The 4th Branch of Government
The 4th Branch of Government
The 4th Branch of Government
12/14/2014
abacrau.sbs17@nalandauniv.edu.in
Abstract
The evolution of human rights into a legal concern for the international system is both
fascinating and problematic. Fortunately, this movement allows liberal cosmopolitans to stand
for equality and the protection of individuals. These benefits however come at a cost: state
sovereignty and the moral theory behind laws come into question. Our current domestic and
international forms of legal administration are not enabled with tools to properly implement
human rights from a legal perspective. I propose to solve these dilemmas by providing a new
system of governance under which human rights are implemented as an aspect of international
law. My thesis is that our political system requires to implement an extraneous institution into
our body of federal governance. This institution will create a system of accountability between a
state`s actions, human rights violations and international law. My first chapter will explore a
philosophical interpretation of human rights and equality, which will further be analyzed from
political optics. Chapter two will be concerned with the solution I provide, and the implications
i. Ethical Framework
Before we even get the chance to discuss human rights themselves, I`d like to clarify my
interpretation of the ethical theory used to support my further argumentation. Since everyone in
the discourse of human rights supports the necessity of the discourse and a legal discussion
thereof, I will avoid the discussion of objectivism and its relation to the broader scope of human
rights theory. Thus, I will provide my own interpretation of what objectivism should mean for
The premise behind human rights advocacies is that all humans are ontologically equal.
The clearest definition of ontological equality is provided in Gould`s philosophy. She sees it as a
duty to embrace each other as beings with equal ontological worth1. In order for us to achieve
this ontological perception, we, the citizens, must be involved in a political discourse that
enables us to participate in conversations that create public policy. Everyone has the right to
participation (RCP). The question then becomes how are these structural changes improve the
ways in which there can be intelligent, ethical responses? Christiano defends the position that
the only reason why we talk about human rights in the context of the law is because we perceive
1
Gould, Carol “The human right to democracy and its global import” (p. 285-301) in Holder, Cindy and Reidy, David
“Human Rights- The Hard Questions” Cambridge Press 2014
2
Christiano, Thomas (p. 302-327) “An egalitarian argument for a human right to democracy” in Holder, Cindy and
Reidy, David “Human Rights- The Hard Questions” Cambridge Press 2014
ii. Methodology
Human rights by definition mean that they have to be universal, and enjoyed by everyone
equally3. More so, human rights logically necessitate us to have access to them, by implying the
following:
2. The political system has a moral obligation to create a system where 1 is possible
The reason I chose political optics for 2 is because human rights are the object of global
justice4. Additionally, Nash takes a (moral) realist stance towards the mechanisms of achieving
universal human rights. She not only believes that human rights can only be realized through
states, but that human rights have first come into existence (pragmatically speaking) thanks to
20th century international diplomacy and the agenda(s) of hegemonic states of that time
(respectively the US and UK). I tend to agree with her approach because I don`t see any way the
universal human rights can exist without a legal justification. Therefore, we should approach
human rights and RCP through a political framework, so we can also ensure the correct
Secondly, we ought to take a closer look at the political optics themselves. Nash argues
that when we look at how the discourse of human rights is applied in legal terms, we often see an
institutional development that embraces human rights as well. I interpret international law as the
3
Churchill, Robert Paul “Human Rights and Global Diversity” by Pearson Education, 2006 (p. 10-11)
4
Nash, Kate “The Cultural Politics of Human Rights –Comparing the US and UK” Cambridge Press 2009 (p.2-188)
fundamental theoretical basis for human rights. I believe that we should look at international law
as a tool that:
The role of the institutions is to enforce international laws both at a micro (domestic,
regional) and macro (intercontinental and global) political scale. However, this burden is shared
The issue with human rights (in application) is that it we are new to introducing applied
ethics in legal theory. Scholars are unsure about whom does this “human rights burden” fall upon
when looking at the duty of each institution/branch of government. In theory, the Supreme Court
(and European models of a Constitutional Court) have to reinforce the constitutionality of their
rule of law. The international system provides an extra layer to the question of constitutional
reinforcement. As shown by the UDHR, there are now international expectations of a state`s
behavior. In that case however, is it still the job of a domestic constitutional court to address
The international discourse of human rights adds an additional layer of complexity to the
question of state sovereignty. Since the Westphalian system, we began to ask questions
concerning the role of the state in an international federalist system5. Nash further labels the
interaction between human rights and state governments as intermestic: “legal claims to human
rights which draw on international law in national courts disrupt and sometimes re-configure
jurisdictional borders between the international and the domestic from within states”.
