Human Rights Protection vs. Reconciliation and Creating Constitutional Solidarity: Commensurate or Competing Goals?

Achieving sustainable peace and reconciliation in the wake of internal violent conflict is a laudable social goal, and vital to creating social solidarity. So is the guaranteed protection of human rights. But is there inherent conflict between the attainment of these goals?
While it might seem that the protection of human rights is commensurate with the achievement of resolution of violent conflict, there are often conflicts between the realisation of these two goals. In the long run, the sustainable protection of peace, particularly in intra-national ethnic or religious conflict, is best predicated on the equal protection of rights including non-discrimination and religious freedom. However, in the short and middle-term these are often at odds with each other. Constitutional power-sharing arrangements between two factions in a civil war are often the key to the parties’ agreement to the peace settlement.

Solidarity as a Constitutional Value

The article examines how constitutions define and perceive solidarity. I look at constitutionally entrenched notions of domestic, trans-national, and cosmopolitan solidarity. I argue that solidarity is the basis of the mutual commitments that exist in a political community, and that in order to ensure that such commitments are defined and imposed in a just manner, it is important to recognize how the boundaries of the solidarity group are defined, who is included and who is excluded from such group, and what the nature of solidarity in a given community is. Constitutional law, I argue, plays a role in shaping these boundaries. Finally, I argue that although constitutional solidarity may intuitively be expected to endorse only intra-state solidarity – solidarity among members of the political community – constitutions can and do endorse notions of trans-national solidarity. I thus argue that constitutionalism can be an important source of bottom-up transnational and global solidarity.

Of law, ethics and the limits or not of solidarity

The coronavirus pandemic (Covid-19) has forced millions of people around the globe to adapt their lifestyle into the new reality of quarantines, accompanied by emotional and apocalyptic headlines of deaths, therapies and conspiracy theories. Numbers have replaced human lives and political leaders are forced to exercise judgment in a decisive way, while taking decisions that literally affect the lives of common people. The production of effective vaccines and the appeal of some leaders and experts to make them a global public good has fundamentally questioned the essence of global justice.
Within this context the current contribution purports to understand the extent of the concept of solidarity from a legal dimension while highlighting the importance of ethical leadership as a tool of global governance. In this endeavour the paper will build upon doctrinal and jurisprudential developments examining the limits and potentials of solidarity in the fight for global justice.

Bottom-up Transnational Solidarity: A Typology

In her work on solidarity as a constitutional value, Tamar Hostovsky Brandes suggests that constitutional law can be a source of cultivating transnational solidarity from below, “bottom-up”, and that domestic constitutional endorsement of transnational solidarity can cultivate a commitment to solidarity rooted in the state’s own values and culture. This paper explores the category of “bottom up” transnational solidarity more broadly to suggest a typology of cases in which domestic courts and constitutions employ local values to express and shape commitments towards outsiders. Whether the commitments are expressed as reciprocal among states, between states and individuals, or among individuals, bottom-up constitutional expressions of transnational solidarity are characterized by various collective values, and driven among others by: cosmopolitan, regional, religious, socialist, de-colonial and neo-liberal commitments to outside groups and individuals.