Contents
Home
Activities/Articles
Publications
Voting Systems
CD-rom
Patrons
Blog
Links

Welcome:
Chinese
Finnish
French
German
Irish
Hungarian
Italian
Polish
Russian
Tanzanian
(pdf files)

Peter Emerson,
The de Borda Institute,
36 Ballysillan Road,
Belfast BT14 7QQ,
Northern Ireland
Tel: +44 (0)28 9071 1795
Fax: +44 (0)28 9071 1795

Email us

Submission To The Northern Human Rights Commission

Along with the New Ireland Group, the de Borda Institute is one of the few organisations to talk of democratic rights. Our submission to the Northern
Ireland Human Rights Commission argues a) for fair (i.e, multi-optional decision-making) especially in any regional/national plebiscite; and b) for fair and proportional electoral systems.

28th February 2001
Brice Dickson
NIHRC,
Temple Court,
39 North Street,
Belfast BT1 1NA

The New Ireland Group

On A) Economic And B) Democratic Rights

Executive Summary

Economic Rights
In many human activities nowadays, the act of one individual impinges on the welfare of others. In driving his/her car, for example, the driver reduces the world's (and therefore our future generations') stock of finite resources, and adds albeit just a little to global warming. Because the rights of others are affected, our rights to consume must be limited, and we venture to propose some thoughts on this topic.

Democratic Rights
In most human rights charters, the topic of democratic rights has received little attention, and not least because the term 'democratic' has seldom been defined in precise terms. Little wonder, then, that not only in Northern Ireland, politicians have used and abused their majority position to pass unfair legislation.

Furthermore, there is hardly a day which goes by without some news of some atrocity, somewhere in the world, in which people of one (supposedly) ethnic group fight those they perceive to be of another. Like so many who commit violence, they then 'justify' their deeds by claiming a right to 'their' land. Indeed, on numerous occasions, they quote international law on the rights of a people to self-determination, and the assumed right of a majority to claim that right. Not least because of such consequences, we suggest these particular democratic rights need an urgent re-examination.

Economic Rights, Finite Resources

"God gives blessings to all; if man had to distribute them, many would go without." Hausa proverb, Nigeria.

In a world of finite resources, it would seem obvious that there must be a limit to the maximum quantity any one individual has the right to consume. Without even an estimate of what such a limit might be, we feel it will be difficult if not impossible to respect "the environmental needs of... future generations".1

At the moment, of course, the only limitation to any one individual's consumption is that of personal cost. The rich consume. The poor do not. This is true in Northern Ireland, but it is even more the case if viewed on a global scale. When talking of economic rights for Northern Ireland, we feel the global context should always be borne in mind. At the very least, our 'rights' should not be gained at the expense of deprivations abroad, most especially amongst those who live in less developed countries. Accordingly, we should not "strive to reach unique solutions to unique local problems"2 without taking the welfare of others abroad into account.

In the broader perspective, however, there is also a selfish motivation, for under present practice, the ecology of the planet is beginning to suffer the most serious consequences, and everyone's long-term survival is now under threat.

There is a need, therefore, to establish a moral code of conduct. But even without that need, common sense would suggest, there must, indeed, be some sort of limits on the human consumption of all finite resources. If certain individuals wish to create and then consume energy from wind power, for example, they may do so with abandon. Where finite resources are concerned, however - in other words, where the individual act could (and/or most certainly would) influence the welfare of other individuals, here or abroad, alive or as yet unborn - people do not have the freedom, as of right, to consume at will, and certain limits must be established. Needless to say, natural resources include not only fuels like coal, lignite and oil, but also land, water and all known minerals. Furthermore, it goes without saying that such rights as do or should exist, apply to all citizens of the world.

We appreciate that this subject involves a remit, which some might feel is beyond your brief, and we acknowledge the fact that, at the moment, there are few if any "internationally accepted rules"3 on this matter. That in itself, however, should not mean that the subject is ignored, so we will now outline in a little more detail some further thoughts on this matter.

