Certain Unalienable Rights

While we are all familiar with the assertion of criminal jurisdiction across international frontiers, with its three to two November 18 ruling on our motion the Chilean Supreme Court recognized an even more fundamental obligation of courts to protect human rights wherever the rule of law is weak, rather than to simply punish violations. The plea to protect the two valiant Venezuelan prisoners of conscience was based on the Universal Declaration of Human Rights, the San Jos'{e} Pact, and article five of the Chilean Constitution. Together these accords and declarations recognize that the importance of human rights transcends the usual jurisdictional boundaries.  In particular the Chilean court found that when three conditions are met; (i) the human rights involved are protected as such under the Chilean Constitution, (ii) the courts that would customarily have geographical jurisdiction are neglecting to protect human rights, and (iii) the means employed by the court are within the purview of the Chilean Constitution.  The brutal jailing by the Venezuelan government of Lopez and Ceballos for expressing an anti-regime viewpoint certainly qualifies as a human rights violation, and the silence of the Venezuelan Embassy in the face of repeated requests for information about the prisoners of conscience convinced the court that it’s second criterion was satisfied.  As for the remedy, the court has told its own government to request that the Organization of American States (OAS) send a representative to Venezuela to visit Lopez and Ceballos and to verify the nature of their detention, and then to report back so that the court can decide what further measures it might take. 

What happens next remains to be seen.  On December 6 the legislative elections Lopez and Ceballos shamed the government into holding will take place.  While the track record of the Venezuelan government with respect to elections is badly checkered, a host of international observer are slated to descend on the country, and the political opposition has galvanized its supporters. Legislative victories for opposition candidates will create pressure for the government to take a less cavalier approach to its opponents.  At the very least the acerbic rebuff of the Venezuelan government’s pretensions of legitimacy by the Supreme Court of a sister republic sends a strong signal.

While this is a case about the fate of two principled men, imprisoned by a renegade government, it touches on a wider set of issues. This ruling sets an important precedent that democratizes the adjudication of human rights abuses.  What good are treaties, conventions and declarations of purpose on behalf of human rights if enforcement is left to national governments that are all too ready to sacrifice principle in the interests of comity? When it is known that complaining about the human rights record of a foreign government can jeopardize a trade treaty too many national governments are willing to self-censor. But a democracy cannot commit to silence its citizens and its courts, and now ordinary citizens can call upon the courts to defend human rights, and where so ever the rule of law prevails, national governments can credibly absolve themselves of responsibility.

So is the Supreme Court of Chile transgressing against the prerogatives of the executive in international affairs?  It was not the courts that issued the Declaration of the Rights of Man, nor did the courts sign the Pact of San Jos'{e}, neither were they the authors of article five of the Constitution of Chile.  Instead, the court’s action on behalf of Lopez and Maduro is no more a usurpation of civil authority than is the court granting an estranged couple a divorce–Congress and the Executive having passed and promulgated a divorce law, leaving the courts to adjudicate. The action of the Supreme Court was in fact driven by treaties and constitutional amendments that were created by the political branches of government. Indeed, not to have ruled as the Constitution indicated would have been a usurpation of political authority.

Might this precedent be abused as a springboard for vexatious litigation, for example against troops on overseas peace keeping missions? To be sure, any judicial artifact can potentially be abused.  By that standard one would never legislate against crime, lest innocent individuals be “framed” for infractions they never committed, one would never constitute a police force, for fear of potential brutality, nor open a hospital for fear of malpractice.  The precedent that, where the rule of law prevails, the courts ought to act to protect the basic human rights of individuals whose rights are not being adequately protected by their local courts, could only be abused through false application of the Chilean Court’s criteria.

What of the politicization of human rights?  Is this “turnabout”, using the customary political weapon of the left, invoking human rights abuses, against a dictatorship of the left?  For too long human rights have been selectively advocated as it suited the political coloration of one faction or another, and just as selectively ignored when it appeared expedient.  The protection of human rights is in our common interest as citizens of a democratic society, regardless of where we stand on questions such as how to finance health care, or how open we should be to immigrants, or how high we should set taxes.  When losing in the political arena means being dragged off to prison or worse, democratic deliberation becomes impossible, and we are all worse off.  The protection of human rights is a necessary precursor to democracy, and not a luxury to be cast aside as a matter of convenience.  Lopez and Maduro are victims of persecution by a dictatorship of the left, but what matters is not the political polarity of the oppressor or the oppressed, what matters is that all must be secure in their dignity as human beings, and in their freedom to express their views, whether the government likes it or not.

John Londregan is professor of politics and international affairs at Princeton University.