Legislating solidarity?

Human rights, ethics and the movement towards a Right to International Solidarity.

For two decades, the UN has been working on a right to international solidarity. In 2005, the UN Commission on Human Rights created a mandate for an Independent Expert on human rights and international solidarity.  This Office has been responsible for various drafts of a ‘Declaration on Human Rights and Solidarity’. A revised version of the Declaration was released recently and tabled at the UN General Assembly Human Rights Council in 2023.

Does a ‘right to international solidarity’ bring to mind unicorns, rainbows and fluffy platitudes?

Initially, it did to me.

Amid the relentless, merciless destruction of Gaza – which the Deputy-Commissioner of UNRWA has described as the ‘endless nightmare of death and destruction on a staggering scale’ – and the unyielding wars in Sudan and elsewhere, my first response was sceptical: How would a Gazan or a Sudanese assert an actionable claim to a ‘right to international solidarity’? When the world seems to have abandoned them.

I chided myself to keep an open mind and began reading the work of the various Independent Experts. This unsettled my views.

Here’s what I learned:

To understand this right’s content and objectives, consider it against the background of the evolution of human rights, and its relationship to ethics.

Ethics is how and what we think about morality and what is right and wrong, or good and bad.  Ethics is usually associated with philosophy and philosophical study. I like the description of ethics as relating to “a concern about something or someone other than ourselves and our own desires and self-interest.”

Human rights on the other hand involves law and legal systems. The Wikipedia definition is useful here: “universally recognized moral principles or norms that establish standards of human behavior and are often protected by both national and international laws […] they belong to every individual simply by virtue of being human”.

While ethics and law are about fundamental principles, they do not always overlap. I may think it is unethical to lie to my friend, but there is no South African law that prohibits it. Similarly, apartheid-era legislation like criminalising sex across the colour bar or legislating separate amenities, was deeply unethical, but held legal force with devastating consequences to our country.

Just as there are various schools of thought in ethics - Utilitarianism, consequentialism, ethics of care etc. – there are different conceptions of human rights.

A useful entry-point into the evolution of human rights, is the categorisation of human rights into ‘generations’. This classification does not imply a hierarchy and as the Vienna Declaration and Programme of Action noted “All human rights are universal, indivisible and interdependent and interrelated”.

The generations are as follow:

1. The First generation of human rights (‘civil and political rights’ or ‘negative rights’) keep the state from encroaching on persons.  They require the state to not-do – do not curtail my freedom of expression, freedom of movement, freedom of belief and religion, my right to life.
2. Second generation human rights (‘social and economic rights’ or ‘positive rights’) require the state to do something.  To provide certain goods and services within available resources. The rights of access to housing, to education and health care are examples here.
3. Third generation human rights (‘solidarity rights’) are less about the rights of an individual, and more about the collective or the community. Examples include the rights to sustainability, intergenerational equity, a healthy environment, group rights, peace, and development.
4. More recently, more scholars are advocating for a Fourth generation of human rights that relate to new technologies and  ‘digital life worlds’.  Examples include the right to access one’s own digital data and the rights to digital security.

The right to international solidarity is a third generation human right.

At its core, this right is about unity within the global order, the importance of cooperation in overcoming global threats, and to “increase social trust and mutual understanding”. The 2023 Draft Declaration sets out a long list of global threats.  These include health emergencies, climate change, armed conflict, forced migration, poverty and colonialism and that could be countered by international solidarity.

This right is most at home in the domain of international law. A 2004 Working Paper described it as “a communion of responsibilities and interest between individuals, groups, nations and States”.  And it explained the drive to establish the right: “the need for increasing affirmation of international solidarity arises from the state of iniquity that characterises international relations.”

If the ‘Declaration on Human Rights and International Solidarity’ were to be adopted at UN level, it would serve as a non-binding instrument. But it would activate important monitoring mechanisms and country reporting on how the right is progressively being advanced.  These accountability measures are key to pushing governments towards considering solidarity and global interconnectedness when making decisions that will impact on the domestic and international spheres.

Put succinctly, should a right to international solidarity come to be established, it would have to be operationalised.

Perhaps unsurprisingly, there has been sustained push-back against the recognition of international solidarity as a human right.  The 2023 Independent Expert summarised the three main arguments against it: i.) inherent unsuitability, ii.) vagueness and iii.) lack of broad international support.  He provided cogent counters to these.  The Draft Declaration also contains an updated and tailored text in response to some of these critiques.

Predictably, geopolitics and the asymmetrical power distribution between the global north and global south echo through the UN processes affecting the mandate of the Independent Expert and drafts of the Declaration.  In their analysis of voting patterns at the UN Human Rights Council [successor of the Human Rights Commission] on this right, German scholars Johannes Haaf and Felix Anderl show that ’the right to solidarity is rejected almost exclusively from Organisation for Economic and Development (OECD) countries” – in other words, the world’s richest countries.  

They point out a paradox:

affluent states provide numerous objections to legalizing solidarity, advancing legalistic as well as strategic reasons for their rejecting the right, all the while claiming that they share the underlying goal of more international solidarity.

This right might well be perceived as threatening to more affluent countries – it demands after all ’structural reform of the global economic circumstances’, equity rather than equality, and ‘fair partnerships’.

So, whilst I started off being sceptical about whether a right to international solidarity would materially change the violent reality of our world, I am now starting to see that it is one amongst many steps required to demand accountability and justice internationally. Specifically, the increasing and much-needed attention paid to the climate emergency, migration, pandemic readiness, global hunger and colonialism.

While the evolution of human rights may eventually incorporate a right to international solidarity - as I believe it should - it does not provide a ‘solution’ to the grievous calls from Gaza, Sudan and elsewhere. However, the increasing attention paid to define, theorise and understand solidarity helps us to imagine an interconnected world that is equitable and just.  It also helps us to design mechanisms that will advance us toward these visions. These mechanisms and visions could be codified within the canon of human rights, put into operation within those frameworks, and become increasingly powerful and influential.  

On World Peace Day 2024, the current Independent Expert, Cecilia M. Bailliet called for sharing good practices of international solidarity with her offices. While it might feel like a small and perhaps insignificant step to share a good practice, it may contribute towards weaving and driving an urgent new vision and collective plan of action towards solidarity amongst us all.