Finite Fuels
The exact quantity of fuel reserves is not known, nor do we know what further reserves are 'waiting' to be discovered. There again, we also do not know how many people are yet to live on this planet. As a minimum, therefore, we could estimate the quantity of known resources and the present world population, and base an annual individual consumption on these figures. A second factor involves the quantity of resources consumed by government, and a nation’s citizens must be held responsible for fuels consumed collectively, by the armed forces of that nation, for example. This may sound a little Draconian, but given that "oil production will level off by the early decades of [this] century and then gradually fall during a period of reduced supplies and higher prices"4 and, as your own working group suggests, "The right to a healthy and sustainable environment... places obligations of care both on the government and the individual."5 we feel an attempt should be made to spell out these obligations, even if we are then to find the question of enforcement is problematic. In a word, the government must work towards the conservation of the world's resources, in the most equitable way possible.

It must be emphasised that the above calculation for individual annual consumption will almost certainly be an over-estimate of what may be necessary for the survival of our species. Overall, though, a change of mind-set is required, and unless that change is sought through the field of human rights, it may never be achieved... until it's too late. In 1990, the Intergovernmental Panel on Climate Change concluded that "a 60% cut of CO2 emissions was necessary"6. Well, in 1988, "the world's consumption of all fossil fuels was 54 billion barrels of crude, roughly ten for each person on the planet. A 60% cut would bring the average down to four barrels... or half a tonne of oil each," and "... the average family car covering 11,000 miles a year burns at least two people's allowances... heating a typical [UK] house requires almost four allowances"7.

It is inadmissible, or so we would contend, to maintain the present laissez-faire attitude in which consumption is based solely on the question of whether or not the individual concerned can afford it, a situation which any imposition of a 'green-tax' will only exacerbate.

At the very minimum, therefore, may we ask the Commission to establish that we all share an obligation, and may we propose an additional clause to the proposed wording given by your Working Group (p 14) as follows:

6. Every individual has both a right to consume a certain finite quantity of the world's finite resources, and an obligation to consume no more than that quantity.

Land
Land, too, is a finite resource, and perhaps we should point out that the concept of owning land is very much a Western one. To other cultures and peoples, and not just to the nomadic tribes, such was quite illogical - "We do not own the sparkle of the water," was Chief Seattle's famous testimony, "how can we sell what we do not own?" - and yet, in our society’s current climate, few would question ‘property rights’ and land ownership. (Your own Working Group gives mention of "the right to property" (p 5) but no further elucidation. Surely, however, if there is to be "a legal right to security of tenure" of housing, (p 15), the same should (usually) apply to an area of land as well.)

Accordingly, society should try to establish a natural limit to just how much land any one individual may tenant (rather than 'own') and obviously, as with the above finite reserves of fossil fuels, the properties of both government and institutions will affect the limits of any individual citizens and share-holders/members respectively.

Water
Here, too, certain principles should be laid down. The government does not ‘own’ our water reserves. Individuals and institutions do not have the right to consume quantities of the stuff without limit. Furthermore, the authorities do not have the automatic right to add fluorides and other chemicals, even if such additives are (supposed to be) for the general good.

Pollution
Naturally enough, consumption leads on to the subject of pollution. And while we all pollute - after all, even the act of breathing adds to global warming - it may again be advisable to lay down certain criteria by which all individuals, both singly and collectively, should behave. This is most certainly true in the case of radioactive materials. Therefore, we suggest, the uk government and bnfi (British Nuclear Fuels) do not have the right to produce an artificial substance like plutonium, a toxic and radioactive substance with a half-life of 24,000 years!

In a word, they do not have the right to bequeath to all future generations a graveyard, with no respect given to the human rights of future generations, and nor do we have the right to ignore this threat to the very existence of our children and our children’s children.

Accordingly, may we ask your Working Group to consider the above three topics, and to propose a wording if and as how they see fit.

Democratic Rights
In many documents, and not least your Working Group's report referred to above, we see constant reference to consultation and decision-making. Seldom, however, are any specific criteria laid down for these processes. Let us now, therefore, consider our democratic rights and ask just how decisions should be made, and how the ordinary citizen may participate both in the initial consultation, and in any subsequent decision-making. We will deal with the two topics in reverse order.

