the world.1 Over the period, the nature of threat may have changed however the threat per se has remained consistent over the centuries and thereby making it extremely difficult to explain the term human security in a few words. Academic definitions of the term human security range from narrow concepts focusing merely on physical integrity or a very limited number of threats to be addressed to an extremely broad understanding encompassing psychological and emotional aspects of security as well. The term international human rights when seen in its broadest sense as a regime that comprise not only customary laws and treaty law but also several other soft-law instruments that are with the Universal Declaration of Human Rights and other major United Nations Covenants, the Genocide Convention, several regional human rights instruments, the United Nations Commission on Human Rights together with its special procedures and the jurisprudence of international courts established with the objective of protecting human rights.2 Thus, human rights encompass all civil, cultural, economic, political and social rights and its application is not limited to only in certain areas. The term human right at its core is the interests of a human protected by law.3 Human security, on the other hand, is a secure condition or feeling.4 Human security thus appears to be a broader concept, as it comprises all the fundamental rights in addition to the basic capabilities and absolute needs.5 Human security comprises even those threats that are not primarily covered under the conventional view of human rights such as natural disasters, and further stretches towards threats from State and non-State actors thus making human rights a part of the broader concept of human security. However, since the term human right to includes the concept of security, there exists a debate on which of the two-concept holds water.

This paper concentrates on two primary points with the first being the violation and the fear of violation of human right for an act performed with the intent of protecting human security. One of the best examples for the same is the threat to human life in an armed conflict, an action in most cases justified as a measure to neutralize a threat to human security. This act, which results in the violation of a human right is discussed in detail with special references to issues pertaining to the use of weapons of mass destruction including nuclear weapons, which is the biggest threat to the right to life, and is the basic premise of human right, at a very large scale. Similarly, the issue pertaining to collateral damage during an armed conflict is also discussed herein as the same is again an action that results in the loss of human life. On the other hand, this paper shall also discuss whether the concept of human right is encompassed within the concept of human security.

II. RIGHT TO LIFE DURING ARMED CONFLICT

Armed conflicts generally comprise those actions that involve measures that are adapted to safeguard human security and actions that are necessary for neutralizing any threat to the same. Article of the ICCP Rexpressly provides that every human being has the inherent right to life, that the right shall be protected by law, and that no one shall be arbitrarily deprived of his or her life. Article 6 of the ICCPR, thus,creates positive obligations requiring the state parties to actively protect the life of their citizens and to avert threats to their life.7 However, before proceeding further in this premise, it is necessary to identify the issue of whether Article 6 applies to the situations of armed conflict. In 1996, the principal judicial arm of the United Nations, the International Court of Justice, dealt with this question in an advisory opinion and categorically held that in principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities, but further went ahead to state that the test of what constitutes an arbitrary deprivation of life shall be determined by the law applicable in that particular armed conflict.9 In any potential armed conflict, one of the major threat to the human right is caused by the fear of the use of weapons of mass destruction including nuclear weapon, which would inflict a violation of human right in the most severe form. Similarly, there are various other instances whereby there exists a violation of human right such as collateral damage, illegal detentions, etc.

A. Human Security, Weapon of Mass Destruction and violation of Human Rights

Weapons of mass destruction encompass chemical, biological and nuclear weapons. It is imperative that, while chemical and biological weapons have the capacity to cause great and indiscriminate harm, however, their overall effect is negligible when they are compared with that of today’s strategic nuclear weapons, some of which have a destructive capacity to as much as thirty times or more that of the bombs the United States dropped on Hiroshima and Nagasaki in 1945.10Weapons of mass destruction including atomic and nuclear weapons have played a major role in the violation of the right to life as well as the right to live in peace in a peaceful environment. The right to life is undoubtedly the most basic human right and its guarantee can be found in almost every international convention that guarantees the human right. The International Covenant on Civil and Political Rights, under Article 6(1) states “Every human being has the inherent right to life. This right shall be protected by law.No one shall be arbitrarily deprived of his life.” Similarly the United Nations Charter emphasize on its commitment to maintenance of peace in its preamble categorically lays down that the United Nations is determined to save the coming generations from the sufferings of war and its allied issues and thereby reaffirming the fact that it is the primary mission of the United Nations to maintain world peace and thus in an indirect way guaranteeing people a right to peace. In the year 1983, the UN General Assembly adopted a resolution denouncing nuclear war as a violation of the foremost human right viz. the right to life. This prompted the United Nations Human Rights Commission to hold that “nuclear weapons are among the greatest threats to the right to life which confront mankind today”, and it has been further stated that their production, testing, possession, deployment, and use should be prohibited and recognized as crimes against humanity. The Right to Peace of an individual is well accepted as a human right. The use of weapons of mass destruction including nuclear weapons is often justified by various states in possession of it as well as those advocating its use or stocking by reiterating that it is a means of deterrent and hence, it is referred to as a very important and integral means for the maintenance of human security. This, armed with the opinion of the International Court of Justice on the use of the nuclear weapon has created a way to justify the use of nuclear weapon in a potential conflict. However, the major issue that has been overlooked herein is that even in case of presuming that the use of nuclear weapons against a target state is lawful as per the rules of armed conflict as laid down by the International Court of Justice,15 the use of nuclear weapon would surely have a radioactive fallout which would directly affect third states beyond the target state’s national boundaries and this would act as a classic example of the fact that the use of nuclear weapons would surely violate the right to life of civilians living in such states that are beyond the target state’s national boundaries.16 Thus, there exists a clear conflict between the principle laid down under Article 6 of the ICCPRand the use or threat of potential use of nuclear weapons, which has led to a debate on whether there is a need for nuclear disarmament for the protection of human rights.

