Th is chapter will discuss several misconceptions about the teaching and learning of moral judgment. It will then consider the use of the dilemma as a teaching and learning tool in the development of moral judgment. Moral judgment as the term is used here will be synonymous with the term moral reasoning. We are concerned with how people think about ethical aspects of life and behaviour.

Five ideas will be subject to critical review. The idea that moral judgment is not founded upon ordinary reasoning – that there is any distinction in kind between the reasoning that is used in ethical discourse and the reasoning that is used in other types of reasoning. The idea that ethical or moral reasoning is in some way radically subjective and therefore is incapable of leading to robust conclusions or progress. The idea that moral reasoning or moral judgment is merely a capacity for ex post facto rationalisation of actions taken for other reasons, whether ethical or non-ethical, and is therefore not causative. The idea that professional ethics must be ‘categorical’ and that this is because they are ‘ethics’ and that such is characteristic of ethical reasoning. Finally, that the assessment of moral reasoning poses no peculiar problems, because it is the assessment of a cognitive process and understanding just like any other subject matter – and is no more problematic than assessing the understanding of section 1 of the Law of Property Act 1925.

FIVE COMMON MISCONCEPTIONS

IS MORAL REASONING DIFFERENT FROM REASONING?

The first misconception is founded in a prejudice in favour of formal logic as a model for reasoning. Ethical reasoning is fundamentally about action. It is therefore in this respect un-reducible to premise and conclusion. Ethical reasoning is about both why one acts and the consequences of one's acts. However, the importance of each type of consideration is disputed. Ethical discourse is, therefore, subject to radical re-framing of the issues, and no demonstrable and conclusive argument is plausible for many ethical disputes. Ethical reasoning is about the ‘rightness’ or ‘wrongness’ of actions.

Chapter 1 was concerned with the values academics and educational institutions should bring to higher education generally and legal education specifically. It argued that a concern to align education to the interests of students was a primary ethical duty. Chapter 2 tried to demonstrate why the responsibility for such alignment could not be left to the market, via consumer choice, and why we had good reason to suppose law students are unable to thrive under our current system. Hence, suggesting that we need to consider how to re-align legal education with the interests of students in the common law world. This chapter tries to identify generally acceptable legal values that can be used to inform legal education. Obviously, the lack of any unitary value system in modern society makes this task more difficult. Two types of value are sought below.

First, I try to identify values that can be used to evaluate legal systems. These are substantive values that must be justifiable from a perspective outside the legal discourse. Values that are wholly internal to the legal system risk collapsing into self-congratulatory rationalisation of the law and legal practice. However, internalisation of values should not debar them from being used to evaluate the system; it would be self-defeating to oppose the adoption of valid criteria of evaluation because they were being used by the system being evaluated.

Second, I try to identify values generated by the legal system. Specifically, I consider values generated by the intermediary nature of law and legal practice. These values are likely to reflect the wholly internal criteria of excellence that the discipline recognises. They inform legal educational practice already. The nature of the links between system value and educational practice are oft en poorly articulated. An attempt is made to explore why and how educational practice can and does recognise these values.

Thus, the focus of this chapter is not subject matter. It is not concerned with the substantive law, or legal processes, or legal problems to be studied. Although the matters dealt with may suggest specific topics for study this is not the purpose of the discussion. The problem is to identify external and internal sources for values, and to identify the values that these sources provide.

The duty of an educator of children to impose educational practices based upon his conception of the best interests of the children in his care can be justified by the inability of the children to know their own best interests. Immaturity entails inability to judge. Obviously, this argument has more or less force at different times and in different circumstances. An educator in higher education is dealing with adults, people who can be assumed to know what their own best interests are. Therefore she cannot justify her action in imposing her educational practice upon the immaturity of her students. There are obviously other justifications for the power of the educator to determine the curriculum and educational practice of higher education. However, the dissimilarity from educational practice in schools raises two possible arguments that need to be considered, and that are familiar from institutional educational discourses. First, we are involved in adult education so we should respect the choices of students as adult consumers. Second, we are educating adults so we should be able to assume the students can look out for his or her own self-interest. Each argument attempts to shift responsibility from the educator, at institutional or at individual level, to the people being educated. Hence each raises the question: is it the duty of educators to care what is in the best interests of students?