Now for reasons not only historical, most human rights charters give only the scantiest of references to democratic rights - see, for example, Art 21 of the 1948 UN Declaration which says "Everyone has the right to take part in the government of his country, directly or through freely elected representatives," and "The will of the people shall be the basis of the authority of the government; this shall be expressed in periodic and genuine elections which shall be held by secret vote or by equivalent free voting procedures"; that's it.

Yet, perhaps more than any other factor, it was the absence of democratic rights which first led to the outbreak of the troubles. Accordingly, while rights to housing and employment are important, while the proper administration of our criminal justice system is vital, we would also argue that considerable emphasis should be given to our democratic rights. Which, might we suggest, should be based on the following.

Democracy is for everyone. Such a theory, few would dispute. Yet democratic practice flouts this principle in almost every jurisdiction on the planet, because most people in most countries believe in, or at least practice and do not question, majority rule. We all know minority rule is inadequate, for few monarchs and even fewer dictators could be described as benevolent.

What many do not realise, however, is that majority rule is not, ipso facto, right. They accept that "the will of the people" may be impossible to determine, so they resort to "the will of the majority"; they do not realise, however, that a majority opinion cannot be established by majority vote; indeed, in many instances, resort to the latter is little better than an act of manipulation. To take the case of the 1997 Welsh referendum as an example, an instance which has been used by The de Borda Institute, there is only one definite conclusion which can be drawn from the results of that vote, because it was a two-option only ballot: it is not that "the Welsh wanted devolution", it is that "Tony Blair wanted the Welsh to want devolution."

So, in many instances, majority voting is inappropriate if not actually wrong. And yet there have been all too few opponents of this very adversarial form of decision-making: Sir Arthur Lewis8 was one of those few. He criticised majority rule and suggested the principle meaning of democracy is that "all who are affected by a decision should have the chance to participate in making that decision either directly or through chosen representatives"9. In the wake of a majority vote, the majoritarian would say they did participate, they just lost, that's all.

In many instances, however, minorities do not participate; indeed, they do not even vote, because they know they are bound to lose. The 1973 border poll was a prime example, when the sdlp organised a nationalist boycott of that poll10. In effect, if the minority is not allowed to influence the choice of question, which in most instances is the ways things are done, then they do not, and cannot, participate in the decision. In most instances, of course, the majority of the majority does not participate to any definite extent either.

Admittedly, in the Belfast Agreement, we now see a 'new' form of majoritarianism in the consociational arrangements for the workings of the Assembly. It, however, is still majoritarian. Instead of the Unionists out-numbering the Nationalists, it is a case of the "moderates out-voting the extremists". Furthermore, the vote itself is not a means of identifying the chosen policy. All that sort of work is done beforehand, in rooms no longer so full of smoke, but no more transparent for that!

The consociational methodology is a huge improvement on the simple majoritarianism it has superseded, and we do not wish to belittle the achievements of the Belfast Accord. It is a pity, however, that similar improvements were not devised for the electorate as a whole, which the Agreement stipulates is still to have simple majority voting or referendums. There again, consociational voting in a general vote throughout Northern Ireland would have required separate voting registers, and doubtless this would have caused a human rights outcry! The Assembly methodology, they therefore decided, could not be used by the electorate at large.

Decision-making
In light of all of the above, we suggest that, on most contentious issues, the democratic process should not involve a majority-versus-minority confrontation. Rather, it should involve an accommodation, and this principle can only be upheld, of course, if all concerned agree to work within a human rights framework.

A collective decision should be based on a compromise from a range of opinions, all of which are regarded, in human rights terms, as 'reasonable'. In our own constitutional conflict, this would suggest that ‘integration with the United Kingdom’, ‘integration in a united Ireland’, and many other possibilities - devolution, federal options, independence and so on - are (or at least were) all ‘reasonable’, while deportation of one section or the other is (and was) not ‘reasonable’.

As noted above, such a compromise or accommodation cannot be identified by the use of a majority vote. It can be confirmed by such a vote, of course, and if, via lengthy talks and so forth, the politicians identify a good compromise, the electorate could then use a majority vote to confirm that decision. Such a description might well apply to the 1998 referendum, and such could also describe those consociational procedures laid down in the Belfast Agreement for the NI Assembly.