B. Collateral Damage – a violation of Human-Right?

“Collateral damage is the term used in humanitarian law to euphemistically express the damage caused by the military attack, offensive or defensive, to non-military civilians and civilian object.”18An example of collateral damage is the damage caused to civilians during an act of attack on an enemy target wherein either any civilian around such area get killed or injured or any village or residential areas around such target is damaged during such an attack. Such a case of an unintentional killing or causing injury to a civilian or damage to a civilian property would be construed as collateral damage as the damage inflicted upon them happens collaterally with the military target that was originally intended to be attacked. It is a well-accepted principle under the humanitarian law that no civilian target shall be attacked intentionally. Any act thus inevitably resulting in collateral damage would be in violation of the basic tenants of humanitarian laws and human rights with the violation of the right to life and security of a person. However, in most armed conflicts, collateral damage of some sort or the other occurs either accidentally or negligently or at times even purposefully. This had led to the idea of acceptable collateral damage whereby it is presumed that such collateral damage is within the standards set for the prescribed legal limits under international humanitarian law. However, the term acceptable collateral damage is a subjective one and depends on the quantum of damage that is inflicted upon civilians vis-à-vis military locations that were the primary target of the attack. Thus, collateral or incidental damage occurs when attacks that are targeted at military objectives cause civilian casualties and damage to civilian objects. In many instances, military objectives such as military equipment or soldiers are located at cities or villages or close to civilians and generally an attack at such a location inevitably causes collateral damage. It is imperative to note that attacks that are expected to cause collateral damage are not prohibited per se, however, the laws of armed conflict restrict indiscriminate attack on civilian locations. The Additional Protocol I to the 1949 Geneva Conventions, 1977 under Article 57 (1) states that, in an international conflict, “constant care shall be taken to spare the civilian population, civilians, and civilian objects.” Further, Article of the Additional Protocol, categorically prohibits attacks that employ methods and means of combat wherein its effects cannot be controlled. Finally, any attack whereby the collateral damage expected from such attack is not proportional to the military advantage that is anticipated is prohibited24 and thereby paving way for a need for determining whether the collateral damage to a conflict is within the acceptable limits.

III. HUMAN RIGHT ENCOMPASSES HUMAN SECURITY

One of the primary most concerns of human rights has always been the security and well-being of the individual. Security of individual is thus a human right. Article 3 of the Universal Declaration of Human Rights in a very clear manner refers to security as an integral part of the framework of human rights together with the right to life and liberty. Article 3 of the Universal Declaration of Human Rights thus comprises three different, yet inter-linked rights, i.e. the right to life, which is generally construed as the right to life in a biological sense as well as in a wider sense which includes even a right to a dignified life, the second part of the definition which encompasses the right of personal freedom a term which is quiteexpensive and thereby guarantees an array of rights and finally the right to personal security. The interpretation of the definition of the term human right under Article 3 of the UDHR is generally in a numerous instance done by reading it along with Article 5 of the UDHR which deals with the prevention of torture and Article 9 of the UDHR which deals with the freedom from arbitrary arrest or detention. Thus, the right guaranteed under Article 3 of the UDHR is more or less seen as an obligation on the state not to interfere with the integrity of the individual. In order to understand the intent behind the right to security as guaranteed under the UDHR, so as to understand the importance of right to security as an integral part of human rights, it is important that one studies the drafting process of Article 3 of the UDHR wherein a proposal by Cuba to insert the protection of integrity by adding it as a separate term was rejected by with a justification that the term integrity was covered by the term security.28 Similarly, an amendment proposed by Belgium to include a reference to respect for the physical and moral integrity of his person was also turned down with a similar justification.29 Thus, the intention of the drafters of the UDHR is clear that they had a broader connotation of the term security, which is encompassed in Article 3 of the Declaration. The intent of Article 3 of the UDHR to include the right to security as an integral part of human right has subsequently been adopted in its spirit by various other international and even regional human rights instruments. The same is evident from various conventions assuring human right. The fact that the term security is encompassed in human rights conventions can be construed as an indicator while looking for an answer to the question whether human security is a human right.