This question is fundamental to the ethics of educators in the tertiary sector. Higher education does more than educate individual students. It is the site of research activity, it transmits cultural values, and it provides apprenticeships for the scholarly disciplines. Legal education also provides support for professional practice, and plays a regulatory role in the legal services market. Higher education is an important economic activity, and plays an important role in legitimising social status and supporting social mobility. These are important and legitimate concerns for those active in tertiary education. It is far from straightforward or simple to determine what might be in the best interest of students. Therefore it is tempting to shift this responsibility onto the students’ shoulders. This chapter attempts to explain why this temptation should be resisted.

This book moves from the general to the specific and from the theoretical to the illustrative. Hopefully, it also manages to keep the general and theoretical grounded in practical concerns with illuminating examples; and to keep the illustrative more than merely anecdotal but truly illustrative of more general concerns. Th us, it is both theoretical and anecdotal throughout. Nevertheless, the centre of gravity shift s as the book progresses.

Part I is the most general or theoretical of the three parts that make up the book. It attempts to frame the evaluative task and set up aspirational values for practice in legal education. Within Part I itself there is a narrowing of focus. Chapter 1 is concerned witheducational values; chapter 2 with ubiquitous contemporary arguments as applied to legal education; and chapter 3 with the values that might hope to be generally agreed upon as fitting for legal educational practice.

Chapter 1 addresses the values of those who educate. It is addressed to academics generally as well as legal academics specifically. It is addressed to institutions and support staff as well as to academics. The modern university is a collective enterprise, and the duties on educators must fall across institutions; we must try to avoid the moral blindness of compartmentalisation of role in the workplace. One central value is critical openness: a value-informed higher education must operate within a pluralist frame of reference. The specific values argued for include a respect for truth and clarity in expression, but also awareness of the importance of university for students as a place where they form their personal identities. Emphasis is given to trying to identify and serve the needs of the students as people, despite the din from voices asserting a legitimate, if not determining, interest in higher education in general and legal education in particular.

Chapter 2 is short and limited in scope. It tries to explain why the language of ethical duty, or fiduciary care, is appropriate in adult education. Modern public discourse is dominated by the claims of the market to resolve most if not all public concerns.

This book is a book about the uses of values in legal education. The primary concern is with legal education as an educative enterprise. This leads to a focus upon the development of the student of law. The first value articulated, and indeed endorsed, is that educational practice should be aligned with the interests of the law student first and foremost. Therefore, the focus of this book is the impact of legal education upon the law student.

An alternative approach to legal education is to make alignment with the demands of the profession or society the primary task of legal education:

We will return to competing ideals for legal education below. For now it is sufficient to note that this view comes from North America where law school delivers a three-year full-time post-graduate programme, and there is no further professional stage (such as the Legal Practice Course or the Bar Professional Training Course) nor any compulsory work based apprenticeship stage (such as the Training Contract or Pupillage).

Although this book has wider concerns than just the undergraduate law degree (the LLB) in the UK, and freely uses evidence from other sources, the undergraduate degree is the institutional background to the book. This is because it is the area where the author has most experience. Therefore, the default law student is an undergraduate at a British university reading for a degree in law.

The value of alignment advanced here is not empty, and could be contested, as indeed it is by some concerned with professional education specifically.

INTRODUCTION

To be able to place the findings of the previous Chapter in the light of disaster response, the framework as described in the first Part of this research will be included. This allows to see the obligations found for article 2(1) in the broader context of obligations on accepting humanitarian assistance. The three steps of the legal framework are the primary role of the affected state, the initiation or triggering of international humanitarian assistance, and the acceptance of international humanitarian assistance. The obligations of article 2(1) are placed in this framework to see how much room individual state parties receive to fulfil their obligations individually and when article 2(1) prescribes that states must look for international assistance and cooperation. As the last step, it will be considered how article 2(1) sets standards on accepting international assistance.

Apart from placing the findings of the previous Chapter in the light of disaster response and applying them on the substantive rights of the ICESCR, this Chapter will address a question that has remained unanswered so far. In Chapter II it was explained that derogation from human rights obligations is possible during the existence of a ‘state of emergency’, at least under the ICCPR. Before looking at disaster-specific obligations for state parties to the ICESCR, it would not be superfluous to first establish to what extent state parties to the ICESCR may derogate from their obligations in (post-) disaster obligations. Section 2 will provide an answer to this question. Next, in section 3, the findings of the previous Chapter will be considered in the context of disaster response resulting in an overview of the general obligations that states must adhere to immediately after a disaster. With these results, the rights to housing, food, water and health will be analysed in section 4 to find out whether any concrete standards can be identified that dictate the behaviour of state parties in the response to a disaster.

