[governance] When "human rights" are judiciable

[Aldo Matteucci]

Dear all,

I've just gleaned from the NYT
http://www.nytimes.com/2012/01/19/business/global/hedge-funds-may-sue-greece-if-it-tries-to-force-loss.html?ref=global-home
that
hedge funds may take Greece to the European Court of Human Rights claiming
that their property rights have been violated. Apparently Greece is
planning what is called a "haircut" of its debt:  Greece would default
partially and the loss spread among the bond-holders. The European Central
Bank holds 50 billion or so bonds, which it took on as part of previous
attempts to keep Greece afloat. These bonds would not be subject to the
"haircut", a measure which may be necessary in order for the ECB to
continue playing its role of "lender of last resort".

The case is particularly difficult, for it pits a clear and immediate
private loss against a "danger to the system" - whose entity cannot be
evaluated, even lass quantified in advance.

Whatever the merits of the case such legal entanglements might delay the
orderly execution of the salvage operation and even precipitate the
crisis we intended to avoid. The analogy would be that, on the sinking
Titanic, men would threaten to appeal to the ECHR because their right to
life had been shorted when "women and children first" was proclaimed as the
order of evacuation.

When abstract rights hit the judicial fan, legal difficulties are spread
over a large area, even creating even legal fog so impenetrable as to make
progress more difficult for those whose aim is to move forward rapidly. By
their very (alleged) nature "fundamental and transcendent human rights"
rights are incommensurable. Yet a balance has to be struck, in a specific
time and context. What is the proper balance between "freedom of speech"
and "ordre public"? Moving to economic and social rights,  balancing
inevitably faces the "wailing wall of scarcity". And what would be
appropariate means of redress? Compensation? Return to the status quo ante?
Meting out justice may be difficult when appropriate means of redress fail
or are too coarse to satisfy the blindfolded lady.

Such "balancing" may take place in a court of law - with its obligation to
"due process" and respect for precedent. In human rights, such precedent is
scant, given the legal history, so each decision is precedent, which would
make the court even more cautious.  It is a ponderous process, slow, and
one likely to create much collateral damage to parties who only have an
indirect interest in the outcome. Impartiality of the legal system  trumps
political legitimacy -  hence the complex and indirect system of chosing
the judges. Many frowm upon delegating such vital matters to the
idiosyncrasies of a handful of judges.

Such "balancing" may take place within the political process - it lacks
transparency, and is chronically prone to power politics.

The choice between these venues is itself a political issue.

Last year, exemplary punisment was meted out to a man who man who
had committed grievous family violence in Zurich. The victims openly and
violently expressed their disagreement with the result. Why? They had to
live with the consequences - and one of them was effectively "court-ordered
divorce". A judgement may be akin to surgery - always painful, sometimes
effective, and in any case destructive of the integrity of the system.
Asian civilisation made the cultural choice not to use surgery, which has
been a Western tradition since paleolithic times.

In the ongoing discussion over "human rights" I offer these lines as basis
for reflection, not as resolution of the quandary. There is none, and the
binary trope right/wrong, the  claim that we can ascertain "the truth" is
to me a dangerous delusion. We may be too quick of the draw of the legal
pistol. Again, this is a cultural trait. The Greek system of battle  pitted
falanx against falanx in an clash lasting at most a day. The battlefield
was the unique and ultimate judge of the quarrel. The hoplites were farmers
and, for good or bad, they had to go back to tending their fields.

Aldo
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