IV. CONCLUSION

The possession of nuclear weaponry and other weapons of mass destruction is inevitable and is something that cannot be done away with even though there is an inherent risk of its use which in all likelihood would cause large scale damage beyond the borders of the nation wherein it was originally indented to be used. As a matter of fact, the reasoning that nuclear weapon and other WMD’s acts a deterrent against those states and non-state actors whom might use in an unjustified or reckless manner, given the current that banana republics and states that sponsor terrorism are in possession of nuclear weapons and other WMD’s appears to be the prime factor to tilt the balance in favor of possession of nuclear weapons, epically as a means of deterrent. In this new era of conflicts, especially the one combating terrorism, collateral damage at times looks inevitable. It may be debated that noncombatants have a right not to be exposed to harm even in a situation of an armed conflict, however, in a fight for securing human security at a larger perspective, it is almost next to impossible to enforce it and what can be seen finally is whether the collateral damage is within the acceptable limits of international laws. However, the sad part of it is that any investigation into whether a collateral damage is justified or not happens much after the real damage is done. The efforts to identify as to whether human security or human right is more basic, has helped the fact to come into light that human security is a concept that extends the debate on human rights into a completely different dimension and brings various other issues such as humanitarian intervention that happens on the grounds of alleged serious human rights violations or the use of force with the intent of protecting human rights and also the human rights violations by non-state actors into the debate. In order to explore further especially on the use of force, whereby there is a violation of human right, so as to protect human right requires further more studies and analysis and that alone can answer the critical moot question of whether and how human security can explain and allows for the use of force in order to protect human rights. At the end of the day, it is imperative that one understands that in order to ensure the maintenance of one’s security, the human right of another person shall not be violated by anyway and also that the concept of human security in itself is one that is encompassed within the concept of human right. Thus, one has to draw a fine line at a point wherein by staying within the confines of the law, all necessary steps to ensure human security are taken and nobody’s human right is being violated in an unjust manner in that process.

Reference

• Alkire, Sabina, A Conceptual Framework For Human Security, Working Paper 2, Crise, University Of Oxford, 2003.
• Oberleitner, Gred, Human Security And Human Rights, European Training And Research Center For Human Rights And Democracy, Occasional Paper Series, Issue 8, 2002.
• Fortman, Bas De Gaay, “Rights-Based Approaches”: Any New Thing Under The Sun?, Idea Newsletter 2000
• Wright, Tim, Do Nuclear Weapons Violate The Right To Life Under International Law, Australian J. Peace Studies, Vol. 3, 2008.
• Weiss, Peter, Et. Al., Weapon Of Mass Destruction And Human Rights, Human Rights, Human Security & Disarmament, 2004, Available At Http://Www.Peacepalacelibrary.Nl/Ebooks/Files/Unidir_Pdf- Art2139.Pdf, Last Visited On 3rd October 2015.
• Legality Of The Threat Or Use Of Nuclear Weapons (Advisory Opinion) [1996] Icj Rep 225.
• Weston, Burns H, Nuclear Weapons And International Law: Prolegomenon To General Illegality, 1983 4 N.Y. L. School J. Of Int. And Comparative L. 252.
• Conda, H. Victor, HANDBOOK ON INTERNATIONAL HUMAN RIGHTS TERMINOLOGY, 2ed, 2004.
• Fischer, Horst, Collateral Damage, Available At Http://Www.Crimesofwar.Org/A-Z-Guide/392/#Sthash.Qgpp8z8m.Dpuf,Last Visited On 6th October 2015.
• ASBJÖRN EIDE, ET. AL., THE UNIVERSAL DECLARATION ON HUMAN RIGHTS. A COMMENTARY, 1992
• WAR: ESSAYS IN POLITICAL PHILOSOPHY, (Larry May Ed.), 2008.