INTRODUCTION

Disasters have devastating effects on the lives of people. The occurrence of a disaster can kill thousands in an instance, injure many others, damage homes and destroy livelihoods. Reconstruction takes a long time and the traumas last even longer. Natural disasters will not cease to exist and their impact appears to be ever growing. It is therefore of great importance that the response to a disaster is as effective and adequate as possible. If the disaster is too large for the affected state to cope with, other states, international organisations and NGOs are usually willing to assist. Although there is no guarantee that the situation of disaster survivors will greatly improve by external assistance, such help could be the difference between suffering due to a lack of supplies and being able to obtain at least the most basic resources. Nonetheless, some states affected by a disaster refuse international humanitarian assistance. They do this for a variety of reasons, a decision which can aggravate the effects of the disaster. Public international law offers hardly any instruments explicitly directing states’ behaviour regarding humanitarian assistance in response to a disaster. This research has therefore aimed to answer the following question:

To what extent does public international law contain standards for affected states determining whether they must accept international humanitarian assistance after the occurrence of a disaster?

As a first part of the research, a number of (legal) instruments and documents has been selected which potentially can be used to find clues for answering the main research question. Together with an analysis of the past attempts to organize the response to disasters on the international level, the consideration of fields of international law, resolutions, guidelines and other instruments has resulted in an overview of legal rules and principles depicting where the law on accepting humanitarian assistance in response to a disaster currently stands. Based on this a framework is designed departing from the primary role of the affected state and giving three steps for initiating and accepting international humanitarian assistance, together with three limitations of the affected state's freedom to withhold consent. Next to that, these findings have been placed in the light of and have been confronted with practice to determine what nuances, details and difficulties exist in the application of the rules ‘in real life’.

INTRODUCTION

Disaster strikes

Disasters will always have certain consequences in terms of casualties, injuries, and material damage, although the degree varies from one disaster to another. It is up to the state on which territory the disaster takes place (that state will henceforth be referred to as the ‘affected state’) to address these consequences. In some cases, the damage as a result of the disaster is so severe that a state needs assistance from others – like states, international organisations, NGOs or a combination of these – to respond to a disaster and to work on reconstruction. The earthquake that struck Haiti in 2010 provides a clear example of a disaster where international assistance was needed and requested by the state.

In the late afternoon of 12 January 2010, an earthquake with a magnitude of 7.0 Mw struck Haiti, its epicentre lying about 25 kilometres from Port-au-Prince. Not only due to the enormous scale of the disaster but also because it is one of the poorest countries in the Americas, Haiti found itself struggling to cope with the consequences of the earthquake. The damage was indeed of massive proportions. Over 200.000 people were killed and many homes were destroyed along with the capital's main infrastructure. Survivors tried to find refuge with relatives in the countryside or – in most cases – found shelter in refugee camps. For the distribution of tents, water and food the refugees were largely depending on international humanitarian aid, delivered with the permission of Haiti's government.

Not in all disasters is the affected state willing to make use of aid offered by international actors. When the Italian city of L'Aquila was hit by an earthquake in 2009, the Italian government made clear that international assistance for reconstruction was not required. The L'Aquila earthquake, which struck on 6 April at 3:32 am local time with a magnitude of 6.3 Mw, killed over 300 people and made around 55,000 people homeless. Many buildings in the historic centre of the city were damaged. The total cost of the earthquake was estimated at 2.5 billion US dollars and yet – at the time – Prime Minister Silvio Berlusconi stated that ‘Italians were “proud people” and had sufficient resources to deal with the crisis’. Italy did therefore not make use of offers of aid made by international actors.

INTRODUCTION

The goal of this Chapter is to illustrate the practical application of the rules that determine when an affected state moves from responding individually towards initiating the process of international humanitarian assistance and to giving consent to such assistance. As established in the previous Chapter, the legal framework on accepting humanitarian assistance in response to a disaster consists of three steps or layers. Underlying these three steps is the primary role of the affected state in responding to a disaster as a consequence of the sovereignty of the state. Due to this role, the affected state must in the first place make a needs-assessment (1). Based on this needs-assessment, the affected state must decide whether international humanitarian assistance is required and if so, the process of obtaining such assistance must be triggered (2). After valuing the offers of assistance available, the affected state must accept or decline these offers (3). At this stage, consent to offers of international humanitarian assistance may not be withheld for arbitrary reasons, when it would result in the violation of rules of international (human rights) law, or when the national capacity is overwhelmed.

