[governance] Re: NYT Opinion by Vint Cerf on Human Rights & the Internet

[Paul Lehto]

On Mon, Jan 9, 2012 at 12:17 PM, Aldo Matteucci <aldo.matteucci at gmail.com>wrote:

>  The loose use of the term “right” is regrettable, but it is not my own
> doing. A good point of departure in understanding the quandary is the US
> DECLARATION of Independence, who also speaks of “inalienable rights” *“**We
> hold these truths to be self-evident, that all men are created equal, that
> they are endowed by their Creator with certain unalienable Rights, that
> among these are Life, Liberty and the pursuit of Happiness*:” Now these
> “inalienable rights” were not enough to make slavery illegitimate in the
> country. It took a civil war, and AMENDMENTS to the US Constitution for
> this goal to be obtained.
>

The above reflects an extremely common misunderstanding concerning rights.
*The most important and fundamental rights are most often NOT in
writing*in things like Constitutions, and w
*hen they are they are not laid out in any significant detail *whatsoever
because a Constitution is by nature a general statement of principles, and
lacks even a section of definitions in nearly all cases.  Free speech, for
example is less than a single sentence in the US Constitution's first
amendment.  The *Constitution WAS intended to, and did, protect free speech
BEFORE the first ten amendments called the Bill of Rights was added* by
amendment.

In fact, many people opposed the Bill of Rights on the grounds that it
would lead to either (1) confusion among the people that their rights were
limited to those laid out in writing in the Constitution, or (2) judicial
interpretations that presumed that if a right was not listed in writing, it
did not exist.   Both of these were considered by all to be a great danger,
but those who passed the Bill of Rights did not think they would actually
happen, and to try to make sure of that they added the 9th and 10th
amendments, expressly reserving to the people and the states all other
rights, thus clearly showing that *MORE rights exist than simply those
formalized and enshrined* in the Constitution.

For example, I know of no state or federal constitution that mentions the
fundamental right of personal self-defense against violent attack.  At
least no state or federal US constitution contains a mention of this right
but, like free speech before the First Amendment, self-defense has ALWAYS
been held to be a fundamental CONSTITUTIONAL right that no government could
pass a law to eliminate without acting unconstitutionally.

*Then, just where does the right to self-defense come from??*

One had best hope and pray that your most important and fundamental rights
do NOT come from any sovereign government, because if they do, then you are
really in big trouble the second anyone comes into power that doesn't like
your exercise of your rights because they will simply declare the right to
no longer exist.  If the most important rights come from governments, then
nobody's freedom is safe and what we loosely call rights are but mere
privileges subject to governmental revocation at any time.

Fundamental rights come from individual reason and conscience, and
therefore they are *beyond the power of government to dispose of IN A FINAL
WAY.*   Governments can only VIOLATE rights -- and *they may do so for
centuries* as with powerful vested interests/businesses like slaveholders
in the USA.  But even when violations of rights continue on for long
periods of time it is still true that *Slavery was always wrong, and not
right*, and slaves at all times had the right to be free.   This is so
because rights come from, to use the terms of the US Declaration of
Independence, "NATURE and NATURE'S GOD" -- both of which are outside the
power of any human institution to control.  We can note that Jefferson
chose language to create a "tent" that included atheists and agnostics
(Nature) and theists (Nature's God)* in order to locate the wellspring of
rights outside the power of government to control.*

Mr. Matteucci, above, assumes that Jefferson's revolutionary instrument
adopted by the Continental Congress in 1776 (the Decl. of Independence) is
somehow the same, for purposes of a rights analysis, as the US Constitution
of 1789's language protecting and grandfathering in the slave trade.  In
fact, there was a bit of counter-revolutionary action by slaveholding
states to insist that the Declaration not be followed in respect to
slavery, and they succeeded in getting that language into the US
Constitution.  But that constitutional language did not make something
fundamentally wrong (slavery) perfectly OK on every level.  As was argued
then, and up to and through the US Civil War, every human being has an
inalienable right to be free of things like slavery, and even Constitutions
fall to a clear violation of inalienable rights.

If an* individual *violates rights or the law, they *can be quickly brought
to justice, and our ideas of rights are not challenged*.

But when *governments or large powers* violate rights or the law, *justice
can move at a glacial pace* - usually decades, and occasionally centuries.
BUT IT DOES MOVE.  Sometimes the "police force" necessary to "arrest" the
law violators in the case of governments or large powers amounts to
nonviolent or even military armies (as in the US Civil War).

When justice is moving at the above very slow pace because governments or
large business interests are violating fundamental human rights, *it is all
too easy to confuse the VIOLATION of a right with the NON-existence of the
right*.  This is the common confusion I submit is reflected in Mr.
Matteucci's response, but the distinction between the two is extremely
important indeed for the following reasons:

1.  Every major figure I know of that is important in establishing freedom
and democracy agrees with Jefferson's approach that the wellspring of
rights is outside the power of government to LEGITIMATELY tamper with -
they can only violate those fundamental rights by pretending to repeal
them.   To show the breadth of agreement I'll cite Margaret Thatcher,
talking about both the rule of law and the wellsprings of rights:

"Our abiding commitment to the rule of law is the very bedrock of our
> civilization. It is what makes all else possible, from the flowering of the
> arts to the steady advance of the sciences. The idea that *men must
> govern themselves *not by the arbitrary commands of a ruler but *by their
> own considered judgment,* *is the means whereby chaos is replaced by
> order.* Balanced by the peaceful resolution of differences, the rule of
> law and the institutions of representative democracy are what stand between
> civilization and barbarism. It is through law-governed liberty that mankind
> has been able to achieve so much."
>

Indeed, the "rule of law" in free societies is fully consistent with human
rights, which fundamentally and foundationally create, in the individual,
an equal and individual locus of power.   In 1776, for the first time in
history, individuals were declared to be, in a sense, sovereign individual
locuses (loci) of power worthy of respect and dignity, consisting of rights
given by God or by Nature that are equal to those given to all other
humans.  Consistent with this, Maggie Thatcher (above) summarizes free
government and notes that the considered individual judgement of each
person is a critical element in replacing chaos with order based on the
rule of law.   The "rule of law" WITHOUT each person as an independent
source of rights and power is the system of dictatorship - *dictators live
by laws*, *which laws are nothing other than force itself*, but dictators
don't respect human rights, and thus they become TOTAL-itarian based on
their view of government power without limits.

