CYIL vol. 12 (2021)

martin šolc CYIL 12 (2021) The problem with utilitarianism consists in the fact that it does not provide clear boundaries for human behaviour. On the individual level, for example, the utilitarian demands on the involvement in charity might be deemed unrealistic or even harmful. More dangerous may be its tendency to allow the sacrifice of important values (including human lives) if it (presumably) led to the “greater good”. The same is true on the level of whole nations (or the international system). After all, one of the controversial episodes from the history of utilitarianism is its use for the justification of colonialism by some classical authors including J. S. Mill. 16 For practical reasons, utilitarianism seems to be in need of certain well-defined limits. In international law, utilitarianism and deontology are combined in an organic system. Fundamental rights need to be respected in themselves, not because of their consequences in particular situations. To this extent, the human rights system might be considered deontological (it is literally based on the obligation to respect the rights of others) – but not absolutely. A strongly deontological approach can typically be found in relation to the prohibition of torture. In international law documents, torture is prohibited absolutely. The United Nations’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Article 2(2) makes it explicitly clear that “[ n ] o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture ”. Torture is also absolutely prohibited by Article 3 of the European Convention on Human Rights. At the same time, it is not difficult to imagine hypothetical cases when torture could provide security forces with important information on planned violent crimes, terrorist attacks, etc. In these cases, torture could bring about more happiness than suffering (since for one tortured person, who would furthermore likely not be “innocent”, many others would be saved). Hence, it would be permissible (or even required) under pure utilitarianism. If the same strictly deontological position was taken in connection with other rights, no limitations would be possible either, regardless of the consequences of their unlimited exercise. However, the utilitarian influence might be found in the fact that the exercise of most human rights is derogable. The international system of human rights protection acknowledges that there may be circumstances under which the exercise of such rights can – and should – be limited since the consequences of their application would otherwise be too demanding or harmful for other persons or society as a whole. For example, the European Convention on Human Rights subjects many of the rights guaranteed therein to certain limitations, sometimes formulated as limitations which are necessary in a democratic society for the protection of public safety, public order, health or morals, the rights and freedoms of others, or similar values. 17 In international human rights law, we may identify the combination of both utilitarian consequentialism and deontology. Both approaches are therefore relevant and permissible in this context. The question remains whether the Covid-19 pandemic led to the fading or the confirmation of utilitarianism as an important philosophical background of modern legislation.

16 See for example ibid., p. 180. 17 See Articles 8, 9, 10, and 11 of the European Convention on Human Rights.

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