By Karin M. Frodé
Today marks what the United Nations calls ‘International Human Solidarity Day’. The idea of solidarity across borders is appealing, particularly in light of the many global crises that challenge the enjoyment of human rights. But can we conceptualise solidarity in a manner which enables it to go beyond mere rhetoric? Does it (or can it) have work to do, in the realisation of human rights?
How we conceive of solidarity has become a pressing issue in the 21st century, not least since the COVID-19 outbreak. The pandemic has made it abundantly clear that we simply cannot defeat global challenges along national lines. In response, the international community has made frequent calls for solidarity, often incorporated into mantras such as ‘we are all in this together’. In practice, such calls often go unanswered, particularly by states. Continued vaccine hoarding by wealthier countries and insufficient progress in combating climate change are just two examples which paint a bleak picture.
The lack of solidarity is particularly detrimental for already marginalised individuals, peoples and states. Structural inequalities within and between countries have, for example, been uncovered and exacerbated during the pandemic. To use the metaphor of the UN Secretary-General, “[w]hile we are all floating on the same sea, it’s clear that some are on superyachts while others are clinging to the drifting debris”. The sea metaphor is not just a figure of speech. Migrants regularly drown at sea. Last month, over two dozen migrants lost their lives when attempting to cross the English Channel. The current UN Independent Expert on Human Rights and International Solidarity, Professor Obiora Chinedu Okafor, has described refugee protection as “a crisis of international solidarity par excellence”.
The actions by the US and its allies in Afghanistan, culminating in the disastrous response to the Taliban’s takeover in August 2021 is another example of the detrimental impacts of the lack of solidarity. The withdrawal of foreign forces from the country was not just a withdrawal of troops but the withdrawal of solidarity. Countless numbers of Afghans are still at risk of summary execution by the Taliban due to their support of foreign forces, organisations and liberal values.
BEYOND STATE (IN)ACTION
Non-state actors often step in to fill the solidarity gaps generated by state inaction. Indeed, the UN’s focus on international ‘human’ solidarity suggests that we all, as humans, have a role to play. Yet, in doing so, individuals and other non-state actors may face significant barriers, including exposure to criminal liability for so-called ‘crimes of solidarity’. This was the case for Cédric Herrou, a French farmer, who was charged and convicted for assisting the free movement of ‘illegal immigrants’. Interestingly, the French Constitutional Council found that the relevant provisions infringed the principle of ‘fraternité (fraternity) which the Council confirmed to be a principle of constitutional value. Herrou has since been acquitted.
A HUMAN RIGHT TO INTERNATIONAL SOLIDARITY?
The Independent Expert on Human Rights and International Solidarity has referred to the Herrou case to counter criticism that solidarity is too vague to be useful. In addition to a fundamental principle, the UN mandate on international solidarity has also conceived of international solidarity as a human right:
“…by which individuals and peoples are entitled, on the basis of equality and non-discrimination, to participate meaningfully in, contribute to and enjoy a social and international order in which all human rights and fundamental freedoms can be fully realized.”
This proposed right is reminiscent of other so-called ‘solidarity rights’, such as the rights to self-determination, peace, development and a healthy environment. These rights are often distinguished from ‘traditional’ human rights in that they belong not just to individuals but also to peoples and require collective action for their realisation.
The Independent Expert on Human Rights and International Solidarity has found that there is no automatic bar on conceiving solidarity as a human right if we accept that human rights are contingent upon historical and social factors rather than a fixed list derived from a higher order.
It may be useful to take a step back and consider why it is that scholars debate over whether solidarity is or could be a human right. Solidarity rights depart from the ‘traditional’ understanding of human rights based upon individual rights against the state in which the person resides, and which concern narrow, concrete and justiciable claims. The criticism of claims being too vague and broad to be human rights has been powerfully opposed in theory and practice with regards to economic, social and cultural rights. Solidarity raises additional tensions, however. For example, by pointing towards a social, rather than individualistic ontology of rights. Further, while states may still play a key role in the fulfilment of solidarity rights, correlative duties of solidarity also appear to fall upon non-state actors, including other individuals.
In addition to tensions within the human rights framework as traditionally understood, solidarity raises various philosophical conundrums. For example, who are we in solidarity with and for what purpose/aim? The UN celebrates ‘human’ solidarity day. Can we really be in solidarity with the whole world? Is solidarity concerned with the recognition of similarities, acceptance of difference or perhaps something else entirely?
WHAT DOES THE FUTURE HOLD?
If the international community continues to proclaim solidarity as the key to solving the world’s most pressing challenges, it is imperative that more efforts are made to engage with the tensions and challenges which solidarity poses to traditional understandings of the international human rights law framework, as well as the international system of which it forms part. Given the elusive nature of a concept like solidarity, this exercise may raise more questions than answers. But perhaps it is precisely the questions which solidarity evokes that may be the key to its potential usefulness in the realisation of human rights.
Karin M. Frodé is PhD Candidate and Raydon Scholar at the Faculty of Law, Monash University. She is also a PhD Affiliate at the Castan Centre for Human Rights Law and engages in teaching and research in human rights within the Faculty. Her doctoral research considers the role of solidarity in international law, specifically international human rights law. Outside of her studies, she co-founded the Ham Diley Campaign, an initiative to support Afghans at risk together with other human rights lawyers and the Capital Punishment Justice Project (formerly Reprieve Australia).
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