The legal framework is established based on an analysis of the main (legal) sources on humanitarian assistance and disaster response. It is based on a theoretical understanding of what is expected of states. By looking at the way the legal framework is applied in practice, it is possible to further identify any problems and gaps that may exist. This way, it can be established whether the set of rules found in the previous Chapter is specific enough to speak of clear obligations for states to accept international humanitarian assistance. If not, it can be determined where the difficulties lie.

First, the individual response by the affected state will be discussed. The affected state is responsible for reacting to the occurrence of a disaster and must decide whether international aid is needed. If an affected state decides to accept international assistance, such assistance can be initiated through a request by the affected state or through an offer by another actor. The processes of initiation will be discussed in section 3. Accepting international humanitarian assistance is the point where the requirement of consent becomes visible. The role of consent will be explained in the fourth section.

The goal of the present research is to find out to what extent public international law contains standards for affected states determining whether that state must accept international humanitarian assistance after the occurrence of a disaster. A legal framework has been identified based on the legal sources relating to humanitarian assistance and disaster response. This legal framework consists of three steps or sequences.

Point of departure is the primary role of the affected state. It is not the occurrence of a disaster that instigates the existence of the primary role: responsibilities towards the own population follow from sovereignty and are also present when there is no disaster. The aspects of the responsibilities a state has towards its own population that are prompted by the occurrence of a disaster relate to humanitarian assistance. As a first step the affected state makes a needs assessment within the first seventy-two hours and determines whether it has the capacity to answer to these needs or whether additional assistance is required.

The second step is to trigger international humanitarian assistance if necessary, which must follow from the needs-assessment. International humanitarian assistance is necessary when the national capacity is overwhelmed or when a rule of international law is violated by withholding consent. At this stage, there is no obligation to actually accept: affected states only have a duty to seek assistance by actively making requests or by going through the offers already made. The goal at this stage is to value the offers made to the affected state to see whether they are acceptable. This is determined by the content of the offer (is what is being offered needed in the affected state according to the needs-assessment? Is what is being offered useful for the particular situation at hand?) and by the form of the offer (does the offer meet the humanitarian principles?). Considering each individual offer and accepting what is needed can take much time. It is more efficient to issue a concrete request or multiple requests for the relief the affected state needs, based on the needs-assessment. In either case it is necessary to make the moment of acceptance explicit and foresee the acceptance of the necessary detail. This is the third step.

Consent to international humanitarian assistance has major legal implications. Consent makes acts that would otherwise violate principles of sovereignty and territorial integrity legal.

INTRODUCTION

Whenever a disaster occurs, the affected state responds by coordinating and delivering assistance. In situations where the affected state's capacity is overwhelmed, international actors are usually willing to assist. Problems arise when the affected state is unable (or unwilling) to adequately respond to a disaster and refuses to accept international humanitarian assistance. There is no explicit legal framework on humanitarian assistance in disaster response explaining to what extent states should accept international humanitarian assistance. A variety of sources of international law can nonetheless be identified which contain rights, rules and principles on state action after a disaster took place. Within this legal framework, principles of state sovereignty, non-intervention, non-interference and territorial integrity grant the freedom to an affected state to determine which aid is needed after a disaster and to decide which international actors are allowed to cross the borders of its territory to provide assistance.

Considering that the affected population is suffering even more in the aftermath of a disaster when the affected state refuses to accept international humanitarian assistance and does not adequately respond itself and taking into account that the largely scattered legal framework is not helpful here, this research answers the following question:

To what extent does public international law contain standards for affected states determining whether the affected state must accept international humanitarian assistance after the occurrence of a disaster?

To answer this question, the (legal) instruments containing pieces of the puzzle have been analysed resulting in a framework of rules on accepting international humanitarian assistance. These findings have been placed in the light of the practice of disaster response to determine to what extent they constitute clear standards for states. Here it was found that the rules are not concrete enough for this purpose and the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been identified as the most promising solution to this problem. Therefore, it is analysed what standards can be derived from the ICESCR.

Throughout the study, examples of disaster situations have been used to illustrate points made. These cases do not together form a case study.