5
Brown, Chris “Sovereignty, Rights and Justice- international Political Theory Today” Polity Press 2002
iii. Rights Issues in the Present
Recently the Senate has released a document regarding CIA operations post 9/116. The
document recorded a worrisome amount of behaviors performed by U.S. actors that are
considered unethical. The Senate report mentions the usage of various forms of torture, and the
release of the document has caused political turmoil in the international arena. CNN reports
discuss how even North Korea and Iran consider these forms of bodily harm as a violation of
international law, and most importantly a form of human rights abuse. The people should have a
right to influence the way the United States Federal Government (USFG) conducts its operations.
I argue for the promotion of a political environment where the civil society can hold accountable
the USFG for the crimes it has committed. Otherwise, I`d say that we don`t fully get the chance
to exercise our RCP. Even though people could disagree with the rationale behind USFG actors
using torture and its ethical implications, there are two things worth discussing:
Not even apologetics would deny the truth of the previous two observations. I stand for a
political system that enables people via civic participation to communicate their concerns in an
highlighted, the best way for us to ensure and enjoy human rights is via an institutionalist/legal
6 th
Miller, Greg et al. “Senate report on CIA program details brutality, dishonesty” Washington Post, December 9
2014 www.huffingtonpost.com/2014/12/09/senate-torture-report-details_n_6295396.html
7
UDHR, Article 5
response. At this point in the debate, we have to recognize that there is a gap between what
current governments can do, and what is legally/morally acceptable. More importantly, we
should echo this concern so that we can continue to strive for the development of a peaceful
society that creates ethical responses to our policy issues. As Brown frames it, the question of
including moral theory in policy debates has been considered inferior, resulting in the exclusion
thereof. Although true, I believe that we should have a paradigm shift that also includes moral
theory. We live in a world where our ethical theories are far more advanced than the normative
advocacies behind our legal framework. Considering all the current violations of human rights,
we should look into solutions that incorporate sophisticated human rights paradigms into our rule
The question now becomes whether the solution should just be an improvement of our
Considering that the White House officials did know about these reports prior to the Senate
release8, gives us a reason to believe that simply fixing current governmental structures might
not be the correct way to approach systemic change. The lack of transparency has been an
ongoing issue in our political system, and officials fail to respect human rights and international
law. Secondly, I`d like you to recall the questions that we have today concerning the definition
8
Baker, Peter Bush Team Approved C.I.A. tactics, but Was Kept in Dark on Details, Report Says, New York Times,
Dec. 9 2014
of a state. After considering Nash`s observation on intermestic rights, we have to ask questions
in regards to the legal and cultural side of human rights once again.
