There's a big difference between not spying on foreigners because the government is legally constrained from doing so, and not spying on foreigners because it's bad foreign policy. The former idea is ridiculous: we do not live under world government where sovereign nations are subject to international legal restrictions. The latter idea is eminently sensible.
Reading the universal declaration of human rights, these articles jump out at me for specifically this context:
Article 6: Everyone has the right to recognition everywhere as a person before the law.
Therefore, you cannot exclude people from due process because they are foreigners.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law.
Therefore, you cannot have one kind of due process for your own people, and another kind for foreigners.
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Therefore, the U.S. system of law is obligated to protect foreigners from undue interference by the NSA, to an equal degree as U.S. citizens are protected.
Now, you can say that the human rights declaration is just a bunch of words without legal weight, and that in a realpolitik context it's simply impossible to give everyone their human rights in the current world even if you wanted to. And you would be right. When you read the UDHR it is depressing how far we have to go. But ... on this point, at this time, we can make genuine progress. So, why not? If what the NSA is doing is wrong when applied to U.S. citizens, it is wrong when applied to foreigners.
In the long run, people like Posner will be viewed as those who held back the tide of progress. The social struggle for equal human rights for all is not done, and it won't be for centuries, but you definitely want to be at the right side of history at each inflection point, and this is one of them.
I disagree that in the long run, people will find it so imperative to respect a universal set of "human rights" that they will be willing to give up autonomy to submit to international norms to enforce those rights. Yes, the arc of history trends towards greater recognition of rights. But it also shows that groups of like minded people always struggle for autonomy. Nationalist movements are just as common in history as civil rights movements.
Consider the UDHR itself. Most things in there are things Americans can agree with. But take Article 24 (right to holidays with pay), Article 25 (right to healthcare and housing), Article 26 (right to education), Article 27(2) (right to copyright protection). A lot of people, all over the world, would find calling one or more of these things "human rights" utterly ridiculous. You think they'd be in favor of giving up the autonomy of their countries to decide for themselves what social norms to adhere to, so as to elevate to an exalted status a set of norms determined mostly by other people?
Of course it was a compromise and people might prefer some items not included but that compromise was agreed to and is what it is.
On something like privacy it says that it is a human right and that people should generally have it respected, it is useful because it make clear and explicit the wrong that the NSA have been doing at home and abroad.
But nobody can be "held" to the UDHR. They can be criticized for not following it, but countries can be criticized for their practices without the UDHR too! The word "right" has to have more meaning than "we'll criticize you if you don't do this."
Once the existence of rights is accept there is the issue of deciding what they are e.g. US Bill of Rights, European Convention on Human Rights, UDHR etc.
The next question is enforcement (US constitution, European Court of Human Rights) but isn't essential, the agreement of standards does matter even if there is no enforcement.
UDHR is a declaration of some consensus between quite a few people and organizations on what rights humans should have - but most of the current population doesn't have them in practice.
For all practical purposes, any enforced triviality matters much more than an unenforceable theoretical right.
Sure, there is a theory of rights claiming that there exist unalienable rights that people simply have. And there's a theory of rights claiming that there exist exactly those rights that are granted by those able to grant them in practice, by the sovereign powers. One of these theories happens to match the observations of reality, the actual behaviour of massed homo sapiens groups - and the other is well, just a wishful theory that doesn't provide truthful predictions or conclusions about actual future events.
We ought to. The notion that nation-states are allowed to run rampage and be as anarchic as they please, internationally, is stupid.
My family emigrated to the U.S. from Bangladesh. It's a place where you see women covered up in the name of Islam, etc, and its getting worse over the last 20 years, not better. I have absolutely zero desire to be part of a democratic community with people who believe these things, and I bet if you're honest with yourself neither do you. But that's what happens when you mix international legal norms with democracy. You oblige yourself to follow the votes of people who have totally different cultural values to yourself.
And this isn't a one-way street either. I imagine most Europeans would prefer not to be part of a democratic community that included Americans and their notably more conservative approach to many issues.
