Even though this is a blog for international law, I was invited to provide my perspective from political philosophy and media studies on the issue of civil disobedience. My article represents a normative understanding of civil disobedience from a radical democratic philosophical perspective that values civil disobedience as a contesting democratic practice rather than seeing it as a disruption of unquestionable legal order. The main intention of this article is not only to strengthen the interdisciplinary debate about new forms of civil disobedience, but to discuss political and institutional options that address recent deficits – for instance in political cases of whistleblowing, as I will argue.
What history shows though is that civil disobedience is not essentially a problem of law but reflects political deficits which are sometimes but not always manifested in law. This article is looking for a holistic approach to improve the handling of cases of civil disobedience with international impact. What would contribute to a fair procedure of evaluation and how can a substantial and reliable protection for cases that further democratic politics be promoted?
From national to transversal disobedience
Civil disobedience is an act of political participation, which can neither be solely determined by one certain justification nor by one certain action. History showed multiple variations in both. Nevertheless, most definitions of civil disobedience propose a minimal common understanding that regard it as a form of principle-based protest which is carried out by intentionally breaking the law and aims to influence laws or political measures (cf.Celikates 2010: 280). Current practices of civil disobedience transcend the national framework as a point of reference. This is not merely an intellectual challenge to researchers but more importantly calls for concrete norms, rules and procedures being translated into international institutions.
Following the diverse power structures of global markets and governance, dissidence in general and civil disobedience in particular are increasingly directed towards these new configurations of multi-level governance which may include nation states but also regional and private actors. Bentouhami observes civil disobedience today as a „transversal“ movement that consists of a wave of attention and concern, carried by political participation around a specific topic rather than state borders or international relations.
The meaning of the word „civil“ in civil disobedience no longer implies the belonging to a certain state as in “state citizen”. A new philosophical understanding of “civil” that reflects the tendency of current practices may offer a more adequate from in a more general sense, as a belonging to civil society, regardless of nationality.
“International law has gradually set up a potential situation of crisis for itself by increasingly portraying itself as a law focused on the promotion of basic human rights for all or, at least, as a law that is ultimately destined to benefit individuals (Megret 2008, 189).” Stepping up to this intention also means to recognize acts of civil disobedience with international impact not only as a valuable source of critique but a potential for transformation.
From the perspective of political philosophy Whistleblowing can be seen as a special but also controversial form of “epistemic civil disobedience” (Kumar 2013, 155) as far as it addresses political questions. The fact that the law aims to provide protection to whistleblowers for certain justifications and in specific contexts does not curtail the initial disobedient act of whistleblowing as a risky and complicated act that comes with a lot of personal sacrifices. Even from a legal perspective this indicates that whistleblowing is forbidden as long as these justifications and this context does not apply.
For political power, secret information has become a highly influential value that made the conflict between transparency and secrecy one of the paradigmatical ones of our information society. The multitude of whistleblowing platforms, such as publeaks.org,wikileaks.org, globalleaks.org or wildleaks.org make it clear that we are not dealing with single incidents but with a serious and enduring political tactic of opposition against unjust secrecy.
A prominent timely example is the case of Edward Snowden. It raises the question of a necessity for a transnational approach to face cases of civil disobedience whose reach is of international relevance concerning human rights. The Snowden documents, which uncovered the severe mass surveillance by the NSA, clearly have an international law dimension. The lack of transparency and control of security agencies like in this case does not only concern every state, but even more every human being and the relation of the international community as a whole.
As this case exemplifies, legal systems are only to a certain extend able to reinvent themselves as necessary to detect their own flaws and failure – on the national as well as on the international level. Today’s world is struggling with severe democratic deficits, and civil disobedience – as Arendt put it – can be one essential cure. How activist and dissidents who act in the name of democratic values and human rights can be protected on an international level is one of the decisive questions of our near future concerning the maintenance and strengthening of human rights.
How could international law make a change?
This question is directed to the readers of this blog. Nevertheless, I want to introduce several ideas that are worth a discussion in my opinion:
One proposal is the idea of a European asylum for whistleblowers (as demanded by the whistleblower network Germany under point 188.8.131.52.3) and potentially for other dissidents.
The Council of Europe made recommendations for all European member states for whistleblower protection and national laws for the protection of whistleblowers have been introduced in many countries during the last ten years. Nevertheless, their proposed protection is too limited and their effectiveness relies on their implementation and the will to enforce them.
Another interesting proposal is an international arbitration board for whistleblowers and other cases of civil disobedience with international impact and a human rights dimension.Edward Snowden and the former MI5 employee Annie Machon promote this idea, as she stated on the international Whistleblower Conference. Snowden thought about the implementation of such an arbitration board as part of the international Court of Justice in Den Hague. An important factor is its independence from national law, which could enable a fair public hearing, discussion and evaluation of each individual case.
In 1970 Hannah Arendt already proposed an institutional integration of civil disobedience in governance processes (not its legality) (Arendt 2012: 299, 319). For Arendt, an institutional integration meant a protection of civil disobedient actors from marginalization and demonization – which could promote the value that these activists have for the political discourse.
The Snowden case is a historical caesura even though he is in good company of other whistleblowers of the past and surely of the future. Protection for Edward Snowden probably can’t be achieved by a further discussion of this matter. Due to the retrospective discussion, his asylum is no longer a question of principles, but a very sensitive question of foreign policy. Even more then, precautionary and general changes for the protection of future dissidents and civil disobedient on an international level are urgently needed.
photo: Martin Börjesson