worth considering. He argues that abstract universalism is not as attractive as most people make
it to seem because it can`t provide legitimacy to cultural moral claims9. Nash also agrees with
Corradetti`s issues on universalism. She furthers the debate by demonstrating a parallel between
our concept of culture and politics. The discussion takes a significant turn when Nash goes as far
as saying that politics cannot be realized without a concept of culture to begin with. Both
authors seem to agree that if our (legal) implementation of human rights isn`t culturally sensitive,
then human rights would fail to fulfill their purpose. If our human rights theory is supposed to be
universal in the sense that they should apply to everyone equally, but on the second hand we
have to also embrace a world where a notion of cultural pluralism exists, then how are human
Social theorists must create a model where we find a balance between social justice and
cultural discrepancies. I believe the key to this dilemma is to take a closer look at what relativism
could mean in this instance. A popular question for relativists tends to address the definition
itself: “relative to what?” we may ask. Corradetti`s model of universal pluralism seems to answer
this question. His perception of what cultural differences are leads him to believe that these are
relativism and universal equality in terms of the token/type model. Corradetti argues that
‘reasonable pluralism is a necessity in a truly democratic state’ (p.142). His solution is a proposal
9
Corradetti, Claudio: What Does Cultural Difference Require of Human Rights? (p. 138-146) in Holder, Cindy and
Reidy, David “Human Rights- The Hard Questions” Cambridge Press 2014
of a model which, is supposed to promote and foster international law. Secondly, Corradetti`s
vision mentions that we will only understand human rights and pluralism correctly once people
will be able to exercise their freedom of expression. I support Corradetti`s philosophy because it
is a good interpretation of what I would call the right to civic participation: a mechanism by
which people can express their views on human rights at the level of international law. Social
theorists must recognize the status of human rights in the present: although they do exist in some
sense, the legal concept of human rights does not hold too much ground. Our solutions must
contain a mechanism by which human rights are correctly enforced. For that, a bridge must be
created between people`s ability to express their human rights views, state accountability and the
international legal system. I will further argue that this bridge must involve institutional action
and a new understanding in regards to the role of states in the 21st century.
A significant step that must be made before offering the solution itself is to offer an
updated interpretation of what a state should be. Currently, states fail to respect international law,
and the citizens do not have any legislative authority to prevent the state from committing the
crime. We can also infer that once a state commits a human rights violation, the citizens
themselves cannot hold the state accountable to the normative standards of international law.
Nuremberg, the legislative authority of states has been decaying due to a power transfer to the
international system10. Therefore, we should analyze the extent to which the international
legislative umbrella should influence a state`s actions. I provide the following observations:
2. International justice is granted by the influence of international law over state law
3. In order for international law to succeed over state influence, international law must have
4. Therefore, we achieve international justice when international law can hold every state
5. Law is best enforced when there is an institution that revolves around recognizing
human rights.
Thus far, I have shown you that the solution would require an institutional establishment,
alongside with a mechanism to allow citizens to participate in the discourse equally (in a
culturally sensible manner of course). Nash stresses that human rights must first be normalized
institutionalizing a 4th branch a government within current democratic regimes. The idea has
come to me in light of the evidence showing that we need to hold states accountable for their
10
O`Neil, John: Value, Justice, and the Wilderness ideal in Sheehan, Paul: Becoming Human- New
Perspectives on the Inhuman Condition, Praeger Publishers 2003
human rights abuse. Alas, the role of the 4th branch of government will be to hold the rest of the
federal body within check when it comes to human rights cases. The bureaucratic mechanism
proposed to enforce the institutional authority is a veto from the 4th branch itself: the people. We
should understand the 4th branch as a federal institution that behaves in reaction to human rights
abuses by either the presidency, judiciary and/ or legislative branch. This reactionary ability
branch will decide whether or not a state is guilty of a human rights violation. If states would be
declared guilty, then the international legal system should punish the political figures guilty of
the human rights abuse. The model will be illustrated in the following example:
Let`s say that a police officer took the irrational decision to shoot a civilian (probably on
ground of racial profiling). By taking that action, the police officer (a governmental bureaucrat)
has violated a civilian`s fundamental right to life. Additionally, the Supreme Court would decide
that the police officer has not violated a human right; as a result, the police officer would surpass
international law, hence the police officer becomes in a state of violating global justice. If any
body of state governance would ever find such a state acceptable, then the state itself must suffer
legal consequences.
In this scenario, the 4th branch would organize a referendum: the people will have to vote on
whether or not they believe that the state has violated one of their human rights granted by
international law. If the state does end up being guilty for human rights violations, they should
suffer legal consequences (such as impeachment). There are two main counterarguments that I`d
1. What if the 4th branch launches a referendum when states don`t commit a human rights
violation, but simply want the state to get in legal issue with international law?
2. How will you ensure that international law is enough of a deterrent to improve the state`s
1. What makes human rights special, as Nash puts it, is that they win hearts and minds.
The philosophy of human rights themselves act as a catalyst for social change
because the message of them is so powerful. They simply push for the idea that all
men and women have equal worth, and the idea seems to be persuadable.