Now, I know what you're thinking. Can you take iran and israel and make one country out of them? What a ridiculous idea, it would only end in bloodshed. Here's the thing that's ridiculous to me: that we tolerate it when countries deny people their human rights because it happens inside their borders. Team America, World Police, right? Well, despite being a European I'm all for that if it means we finally get rid of human rights violations. It's not ok to deny women their human rights, so Iranians must eventually comply with that or face consequences before a court of law. Similarly it's not ok for Israelis and Palestinians to deny each other their human rights, so eventually they must comply with that or face consequences before a court of law.
The way I see it, the discussion is not about what needs to be done, only on when it will come about. Economically, we've already formed frameworks that span the globe, like the WTO and IMF, and we have somehow managed to bring everyone into a single unified economic theory, even the communists. Now we just need to do the same thing for the other half of what governments do and unify the social theory.
To be fair, in America, and on paper at least, that's why we don't have a straight democracy, but we actually have a federal republic, and a bill of rights that protects all.
In a democracy, you end up effecting the will of the majority, even where that majority is wrong. In America, there is no shortage of people who would be more than happy to restrict one's right to free religion, free speech, etc., etc. In a pure democracy, even with political parties, we'd be subject to whichever party happened to be the majority. In the case of Russia, that may be the Orthodox Church, in the case of Iran, it may be Islamists, in the case of America, it could be the Catholic Church.
We set aside a purer democracy for the notion that all beliefs that do not harm others are allowed, and we have (in theory at least) protections that exist specifically to shield the minority from the majority. While we don't allow for the stoning of adulterers in this country (as that would most specifically infringe on the rights of those being stoned), we do allow for freedom of religion, even where that religion is Satanism, Islam, or any other religion that does not share the majority view.
I'm sure the range of viewpoints within the U.S. is bigger than the difference between the average viewpoint in the U.S. and the average viewpoint in Bangladesh. But what's the really relevant measure is the average viewpoint in the U.S., weighted by 300 million people, and the average viewpoint in Bangladesh, weighted by 150 million people, and the gap between those two huge masses of beliefs.
Moreover, we have internal boundaries in the U.S. to ease certain internal disparities in belief systems. E.g. right to work versus right to unionize? That's decided at the state level. "Rights" that are recognized at the national level tend to be supported by national consensus, and when they're not
> and why we have constitutions and courts of law to uphold them
Who decides what's in the constitutions? Unelected Philosopher-Kings? If, instead, people get input into the constitutions by which they're governed, then you're back to square one. Bangladesh, originally created as a secular republic, amended its constitution in the late 1980's to make Islam the state religion. The new Egyptian constitution makes "the principles of Islamic law the main source of legislation..." Which courts of law are going to tell them they can't do that? What of the real danger that they tell us that we have to do that?
Nitpicking: That is impossible - besides both variations are equally large - because the USA is a part of the planet. But I guess the variations in many countries are not much smaller than across the whole planet.
A democratic world government would be a disaster. Democracy works best when all the participants have common interests and culture. Since the incredible diversity of humanity would never naturally align on any given issue, it would just get co-opted by pre-existing powers. Probably the first things that would happen are the creation of a global central bank, followed by price-fixing in the fossil fuels markets.
I believe I'll just sign up with the rebels now, to save time.
A world government sounds nice in theory (let's call it 'The Federation'), but I don't think you could even joke about one without peeving off more than half of the global populace. We simply aren't at a place in human history where international law can actually be binding or where nations can put aside their differences and work together (also known as a Power-of-Friendship-ocracy).
So, yeah, a total lack of enforceable international law/government is a stupid idea; I'm just not sure anyone has a better idea yet.
That said, I fully support the formation of a real planetary government.
There is no need for "world government". For example:
http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_...
You know, if human rights didn't transcend nations they probably wouldn't be called that way.
And don't US constitution and laws also have things in them that apply to all people, period? Honest question, I don't know in detail; but I do know "you" signed the above -- sure it's not enforcable, but that doesn't give you the moral high ground, too.