But that is not to say there do not exist other voting procedures by which an accommodation can be identified; on this topic, as you know, the de Borda Institute has long since advocated the use of the Borda preferendum for use both in any regional poll and in proceedings in our elected chambers; we would support that proposal.

Suffice here to say that we feel any human rights legislation should stipulate, not that democracy involves the minority giving way to the majority except in fields protected by minority rights, but rather, that within a human rights culture, democratic decision-making, in all matters of controversy, should involve an accommodation, a compromise.

Finally, to return to the related topic of consultation, may we point out the obvious fact that a multi-option approach is - or should be - a sine qua non of any consultation process. If the final decision is taken on the basis of several options, if those entitled to vote then do so by expressing their preferences for all (or at least most) of those options, and if the decision is based on a points count of those preferences, an accommodation will invariably be found. Furthermore, it would be possible to conduct the entire process under conditions of full transparency.

The Right of self-determination
In the light of the above, whenever any society, and especially any pluralist society, takes a decision on its constitutional basis, there should always be at least three options on the ballot paper. Alas, as previously noted, the Belfast Agreement stipulates that Northern Ireland may be either in the United Kingdom or in a united Ireland; that only these two alternatives are possible; that there will be, that there cannot be, a compromise.

Needless to say, we in the New Ireland Group long for the day when the present border fades into the history books. At the same time, however, we long for a peaceful Ireland, and we feel a peace agreement should allow for a more gradual, a more peaceful, process of change. One obvious interim arrangement might involve a form of joint authority. As an absolute minimum, therefore, a pluralist agreement should not disallow this or other ‘reasonable’ possibilities.

At the same time, it must be emphasised that international law on this topic is in a mess! The right of all peoples to self-determination has often been quoted, and so too has it been said that all borders should be recognised. See for example, the Vienna 1993 Declaration and Programme of Action: Art 2 para 1 reads "All peoples have the right to self-determination. By virtue of that right they freely determine their political status..." At the same time, international law emphasises that this "shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states..."11

Or we could go further afield. The Moslems in 1946 had the right to set up a new country called Pakistan, but the Hindu in Islamabad in 1948 was given the fait accompli: "All of us, Moslems or non-Moslems, are Pakistanis, first and last," was how the then Prime Minister Suhrawardy described their lot, and not least because the ‘right’ to secede, if taken to its logical conclusion, would cause anarchy. Such, indeed, were the consequence in Yugoslavia. And sadly, such may yet be the fate of Indonesia.

In effect, yes, the law is a mess. First of all, what is "a people"? Are they the Tutsis in Rwanda, the Tutsis in Burundi, the Tutsis in Zaire (Congo), or just the Tutsis, full stop? Are they the Catholic Timorese as opposed to the Moslem Timorese? Are they all the Slavs living in Yugoslavia, or only those Slavs living in a part of Yugoslavia called Croatia, or only those Slavs living in a part of Croatia called the 'krajina'? If the methodology of self-determination is to be the majority vote, then, given that to every majority there is invariably a minority, the logic of the law as it stands suggests Yugoslavia will continue to splinter ad absurdam - Vojvodina, the Sandzhak, Preshevo - until every individual is an independent nation state of only one person!

Given the illogicality of it all, most observers have come to the conclusion that "the people" refers to those who are there, to-day, regardless of the historical and invariably bloody reasons which led to what is now a multi-ethnic society. What is extraordinary, however, is the fact that while so many have questioned 'the who', "the people", few have queried 'the how', the simple majority vote. As noted above, the two-option vote is often a means by which he (or sometimes she) who writes the question, then gets his way. It was true for Mr. Blair in Wales. It was true for Mr. Tudjman in Croatia. It was also true for de Gaulle in Algeria. And it was nearly true for M. Parizeau in Quebec, but because he didn't get his way, he then complained about the ethnic minority, the Cree Indians, who, in a poll of only two options, had no rights at all, of course.12 And so it goes on.