2. The international community can easily deter a state`s behavior in the status quo. A
state`s membership comes with terms and conditions, and if they fail to respect
international law, they will suffer a backlash from the international community
We now have the definition of what a state should be: a median between international
law and its national citizens. The state`s most fundamental role is to ensure the preservation
and, enjoyment of the human rights provided by international law. The state exists because
the people want it to exist, and the members of the state should follow consequences if they
disobey human rights in the process of creating policy (either foreign or domestic). Our
Linear Federalism: International law human rights National Regimes public policy people
Under the model of the 4th branch of government, the relationship changes between a
Triangular Federalism:
International Law
The European Union is the best example of what superstates are supposed to be: an intra-
regional, continental body of governance that provides laws to its member states, as well as
economic plans and a cultural aspect of “continental membership” – as evidenced by the idea
of euro citizenship and the “we are all Europeans” movement. The reason why we need these
sensible way. These superstates fulfill Corradetti`s vision of universal pluralism. We allow
interpretations of how these human rights should be implemented, becomes a burden that
The role of the superstates is to “culturaize” the human rights discourse proposed by
international law. The superstates are supposed to unify the affiliated countries within a
similar to the EU in North and South America, Africa, Asia and the Pacific. I recognize that
Union” per se. South-eastern Asians might have an overall different culture from East
Asians. Since the role of these superstates is to culturally unify these states and give them an
identity under the eyes of international law, then these superstates might have to be
subdivided in some continents. Similarly to the domestic model of policy management, we
observe a linear relationship in the status quo. My international model changes these policy
International Law
Member states
Conclusion
Human rights have become a symbol for international justice. They have helped us
understand a deeper connection between people, and they helped us understand that we require a
unitary system of governance under which, we are all considered equal citizens. Currently,
human rights face the issue of lack of implementation. The international system and national
governments have been struggling with both the theory and application of human rights. My
solution, the 4th branch of government attempts to create the systemic change necessary for
human rights to flourish in the future. The 4th branch of government is solving today`s human
1. Redefines what the state should mean and do in relation to human rights
3. The 4th branch contributes to the protection of human rights and international law
It is finally time for moral theory to be included in international law. There are some
necessary steps of development in the process, and even achieving the 4th branch of government
seems like an ambitious goal for our current political system. We require further research to
understand the extent to which international activist movements and globalization influence our
awareness and normative acceptance of human rights. On the bright side, authors such as
Corradetti and Nash give us reasons to believe that human rights are slowly becoming a
significant issue when looking at normative public policy and the international system. As
Brown argues, the Nuremberg trials were a significant step towards an international sentiment of
intolerance towards irrational violence and human rights abuses. Institutions and democratic
states have been an important contributor to the development of the human rights discourse, and
Baker, Peter Bush Team Approved C.I.A. tactics, but Was Kept in Dark on Details, Report Says,
Brown, Chris “Sovereignty, Rights and Justice- international Political Theory Today” Polity
Press 2002
Christiano, Thomas (p. 302-327) “An egalitarian argument for a human right to democracy” in
Holder, Cindy and Reidy, David “Human Rights the Hard Questions” Cambridge Press 2014
Churchill, Robert Paul “Human Rights and Global Diversity” by Pearson Education, 2006 (p. 10-
11)
Corradetti, Claudio: What Does Cultural Difference Require of Human Rights? (p. 138-146) in
Holder, Cindy and Reidy, David “Human Rights- The Hard Questions” Cambridge Press 2014
Gould, Carol “The human right to democracy and its global import” (p. 285-301) in Holder,
Cindy and Reidy, David “Human Rights the Hard Questions” Cambridge Press 2014
Miller, Greg et al. “Senate report on CIA program details brutality, dishonesty” Washington
details_n_6295396.html
Nash, Kate “The Cultural Politics of Human Rights –Comparing the US and UK” Cambridge
O`Neil, John: Value, Justice, and the Wilderness ideal in Sheehan, Paul: Becoming Human- New
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)