Now, if sovereign states, as is suggested by Mr. Matteucci, are the only
sources of law, then slavery was perfectly OK and there were NO GROUNDS in
justice to change or amend the Constitution.  Genocide is just fine, so
long as some government votes for it.  The right of self-defense can be
removed from all or from certain individuals by a mere act of regular
legislation, making it murder for you to defend yourself against a violent
attack.   Is this right?   Of course, not.

Now I freely admit that governments or other powerful actors may appear to
get away with rights violations, perhaps for a very long time, but it will
NEVER make their actions right or just.

Referring to one of the oldest kings mentioned in the Bible, an American
patriot wrote:

"*Even if every prince since Nimrod had been a tyrant, it would not
establish a right to tyrannize*."  This is because rights (and wrongs)
emanate from Nature and the human conscience, not government acts.

Finally, even if some NON-fundamental right is in fact, or is assumed to
be, NOT in existence, *what is the first step to gaining proper
governmental recognition of such a right?

That first step is to CLAIM THE RIGHT EXISTS. * Thus, right now people in
the USA advocate for court recognition of the RIGHT to GAY MARRIAGE.  They
are saying that the right exists RIGHT NOW, everywhere, but are asking for
the governmental courts to recognize this right by court ruling *so that
the right may be properly enforced* and recognized.

Because the first step in getting a new right is *to assert that it
exists*(in conscience, and in justice, etc.), then with regard to
*fundamental *human rights it is always wrong to say things like "I support
the Right XYZ, but unfortunately it does not exist because governments
haven't agreed to it or are not in fact respecting Right XYZ, so no such
right exists."

The violation of a right does not prove the right's nonexistence.  LIke ALL
VALUABLE things, rights are subject to being stolen.  The fact that
property is stolen for years or decades or centuries never vests proper
title in the thief or even in those who later possess it.  It applies with
even greater force to people than to property, the fact that fundamental
human rights are violated or not respected by governments doesn't mean that
the government is within rights and justice to enslave people, commit
genocide, or deny freedom of speech.

Perhaps the most fundamental ethical obligation is to call the good the
good and the bad the bad.  With regard to fundamental human rights, our
conscience is the only appropriate guide.  Bowing to government acts that
abuse human rights is SERVILE.   Governments commit crimes too!!  Big ones,
in fact.  When those crimes consistent of violations of human rights, we
should not give cover to those crimes by thinking or saying that the rights
do or do not exist on account of anything that governments say or do.

Fundamental rights *are not granted* by governments, they are only
GUARANTEED by them (thus, some of these rights are mentioned in the written
consitution for purposes of such guarantees).

As applied to the Internet, the fundamental right of free speech and
communication is encountering the newish "technology" of the internet.
Now, the fundamental right of self-defense against violent attack might be
exercised with the "technology" of gloves, clubs, or guns.   Self-defense
has been recognized since the days of cave men.  Now, can someone argue
that the right of self-defense does not extend to the "technology" of clubs
or of modern guns -- when nearly everyone else one might encounter has a
club or a gun?  Or does the right "expand" so to speak along with the
technological changes that are adopted on a widespread basis?  I think
nearly all would agree that the right "expands" to the technology - or
rather that the very same right may be exercised in the new technology as
well.  Thus, the status of the internet as "technology" is not really a
dispositive distinction.   We should look to whether or not most everyone
else has or desires access to clubs, guns, or the internet in order to
exercise a fundamental right of speech or self defense, and note that if a
society chooses to have gun control for all, then the right of self-defense
won't include that particular technology, because it's not widespread
enough.

Declarations like the UNHDR are legal instruments: A declaration of war is
surely a legally binding act, and a "declaration" in courts in the US is
equivalent to an affidavit.   One "declares" things that ALREADY EXIST
independently.  The mistake is to think that the form of a "declaration"
means that the right does not exist at law.  That's incorrect.

By keeping in mind the source of fundamental rights, when rights are
violated, we recognize the violations as being such, and have a strong
platform to argue from: Our Rights have been Violated.  If we believe that
only state action creates rights, then we are perpetually at the mercy of
government, and when they violate our rights, we have no cause of action
for justice, either in the courts, nor an ethical cause for revolution,
even.  We are utterly at the mercy of tyranny unless we believe that our
rights are quite independent of whether governments in their corruption
choose to respect them or not.

Paul Lehto, J.D.

PS  Customary (non-written) international law is quite abundant, and it is
not ratified by any kind of treaty.  See
http://en.wikipedia.org/wiki/Customary_international_law






> The UNHDR is what its name purports to be – a DECLARATION. Strictly
> speaking it has no legal standing in international law (and even less in
> national law), even though the term “right” is used therein. The
> declaratory character of the UNDHR is best understood in the context of its
> creation. In 1948 the West was pressing for a legal title to Art. 1-19
> (personal rights), and the Soviets were doing the same for Art. 22-25
> (economic rights). The compromise is what we have now.
>
> Conventions have been created under UNDHR, which have legal standing for
> the parties.
>
> --
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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