There is, therefore, a most pressing need for constitutional lawyers a) to define what is ‘a people’, and b), more importantly, to determine a more democratic and therefore more inclusive means by which a people, once established, may come to a collective decision. Given Northern Ireland’s unique history, and given the influence the institutions of our own Peace Process are now exercising in many other ethnic conflicts, we ask you to give this matter your most detailed consideration.

If required, we will try to draft a suitable wording, but given that many people still believe "Democracy works on the basis of a decision by the majority,"13 may we first ask for guidance as to just how detailed you would like any democratic rights to be.

ADOPTION OF THE NEW HUMAN RIGHTS CHARTER
Finally, you asked us to comment on how best we as a society may come to a collective decision on whatever you may draft as a final human rights charter.

Well, needless to say, we oppose any idea of a simple, all-embracing, yes-or-no, for-or-against vote. Instead, as noted by yourselves during our recent meeting, maybe the best methodology would be to give the people a choice, if and when it is necessary. On some issues, there will be little controversy, either among yourselves and/or in society at large. If such be the case, a two-option majority vote could suffice, though might we suggest a weighting of, let us say, 2/3rds. If the clause concerned then enjoys such support, it may be regarded as uncontroversial. If it fails the test, however, the topic should perhaps be revisited. Indeed, it might be wise to allow the voters to say just that, re-draft, though that could be abused; instead, therefore, allow those who wish, to supply their own draft, which they can campaign for as would any other crusaders. Consideration might also be given, as happens in some other jurisdictions, to the question of minimum turnout

In other more controversial clauses, however, there will doubtless be a number of possible wordings for what are different points of view. In such instances, we would argue, voters should be allowed to express one, some or hopefully all their preferences on the options presented and/or, again, on their own wording, and/or, on having no clause at all in the instance concerned.

There then comes the question of how those preferences are to be counted. If you rely on majority, plurality or stv voting, you will or you may allow for the possibility that a majority may dominate and a minority will lose. If, instead, you use a Borda preferendum, with full use of the partial voting law, then will it be possible to identify that wording which is the most popular for society as a whole. We would again argue for a certain threshold of support, a minimum level of consensus, and might we suggest 75%. (It should perhaps be emphasised that an x% level of consensus is not the same as an x% majority14). This figure of 75% might appear to be rather high but, when the topic is known to be controversial, such a level might well be appropriate.

In this general regard, it must be pointed out that, of the dozen or so different decision-making methodologies so far devised for multi-option voting, the Borda preferendum is the only non-majoritarian procedure and the only one in which, therefore, the outcome depends upon the preferences of every voter (and not just upon those of a majority).

There may be those who will argue that the use of such a voting procedure is new, and should not be imposed by yourselves on an unaccustomed populace. May we therefore point out that it was first proposed in the year 1435 by a certain Nicholas Cusanus15. Majority voting, on the other hand, is even older, and goes back at least to the ancient Greeks. We think it's time to move on.

Peter Emerson,
Member, Exec. Committee.

Wes Holmes.
Hon. Sec., New Ireland Group

Notes

1. Social and Economic Rights Working Group Report, Jan. 2001, p 21.
2. ibid. p 3
3. nihrc Draft Strategic Plan, p 13
4. Our Common Future, The Bruntland Report, p 174
5. Op. cit., p 21
6. The Growth Illusion, Richard Douthwaite, p 194
7. ibid., p 196
8. Professor of Economics and International Affairs at Princeton University.
9. Patterns of Democracy, Arend Lijphart, p 31.
10. See also From Belfast to the Balkans, Emerson, p 62, for a whole string of 'ethnic' boycotts in Yugoslavia's referendums.
11. For a further discussion on this topic in an Irish context, see Dr. Asbjorn Eide's submission to the Dublin Forum for Peace and Reconciliation, pp 33-9; for similar thoughts on the impact of such contradictions on Yugoslavia, see Balkan Tragedy by Susan Woodward, pp 163-4).
12. Beyond the Tyranny of the Majority, Emerson, p 83.
13. 1996 Report of the Constitution Review Group, p 398.
14. see The Politics of Consensus, Emerson, pp 27-8.
15. Nicholas of Cusa and Medieval Political Thought, Paul Sigmund, p 212.

Back to top