> And don't US constitution and laws also have things in them that apply to all people, period?
I think what you're referring to is the content of the fourteenth amendment. Ironically enough, not a part of the original Constitution or Bill of Rights, but it is there, though it only applies to US citizenry.
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.Oh? I always read the "any person" as being distinct from "citizens". As in, citizens get "privileges", but everybody gets due process.
And the first thing I just looked at seemed to confirm just that:
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?ar... (it's a PDF sorry)
> Given this record, it is not surprising that many members of the general public presume that noncitizens do not deserve the same rights as citizens. But the presumption is wrong in many more respects than it is right. While some distinctions between foreign nationals and citizens are normatively justified and consistent with constitutional and international law, most are not. The significance of the citizen/noncitizen distinction is more often presumed than carefully examined. Upon examination, there is far less to the distinction than commonly thought. In particular, foreign nationals are generally entitled to the equal protection of the laws, to political freedoms of speech and association, and to due process requirements of fair procedure where their lives, liberty, or property are at stake.
But of course, rights are presumed to not even exist are even more useless than those that aren't enforced :/
Despite that though, there's nothing to bar the state from enacting a law that discriminates against foreign citizens, and nothing to prevent due process from affecting the punishments ascribed as violation of the law.
For a real-world scenario, the state of California could require non-citizens to provide work visas or other such requirements before allowing them to be employed within the state, whereas (at least my interpretation of the OP's post read) that is otherwise discriminatory. In this context, it is legal, and even accepted practice to discriminate against non-citizens.
In a time when the mayor of New York City has stated (paraphrasing) that the only problem he sees with "stop and frisk" is that too many white people are stopped, and not enough minorities, I don't think it's too far a cry to imagine a scenario in which a law might be written that effectively nullifieis portinos of the Constitution as they pertain to non-citizens.
> But of course, rights are presumed to not even exist are even more useless than those that aren't enforced
Agreed. Further, the idea that the Bill of Rights encompasses the only rights that men may have is equally naive, as is the idea that a right must be codified in a document somewhere in order for it to exist. Our transition from a mindset of "individuals have rights, except where those rights infringe the rights of others" to "individuals have only the rights already codified, and must ask permission for everything else" is, in my opinion, a broken way to interpret our nation's governing documents.
There are, namely constitutional rights. What you said only applies to citizenry doesn't only apply to citizenry. You really should read the pdf. Another snippet:
> the Supreme Court has squarely stated that neither the First Amendment nor the Fifth Amendment "acknowledges any distinction between citizens and resident aliens." For more than a century, the Court has recognized that the Equal Protection Clause is "universal in [its] application, to all persons within the territorial jurisdiction, without regard to differences of nationality." The Court has repeatedly stated that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality.
Maybe we could argue about people outside of the jurisdiction. But it's flat out a common misconception that most of these rights don't apply to non-citizens. When it says persons and people, it means persons and people.
> enforcement is barred from punishing anybody without their fifth amendment privileges of due process.
Ambach v Norwick, for example, discriminates against foreigners from employment as teachers, despite the protections you believe exist.
For what it's worth, I agree with how I think you're saying things ought to be, but in practice, we can and do enact discriminatory laws against those of certain alienage all the time, and it's rare that those claims in court enjoy strict scrutiny, which puts the standard of review in those protections up for debate. So while I agree on how things ought to be, that's a far cry from how they actually are which, to sum up, is to say that we routinely discriminate against aliens, illegal and legal alike, especially in matters of employment, all the time.
This is why I brought up non-codified rights. Most rational people would agree that a "right to work" is in fact a civil right, but it exists nowhere in the Constitution. The Wagner act bears on this to an extent, but in short, it's clearly a right that all people capable of working should enjoy, despite it not having been codified in the Bill of Rights, which means that its interpretation, however obvious, will not enjoy strict scrutiny, and is not even necessarily going to enjoy intermediate scrutiny, by whatever courts happen to be tasked with its interpretation. Rational basis has, regrettably, upheld far too often in those regards, and is indeed the way of the land.